Archive for the ‘U.S. Supreme Court news’ Category

Supreme Ct. to focus on business cases in October term

Tuesday, July 11th, 2006

NEW YORK ( — The U.S. Supreme Court may be in recess until the fall, but Corporate America is already keeping a close eye on a number of influential business cases on the high court’s docket for next term.

Corporate appeals were long neglected by the Supreme Court, leaving the business world to rely on the sometimes vague rulings of the lower appeals courts.

But under Chief Justice John Roberts – once a corporate attorney himself – the high court has again shined a spotlight on corporate concerns, granting review to over a dozen business-related appeals since last term.

And while legal observers are hesitant to call the Supreme Court’s decision to take on such a caseload “pro-business,” there is a feeling that the court’s sudden interest in business litigation will help shape the direction for corporations going forward.

All eyes on punitive damages ruling
One case, in particular, is already generating buzz and could impose stricter limits on punitive damages, easing the liability burden for corporations, said Richard Samp, chief counsel at public interest law firm Washington Legal Foundation.

In Philip Morris v. Williams, Mayola, the high court will decide whether a jury overstepped its authority by ordering tobacco giant Philip Morris – a unit of Altria (Charts) – to pay plaintiffs $79.5 million in punitive damages due to the smoking-related death of Jesse Williams, a three-pack-a-day smoker.

According to a 2003 State Farm ruling by the high court, punitive damages should be reasonable and proportionate to the actual damage incurred, but didn’t specify a set ratio between punitive and actual damages for determining what would be considered excessive.

Williams’ family sued the company in Oregon, citing misconduct in the way the tobacco industry marketed cigarettes to the public and sought to undermine concerns about the dangers of smoking. Claimants were awarded $800,000 in compensatory damages but punitive damages were almost 100-times that amount.

That hefty award raises the issue of whether a company’s conduct can be considered so reprehensible that a court can award punitive damages that are far in excess of the actual compensatory damage incurred by an individual.

The Philip Morris case could help clarify for lower courts what factors may be used to determine punitive damages and set a standard for awarding damages to plaintiffs.

“There is little doubt that this is the most important case before the Supreme Court,” Samp said.

Judging the “duh” factor among patents
But one pending patent law case is also expected to have a broad implications for the business community.

KSR v. Teleflex tackles an age-old question plaguing the patent industry – when is an invention so obvious that it doesn’t warrant a patent?

The Supreme Court will determine whether the Federal Circuit erred when it said that Teleflex, which patented a gas pedal design, could sue Canadian-based company KSR for patent infringement – even though KSR claimed that the patent was so obvious that anyone could have come up with the idea.

Currently the Federal Circuit, which was created in 1982 to specifically deal with patent cases, says that challengers must prove that others of ordinary skill could have come up with similar ideas based on the “teaching, suggestion or motivation” of prior inventions.

But that standard has long been criticized because it makes it too difficult to prove that an invention is obvious and allows inventors to obtain patents for ideas and creations that may not deserve to be patented.

“If the Supreme Court determines that the standards are too high right now, it would raise the bar of patentability,” said Sharon Barner, a partner at law firm Foley & Lardner. “You would have fewer patents coming out (and) it would impact investment in innovation.”

Barner said patents that were already granted could be struck down for not truly being innovative, and that would make corporations that were heavily invested in research and development think twice before funding certain projects or ideas.

In turn, that could impact industries such as biotech and software, which are heavily reliant on patents.

Antitrust cases on the docket
Antitrust cases figure prominently on the agenda, with legal observers keeping a close watch on a lawsuit that claims some of the nation’s major telephone carriers conspired to carve up the market amongst themselves in order to create mini-monopolies that worked against consumers.

Bell Atlantic Corp. v. Twombly will test whether the high court sides with lower courts in determining that a case can go forward into the discovery stage of litigation even when there’s no direct evidence against the defendants.

The consumers bringing the case against the carriers cited “parallel conduct,” or similar practices, in the way the phone companies, which include AT&T (Charts), Verizon (Charts) and Qwest (Charts), conducted business and set prices. They asked the courts to allow them discovery in order to build a case.

The tussle between the telephone companies and consumers has the potential to be huge for companies because it could determine what criteria a plaintiff needs in order to sue, said Jeff Lamken of law firm Baker Botts.

“There is a fair amount of concern that if you allow someone to say ‘I think there’s a conspiracy’ without a sufficient reason to derive an inference, you could end up with massive amounts of litigation over cases that are frivolous,” he said. “When you’re talking about millions of documents during the discovery procedure, going through litigation can be ruinously expensive.”

Another antitrust case has raised concern from the business community, as well as the Bush administration, which asked the Supreme Court to weigh in on whether Weyerhaeuser violated antitrust laws by engaging in “predatory buying.”

In Weyerhaeuser v. Ross-Simmons Hardwood Lumber, Ross-Simmons Hardwood – a now defunct saw mill – claimed that Weyerhaeuser paid more to hoard alder saw logs in order to create a monopoly on the timber and drive competitors out of business.

Lower courts awarded Ross-Simmons $78.7 million in damages but legal experts expect the Supreme Court to overturn that verdict.

Washington Legal Foundation’s Samp said a previous case case called Brooke Group v. Brown & Williamson Tobacco Corp., created a two-part criteria for predatory pricing which shows that the company accused of having a monopoly lost money in the short-term from lowering its prices and would have to raise the price of a product significantly down the road to make up for the loss – a practice which would damage consumers.

But in Weyerhaeuser’s case, the company paid a higher price to buy the raw materials but continued to make a profit. Without direct proof that the company paid more specifically to drive out competition, Samp said he believed the high court will likely overturn the lower court’s verdict.

And that has broad implications for what constitutes a violation of antitrust law.

The Supreme Court traditionally returns to session on the first Monday in October.
By Shaheen Pasha, staff writer  July 11 2006: 1:15 PM EDT

Can FDA preempt state laws on drug companies Failure to Warn

Sunday, July 9th, 2006

Joseph Colacicco’s wife, Lois, slashed herself to death with razor blades in 2003 while taking the antidepressant Paxil, painting her final thoughts in blood in their bathroom: “Thanks.”

“She felt it was over, finally,” Colacicco said of his wife’s mental torment. “She had no inkling it was because of Paxil. The pharmaceutical companies fooled the public, fooled me, fooled my wife.”

Colacicco’s accusation stands out not just because it is tragic. His lawsuit has become a front-line case in the Bush administration’s efforts to rein in claims against pharmaceutical companies, with tens of millions of dollars at stake on both sides.

Colacicco’s claim that GlaxoSmithKline P.L.C. and Apotex Inc., maker of generic Paxil, failed to warn patients in 2003 about Paxil’s suicide risks was dismissed last month in U.S. District Court in Philadelphia, where GlaxoSmithKline has a U.S. headquarters.

The dismissal was based partly on the newly articulated argument that the U.S. Food and Drug Administration alone is accountable for what is, and is not, written on prescription-drug warning labels, preempting any judge or jury. Under that principle, an FDA-approved warning label is the last word on safety, and courts shouldn’t second-guess it.

Lawyers on both sides say such FDA preemption on prescription-drug warnings, if upheld, could block many “failure to warn” claims against drug companies. Such claims constitute many, although not all, of the infractions alleged in tens of thousands of pharmaceutical liability lawsuits each year.

Since 2000, the FDA had asserted the principle only in legal briefs in isolated lawsuits, not as an agency policy.

Now the principle is codified in the preamble of the FDA’s new drug-labeling code, which was published in January and took effect June 30. Brandishing the preamble in recent months, drug companies have papered courtrooms nationwide with motions to dismiss failure-to-warn claims.

Most of the motions have failed. On June 6, New Jersey Superior Court Judge Carol E. Higbee denied Merck & Co. Inc.’s motion seeking dismissal of a Vioxx case, calling the FDA preamble “a political statement.” On May 31, U.S. District Judge Joseph Bataillon, in Nebraska, rejected Pfizer Inc.’s motion in a case involving its antidepressant Zoloft, saying that the FDA had contradicted its own past positions and that Congress had never given the agency preemption power over courts in prescription-drug cases.

But on May 25 in Philadelphia, U.S. District Judge Michael M. Baylson threw out Colacicco’s claim. In a broad ruling, Baylson said courts should defer to the agency’s scientific expertise and regulatory authority. It is this deference that other judges have rejected.

“It is not the function of this court, or for a jury empaneled to decide this case, to substitute its judgment for the FDA’s about medical issues,” Baylson wrote.

He added: “Ultimately, this court believes it is far more desirable that the important issues presented by this case, indeed tragic in its facts, are better addressed by elected officials, legislative and executive, than by appointed judges.”

Colacicco, of Long Beach, N.Y., appealed to the U.S. Court of Appeals for the Third Circuit in Philadelphia, taking the lead in a jurisdictional dispute that attorneys predict will not end until it hits the U.S. Supreme Court.

GlaxoSmithKline, which denies that Paxil led Lois Colacicco to kill herself, “believes the agency is in the best position to know what should or should not be in a label,” said Andrew Bayman, a GlaxoSmithKline defense attorney from the Atlanta firm King & Spalding.

But Colacicco’s attorneys, Derek Braslow and Harris Pogust of Conshohocken, said the FDA lacked the resources, punitive powers, and political support to protect every patient or prosecute drug companies that obscured data. Pogust noted that the FDA changed the label last year and ordered suicide warnings on Paxil, Zoloft and similar antidepressants.

“We really don’t blame the FDA” for safety problems, Pogust said. “But what they’re doing now with preemption is outrageous. They have no business in civil litigation.”

If Colacicco’s case doesn’t get to the Supreme Court, others are right behind, lawyers noted. Pfizer has filed preemption motions in at least a dozen pending cases involving Zoloft, it said.

In one federal case in Philadelphia, a North Wales couple, Tom and Kathy Woodward, say their 17-year-old daughter, Julie, hanged herself in the family’s garage after seven days on Zoloft.

The Woodwards have accused Pfizer of suppressing suicide-risk information, and Tom Woodward scoffed at the idea that the FDA alone could protect the public, offering his own insights as a former marketing-promotions consultant for drug companies.

“I would hear them talk about doctors in a very negative way, about the FDA in a very negative light,” said Woodward, owner of a small consulting firm, the Pathway Group. “The FDA is always going to be one, two, three steps behind the drug companies.”

Pfizer rejected the claim that Zoloft caused Julie Woodward to take her life in 2003. It insisted the elevated risk of suicide among some patients had not been proved until later, when the FDA responded by changing the label.

“If Pfizer had included a warning of any such association at that time, the Zoloft label would have been false and misleading under federal law,” said Malcolm E. Wheeler, Pfizer’s Zoloft defense lawyer from the Denver firm Wheeler Trigg Kennedy L.L.P.

Wheeler and Bayman said the FDA preamble was significant because, for the first time, it comprehensively spelled out the FDA position on litigation over drug labels, including excessive warnings.

“Patients may be discouraged from using important, potentially lifesaving treatments if the lawsuit-generated warnings are more severe than the neutral medical and scientific experts at FDA consider warranted,” Wheeler said.

Critics scoff at the drug companies’ suggestion that, if not for the FDA, they voluntarily would put extra warnings on their products.

“It’s a naked power grab for the industry, and I think the courts are seeing through it,” said Leslie Brueckner, staff attorney at Trial Lawyers for Public Justice, a Washington-based group that helps plaintiffs suing drug companies.

The sides are divided on the potential impact of preemption, a policy initiated by former FDA chief counsel Daniel Troy, who stepped down in 2004 and returned to corporate defense work.

“This will end failure-to-warn claims,” said Pogust, who represents Colacicco and the Woodwards.

One member of Congress, Rep. Maurice Hinchey (D., N.Y.), has introduced legislation to limit the FDA’s ability to preempt state consumer-protection laws.

But Wheeler called the fears “a Chicken Little argument.” He said preemption would be “helpful” but not significant in reducing lawsuits because it would not affect fraud, faulty-design or negligence claims.

Eric G. Lasker, a pharmaceutical defense lawyer at Spriggs & Hollingsworth in Washington, said preemption would “not do away” with litigation but might provide some relief.

“Prescription-drug litigation now is a huge financial issue, and it’s driving a lot of what drug companies have to do,” Lasker said.

Colacicco himself said he agreed there were too many “frivolous lawsuits.” But the pro-Bush registered Republican and entrepreneur said preemption might go too far.

“I do believe we have to support our pharmaceutical companies. But they have to be true to us, as well,” Colacicco said.

Legal Basis for Drug Firms’ Motions

Pharmaceutical companies cite the Food and Drug Administration’s statement on preemption in its new labeling rules as a basis for dismissing lawsuits that assert the firms failed to warn patients about drug risks.

Excerpts from FDA statement

“FDA believes that State laws conflict with and stand as an obstacle to achievement of the full objectives and purposes of Federal law when they purport to compel a firm to include in labeling or advertising a statement that FDA has considered and found scientifically unsubstantiated.”

Court rulings “can erode and disrupt the careful and truthful representation of benefits and risks that prescribers need to make appropriate judgments about drug use.”

Example of preemption

The FDA offers six examples of lawsuit claims that it says its rules should preempt. Here is one:

“Claims that a drug sponsor breached an obligation to warn by failing to include in labeling or in advertising a statement, the substance of which FDA has prohibited in labeling or advertising.”

Other claims are allowed

“The Supreme Court has held that certain state law requirements that parallel FDA requirements may not be preempted.”

SOURCE: U.S. Food and Drug Administration

Litigation Inoculation By Thomas Ginsberg
Inquirer Staff Writer

U.S. Supreme Court ruling supports Stumbo argument that witness pardoned by Fletcher can not assert 5th. Amendment on basis of possible Federal prosecution

Thursday, July 6th, 2006

 The United States Supreme Court in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964) concluded that a witness who was granted immunity from prosecution in a state criminal action, could be compelled to testify, and that the witnesses argument that he was entitled to assert his 5th. Amendment rights against self-incrimination did not apply, because any subsequent  prosecution by the Federal government could not use the testimony compelled by the state court against the witness in the federal prosecution.  See excerpts from this case below.

In an article published on July 6th. the Louisville Courier Journal  stated:
Attorney General Greg Stumbo has asked a judge to decide whether witnesses at Gov. Ernie Fletcher’s criminal trial may refuse to testify despite a pardon that protects them from prosecution.

Stumbo’s office yesterday submitted a list of 68 people prosecutors could call who might invoke their Fifth Amendment right against self-incrimination. Kentucky criminal procedure does not allow lawyers to call a witness they know will take the Fifth.
Stumbo is arguing that people who have been pardoned are immune from prosecution and therefore cannot incriminate themselves, so they are not eligible to invoke that right.

Lawyers representing some of the people on the list said that when Fletcher issued the pardon last August, Stumbo decried the move and said he had been in touch with the FBI about possible federal crimes.

“As long as these folks have the cloud of a potential federal investigation looming, they certainly have the right to claim the Fifth Amendment,” said Frankfort lawyer Guthrie True, who represents six people on the potential witness list who refused to testify before the grand jury that indicted Fletcher.

True said Stumbo’s request is “overbroad” and should be examined to see whether prosecutors acted in good faith to include only those people who are relevant to the case.

In his motion to Franklin District Court, Stumbo asks Special Judge David Melcher to conduct “dry run” hearings on potential witnesses, asking them questions that could come up during trial and determining whether they could legitimately refuse to testify.

“It is the court that must decide whether witnesses that may be called by the Commonwealth may ‘hide behind an imaginary or unappreciable danger or risk’ and invoke the Fifth Amendment in light of the immunity granted by a full gubernatorial pardon,” Stumbo’s filing states, quoting from a 1959 Kentucky Supreme Court case.

Stumbo’s filing addresses the potential for federal prosecution by citing a 1964 U.S. Supreme Court case that states witnesses who are immune from state prosecution can’t have their state testimony used against them in a federal prosecution.

Fletcher has been indicted on three misdemeanor counts of conspiring to place political supporters in civil-service jobs that are supposed to be filled on merit. He pleaded not guilty, and his trial is scheduled for Nov. 8.

Frankfort lawyer Paul Harnice represents Fletcher’s former chief of staff, Daniel Groves, and Fletcher’s former personnel adviser, Basil Turbyfill. Both are on the list, but Harnice would not say whether his clients would plead the Fifth if called to testify.

Harnice said he would advise any client to be wary of saying much if there’s a federal investigation afoot.

“Caution is the better part of valor in that type of situation, especially when you have an attorney general that’s not going to stop at anything,” he said.

Stumbo’s office declined comment yesterday, citing instructions by Melcher that lawyers in the case limit their public comments to statements contained in official court filings.

Fletcher excluded himself from his pardon, and he took the Fifth during his appearance before the grand jury.

Citing Melcher’s instructions, Fletcher lawyer Kent Westberry declined to say whether Fletcher would refuse to testify at trial. Westberry said he had not seen Stumbo’s latest filing.

Corbin lawyer Howard Mann, who represents Transportation Secretary Bill Nighbert, also declined to comment on whether his client would refuse to testify.

“It wouldn’t surprise me if any number of the witnesses did in fact plead the Fifth, based on the attorney general’s comments, which were widely disseminated in the press,” Mann said.

University of Kentucky law professor Bob Lawson said Stumbo has a “pretty good argument” that pardons preclude people from pleading the Fifth.

But the caveat, Lawson said, is whether a potential witness could be prosecuted under another jurisdiction, such as in federal court.

The U.S. Supreme Court has upheld the concept of “use immunity,” which would not stop a person granted state immunity from being prosecuted under federal law, but would prevent any testimony that person gave from being used against them in a federal proceeding, Lawson said.

“The court will have to look at those cases and decide whether or not they are under any real threat of incrimination,” Lawson said.

Reporter Elisabeth Beardsley can be reached at (502) 875-5136.

By Elisabeth J. Beardsley
Reprinted from The Courier-Journal

Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964)

Petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor concerning a work stoppage at the Hoboken, New Jersey, piers. After refusing to respond to certain questions about the stoppage on the ground that the answers might tend to incriminated them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York.2 Notwithstanding this grant of immunity, they still refused to respond to the questions on the
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ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not purport to extend. Petitioners were thereupon held in civil and criminal contempt of court. The New Jersey Supreme Court reversed the criminal contempt conviction on procedural grounds but, relying on this Court’s decisions Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, 2 L.Ed.2d 1393; Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408; and United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, affirmed the civil contempt judgments on the merits. The court held that a State may constitutionally compel a witness to give testimony which might be used in a federal prosecution against him.3 39 N.J. 436, 452—458, 189 A.2d 36, 46—49.

          Since a grant of immunity is valid only if it is coextensive with the scope of the privilege against self-incrimination, Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, we must now decide the fundamental constitutional question of whether, absent an immunity provision, one jurisdiction in our federal structure may compel a witness to give testimony which might incriminate him under the laws of another jurisdiction. The answer to this question must depend, of course, on whether such an application of the privilege promotes or defeats its policies and purposes.
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                            I. THE POLICIES OF THE PRIVILEGE.

          The privilege against self-incrimination ‘registers an important advance in the development of our liberty—’one of the great l ndmarks in man’s struggle to make himself civilized.” Ullmann v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511.4 It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,’ 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ United States v. Grunewald, 2 Cir., 233 F.2d 556, 581—582 (Frank J., dissenting), rev’d 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931; our distruct of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty,’ is often ‘a protection to the innocent.’ Quinn v. United States, 349 U.S. 155, 162, 75 S.Ct. 668, 673, 99 L.Ed. 964.

          Most, if not all, of these policies and purposes are defeated when a witness ‘can be whipsawed into incriminating himself under both state and federal law even though’ the constitutional privilege against self-incrimination is applicable to each. Knapp v. Schweitzer, 357 U.S. 371, 385, 78 S.Ct. 1302, 1310 (dissenting opinion of MR. JUSTICE BLACK). This has become especially true in our age of
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‘cooperative federalism,’ where the Federal and State Governments are waging a united front against many types of criminal activity. 5
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          Respondent contends, however, that we should adhere to the ‘established rule’ that the constitutional privilege against self-incrimination does not protect a witness in one jurisdiction against being compelled to give testimony which could be used to convict him in another jurisdiction. This ‘rule’ has three decisional facets: United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, held that the Federal Government could compel a witness to give testimony which might incriminate him under state law; Knapp v. Schweitzer, 357 U.S. 371, 78 S.Ct. 1302, held that a State could compel a witness to give testimony which might incriminate him under federal law; and Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, held that testimony thus compelled by a State could be introduced into evidence in the federal courts.

          Our decision today in Malloy v. Hogan, supra, necessitates a reconsideration of this rule.6 Our review of the pertinent cases in this Court and of their English antecedents reveals that Murdock did not adequately consider the relevant authorities and has been significantly weakened by subsequent decisions of this Court, and, further, that the legal premises underlying Feldman and Knapp have since been rejected.
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          In light of the history, policies and purposes of the privilege against self-incrimination, we now accept as correct the construction given the privilege by the English courts17 and by Chief Justice Marshall and Justice Holmes. See United States v. Saline Bank of Virginia, supra; Ballmann v. Fagin, supra. We reject—as unsupported by history or policy—the deviation from that construction only recently adopted by this Court in United States v. Murdock, supra, and Feldman v. United States, supra. We hold that the constitutional privilege
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against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law.

          We must now decide what effect this holding has on existing state immunity legislation. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, this Court considered a federal statute which provided that no ‘evidence obtained from a party or witness by means of a judicial proceeding * * * shall be given in evidence, or in any manner used against him * * * in any court of the United States * * *.’ Id., 142 U.S., at 560, 12 S.Ct., at 197. Notwithstanding this statute, appellant, claiming his privilege against self-incrimination, refused to answer certain questions before a federal grand jury. The Court said ‘that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect.’ Id., 142 U.S., at 585, 12 S.Ct., at 206. Applying this principle to the facts of that case, the Court upheld appellant’s refusal to answer on the ground that the statute:

          ‘could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a crim nal proceeding in such court. * * *’ id., 142 U.S., at 564, 12 S.Ct., at 198,

          that it:

          ‘could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted. * * *’ ibid.,

          and that it:

          ‘affords no protection against that use of compelled testimony which consists in gaining therefrom a
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          knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party.’ Id., 142 U.S., at 586, 12 S.Ct., at 206.

          Applying the holding of that case to our holdings today that the privilege against self-incrimination protects a state witness against federal prosecution, supra, at 77—78, and that ‘the same standards must determine whether (a witness’) silence in either a federal or state proceeding is justified,’ Malloy v. Hogan, 378 U.S., at 11, 84 S.Ct., at 1495, we hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits.18 This exclusionary rule, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.

          It follows that petitioners here may now be compelled to answer the questions propounded to them. At the time they refused to answer, however, petitioners had a reasonable fear, based on this Court’s decision in Feldman v. United States, supra, that the federal authorities might use the answers against them in connection with a federal
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prosecution. We have now overruled Feldman and held that the Federal Government may make no such use of the answers. Fairness dictates that petitioners should now be afforded an opportunity, in light of this development, to answer the questions. Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344. Accordingly, the judgment of the New Jersey courts ordering petitioners to answer the questions may remain undisturbed. But the judgment of contempt is vacated and the cause remanded to the New Jersey Supreme Court for proceedings not inconsistent with this opinion.

          It is so ordered.

          Judgment sustained in part and vacated in part and cause remanded with directions.

          Mr. Justice BLACK concurs in the judgment and opinion of the Court for the reasons stated in that opinion and for the reasons stated Feldman v. United States, 322 U.S. 487, 494, 64 S.Ct. 1082, 1085, 88 L.Ed. 1408 (dissenting opinion), as well as Adamson v. California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903 (dissenting opinion); Speiser v. Randall, 357 U.S. 513, 529, 78 S.Ct. 1332, 1344, 2 L.Ed.2d 1460 (concurring opinion); Bartkus v. Illinois, 359 U.S. 121, 150, 79 S.Ct. 676, 695, 3 L.Ed.2d 684 (dissenting opinion); and Abbate v. United States, 359 U.S. 187, 201, 79 S.Ct. 666, 674, 3 L.Ed.2d 729 (dissenting opinion).

           Mr. Justice HARLAN, whom Mr. Justice CLARK joins, concurring in the judgment.

          Unless I wholly misapprehend the Court’s opinion, its holding that testimony compelled in a state proceeding over a witness’ claim that such testimony will incriminate him may not be used against the witness in a federal criminal prosecution rests on constitutional grounds. On that basis, the contrary conclusion of Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408, is overruled.

          I believe that the constitutional holding of Feldman was correct, and would not overrule it. To the extent, however, that the decision in that case may have rested
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also on a refusal to exercise this Court’s ‘supervisory power’ over the administration of justice in federal courts, I think that it can no longer be considered good law, in light of this Court’s subsequent decision Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. In Elkins, this Court, exercising its supervisory power, did away with the ‘silver platter’ doctrine and prohibited the use of evidence unconstitutionally seized by state authorities in a federal criminal trial involving the person suffering such a seizure. I believe that a similar supervisory rule of exclusion should follow in a case of the kind now before us, and solely on that basis concur in this judgment.


Supreme Court ends term with a bang

Tuesday, July 4th, 2006

 WASHINGTON (CNN) — The U.S. Supreme Court ended its 2005-2006 term on Friday with a blockbuster ruling that limits a key weapon in the Bush administration’s war on terror.

Click on the issues below to find out rulings on key cases.

Terrorism/military tribunals  
Texas redistricting
Assisted suicide
Military recruiting
Property rights/wetlands
Religion and drugs
Campaign finance reform
Abortion notification
Search and seizure
Foreign criminals’ rights
Workplace speech
Death penalty/lethal injection
Tax credits 
Terrorism/military tribunals

Hamdan v. Rumsfeld
At issue: Rights of accused foreign terrorists held overseas and facing military tribunals.

Ruling: 5-3 (reversed) for Hamdan. June 29, 2006.

Summary: In a blow to executive authority, the justices strongly limited the power of the Bush administration to conduct military tribunals for suspected terrorists imprisoned at the U.S. Navy base in Guantanamo Bay, Cuba.

Majority quote: “We conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the (Uniform Code of Military Justice) and the Geneva Conventions.” — Justice John Paul Stevens

Minority quote: “Our duty to defer to the executive’s military and foreign policy judgment is at its zenith; it does not countenance the kind of second-guessing the court repeatedly engages in today.” — Justice Clarence Thomas

Texas redistricting
League of United Latin v. Perry; Travis County v. Perry; Jackson, Eddie v. Perry; GI Forum of Texas v. Perry

At issue: Whether 2003 congressional redistricting plan was partisan gerrymandering, and whether states can remake congressional map twice in the same decade when a valid plan is already in place.

Ruling: 7-2 (affirmed) for Texas on the overall congressional map; 5-4 (reversed) for League of United Latin that District 23 improperly diluted the voting strength of Latino voters, in violation of the Voting Rights Act. June 28, 2006.

Summary: The overall redistricting plan engineered by state Republicans was found to be proper, but a portion of the controversial Texas congressional map was tossed out.

Majority quote: “The text and structure of the Constitution and our case law indicate there is nothing inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own.” — Justice Anthony Kennedy

Minority quote: “By taking an action for the sole purpose of advantaging Republicans and disadvantaging Democrats, the state of Texas violated its constitutional obligation to govern impartially.” — Justice John Paul Stevens

Assisted suicide
Gonzales v. Oregon

At issue: Whether federal authority trumps state law allowing doctors to prescribe lethal doses of medicine to help terminally ill patients end their lives.

Ruling: 6-3 (affirmed) for Oregon. January 17, 2006.

Summary: In a setback to Bush administration claims of federal authority, Oregon’s physician-assisted suicide law was ruled constitutional.

Majority ruling: “The idea that Congress gave the attorney general such broad and unusual authority through an implicit delegation in the [federal law's] registration provision is not sustainable… The importance of the issue of physician-assisted suicide… makes the oblique form of the claimed delegation all the more suspect.” — Justice Anthony Kennedy

Minority ruling: The government earlier claimed the voter-passed referendum had “no legitimate medical purpose.” “If the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death.” — Justice Antonin Scalia

Military recruiting
Rumsfeld v. Forum for Academic and Institutional Rights

At issue: A free speech dispute over whether universities may ban military recruiters from campus.

Ruling: 8-0 (reversed) for Rumsfeld. March 6, 2006.

Summary: Colleges must allow military recruiters on campus, or risk the loss of federal funds.

Majority ruling: “Nothing about recruiting suggests the law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies… The Solomon Amendment therefore does not violate a law school’s First Amendment rights. A military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message.” — Chief Justice John Roberts

Property rights/wetlands
Rapanos v. United States and Carabell v. Army Corps of Engineers

At issue: Whether federal wetland regulators went too far restricting development far from protected waterway.

Ruling: Ruling: 5-4 (reversed) for Rapanos. June 19, 2006.

Summary: Limited the reach of federal regulators to block private development that might affect water quality, an important property rights dispute. But the justices failed to agree on the broader issue of whether the government’s reach extends to tributaries that feed a maze of larger so-called “navigable” waterways.

Majority ruling: “In applying the definition to ‘ephemeral streams,’ ‘wet meadows,’ storm sewers and culverts, … man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term ‘waters of the United States’ beyond parody.” — Justice Antonin Scalia Majority

Concurrence: “Important public interests are served by the Clean Water Act in general and by the protection of wetlands in particular.” Majority opinion “seems unduly dismissive of the interests asserted by the United States in these cases.” — Justice Anthony Kennedy

Minority ruling: “While there may exist categories of wetlands adjacent to tributaries of traditionally navigable waters that, taken cumulatively, have no plausible discernible relationship to any aspect of downstream water quality, I am skeptical.” — Justice John Paul Stevens

Religion and drugs
Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal

At issue: A church’s efforts to use a hallucinogenic tea, containing a banned substance, in its religious services.

Ruling: 7-0 (affirmed) for church. February 21, 2006.

Summary: Sided with a New Mexico church’s efforts to use a hallucinogenic tea, containing a banned substance, in its religious services, a defeat in the federal government’s aggressive anti-drug stance.

Majority ruling: “Congress has determined that courts should strike sensible balances. The government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the (church’s) sacramental use of hoasca,” the tea central to this case. — Chief Justice John Roberts

Campaign finance reform
Randall v. Sorrell; Vermont State Republican Comm. v. Sorrell; Sorrell v. Randall

At issue: Three consolidated disputes over the constitutionality of state limits on campaign finance and spending limit laws.

Ruling: 6-3 (reversed) for Randall. June 26, 2006.

Summary: Struck down Vermont’s strict limits on state campaign spending limits, finding the laws unfairly violate the free speech rights of candidates to raise money and publicize their views.

Majority ruling: “We consequently agree with the district court that the act’s contribution limits ‘would reduce the voice of political parties’ in Vermont to a ‘whisper.’ ” — Justice Stephen Breyer

Minority ruling: Authors of the Constitution “would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities.” — Justice John Paul Stevens

Abortion notification
Ayotte v. Planned Parenthood of Northern New England

At issue: Is a state law requiring parental notification for minors seeking abortion too restrictive?

Ruling: 9-0 (vacated) for Ayotte. January 18, 2006.

Summary: Stopping short of a major ruling on abortion, the justices handed a temporary victory to officials in New Hampshire over the state’s parental notification law, ordering a lower court to reconsider its rejection of the legislation. The high court concluded that a federal appeals court went too far by blocking enforcement of the law requiring minors to notify their parents before receiving an abortion. The lower court found it was unconstitutional because it did not have a health exception for pregnant women facing a medical emergency. The law has never gone into effect as the case was appealed. The ruling from the high court essentially bypassed the larger question of whether such laws are an unconstitutional “burden” on women’s access to the procedure.

Majority ruling: “We do not revisit our abortion precedents today, but rather address a question of remedy.” The lower court “chose the most blunt remedy — permanently enjoining the act’s enforcement and thereby invalidating it entirely.” But she noted, “Under our cases it would be unconstitutional to apply the act in a manner that subjects minors to significant health risks.” — Justice Sandra Day O’Connor, in her last authored opinion

Search and seizure
Georgia v. Randolph

At issue: May police search homes for drugs, when occupants disagree over consent?

Ruling: 5-3 (affirmed) for Randolph. March 22, 2006.

Summary: Ruled against police in a dispute between a husband and wife over a search for illegal drugs in their home, an important case testing the limits of law enforcement discretion.

Majority ruling: “A warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable.” — Justice David Souter

Minority ruling: “We should acknowledge that a decision to share a private place, like a decision to share a secret or a confidential document, necessarily entails the risk that those with whom we share may in turn choose to share — for their own protection or for other reasons — with the police.” — Chief Justice John Roberts

Foreign criminal rights
Sanchez-Llamas v. Oregon and Bustillo v. Johnson

At issue: Legal remedies for non-citizen criminal defendants who were not told of their right to contact their consulates upon arrest.

Ruling: 6-3 (affirmed) for states. June 28, 2006.

Summary: Foreigners imprisoned for serious crimes in the United States do not automatically deserve new trials even though police may fail to inform them of their right to speak with their consulates, as an international treaty required.

Majority ruling: “Although these cases involve the delicate question of the application of an international treaty, the issues in many ways turn on established principles of domestic law. Our holding in no way disparages the importance of the Vienna Convention… The relief (the criminal suspects’) request is, by any measure, extraordinary.” — Chief Justice John Roberts

Workplace speech
Garcetti v. Ceballos

At issue: Public employees rights to speak out on job-related issues.

Ruling: 5-4 (reversed) for Garcetti. May 30, 2006.

Summary: Government workers who blow the whistle on alleged illegal conduct do not deserve First Amendment protection that would automatically shield them from discipline from their bosses.

Majority ruling: Rejected the idea “that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties. Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” — Justice Anthony Kennedy

Minority ruling: “Private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policy.” — Justice David Souter

Death penalty/lethal injection
Hill v. McDonough

At issue: Whether a death row appeal based on the “cocktail” of chemicals used in lethal injection is a sufficient last-ditch argument to stop a pending execution.

Ruling: 9-0 (reversed) for Hill. June 12, 2006.

Summary: Death row inmates were given another powerful procedural tool to challenge their executions by a lethal “cocktail” of chemicals.

Majority quote: “Hill’s challenge appears to leave the state free to use an alternative lethal injection procedure.” — Justice Anthony Kennedy

Tax credits
DaimlerChrysler Corp. v. Cuno and Wilkins (Ohio Tax Comm.) v. Cuno

At issue: How states may use financial incentives, such as investment tax credits, to lure companies to build car plants and other projects.

Ruling: 9-0 (vacated) for DaimlerChrysler. May 15, 2006.

Summary: Taxpayers have no standing to challenge nearly $300 million in tax breaks Ohio’s elected officials used to entice DaimlerChrysler Corp. to build a new plant in Toledo. Ruling avoided larger question of whether tax incentive programs are constitutional. It could have had a significant impact nationally because nearly every state uses billions of dollars in tax breaks to attract companies.

Majority ruling: “A taxpayer-plaintiff has no right to insist that the government dispose of any increased revenue it might experience as a result of his suit by decreasing his tax liability or bolstering programs that benefit him. To the contrary, the decision of how to allocate any such savings is the very epitome of a policy judgment committed to the ‘broad and legitimate discretion’ of lawmakers.” — Chief Justice John Roberts

Probate jurisdiction
Vickie Marshall v. Pierce Marshall

At issue: Limits of federal court jurisdiction over estate disputes.

Ruling: 9-0 (reversed) for Vickie Marshall. May 1, 2006.

Summary: Former Playboy model Anna Nicole Smith’s (using her real married name in court filings) can continue her fight to claim a large part of her late husband’s vast business holdings, after the justices ruled federal bankruptcy courts do have a role, however limited, to play when state probate courts are hearing the same case. The so-called “probate exception” normally keeps federal courts from hearing such disputes, but there is no congressional law mandating the hands-off approach.

Majority quote: “The probate exception does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction.” — Justice Ruth Bader Ginsburg

From Bill Mears
CNN Washington Bureau


Supreme Court says President exceeded authority with Guantanamo tribunals

Thursday, June 29th, 2006

WASHINGTON – The U.S. Supreme Court this morning found President Bush exceeded his powers by creating military tribunals for prisoners at the much-maligned Guantánamo Bay detention center, reining in a portion of the administration’s prosecution of the war on terrorism.

The 5-3 ruling, a setback for the administration’s aggressive anti-terrorism stance, was written by Justice John Paul Stevens, who said the proposed trials violate U.S. law and the Geneva Conventions, signed by the United States in the aftermath of World War II.

”Trial by military commission raises separation-of-powers concerns of the highest order,” Justice Anthony M. Kennedy wrote in a concurring opinion. The decision does not address whether the controversial camps should be closed, dealing only with whether the administration can pursue plans to try the detainees under the type of military trials not seen since World War II.

President Bush said he will work with Congress to find a way to try the detainees before military tribunals — and two leading Republicans suggested they’re ready to help.

”To the extent that there is latitude to work with the Congress to determine whether or not the military tribunals will be an avenue in which to give people their day in court, we will do so,” Bush said at a press availability with Japanese Prime Minister Junichiro Koizumi. “The American people need to know that the ruling, as I understand it, won’t cause killers to be put out on the street.”

Bush stopped short of saying the ruling would hasten efforts to close the prison — as many world leaders have encouraged him to do.

”We will seriously look at the findings, obviously,” Bush said, noting he’d only had a ”drive-by” briefing on the decision. “And one thing I’m not going to do, though, is, I’m not going to jeopardize the safety of the American people. People have got to understand that. I understand we’re in a war on terror; that these people were picked up off of a battlefield; and I will protect the people and, at the same time, conform with the findings of the Supreme Court.”

Republican Sens. Lindsey Graham of South Carolina and Jon Kyl of Arizona, who back Military Commissions, were quick to announce they’d help Bush with a legislative fix.

”We are disappointed with the Supreme Court’s decision. However, we believe the problems cited by the court can and should be fixed,” the two said in a joint statement.

Graham and Kyl said they found it ”inappropriate” to try terrorists in civilian courts, arguing it threatens national security and puts jurors in danger.

”In his opinion, Justice [Stephen] Breyer set forth the path to a solution of this problem,” the senators said, ‘He wrote, `Nothing prevents the president from returning to Congress to seek the authority he believes necessary.’ ”

The case was brought by Osama bin Laden’s one-time driver, Salim Hamdan, one of hundreds of men flown to the Guantánamo camps, which opened in early 2002 as a site for the United States to hold and interrogate al Qaeda and Taliban suspects flown in from Afghanistan.

The president created special Military Commissions to try 10 or more of some of the 450 captives being held there. But Hamdan challenged the legal proceedings, arguing that they violate international law and the U.S. Constitution.

Stevens agreed, writing that the commission ”lacks the power to proceed because its structure and procedures” violate both U.S. law and the Geneva Conventions.

But Justice Clarence Thomas, in a sharply worded dissent, disagreed, saying the decision “openly flouts our well-established duty to respect the executive’s judgment in matters of military operations and foreign affairs.”

The decision, Thomas noted, would ”sorely hamper the president’s ability to confront and defeat a new and deadly enemy” and he called his colleagues’ ”willingness to second-guess” the president “both unprecedented and dangerous.”

But lawyers for the detainees hailed the ruling as upholding the Geneva Conventions, which governs the treatment of prisoners of war.

”We’re looking at this with welcome hopefulness that the democratic institutions in this country are stepping forward to take their power back from a president [who] has tried to seize it for the last five years,” said Barbara Olshansky, an attorney with the Center for Constitutional Rights, which represents hundreds of detainees.

”The court has clearly stated that the president cannot invoke wartime powers to circumvent U.S. laws and international treaties that the United States has ratified,” said Amnesty International attorney Jumana Musa, who had been a Pentagon-approved observer at the commissions.

In arguments before the court in March, Neal Katyal, Hamdan’s attorney, said the Pentagon had concocted a conspiracy charge that isn’t a war crime, had ignored rights retained in the Geneva Conventions, such as prisoner-of-war status, and fell short of standards that Congress has set for how the United States conducts either military and civilian justice.

”This is a military commission that is literally unbounded by the laws, Constitution and treaties of the United States,” he told the court.

Critics have argued that the accused would be more fairly treated in the civilian courts or through a traditional military court martial.

But Solicitor General Paul Clement argued on behalf of the United States that Congress had given President Bush the power to craft the Military Commissions when it authorized the use of force after the Sept. 11, 2001, terrorist attacks. He called such commissions “part and parcel of the [presidential] war power for 200 years.”

The ruling is all but certain to increase international scrutiny and calls for the camps’ closure — pressure that has mounted following the suicides earlier this month of three captives.

Bush has acknowledged the camps hurt U.S. credibility abroad and has said he’d like to close the detention center — but warns it holds dangerous detainees who should be tried for their crimes. Others, he said, can be released, but the United States has had difficulty finding suitable countries to accept them.

The State Department has said U.S. diplomats are seeking agreements with dozens of countries to let some detainees return home, while seeking assurances from their native countries that the men won’t threaten U.S. soldiers, security or American targets.

But State Department officials said the task is complicated by a number of countries that deny the detainees are actually nationals of their countries.

And the U.S. has ruled out repatriation to some nations, including China, for fear that Muslim nationals now held at Guantánamo would be tortured if returned to the communist country.

One detainee has been returned to Iran, but the administration continues to detain two dozen Algerians, along with Iraqis, Libyans, Palestinians, Somalis, Sudanese, Syrians and Uzbeks — men from countries that are either too unstable or have human rights records that would suggest the U.S. is unable or unwilling to negotiate their return.

The Pentagon, however, announced last Saturday that it had sent 14 Saudi detainees home, the second major transfer in little more than a month.

Miami Herald staff writer Carol Rosenberg contributed to this report from Guantanamo Bay Navy Base, Cuba.



Supreme Court permits Redistricting at will of Legislatures. Requires rewrite of Latino District

Thursday, June 29th, 2006

The U.S. Supreme Court Wednesday upheld most of a Republican-engineered redrawing of congressional boundaries in Texas at the instigation of former House Majority Leader Tom DeLay (R-Texas), but it threw out part of the new map that it said discriminated against Latino voters.
In another of a series of fractured rulings – this one produced six separate opinions – the high court found nothing inherently wrong with drawing new congressional districts in mid-decade. While the 2003 Texas redistricting plan had partisan motives of increasing the Republicans’ congressional majority, the court said, it did not amount to unconstitutional political gerrymandering.

On the issue of whether part of the new map was drawn with the effect of disenfranchising minority voters in south and west Texas in violation of the Voting Rights Act, the court ruled 5-4 that such a violation occurred and ordered that it be remedied.

Justice Anthony M. Kennedy wrote the court’s opinion. Agreeing with him that part of the Texas map violated the Voting Rights Act were justices John Paul Stevens, Ruth Bader Ginsburg, David H. Souter and Stephen G. Breyer. Dissenting were the four most conservative members: Chief Justice John G. Roberts, Jr., and justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas.
On the issue of whether state legislators can redraw congressional districts at will – not just once a decade after Census figures come out, as Texas Democrats had argued – the court ruled 7-2 that they could.

The case consolidated four appeals challenging the constitutionality of various aspects of the Texas redistricting plan, which helped Republicans win a majority of seats in the 2004 congressional elections in the state and strengthened the party’s hold on the U.S. House of Representatives.

As a result of the 2000 census, Texas, the nation’s second most populous state, was entitled to two additional House seats, bringing its total to 32. The state legislature failed to agree on a new plan in 2001, triggering lawsuits in state and federal court.

A three-judge federal panel ended up drawing what it called politically neutral district boundaries to govern the 2002 congressional elections. Those elections produced a House delegation made up of 17 Democrats and 15 Republicans.

Republicans gained control over both houses of the Texas state legislature in the 2002 elections, a victory that prompted DeLay to revisit the redistricting issue. After a protracted battle with the state’s Democrats, the GOP succeeded in drawing new boundaries in 2003.

In January 2004, a panel of three federal judges rejected a Democratic challenge to the new map. The Democrats had argued that Texas could not “redistrict in mid-decade” after boundaries had already been drawn, that the GOP plan unconstitutionally discriminated on the basis of race, that it was an unconstitutional partisan gerrymander and that it violated the Voting Rights Act. They charged that the new districts broke up minority communities and merged them into largely conservative, white districts.

Going into the November 2004 elections, the Texas congressional delegation was split 16-16 between Republicans and Democrats, one of the Democrats having switched parties earlier in the year.

As a result of the new boundaries, Republicans picked up five House seats in Texas, emerging with 21-11 majority.

Among the big losers was veteran Democratic congressman Martin Frost, whose district was eliminated. Frost and other Texas Democrats claimed that the redistricting disenfranchised as many as 3.6 million black and Hispanic voters in the state.

In his opinion, Kennedy rejected the challenges to the redistricting plan as a whole, saying there were indications that partisan motives were not the entire reason for it.

The Texas legislature “does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, but partisan aims did not guide every line it drew,” Kennedy wrote.

“The text and structure of the Constitution and our case law indicate there is nothing inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own,” he said. “And even if there were, the fact of mid-decade redistricting alone is no sure indication of unlawful political gerrymanders.”

The ruling took issue, however, with the legislature’s decision to redraw congressional District 23 to protect the Republican incumbent, Rep. Henry Bonilla, who was losing support from the jurisdiction’s growing Latino electorate.

“Faced with this loss of voter support, the legislature acted to protect Bonilla’s incumbency by changing the lines – and hence the population mix – of the district,” shifting nearly 100,000 Latino voters into a neighboring district and replacing them with voters from “a largely Anglo, Republican area in central Texas,” Kennedy wrote.

“The changes to District 23 undermined the progress of a racial group that has been subject to significant voting-related discrimination and that was becoming increasingly politically active and cohesive,” said the opinion. “In essence the State took away the Latinos’ opportunity because Latinos were about to exercise it.”

Kennedy added, “The Court has noted that incumbency protection can be a legitimate factor in districting … but experience teaches that incumbency protection can take various forms, not all of them in the interests of the constituents.” The ruling said this apparent “intentional discrimination” cannot be allowed. But it did not make clear how or by whom it should be corrected before this November’s elections.

The consolidated cases appeared to produce a split among the court’s conservatives on the issue of federal courts’ jurisdiction to review gerrymandering. Justices Scalia and Thomas viewed such cases as “non-justiciable,” meaning they should be left to legislatures and kept out of federal courts. But the Supreme Court’s two newest members – Roberts and Alito, both appointed by President Bush – declined to go that far, although they did not completely close the door on such a finding.

They said the issue of justiciability was not raised and that therefore they would not opine on it. Their position left open the prospect that in a future case, they could agree with Scalia and Thomas that political gerrymandering should not be reviewed by the Supreme Court at all.

In an opinion joined by Alito, Roberts wrote that the appellants in the Texas redistricting case did not provide “a reliable standard for identifying unconstitutional political gerrymanders.” He added, “The question whether any such standard exists – that is, whether a challenge to a political gerrymander presents a justiciable case or controversy – has not been argued in these cases. I therefore take no position on that question, which has divided the Court.”

Long before the Texas redistricting case made it to the Supreme Court, six lawyers and two analysts in the Justice Department’s voting section found that it violated the Voting Rights Act by illegally diluting black and Hispanic voting power in two congressional districts, The Washington Post reported last year. But senior Justice Department officials overruled them and approved the plan. A memo written by the lawyers also said the plan eliminated several other districts in which minorities had a substantial, though not necessarily decisive, influence in elections.

DeLay, then the House majority leader, was a primary instigator of the redistricting. In October 2003, he was admonished by the bipartisan House ethics committee for his role in muscling the new boundaries through the Texas legislature. The committee expressed concern that DeLay had pressured the Federal Aviation Administration, the FBI and other federal agencies in 2003 to help locate Democratic legislators who had fled Texas in an effort to head off the redistricting by denying the state’s legislature a quorum.

DeLay was indicted last fall on conspiracy and money laundering charges in connection with corporate campaign contributions that were allegedly directed to GOP candidates for the Texas legislature in 2002 in violation of state law. The funds were intended to help the Republicans win control of the legislature so that it could then redraw the state’s congressional districts with the aim of increasing the party’s majority in the U.S. House.

Posted on Wednesday, June 28 2006 14:44:46 PDT by Intellpuke

The New York Times Leaks and The problem with Cong. Pete King’s prosecute the media approach.

Tuesday, June 27th, 2006

By Andrew C. McCarthy

Anger over the leaking of national-defense information by the media may have hit critical mass with the exposure, by the New York Times and other newspapers, of the Terrorist Finance Tracking Program. Since this highly effective counterterrorism tool was compromised last Friday, President Bush and Treasury Secretary Snow have spoken out forcefully in protest, and many commentators — including here at National Review Online — have argued that this rhetoric must be matched by strong corrective action.
But what action? New York Republican congressman Peter King boldly contends it’s time for a real nuclear option: an investigation and prosecution directly targeting the New York Times.

This suggestion is appealing, at least at first blush. The Times is a recidivist offender. And one not only without contrition (as executive editor Bill Keller’s weekend letter indicates) but which has announced a standard — its own perception of the “public interest� — that arrogates to itself the unilateral power to decide which of the nation’s vital secrets will be protected.

Understandably, the King proposal has won several adherents. But it would be a serious tactical error. From the standpoint of national security, the most urgent imperative here is to stop the leaks. The fatal flaw in the King approach is that it would ultimately result in more leaking and, ironically, a less successful prosecution.

Rep. King is right … in theory. There is a law under which a case against the press could be brought: the Espionage Act of 1917. The pertinent provision is codified at Section 793(e) of the federal penal code. I wrote about it here, in connection with the Washington Post’s compromise of overseas terrorist detentions.

We must, however, confront a hard reality. No one gets a medal for being right. Being right doesn’t necessarily carry the day where the law is concerned. Getting five votes in the Supreme Court does. And there simply are not five votes on the current Court in favor of an interpretation of the Espionage Act that would hold journalists liable. (Caveat: As Gabriel Schoenfeld compellingly argues in Commentary, a prosecution of the Times for the leak of the NSA’s Terrorist Surveillance Program is more promising because a different, narrower statute, Section 798, applies to wrongful disclosures of signals intelligence.)

Some argue that the Supreme Court’s decision in the famous Pentagon Papers case — presciently entitled New York Times Co. v. United States (1971)—stands for the proposition that, while the press may not be subjected to prior restraints against publication, they are vulnerable to subsequent prosecution if what they publish violates the law. This assertion, though, is built on a very thin reed. Strictly speaking, Pentagon Papers is a prior-restraint case—the issue of subsequent prosecution was simply not before the Court.

Concededly, there is dicta supporting the notion of prosecution. But there is also dicta cutting decidedly in the other direction — specifically, the opinion of Justice William O. Douglas, joined by Justice Hugo Black, which would essentially insulate the press, regardless of how atrocious what it publishes may be.

But okay, let’s assume for argument’s sake that Pentagon Papers is strong authority supporting indictment of the press. So what? Two sad but almost certainly insuperable obstacles remain to be faced.

The first is simply this: When it comes to the pieties of liberal elites and civil-liberties extremists, the current Supreme Court cares nothing for precedent. In our culture wars, precedent counts mainly as a rationalization for not reversing Roe v. Wade. To the contrary, when bourgeois sensibilities are at issue, the Supreme Court regularly hews to contemporary political correctness. So, for example, when it ruled in favor of special rights for homosexuals in Romer v. Evans (1996), the Court ignored a flatly contradictory precedent from only a decade before, Bowers v. Hardwick (1986). And only last year, when it held that the death penalty could not be applied to a juvenile in Roper v. Simmons, it blithely explained that it had “evolved� past its antithetical decision only 15 years earlier in Stanford v. Kentucky.

Secondly, free-speech cases often bring out the worst of the Court’s p.c. proclivities, at least from a public-safety standpoint. Witness Ashcroft v. Free Speech Coalition (2002). There, the Court voided criminal enforcement of the 1996 Child Porn Protection Act on the remarkable theory that regulating smut on the Internet might somehow lead to banning performances of Romeo and Juliet.

That decision was written by Justice Anthony Kennedy. He also wrote for the majority in Romer. And in Roper. In fact, he has joined the liberal block of the Court (Justices Stevens, Souter, Ginsburg and Breyer) to form majorities in several other critical, closely divided cases. (For another example, see Rasul v. Bush (2004), holding that alien enemy combatants detained by the American military in Guantanamo Bay, Cuba, in wartime, had a statutory right to challenge their detention in the U.S. courts.)

Bottom line: You are engaged in wishful thinking if you believe you can prevail on an Espionage Act prosecution against the press in this Supreme Court. I wouldn’t be confident of the outcome even if I thought I had a shot at Justice Kennedy’s vote—but that’s academic, because there is a rich basis for concluding that I don’t.

Why is all this important? Because if you start down this path, it is important to win. There are no moral victories. There is no comforting pat on the back for being right or defending principle. In this matter, there is a winner and a loser.

Imagine the media as the winner of a long, bitterly contentious struggle that ends in the Supreme Court. They will have succeeded in turning themselves into martyred heroes. We may, quite justifiably, view the Times and its allies in this cause as aiders and abettors of our wartime enemy. But the history — which they, primarily, will write — will portray them as Defenders of the Constitution.

More consequentially, were the press to win such a battle, it would only encourage more leaking. Now their recklessness (or worse) would bear a judicial imprimatur. Think of it as a Pulitzer Prize … but one backed by the prestige of the Supreme Court rather than the dwindling influence of journalism’s majordomos.

Let’s remember: The goal here is to stop the leaking. It is not to mount a trophy journalist on a prosecutor’s me-wall. From that practical perspective, making the reporters and their newspaper the targets of prosecution is a double failure. Not only do you probably lose the case in the long run; you also fail to get to the root of the scandal.

Face it: Internal government investigations into leaks go nowhere. The government is too big. Many people are in the loop even on sensitive information, so it is often impossible to pinpoint who the leaker is. When investigators occasionally manage to narrow the suspects down, the leaker typically lies about what he has done (as one would expect in the first place from someone who has betrayed his oath by leaking).

There is only one real way to identify government officials who disclose classified information. You have to get it directly from the journalist who spoke to them.

But if, as the King approach posits, the journalist were made the target of a criminal investigation, he would have a Fifth Amendment privilege to remain silent. That is, by clinging to the slim possibility of successfully prosecuting the journalist, investigators would render legally unavailable the only realistic witness to the public official’s illegal leaking. So in the end, no one would get prosecuted. And the leaks would go merrily on — undeterred, if not emboldened.

There is but a single viable strategy here. The focus of the prosecution must be the public officials who leaked, not the journalists who published. The journalists must be given immunity from prosecution. That would extinguish their privilege against self-incrimination, meaning they could be ordered to reveal their sources to a federal grand jury. There is no legal privilege to refuse. We saw that in the Valerie Plame investigation, in which a prosecutor moved aggressively against a leak that pales beside the gravity of what we are discussing.

If the immunized reporters declined an order to testify, they could be jailed for up to 18 months for contempt-of-court. Jail is an unpleasant place. Recall that it took Judith Miller only a few months there to rethink her obstructionist stance in the Plame case. And the mere specter of imprisonment inspired Matthew Cooper to surrender his source on the verge of a contempt citation.

Chances are that the journalists who have exposed leaked national-security information over the past several months do not want to spend 18 months in prison. If they were put in that position, we would very likely learn who did the leaking. Those officials could then be indicted. A prosecution against government officials does not entail the same free-speech complications.

On the other hand, even if the subpoenaed reporters flouted the law by never giving up their sources — even if they took the incredibly arrogant position that their secrets take precedence over the nation’s secrets — 18 months’ imprisonment is a powerful disincentive. Fewer reporters would run the risk. Fewer would-be government leakers would bank on a reporter’s perseverance. The leaks would dry up in a hurry.

That ought to be the goal here.

High court strikes states campaign fund limits. Read official syallbus.

Tuesday, June 27th, 2006

The U.S. Supreme Court found that Vermont’s restrictions amounted to government censorship, violating the free speech of candidates. 

WASHINGTON.  A bold experiment in Vermont that sought to address the often thorny connection between money and politics has come to an end.
On Monday, the US Supreme Court struck down as unconstitutional the most controversial aspects of Vermont’s campaign-finance law – including restrictions on the amount of money candidates for public office may spend in their campaigns.
REJECTED: Vermont’s Attorney General William Sorrell said campaign-spending limits helped politicians focus on issues rather than fundraising.
The court said the restrictions amounted to a form of government censorship of political candidates in violation of the free-speech protections of the First Amendment.

The high court also struck down the state’s limitations on the amount of money individuals may contribute to political candidates. The court ruled that the limits were too low.

The 6-to-3 decision is consistent with a 1976 landmark ruling in a case called Buckley v. Valeo in which the court struck down an attempt by Congress to limit campaign spending by candidates. The same 1976 ruling upheld the ability of government to restrict the amount of money contributed by political supporters to candidates.

The highly splintered opinion tracks the basic approach to campaign finance followed by the court over the past 30 years. But only three justices embraced it, although three others concurred in the judgment.

Justices Antonin Scalia and Clarence Thomas said they would overturn the Buckley v. Valeo precedent in favor of a regime more protective of speech. In a dissent, Justice John Paul Stevens said he would overturn the Buckley precedent to enable government more leeway in establishing campaign-finance safeguards.

The decision marks a setback to campaign-finance reform advocates who had seen the opportunity to shift the paradigm of campaign finance away from a view that money is speech toward a focus on the quality of political competition.

“In many ways, it is a lost opportunity for the court to address the arms race in campaign funding,” says Brenda Wright of the National Voting Rights Institute.

In invalidating the Vermont contribution limits, the court said it was leaving it to the Vermont legislature to rewrite its campaign-contribution regulations “in light of the constitutional difficulties we have identified.”

How the justices see it

The court’s splintered roster on the broader Buckley issue suggests no shortage of future litigation.

“We can find here no … special justification that would require us to overrule Buckley,” writes Justice Stephen Breyer in his plurality decision. “Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles.”

In a concurrence joined by Justice Scalia, Justice Thomas writes: “I continue to believe that Buckley provides insufficient protection to political speech, the core of the First Amendment.”

He adds, “The illegitimacy of Buckley is further underscored by the continuing inability of the court [and a plurality here] to apply Buckley in a coherent and principled fashion.”

In contrast, Justice Stevens, in a lone dissent, also says the time has arrived to overturn Buckley. But he cites entirely different reasons than those mentioned by Justice Thomas. “I am firmly persuaded that the Framers would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities,” he writes. “I think they would have viewed federal statutes limiting the amount of money that congressional candidates might spend in future elections as well within Congress’ authority.”

The high-court decision stems from nearly seven years of litigation challenging Act 64, Vermont’s 1997 campaign-finance reform law. The law took effect for only a brief time before it was enjoined pending the outcome of the lawsuits.

State lawmakers conducted 65 hearings and heard testimony from 145 witnesses about the difficulties and dangers of the campaign-finance system in Vermont.

The lawmakers concluded that electioneering in Vermont was becoming too expensive. Many ordinary Vermonters were being priced out of politics, and those involved in politics were spending increasing amounts of their time raising money for their next campaign.

Opponents said the campaign-finance restrictions were hindering candidates’ ability to communicate with voters in violation of the First Amendment guarantees of free speech and association.

In the past, such government campaign-finance restrictions have been justified in an attempt to prevent corruption of the political process by wealthy contributors literally buying favorable votes. The courts have also recognized that the government has a compelling interest in preventing the appearance of such corruption, even if actual quid pro quo corruption is not present.

Limits for candidates and donors

Vermont took this concern one step further. Rather than buying votes, large political contributions in Vermont were buying access and influence, state lawmakers said. Act 64 sought to reduce this access and influence by limiting both the intake and outflow of money in political campaigns in Vermont.

Under the law, a candidate for governor could spend no more than $300,000 during a two-year election cycle. The spending limit was $45,000 for other statewide offices. State senators were restricted to spending no more than $4,000 in their reelection campaigns. For state representatives, the limit was $2,000.

The law also restricted political contribution amounts at $200 to $400, the lowest level in the country.

It was all designed to reduce the power of money in the political process and foster a greater degree of equality among elected officials, candidates, and prospective candidates.

Opponents sued, claiming both the low contribution limits for donors and the expenditure limits for candidates had established a form of government censorship hindering the amount of political speech in Vermont. Act 64 also favored incumbents by making it more difficult for challengers to raise and spend large sums of money that might help them boost their name recognition among voters, opponents said.

They also argued that candidates must be free to choose how best to deliver their campaign message.

Vermont’s rules are ‘too restrictive’

In rejecting the contribution limits, Justice Breyer says the test is whether they are carefully drawn to achieve a compelling government goal while impacting a minimum amount of speech.

“Our examination of the record convinces us that, from a constitutional perspective, Act 64′s contribution limits are too restrictive,” Breyer writes. “We reach this conclusion based not merely on the low dollar amounts of the limits themselves, but also on the statute’s effect on political parties and on volunteer activity in Vermont elections.”

 By Warren Richey | Staff writer of The Christian Science Monitor

Syallbus released by the U.S. Supreme Court

No. 04–1528. Argued February 28, 2006—Decided June 26, 2006*
Vermont’s Act 64 stringently limits both the amounts that candidatesfor state office may spend on their campaigns and the amounts thatindividuals, organizations, and political parties may contribute tothose campaigns. Soon after Act 64 became law, the petitioners—individuals who have run for state office, citizens who vote in state elections and contribute to campaigns, and political parties and committees participating in state politics—brought this suit againstthe respondents, state officials charged with enforcing the Act. The District Court held that Act 64’s expenditure limits violate the First Amendment, see Buckley v. Valeo, 424 U. S. 1, and that the Act’s limits on political parties’ contributions to candidates were unconstitutional, but found the other contribution limits constitutional. The Second Circuit held that all of the Act’s contribution limits are constitutional, ruled that the expenditure limits may be constitutional because they are supported by compelling interests in preventing corruption or its appearance and in limiting the time state officials must spend raising campaign funds, and remanded for the District Court to determine whether the expenditure limits were narrowly tailored to those interests.
Held: The judgment is reversed, and the cases are remanded.
382 F. 3d 91, reversed and remanded. JUSTICE BREYER, joined by THE CHIEF JUSTICE and JUSTICE ALITO, concluded in Parts I, II–B–3, III, and IV that both of Act 64’s sets of
limitations are inconsistent with the First Amendment. Pp. 6–8, 10–
1. The expenditure limits violate the First Amendment’s free speech guarantees under Buckley. Pp. 6–8, 10–11.
                        (a) In Buckley, the Court held, inter alia, that the Government’s asserted interest in preventing “corruption and the appearance of corruption,� 424 U. S., at 25, provided sufficient justification for the contribution limitations imposed on campaigns for federal office bythe Federal Election Campaign Act of 1971, id., at 23–38, but that FECA’s expenditure limitations violated the First Amendment, id., at 39–59. The Court explained that the difference between the twokinds of limitations is that expenditure limits “impose significantly more severe restrictions on protected freedoms of political expressionand association than� do contribution limits. Id., at 23. Contribution limits, though a “marginal restriction,� nevertheless leave the contributor “fre[e] to discuss candidates and issues.� Id., at 20–21. Expenditure limits, by contrast, impose “[a] restriction on the amount of money a person or group can spend on political communication,� id., at 19, and thereby necessarily “reduc[e] the quantity of expression byrestricting the number of issues discussed, the depth of their exploration, and the size of the audience reached,� ibid. For over 30 years, inconsidering the constitutionality of a host of campaign finance statutes, this Court has adhered to Buckley’s constraints, including those on expenditure limits. See, e.g., McConnell v. Federal Election Comm’n, 540 U. S. 93, 134. Pp. 6–8.
                        (b) The respondents argue unpersuasively that Buckley should be distinguished from the present cases on a ground they say Buckley did not consider: that expenditure limits help to protect candidates from spending too much time raising money rather than devotingthat time to campaigning among ordinary voters. There is no significant basis for that distinction. Act 64’s expenditure limits are not substantially different from those at issue in Buckley. Nor is Vermont’s primary justification for imposing its expenditure limits significantly different from Congress’ rationale for the Buckley limits: preventing corruption and its appearance. The respondents say unpersuasively that, had the Buckley Court considered the time protection rationale for expenditure limits, the Court would have upheld those limits in the FECA. The Buckley Court, however, was aware of the connection between expenditure limits and a reduction in fund-raising time. And, in any event, the connection seems perfectly obvious. Under these circumstances, the respondents’ argument amounts to no more than an invitation so to limit Buckley’s holding as effectively to overrule it. That invitation is declined. Pp. 10–11.

2. Act 64’s contribution limits violate the First Amendment because
Amendment limits are present here. They are substantially lower than both the limits the Court has previously upheld and the comparable limits in force in other States. Consequently, the record must be examined to determine whether Act 64’s contribution limits are “closely drawn� to match the State’s interests. Pp. 13–19.
                        (c) The record demonstrates that, from a constitutional perspective, Act 64’s contribution limits are too restrictive. Five sets of factors, taken together, lead to the conclusion that those limits are notnarrowly tailored. First, the record suggests, though it does not conclusively prove, that Act 64’s contribution limits will significantly restrict the amount of funding available for challengers to run competitive campaigns. Second, Act 64’s insistence that a political party andall of its affiliates together abide by exactly the same low $200 to $400 contribution limits that apply to individual contributors threatens harm to a particularly important political right, the right to associate in a political party. See, e.g., California Democratic Party v. Jones, 530 U. S. 567, 574. Although the Court upheld federal limitson political parties’ contributions to candidates in Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, the limits there at issue were far less problematic, for they were significantly higher than Act 64’s limits, see, e.g., id., at 438–439, and
                        n. 3, and they were much higher than the federal limits on contributions from individuals to candidates, see id., at 453. Third, Act 64’s treatment of volunteer services aggravates the problem. Althoughthe Act excludes uncompensated volunteer services from its “contribution� definition, it does not exclude the expenses volunteers incur, e.g., travel expenses, in the course of campaign activities. The combination of very low contribution limits and the absence of an exception excluding volunteer expenses may well impede a campaign’sability effectively to use volunteers, thereby making it more difficult for individuals to associate in this way. Cf. Buckley, supra, at 22. Fourth, unlike the contribution limits upheld in Shrink, Act 64’s limits are not adjusted for inflation, but decline in real value each year.A failure to index limits means that limits already suspiciously lowwill almost inevitably become too low over time. Fifth, nowhere in the record is there any special justification for Act 64’s low and restrictive contribution limits. Rather, the basic justifications the Statehas advanced in support of such limits are those present in Buckley.Indeed, other things being equal, one might reasonably believe that acontribution of, say, $250 (or $450) to a candidate’s campaign wasless likely to prove a corruptive force than the far larger contributions at issue in the other campaign finance cases the Court has considered. Pp. 19–28.

(d) It is not possible to sever some of the Act’s contribution limit
6 RANDALL v. SORRELL Syllabus Act 64 is unconstitutional, but disagreed with the plurality’s rationale for striking down that statute. Buckley v. Valeo, 424 U. S. 1, provides insufficient protection to political speech, the core of the First Amendment, is therefore illegitimate and not protected by stare decisis, and should be overruled and replaced with a standard faithful to the Amendment. This Court erred in Buckley when it distinguished between contribution and expenditure limits, finding the former to be a less severe infringement on First Amendment rights.See, e.g., Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 410–418. Both the contribution and expenditure restrictions of Act 64 should be subjected to strict scrutiny, which they would fail. See, e.g., Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 640–641. Pp. 1–10.
BREYER, J., announced the judgment of the Court and delivered anopinion, in which ROBERTS, C. J., joined, and in which ALITO, J., joined as to all but Parts II–B–1 and II–B–2. ALITO, J., filed an opinion concurring in part and concurring in the judgment. KENNEDY, J., filed an opinion concurring in the judgment. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. STEVENS, J., filed a dissenting opinion. SOUTER, J., filed a dissenting opinion, in which GINSBURG, J., joined, and in which STEVENS, J., joined as to Parts II and


High court will recess in July Saves best cases for last

Saturday, June 24th, 2006

WASHINGTON.  The Supreme Court has had divisive rulings this year on the environment, police power and whistleblowers, and the justices are not even through with their hardest cases.

The high court is on a tight deadline to finish before July, when justices begin a three-month break that provides time for traveling, teaching classes, writing books and relaxing.

As usual, justices have left some of the most significant cases to the very end. There are 10 rulings left, on issues from a president’s wartime powers, capital punishment, Texas’ political boundaries and the insanity defense.

The past year has been a time of change. Chief Justice William H. Rehnquist died and a protege, his former law clerk John Roberts, succeeded him.

In addition, the influential Justice Sandra Day O’Connor, the first female justice, retired. She was replaced in January by Samuel Alito.

Justice Anthony M. Kennedy has emerged as an important swing voter – a role previously held by O’Connor. Kennedy wrote the term’s two biggest death penalty cases, which made it easier for death row inmates to contest lethal injections and to get DNA evidence before the courts.


Kennedy, a centrist put on the court by President Reagan, also blocked conservatives from dramatically scaling back the Clean Water Act. The 5-4 decision preserves government authority to block development on wetlands as long as the wetlands meet Kennedy’s test.

“We have entered the era of the Kennedy court. It’s striking what a pivotal role Kennedy has come to play,” Duke Law School professor Erwin Chemerinsky said.

In conservative victories, Kennedy wrote a 5-4 decision that said public employees do not have free-speech protections for what they say as part of their jobs. He also broke a 4-4 tie to make it easier for police with search warrants to enter homes without knocking or waiting.

Roberts, in his first term as chief justice, has built a firm conservative voting record, but without Kennedy does not have a solid voting block.

“This is not a court that has a clear solid five votes for doing anything that a conservative majority wants to do,” said Stephen Wermiel, a law professor at American University.

Roberts has written seven opinions, all but one unanimous. Among them, he bolstered police power to enter a home to break up a fight without knocking first; upheld a church’s use of hallucinogenic tea; and found that the government can force colleges to open campuses to military recruiters despite university objections to the Pentagon’s “don’t ask, don’t tell” policy on gays.

The chief justice has encouraged his colleagues to be more unified in their decision-making. So far, justices have been split 5-4 in just seven of the 59 rulings.

The big test, however, is still ahead.

The most significant case of the year challenges the president’s power to order military trials for suspected foreign terrorists held at the Navy prison at Guantanamo Bay, Cuba. Roberts cannot participate because he served on an appeals court panel that backed the Bush administration in the case last year.

Two election cases are still to be decided.

Justices have been asked to throw out all or part of a Texas congressional map promoted by former House Majority Leader Tom DeLay, R-Texas. They also will decide how far states can go to limit spending and donations to political campaigns.

Alito is expected to break a tie in the one death penalty case still undecided, a constitutional test of Kansas’ death penalty law. The case was argued the first time before O’Connor’s departure. A new argument session was held after his arrival.

It is tough to tell the court’s direction so early in the tenures of Roberts and Alito, most court-watchers say.

Justices have lined up some significant cases for next fall, on abortion, public school affirmative action and the environment.

“Justices are willing to test the new lineup right away. Next year is where the rubber is going to hit the road,” said John Yoo, a University of California, Berkeley, law professor.

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High court eases path for worker discrimination suits Employees can sue for retaliation even if they are not fired

Friday, June 23rd, 2006

WASHINGTON  (In Burlington Northern v. White)   The US Supreme Court has made it easier for workers to sue their bosses for acts of retaliation in the workplace. In a unanimous decision announced Thursday, the high court established a relatively broad standard empowering employees to take their supervisors to court if they retaliate after the worker has complained about illegal discrimination.
Such lawsuits, which hinge on the antiretaliation section of Title VII of the Civil Rights Act, have more than doubled in the past 10 years. They now account for 30 percent of the cases filed with the Equal Employment Opportunity Commission (EEOC), according to lawyers involved in the case. The average retaliation lawsuit costs about $130,000, the lawyers say.

The Civil Rights Act bars discrimination based on race, color, religion, sex, or national origin. But it also forbids employers from taking adverse action against an employee who attempts to report workplace discrimination.

The question before the high court was: How serious must the retaliation be to qualify as an unlawful employment practice under the civil rights law? Must an employee face a sanction as serious as losing one’s job? Or would any adverse action by management that might prevent a worker from speaking up about discrimination qualify as illegal retaliation?

Federal appeals courts across the country have provided vastly different answers to the same questions. On Thursday, the Supreme Court set a single standard in a case called Burlington Northern v. White.

The antiretaliation provision seeks to prevent employers from interfering with their workers’ ability to complain about discrimination, writes Justice Stephen Breyer for the court. “It does so by prohibiting employer actions that are likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers.”

Managers and bosses displaying behavior like “petty slights, minor annoyances, and simple lack of good manners” does not constitute deterrence, writes Justice Breyer. But “the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.”

The decision comes from a case filed by Sheila White, who complained about sexual harassment while working in a Tennessee rail yard as a forklift operator for the Burlington Northern & Santa Fe Railroad Company.

A company investigation supported Ms. White’s claims. Her supervisor was suspended for 10 days and ordered to attend a sex-discrimination workshop.

A few weeks later, White was reassigned from her coveted forklift job to work as a track laborer. Both jobs were contained within the same job description and both earned the same level of pay and benefits. But the laborer job was physically more demanding and required working outside in all weather conditions.

In addition, after a dispute with another supervisor, White was suspended without pay for 37 days pending an investigation of alleged insubordination. She was later reinstated with full back pay.

White sued the company in federal court, claiming the reassignment and her suspension without pay were forms of illegal retaliation for her earlier sexual harassment complaint. A jury awarded her $43,250 in compensatory damages for emotional distress and related doctors’ bills.

A federal appeals court panel ruled that the award should be reversed because neither of the two actions taken against White were adverse enough to qualify as illegal retaliation under Title VII. But that ruling was reversed by the full Sixth US Circuit Court of Appeals, which upheld the jury verdict for White.

In affirming the Sixth Circuit decision, the Supreme Court said the test is whether the employer’s retaliatory acts are likely to dissuade a reasonable employee from complaining or assisting in complaints about discrimination.

The high court stressed that judges must consider the unique circumstances of each situation. “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed,” Breyer writes.

He offered two examples of potential retaliation. “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.”

He added, “A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.”

Reprinted from the Christian Science Monitor
 In the Monitor By Warren Richey | Staff writer of The Christian Science Monitor
Friday, 06/23/06

Supreme Court says Workers Comp Premiums Not Priority in Bankruptcy

Wednesday, June 21st, 2006

By Andrew G. Simpson, Jr. – A workers compensation insurer does not have a claim against a bankrupt business for unpaid premiums under bankruptcy law, according to the U.S. Supreme Court in a 6-3 decision that insurers are warning could disrupt the insurance marketplace unless Congress acts to reverse it.
The Supreme Court majority rejected an insurer’s argument that an employer’s liability to carry workers’ compensation coverage fits the employee benefit plan category that would assign it priority in the event of a bankruptcy.

Instead, the high court ruled that workers compensation premiums are more like liability premiums than employee benefit costs and as such do not fall under the section of bankruptcy code (11 U.S.C. section 507(a)(5)), which assigns priorities to unsecured creditors’ claims for unpaid contributions to an employee benefit plan.

“Weighing against such categorization, workers’ compensation does not compensate employees for work performed, but instead, for on-the-job injuries incurred; workers’ compensation regimes substitute not for wage payments, but for tort liability,” Justice Ruth Bader Ginsburg wrote on behalf of the majority.

In Howard Delivery Service, Inc., et al v. Zurich American Insurance Co., handed down June 15, the high court reversed the Court of Appeals for the Fourth Circuit which had held that payments for workers’ compensation coverage were “contributions to an employee benefit plan … arising from services rendered” and thus subject to the bankruptcy priority provision.

Zurich had urged the court to borrow the broader definition of employee benefit plan contained in the Employee Retirement Income Security Act of 1974 (ERISA): “[A]ny plan, fund, or program [that provides] its participants … , through the purchase of insurance or otherwise, … benefits in the event of sickness, accident, disability, [or] death.”

But the majority noted that federal courts have questioned whether ERISA is appropriately used to fill in blanks in a Bankruptcy Code provision.

The court further noted that workers’ compensation also differs from fringe benefits in that while nearly all states require employers to carry workers’ compensation, they commonly do not mandate employee benefits.

In the case before the court, Howard contracted with Zurich to provide workers’ compensation coverage for its operations in 10 states. After Howard filed a Chapter 11 bankruptcy petition, Zurich filed an unsecured creditor’s claim for some $400,000 in premiums, asserting that they qualified as “contributions to an employee benefit plan” entitled to priority under §507(a)(5).

The Bankruptcy Court denied priority status to the claim, reasoning that because overdue premiums do not qualify as bargained-for benefits furnished in lieu of increased wages, they fall outside §507(a)(5)’s compass. The District Court affirmed, similarly determining that unpaid workers’ compensation premiums do not share the priority provided for unpaid contributions to employee pension and health plans.

But a Fourth Circuit panel reversed without a rationale, which resulted in the case being brought before the Supreme Court.

Justice Ginsburg was joined in her majority opinion by Chief Justice John Roberts and Justices John Paul Stevens, Antonin Scalia, Clarence Thomas and Stephen Breyer. Justice Anthony Kennedy filed a dissenting opinion, in which Justices David Souter and Samuel Alito joined.

Insurer reaction

Insurers said the decision is flat out wrong and could have serious repercussions in the marketplace.

“The court simply got it wrong. The majority’s narrow focus on the priority provisions of the bankruptcy code overlooked that workers’ compensation coverage is mandatory, and the consequences of an employer’s lapse in coverage,” charged Bruce Wood, American Insurance Association assistant general counsel.

Wood also maintained that the decision could undermine the workers’ compensation system and benefits for injured workers.

“This decision means that an employer trying to reorganize its business will no longer be required to pay its workers’ compensation premiums. This result will jeopardize continued coverage, because an insurer now has no legal authority to compel payment of premiums and doubtful incentive to continue coverage,” according to Wood. “Under current law, employers without workers’ compensation coverage – even bankrupt employers – are subject to huge fines, criminal prosecution and business shutdown.”

“At the same time this decision puts worker protections at risk, along with the viability of the employer’s business,” he added.

AIA participated in the case as an amicus in this case.

Employers that self-insure their workers’ compensation coverage will face related problems, Wood also warned. “Even though a self-insured employer is paying an on-going claim for a past injury, after a bankruptcy filing, ongoing medical treatment and cash benefits stop because the lack of explicit priority for workers’ compensation dumps injured workers into the same category as unsecured creditors.”

The industry will likely now press lawmakers to a change the bankruptcy law.

“This is a poorly reasoned decision with an unfortunate policy result. It appears this is a matter for Congress to address,” Wood said.

In its ruling, the Supreme Court said questions over priority status should be decided with the bankruptcy code’s aim of equal distribution in mind. “Every claim granted priority status reduces the funds available to general unsecured creditors and may diminish the recovery of other claimants qualifying for equal or lesser priorities” the court noted. “To give priority to a claimant not clearly entitled thereto is not only inconsistent with the policy of equality of distribution; it dilutes the value of the priority for those creditors Congress intended to prefer.”



911 calls exempt from confrontation clause requirements

Tuesday, June 20th, 2006

WASHINGTON, June 19 — A crime victims emergency call to 911 can be introduced as evidence at trial even if the victim is not present for cross-examination, the Supreme Court ruled unanimously on Monday.

At the same time the court held that prosecutors cannot make similar use of the transcript of a police interview that was conducted principally for the purpose of investigating a crime rather than responding to a developing emergency.

The court addressed the two situations in light of the Confrontation Clause in the Sixth Amendment, which guarantees a criminal defendant the right “to be confronted with the witnesses against him.”

The court has interpreted this guarantee to bar the use of “testimonial statements” by witnesses who do not appear in court. The question in the two cases, which the court answered in a single opinion by Justice Antonin Scalia, turned on whether a 911 call on the one hand, or a statement given to the police at a crime scene on the other, qualified as “testimonial.”

A call for help to 911 is not inherently “testimonial” because the caller is not acting as a witness, Justice Scalia said. “No ‘witness’ goes into court to proclaim an emergency and seek help,” he explained.

On the other hand, statements given to police officers who are investigating the scene of a crime, if similar to statements that might be made in court, qualify as testimonial and generally may not be admitted, he said, at least to the extent that they are “neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation.”

Justice Clarence Thomas dissented from that part of the opinion. Both the statements at issue were “nontestimonial and admissible,” he said. He added that in excluding the statement to the police, the court “extends the Confrontation Clause far beyond the abuses it was intended to prevent.”
It was something of a surprise that the court decided the two cases in a single opinion. They were appeals from separate courts and had been argued separately in March.

In the 911 case, Davis v. Washington, No. 05-5224, the Supreme Court of Washington permitted prosecutors to use the 911 call to convict a man, Adrian M. Davis, of violating a domestic protective order. His former girlfriend, Michelle McCottry, had made a frantic call to a 911 operator to say that Mr. Davis was in the house and was beating her. At the time of Mr. Davis’s trial, the authorities were unable to locate Ms. McCottry. In the absence of witnesses, the 911 call was vital evidence for the prosecution.

In the other case, Hammon v. Indiana, No. 05-5705, police responded to a report of a domestic disturbance and found evidence of a physical struggle between a husband and wife, Amy and Hershel Hammon. After interviewing Mrs. Hammon, they arrested her husband, who was charged with battery.
Ms. Hammon was subpoenaed but did not appear at his trial. The officer who had interviewed her testified about what she had told him. Mr. Hammon was found guilty. The Indiana Supreme Court, rejecting his argument that the statement should not have been admitted, upheld his conviction.
The two cases attracted attention from groups concerned with domestic violence. Several “friend of the court” briefs told the justices that victims of domestic violence were often afraid to appear in court, and that prosecutions should not be lost under an expansive interpretation of the Confrontation Clause. When the cases were argued, it was evident that some justices were concerned about the potential impact of such a ruling.

Addressing that concern in his opinion, Justice Scalia said defendants who “seek to undermine the judicial process by procuring or coercing silence from witnesses and victims” would forfeit the protection that the Confrontation Clause would otherwise give them.

These were among the other actions at the court, which will issue more decisions on Thursday in its effort to finish the term by the end of the month.
Parole Rights

The court ruled 6 to 3 that police officers may conduct random searches of people who are on parole, without the need to show any basis for suspecting the parolee of a crime.

The decision, Samson v. California, No. 04-9728, upheld a California law that requires every prisoner who is about to be released on parole to sign a statement agreeing to be subject to search “with or without a search warrant and with or without cause.”

The case was brought by Donald C. Samson, who was on parole after a conviction for gun possession when an officer stopped him as he walked down a street. In searching Mr. Samson, the officer found a plastic bag containing methamphetamine in a breast pocket.
Mr. Samson was then convicted of drug possession. He challenged the search as a violation of his rights under the Fourth Amendment, which prohibits unreasonable searches. The California Court of Appeal upheld his conviction.

Writing for the court on Monday, Justice Thomas said that given the agreement Mr. Samson had signed, he “did not have an expectation of privacy that society would recognize as legitimate,” while “the state’s interests, by contrast, are substantial.” He noted that the California law prohibits searches that are “arbitrary, capricious or harassing.”

Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer dissented. In an opinion by Justice Stevens, they called the result “an unprecedented curtailment of liberty.” Justice Stevens said, “the suspicionless search is the very evil the Fourth Amendment was intended to stamp out” and the amendment applies to parolees as well as to other people.


The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee

Tuesday, June 20th, 2006

WASHINGTON (CNN) — The Supreme Court ruled Monday that police may randomly search criminal parolees, continuing the deference it has shown law enforcement since the terrorist attacks of September 11, 2001.

The 6-3 ruling keeps in place a California law allowing such searches even when there is no clear evidence or suspicion of wrongdoing.

Writing for the majority, Justice Clarence Thomas noted, “As the recidivism rates demonstrate, most parolees are ill prepared to handle the pressures of reintegration. Thus most parolees require intense supervision.”

He added, “A requirement that searches be based on individualized suspicion would undermine the state’s ability to effectively supervise parolees and protect the public from criminal acts by reoffenders.”

Upon their release, California parolees must sign a requirement allowing police searches during their supervision. Failure or refusal to sign means they must stay behind bars.

Thomas rejected complaints that parolees are being singled out and suffer an unconstitutional diminished right of privacy.

The ruling was supported by Chief Justice Roberts, and Justices Clarence Thomas, Anthony Kennedy, Ruth Bader Ginsburg, and Samuel Alito.

The case involves Donald Samson, paroled in 2003 after a firearms felony conviction. A San Bruno police officer knew Samson was on parole when he observed him walking down a street.

The officer, after determining there were no outstanding warrants on Samson, began a search of him.

Methamphetamine was found in a pocket and Samson went back to prison for seven years.

Dissenting was Justice John Paul Stevens, who acknowledged parolees do not have protection “as robust as that afforded ordinary citizens.”

But, he wrote, the court’s past decisions do not support “a regime of suspicionless searches.”

The Samson case was one of two search-and-seizure appeals from California argued this term. The justices in March unanimously allowed to stand the conviction of a man who bought video showing minors engaged in sex acts.

The Bush administration Justice Department and law enforcement agencies around the country have asked the courts for greater powers to conduct searches of homes and cars, along the borders, and at sobriety and neighborhood crime checkpoints.

The federal government in some cases has raised the increased threat of domestic terrorism since 9/11 as a reason for more crime-fighting discretion.

The majority-conservative Supreme Court has generally been supportive of such efforts, but has not been shy about limiting such powers when the justices felt they overstep constitutional boundaries.




No. 04–9728. Argued February 22, 2006—Decided June 19, 2006

Pursuant to a California statute—which requires every prisoner eligible for release on state parole to “agree in writing to be subject tosearch or seizure by a parole officer or other peace officer . . . , with orwithout a search warrant and with or without cause�—and based solely on petitioner’s parolee status, an officer searched petitioner and found methamphetamine. The trial court denied his motions to suppress that evidence, and he was convicted of possession. Affirming, the State Court of Appeal held that suspicionless searches of parolees are lawful under California law and that the search in this case was reasonable under the Fourth Amendment because it was not arbitrary, capricious, or harassing.

Held: The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. Pp. 3–12.
(a) The “totality of the circumstances� must be examined to determine whether a search is reasonable under the Fourth Amendment. United States v. Knights, 534 U. S. 112, 118. Reasonableness “is determined by assessing, on the one hand, the degree to which [thesearch] intrudes upon an individual’s privacy and, on the other, thedegree to which it is needed for the promotion of legitimate governmental interests.� Id., at 118–119.

Applying this approach in Knights, the Court found reasonable the warrantless search of a probationer’s apartment based on reasonable suspicion and a probationcondition authorized by California law. In evaluating the degree ofintrusion into Knights’ privacy, the Court found his probationarystatus “salient,� id., at 118, observing that probation is on a continuum of possible punishments and that probationers “do not enjoy ‘the absolute liberty’ � of other citizens, id., at 119.

Supreme Court cripples Exclusionary Rule in 5 to 4 decision

Thursday, June 15th, 2006

WASHINGTON (CNN) — A split Supreme Court ruled Thursday that drug evidence seized in a home search can be used against a suspect even though police failed to knock on the door and wait a “reasonable” amount of time before entering.

The 5-4 decision continues a string of rulings since the September 11, 2001 terrorist attacks that in general give law enforcement greater discretion to carry out search-and-seizure warrants.

President Bush’s nominees to the high court, Chief Justice John Roberts and Justice Samuel Alito, notably sided with the government.

Writing for the majority, Justice Antonin Scalia said disallowing evidence from every “knock-and-announce violation” by officers would lead to the “grave adverse consequence” of a flood of appeals by accused criminals seeking dismissal of their cases. (Opinion — pdf)

He was joined by Roberts and his fellow conservatives Anthony Kennedy, Clarence Thomas and Alito.

Scalia added that police might put their lives in danger if they were uncertain when and if entry was legally permissible. “If the consequences of running afoul of the law were so massive, officers would be inclined to wait longer than the law requires — producing inevitable violence against officers in some cases, and the destruction of evidence in many others.”

The justices sparred in an appeal they are hearing for a second time, and reflected the deep divisions that remain on a court divided along ideological lines. There was little unanimity over how to ensure law enforcement officers do not routinely violate the constitutional protection against “unreasonable searches-and-seizures.”

The appeal involves Booker Hudson, a Detroit, Michigan, man whose case has wound its way through various courts for nearly seven years.

Seven city police officers executed a search warrant in August 1998 on Hudson’s home, finding crack cocaine on him and around the residence, as well as a gun.

Prosecutors said officers shouted “Police, search warrant,” but readily admit that they did not knock on the door and that they waited only three to five seconds before entering and finding Hudson sitting on his couch. He was eventually convicted of drug possession.

“People have the right to answer the door in a dignified manner,” Hudson’s lawyer David Moran had told the high court. The justices have ruled in the past that police should announce their presence, then normally wait 15 to 20 seconds before bursting into a home.

Justice Stephen Breyer wrote a lengthy dissent, saying, “Our Fourth Amendment traditions place a high value upon protecting privacy in the home.” A centerpiece of those protections, he said, includes the “exclusionary rule,” under which evidence seized in illegal searches should be suppressed at trial.

“It weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection,” concluded Breyer, who said he fears police will now feel free to routinely violate the knocking and waiting requirements, knowing they might not be punished for it.

Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg supported Breyer’s position.

The majority-conservative court has been generally supportive of police discretion since the 9/11 attacks, including disputes over home and car searches, suspect interrogations, and sobriety and border checkpoints. Several of the more liberal justices have disagreed sharply in many of those cases.

The high court has already ruled on two other search-and-seizure cases this term. In March, it said police were wrong to search a Georgia man’s home over his objections, even though his estranged wife gave her consent. And last month, police in Utah investigating reports of a loud party were found to be justified entering a home under “emergency circumstances” to break up a fight, even though they did not have a search warrant to enter.

Alito turned out to be the deciding vote in the Hudson case. He was not yet on the bench when the case was first argued in January. His predecessor, Sandra Day O’Connor, heard the case and appeared to support the defendant.

But she retired before a decision was issued and, under court rules, her vote did not count. That left a 4-4 tie, prompting the court to rehear the arguments. provises its users a syllabus and excerpts from the decision.

go to:  

 Evidence Digest and scroll down to Exclusionary rule – No-Knock rule  -
Exclusionary Rule and No Knock Law limited by supreme Court

Inmates Win at U.S. Supreme Court in Injection, Innocence Cases

Monday, June 12th, 2006

Read syllabus and find link to full text here:  June 12 (Bloomberg) — The U.S. Supreme Court bolstered the rights of death-row inmates in two cases, ordering a new hearing for a Tennessee man who says he has fresh evidence of innocence and permitting a challenge to Florida’s lethal injections.
The justices voted 5-3 in the Tennessee dispute, saying Paul Gregory House’s murder conviction was the “rare case” in which new evidence might have changed the jury’s verdict. The court let House go forward with his bid to set aside the conviction.
House says DNA evidence now proves that semen stains on victim Carolyn Muncey’s clothing didn’t come from him. House says he also has new information indicating that investigators might have put incriminating bloodstains on his jeans and that the victim’s husband might have been the killer.
“The central forensic proof connecting House to the crime – - the blood and the semen — has been called into question, and House has put forward substantial evidence pointing to a different suspect,” Justice Anthony Kennedy wrote for the court. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas dissented.
The lethal-injection ruling doesn’t directly affect the legality of the procedure, which opponents say can create a risk of excruciating pain. Today’s unanimous decision gives inmates an additional avenue to challenge the procedure, which is used in all but one of the 38 death-penalty states, and seek a different method of execution.
The challenge by Clarence Edward Hill “appears to leave the state free to use an alternative lethal injection procedure,” Kennedy wrote for the court in that case.
Minutes From Execution
Hill was minutes away from execution in January when the Supreme Court intervened and agreed to hear his appeal. Hill, now 48, was convicted of the 1982 shooting death of Pensacola, Florida, police officer Stephen Taylor.
Hill points to a 2005 study that found in 21 of 49 executions the prisoner endured a feeling of suffocation and a burning sensation through the veins, followed by a heart attack. Of the 38 death-penalty states, all but Nebraska use lethal injection, and most use the same three chemicals as Florida.
Inmates in Florida are first injected with sodium pentothal, an anesthetic, followed by pancuronium bromide, which causes the lungs to shut down and paralyzes the body. The final chemical, potassium chloride, then induces a fatal heart attack.
The high court today said Hill could invoke a 135-year-old civil rights law to challenge the chemical mix and other aspects of Florida’s injection protocol.
`Timely Enforcement’
A lower court had said his case was barred because it was the functional equivalent of a habeas corpus petition, a procedural device used by inmates to challenge convictions after appeal. Under U.S. law, inmates generally can file only a single habeas petition in federal court — something Hill had already done.
Kennedy said lower courts would need to be vigilant to prevent inmates from using the civil rights law simply to forestall execution.
“Both the state and the victims of crime have an important interest in the timely enforcement of a sentence,” he wrote. “Our conclusions today do not diminish that interest, nor do they deprive federal courts of the means to protect it.”
The Supreme Court in May passed on a chance to directly address the constitutionality of the procedure, rejecting an appeal from a Tennessee inmate.
Florida began using lethal injections in 2000, averting a scheduled Supreme Court argument on the constitutionality of the state’s use of the electric chair. Florida now uses lethal injections unless the condemned person opts for the chair. The state has executed 60 people since the Supreme Court reinstated the death penalty in 1976.
Evidence of Innocence
In the Tennessee case, House is seeking to win his release through a habeas corpus petition he is pressing in federal court. He says his lawyer was negligent in not bringing forward the evidence of his innocence at trial.
The state says House had Muncey’s blood on his jeans, was seen the day after the murder leaving the area where her body was later found and lied to investigators about his whereabouts on the night of the murder. House was previously convicted for sexual assault in an unrelated case.
In barring House’s habeas case from going forward, a federal trial judge had said House’s new evidence was “was countered and undermined in virtually every respect” by the state.
A Cincinnati-based federal appeals court upheld that ruling, saying House hadn’t met the standard for reopening a criminal conviction laid out by the Supreme Court in a 1995 case.
Roberts Dissent
Kennedy stopped short of declaring House’s evidence so strong as to render his conviction unconstitutional. “This is not a case of conclusive exoneration,” he said.
In dissent, Roberts said the majority shouldn’t have second- guessed the federal trial judge’s conclusions.
“It is not our role to make credibility findings and construct theories of the possible ways in which Mrs. Muncey’s blood could have been spattered and wiped on House’s jeans,” he wrote in an opinion joined by Scalia and Thomas.
Justice Samuel Alito didn’t participate in the Tennessee case because he joined the court after the dispute was argued.
The cases are House v. Bell, 04-8990, and Hill v. Florida, 05-8794.
To read the full text of this decision go to:  U.S. Supreme Court and open slip opinions.

The following is the Syllabus of the Hill v. Florida decision:


No. 05–8794. Argued April 26, 2006—Decided June 12, 2006
Facing execution in Florida, petitioner Hill brought this federal action under 42 U. S. C. §1983 to enjoin the three-drug lethal injection procedure the State likely would use on him. He alleged the procedure could cause him severe pain and thereby violate the Eighth Amendment’s prohibition of cruel and unusual punishments. The District Court found that under controlling Eleventh Circuit precedent the§1983 claim was the functional equivalent of a habeas petition. Because Hill had sought federal habeas relief earlier, the court deemed his petition successive and barred under 28 U. S. C. §2244. The Eleventh Circuit agreed and affirmed.
Held: Because Hill’s claim is comparable in its essentials to the §1983action the Court allowed to proceed in Nelson v. Campbell, 541 U. S. 637, it does not have to be brought in habeas, but may proceed under §1983. Pp. 4–10.
(a) Nelson controls here. Although an inmate’s challenge to the lawfulness of a sentence or confinement is the province of habeas corpus, e.g., Muhammad v. Close, 540 U. S. 749, 750, the Nelson Court declined to deem the instant §1983 Eighth Amendment “challenge seeking to permanently enjoin the use of lethal injection . . . a challenge to the fact of the sentence itself,� 541 U. S., at 644. Nelson’s veins were severely compromised, and Alabama planned to apply an invasive surgical procedure to enable the injection. However, that procedure was not mandated by state law, and Nelson appeared willing to concede the existence of an acceptable alternative procedure. Absent a finding that the procedure was necessary to the lethal injection, the Court concluded, injunctive relief would not prevent the State from implementing the sentence. Id., at 645–646. Here, as in Nelson,
Hill’s action if successful would not necessarily prevent the State from executing him by lethal injection. He does not challenge his sentence as a general matter but seeks only to enjoin respondents from executing him in a manner that allegedly causes a foreseeablerisk of gratuitous and unnecessary pain. He concedes that other lethal injection methods the State could choose would be constitutional, and respondents do not contend, at least at this point, that an injunction would leave no other practicable, legal method of lethally injecting Hill. Florida law, moreover, does not require the use of the challenged procedure. Under these circumstances a grant of injunctive relief could not be seen as barring the execution of Hill’s sentence. The fact that Hill challenges the chemical injection sequence rather than a preliminary surgical procedure does not change the analysis. In Nelson, the Court reasoned that “the gravamen of petitioner’s entire claim� was that the surgical procedure was “gratuitous,� id., at 645, whereas Hill alleges that the procedure he challenges presents a risk of pain the State can avoid while still being able to enforce his sentence.
The Court rejects two rules proposed by respondents and their amici to counter the prospect of inmates filing successive §1983 actions challenging one aspect of an execution procedure after another in order to forestall execution. First, the United States contends that a capital litigant’s §1983 action can proceed only if, as in Nelson, the prisoner identifies an alternative, authorized method of execution. Although Nelson’s doing so supported the Court’s conclusion that his suit need not proceed as a habeas action, that fact was not decisive. Nelson did not change the traditional pleading requirements for §1983 actions. Specific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general rule, through federal courts’ case-by-case determinations. Second, relying on cases barring §1983 damages actions that, if successful, would imply the invalidation of an existing sentence or confinement, see, e.g., Heck v. Humphrey, 512 U. S. 477, respondents and the amici States contend that any challenge that would frustrate an execution as a practical matter must proceed in habeas. This argument cannot be squared with Nelson’s observation, 541 U. S., at 646–647, that its criterion— whether granting relief would necessarily bar the inmate’s execution—is consistent with those cases. Because injunctive relief would not necessarily foreclose Florida from executing Hill by lethal injection under present law, it could not be said that this suit seeks to establish “unlawfulness [that] would render a conviction or sentence invalid,� Heck, supra, at 486. Pp. 4–9.
(b) Filing a §1983 action does not entitle the complainant to an automatic stay of execution. Such a stay is an equitable remedy not
available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from federal courts. Thus, inmates seeking time to challenge the manner of their execution must satisfy all of the requirements for a stay, including showing a significant possibility of success on the merits. A court considering a stay must also apply a strong equitable presumption against granting relief where the claim could have been brought at such a time as to allow consideration of the merits without requiring a stay. Nelson, supra, at 650. After Nelson federal courts have invoked their equitable powers to dismiss suits they saw as speculative or filed too late. Repetitive or piecemeal litigation presumably would raise similar concerns. States can and should be protected from dilatory or speculative suits, but it is not necessary to reject Nelson to do so. The equities and merits of Hill’s underlying action are not before this Court. Pp. 9–10.
437 F. 3d 1084, reversed and remanded.
KENNEDY, J., delivered the opinion for a unanimous Court.