Sounding the Docket: The Supreme Court’s 2003-2004 Term

 

 

            Last year the U.S. Supreme Court tackled such socially divisive topics as affirmative action in school admissions and  homosexual conduct in the privacy of the home.  The Court’s docket this year, reflected in the 50 or so cases that the Court has thus far accepted for hearing, will likely generate fewer headlines and less controversy than last year.

            This year’s docket concerns more esoteric and arcane applications of the law.  For example, in Virginia v. Maryland, the Court will reach back to Eighteenth and Nineteenth Century statutes to determine if Virginia has a right to build in the Potomac River, and thereby draw water away from Maryland.  Elsewhere, in Till v. SCS Credit Corporation, the Court will decide the appropriate discount rate to use for deferred payments to an undersecured creditor.  The Till case will require the Court to answer the esoteric question of what is the appropriate discount rate to calculate the present value of property held by a debtor under the Chapter 13 bankruptcy cramdown provision found at 11 U.S.C. §§ 1325(a)(5)(B)(ii). 

            But even esoteric cases can have practical consequences.  The decision in Till will establish a formula (based on economic principles contained in the briefs) that bankruptcy courts all across the country will employ to set the interest rate on outstanding debt, where debtors keep property--- such as automobiles---that they purchased through financing.  

            Each term the High Court hears cases of general interest to companies, government agencies, and private parties.  The business law cases coming before the Supreme Court this fall range from a case involving competition for local Internet service––pitting municipal utilities against the state and large telecommunications firms––to a case involving limitations on employers’ ability to refuse to hire rehabilitated job applicants because of their prior substance abuse of drugs or alcohol. 

            The Court has at least one consumer rights case this fall.  The case concerns how credit card companies and card-issuing banks disclose to customers the fees they are being assessed for exceeding their cards' credit limits. The Federal Reserve Board had previously held that those fees should be displayed as a separate charge on the monthly bill, but a federal appeals court ruled that the fees should be shown as part of the finance charge.  Consumers would probably be more interested in limits on the amount that banks and credit card companies can charge for fees, rather than under what category the fees appear on their bills.

            Employment Law.  In General Dynamics v. Cline and Raytheon v. Hernandez, the court will hear two employment discrimination cases with potentially broad impact on labor unions, benefits with seniority systems, and employers that currently offer preferential treatment to older employees.  The General Dynamics case poses the question of whether employers can offer a retirement plan that grants full health benefits only to those who retire after age 50, or does the Age Discrimination in Employment Act (ADEA) require companies to offer the same retirement option to every employee over the age of 40.  “If the employer has to extend retirement health benefits to everyone age 40 or older or to nobody, he’ll extend it to nobody,” predicts Donald Verrill, a lawyer in the Washington, D.C., office of Jenner & Block.   Superior benefits for older or more senior employees are fairly common with many companies across the nation.  Most employers probably could not afford to offer the same enhanced benefits to every employee over age 40.  The Bush Administration is backing the side of Dennis Cline and 175 of his fellow workers aged 40 - 49, and will argue that the ADEA prevents discrimination against any employee over age 40—even if the discrimination benefits a class of older employees.

            The Raytheon case tests the limits of the Americans with Disabilities Act (ADA) as applying to employees who were fired for using illegal drugs or consuming alcohol on the job but who then completed rehabilitation programs.  If reformed substance abusers are covered by the ADA, then employers will be prohibited from refusing to hire these applicants based solely on their past drug use.  The U.S. Court of Appeals for the Ninth Circuit held in favor of the employee-applicants.

            Governments.  The most closely watched case this term, McConnell v. FEC, pertains to the constitutionality of the McCain-Feingold Bipartisan Campaign Reform Act of 2002, which seeks to limit the sources and dollar amounts of political campaign contributions.  Of course, bipartisan is somewhat of a misnomer for the Act, because McCain-Feingold passed Congress with tepid Republican support and very strong support from Democratic legislators.

            In an unusual move, the Court briefly reconvened for one day last September----one month before the traditional opening of its new term----to hear four hours of oral arguments concerning the Act.  Ironically, the last time the court met in special session in September was in 1976, when the Court ruled on the federal campaign finance law of that time. See Buckley v. Valeo, 424 U.S. 1 (1976).

            In a brief asking the Court to find McCain-Feingold unconstitutional, the American Civil Liberties Union (ACLU) warned against "a seismic shift in American politics" if the Act were upheld. The American public would have to decide if that seismic shift was a positive or negative change in our political campaigns, but the ACLU implied it would be negative.  Similarly, a brief filed on behalf of business interests argues "[a]ll Americans, including American voters and government officials, have a vital interest in hearing what corporations have to say on the key issues of the day."  The business groups went on to say McCain-Feingold would put "broad and vague new restrictions on the ability of corporations (and labor unions) to speak, associate, and petition the government."  Most legal commentators expect the Court to hand down its decision by the end of 2003.

            Another politically charged case on the Court’s docket this term concerns unabashed gerrymandering to produce a greater number of Republican representatives in Congress.  For the past two years, the Republican party has adopted a strategy of accelerating redistricting battles in order to maximize partisan advantage.  The case, Vieth v. Jubelirer, is an appeal by Pennsylvania Democrats of the 2002 redistricting plan in Pennsylvania.  Democrats now hold only seven out of the state’s nineteen congressional districts, yet Democrats account for about half of Pennsylvania’s voters.  The Democrats are invoking a 1986 Supreme Court precedent that held that a partisan gerrymander so severe as to thwart majority will violates the equal protection clause of the 14^th Amendment, yet the Court set a very high standard to prove these allegations.

            By establishing a very high standard of proof, the Court tried to limit the number of cases that would be brought any time one party felt slighted by a majority party’s redistricting plan.  The federal district court in this case held that standard meant courts should intervene only if one party was "completely shut out of the political process."  According to Steven Shapiro, legal director of the American Civil Liberties Union, Republicans and Democrats "are equally guilty" of brazen and partisan gerrymandering, depending on which party controls a legislature.  Should the Supreme Court side with the Democrats, University of Pennsylvania law professor Nate Persily warned that the decision could “open the floodgate” to litigation on redistricting plans all across the nation.

            Vieth will force the Court to reenter, for the first time since 1986, the increasingly bitter and partisan process of establishing boundaries for congressional districts.  Bitter partisan revolts against redistricting plans erupted in Texas and Colorado earlier this year.

            Another case involving state and local governments concerns whether the state of Tennessee violated the ADA by failing to provide handicapped access to all of its state court buildings.  A separate dispute over state benefits focuses on whether the court will continue to protect states, in this case Texas, from lawsuits filed by individuals who have been denied Medicaid care for children.

            In Tennessee v. Lane, No. 02-1667, the appellant Tennessee claims sovereign immunity from lawsuits challenging the state's failure to make its courthouses available to people using wheelchairs. Briefs filed in the case show that one plaintiff-appellee, George Lane, had to crawl up two flights of stairs to make a required court appearance.  Another plaintiff-appellee is a court reporter, Beverly Jones, who could not gain access to four Tennessee courthouses where lawyers had hired her to record the proceedings.  Both Lane and Jones use wheelchairs.

            As a historical backdrop for Tennessee v. Lane, the Court held in 2001 that states could not be sued by their employees under the section of the ADA that bars employment discrimination.  Tennessee invoked that precedent in its appeals, but the U.S. Court of Appeals for the Sixth Circuit held that access to court is itself a fundamental right that trumped the state's sovereign immunity claim.  Separately, in a case from its last term, the Court permitted suits against states under the Family and Medical Leave Act.  So the decision in Tennessee v. Lane is being closely watched to resolve the recent conflicts in the Court’s federalism and state immunity jurisprudence.

            In other federalism cases before the Court this fall, the court will decide (1) whether the Environmental Protection Agency (EPA) has authority to override a state-granted permit to allow some air pollution emissions from an electric power generator, and (2) the division of power between national and state governments to control emissions of fleets of trucks.  In Alaska Department of Environmental Conservation v. EPA, Alaska is appealing a 9th Circuit decision that found the EPA had authority to overturn the state's decision to issue a pollution permit to a zinc-mining company operating a power generator in the state.  In its appeal to the Supreme Court, Alaska argues that the EPA only has authority to overturn a state's permitting decision when the state has violated the Clean Air Act, and that no violation occurred in this case.  EPA contends that the Clean Air Act gives it authority to determine the best available technology to abate pollution and whether a given company is implementing it.

            The Court will also hear a case involving the federal government's duty to maintain the privacy of individuals' social security numbers. Doe v. Chao poses the question of whether the Federal Privacy Act, 5 U.S.C. sec. 552(a), allows recovery of the minimum statutory damage of $1,000 without proof of any actual damages. The case arises out of a class action against the U.S. Department of Labor on behalf of a number of coal miners whose Social Security numbers were shown on posted lists of black lung disease claims.  The U.S. Court of Appeals for the Fourth Circuit held the claimants were entitled to no recovery, because they failed to prove any actual damages.

            Turning from privacy invasions to tax evasion, the statute of limitations on collecting partnership taxes will be the central issue in U.S. v. Galletti.  In that case the Internal Revenue Service (IRS) sought to recover partnership tax deficiencies from individual partners.  The IRS sent a deficiency notice for unpaid employment taxes to the partnership within the three-year limitations period for assessing a tax deficiency after filing a return.  However, the IRS did not send a deficiency notice to the individual partners within that three-year limitations period defined at 26 U.S.C. § 6501(a).  The IRS argued that its timely assessment against the partnership permitted it to collect taxes directly from individual partners, but the Ninth Circuit held in favor of the partners.

            The court will also hear a case involving state and local governments with business law implications.  The Supreme Court will decide whether the states have the power to forbid their local governments to go into the Internet service provider business on their own.  The average cost of cable modem service (bundled with a basic cable service subscription) in this country is nearly $60/month.  As long as the cost of high-speed Internet access to the home remains relatively expensive, the dream of having an interconnected society that grows its economy through rapid and efficient access to information over the Internet will never be realized.

            Against this backdrop of relatively expensive high-speed Internet access for the average American home, the Supreme Court will decide whether the state of Missouri can bar municipal utilities from offering telephone, cable TV, and high-speed Internet access to local residents using fiber optic systems owned by municipalities.  The issue before the Court: whether the U.S. Telecommunications Act of 1996 preempts local and state laws prohibiting the utilities from competing with telecommunications firms to offer these services.

            Finally, the Court will consider a case involving a claim against a foreign government.  Republic of Austria v. Altmann poses the question of whether displaying works of art in a public museum constitutes commercial activity or inherently governmental activity.  The case has broader implications for whether a foreign country be sued in U.S. courts for Holocaust-era actions.  This case seeks to recover six paintings by the artist Gustav Klimt that were commissioned or purchased by Viennese Jewish businessman Ferdinand Bloch-Bauer, who headed Austria’s sugar industry at the time.  The Nazis seized the paintings in 1938 during the German Anschluss of Austria, and these paintings later became the property of an Austrian state gallery.  Two of the paintings were commissioned portraits of Bloch-Bauer’s wife, Adele.  If the Supreme  Court decides the display of these works of art is inherently governmental activity, then the case falls within the purview of the Foreign Sovereigns Immunity Act, which makes foreign governments immune from lawsuits in United States courts.

            Health Care.  The California case of Marcus Conant, a medical doctor who challenged a federal law that forbade him from even discussing the potential use of marijuana for the relief of appetite disorders suffered by his patients with cancer and AIDS, was scheduled to be argued this fall.  The case was styled U. S. v. Oakland Cannabis Buyers’ Cooperative before the Supreme Court.  However, in a surprise move, the High Court on Tuesday, Oct. 14, issued a per curiam decision that let stand a U.S. Court of Appeals for the Ninth Circuit decision upholding the state laws permitting doctors to discuss marijuana use.  The Ninth Circuit also held that the federal policy that created a gag rule prohibiting doctors from discussing marijuana usage for medicinal purposes violated both the free speech rights of doctors and the “principles of federalism.”

            According to Dr. Conant, who has treated 5,000 HIV-infected men and women and was the original plaintiff in the trial court hearing, “In my practice, marijuana has been of greatest benefit to patients with wasting syndrome. I do not routinely recommend marijuana to my patients, nor do I consider it the first line of defense against AIDS-related symptoms. However, for some patients, marijuana proves to be the only effective medicine for stimulating appetite and suppressing nausea, thus allowing the AIDS patient to recover lost body mass and become healthier.”  The respondents’ brief explained why some very ill patients cannot tolerate ingesting the prescription drug Marinol, which contains the same active ingredient that causes hunger sensations as marijuana, but are able to absorb the drug from inhaling marijuana.

            Although states have the authority to issue licenses to practice medicine, the federal Drug Enforcement Administration (DEA) has authority to issue licenses to prescribe drugs.  That is why doctors frequently list their DEA authorization number on their prescription forms.  As a practical matter, a doctor who was prevented from writing prescriptions would find it difficult to practice medicine.  Thus, the Bush Administration, like the Clinton Administration before it, sought to use the strong arm of the DEA to thwart legislation in various states allowing medicinal use of marijuana.  At present, Alaska, Arizona, Hawaii, Nevada, Oregon, Washington, and California – seven of the nine states within the Ninth Circuit – as well as Maine, Colorado, and Maryland have various statutes decriminalizing either the doctor’s conduct in prescribing marijuana or the patient’s consumption of marijuana for medicinal purposes.

            Court watchers have been puzzled why the Supreme Court would issue a per curiam decision in a case it had already put on its docket this fall.  These legal commentators noted that the Court may have been swayed by the unusually strong opinion written by a three-judge panel of the Ninth Circuit that included Chief Judge Mary M. Schroeder, the author of the opinion, Senior Judge Betty B. Fletcher, one of the Ninth Circuit’s most liberal members, and Judge Alex Kozinski, a libertarian who some legal commentators mistakenly label as the Ninth Circuit’s most conservative member.  From a libertarian perspective, a decision that tells the federal government to stay out of the doctor-patient relationship (under the guise of respecting states’ rights) fits perfectly into the libertarian philosophy of a minimal role for government.

            In Frew vs. Hawkins, the Court will decide whether a federal judge can force the state of Texas to comply with an agreement to provide Medicaid preventive health services for children of indigent families.  The Frew case  involves a suit filed against the state in 1993 by several families in East Texas who thought that the state failed to comply with federal Medicaid guidelines to provide preventive health services for children. 

            By 1996, the suit had been certified as a class action.  After the presentation of considerable evidence and arguments, the state agreed to provide the services, thereby settling the suit as part of a consent decree, in which the parties make an agreement subject to the court’s supervision. The court accepted the settlement, and the state did not appeal.  But two years later, when the families went back to court to have the agreement enforced, the state resisted.

            The state argued that even though it had agreed to settle the suit, it had not specifically waived its sovereign immunity, so the 11^th Amendment barred the federal judge from enforcing the agreement.  Not surprisingly, the federal judge decided he had such power and ruled against the state.  The U.S. Court of Appeals for the Fifth Circuit sided with Texas that because no federal rights had been violated, suit could not be brought in federal court.  Based on the reasoning of the Fifth Circuit, citizen access to Medicaid services is a privilege and not a federal right. Buoyed by its victory in the appellate court below, Texas is now taking its sovereign immunity argument to the Supreme Court.

            In Olympic Airways v. Husain, the Court will determine whether an airline's refusal to help a passenger who becomes ill and dies during an international flight (in this case, refusing to move a man with asthma away from the smoking section) constitutes an "accident" within the meaning of the Warsaw Convention.  If the Court holds that it does constitute an accident, then the airline could be liable for the passenger's injuries and wrongful death.

            Church and State.  In Locke v. Davey, the state of Washington established taxpayer-financed scholarships for post-high school education to Washington residents with financial need.  The state awarded Joshua Davey one of these so-called Promise Scholarships for $1,125, based on his grades and family income. The eligibility requirements stated that the scholarship could not be used to pursue a degree in theology. The Washington constitution prohibits public money from being used to provide any religious instruction, or to support any religious establishment.

            When Davey declared a major in Pastoral Ministries at a Christian college, he lost his scholarship. He then sued the state in federal court claiming violations of his free exercise of religion, freedom of speech, and equal protection rights. The district court granted summary judgment against Davey, but the U.S. Court of Appeals for the Ninth Circuit reversed in a 2-1 decision.  The Ninth Circuit found that the prohibition on majoring in theology discriminated on the basis of religion and could be upheld only if the state advanced a compelling purpose. The Ninth Circuit further determined that the state’s interest in avoiding conflict with its constitution was not a compelling reason.  The appellant in this case, Gary Locke, is the governor of Washington.    

            "Washington's constitutional prohibition against public funding of religious instruction does not impair Davey's free exercise of his religion -- he is free to believe and practice his religion without restriction," the state argues in its brief before the Supreme Court. "The Washington Constitution does not even prevent Davey from majoring in theology. He is free to use his scholarship at Northwest College to obtain a degree in business management and administration, while simultaneously pursuing a theology degree at a different college -- using his own funds."

            Locke v. Davey comes on the heels of the Supreme Court’s Ohio school voucher decision in 2002.  That case held states did not violate the Establishment Clause by offering tuition subsidies that parents, exercising their private choice, can apply toward parochial education.

Thirty seven states, including the state of Washington, have constitutional prohibitions against using public money to support religious education.

            While seemingly neutral on their face, such provisions may have been enacted in response to religious bigotry at the time.  In 1875, anti-Catholic Congressman James G. Blaine first proposed a constitutional amendment designed to prevent any public funding for religious schools. That proposed constitutional amendment was narrowly defeated, but Congress passed legislation requiring new applicants for statehood to include such a provision in their state constitutions. Thus, many of the western states still have this legacy in their state constitutions.  The Arizona Supreme Court recently described this provision against public support for religious schools in its state constitution as a “clear manifestation of religious bigotry.”

            According to Mark Brnovich of the Goldwater Institute, “Blaine Amendments” in state constitutions are barriers for the expanding school voucher initiatives across the country and have been used successfully in Maine, Vermont, and Puerto Rico to block voucher programs in primary and secondary education.

            The two dozen briefs that have been filed in Locke v. Davey indicate that the stakes are high in this case:  the future of the school-choice movement could depend on the outcome of this case.  Brnovich summarizes the importance of the case this way. “At stake is the educational fate of millions of schoolchildren and the freedom of parents to choose where they may send their children to school.” The Bush administration has sided with student Joshua Davey and will argue before the Supreme Court that Washington's refusal to subsidize a student majoring in theology  while paying for other higher education options is unconstitutional.

            After procrastinating for several months, the Supreme Court on Oct. 14 accepted for hearing the controversial “Pledge of Allegiance” case from the Ninth Circuit, which held that requiring teachers to lead students in recite the phrase “under God,” amounted to an unconstitutional endorsement of religion.  The press has made this case into a cause celebre, even though the Supreme Court’s jurisprudence on these issues is now well settled.  For the same reasons that the Supreme Court turned back Establishment Clause challenges to the phrase “in God we trust” on our coinage, we can expect the Supreme Court to characterize “under God” as a historical recognition of the founding fathers faith, but not as a prayer.  The last time the Supreme Court addressed the constitutionality of references to God in public schools was June 2000, when the Court struck down state laws permitting student-led prayers before high school football games.  Over the years, several justices have written in their individual opinions that they believe the pledge is constitutional as written, but the Court has never officially spoken on this issue.

            This case has one of the most interesting procedural postures of any case that came before the court.  First, in 1943, the Supreme Court decided, in a case brought by Jehovah’s Witnesses, that public school systems could not compel students to recite the Pledge of Allegiance.  The Elk Grove School District––where this Sacramento, California case arose –– does not require students to recite the pledge.  Unwilling students are permitted to refrain from reciting the pledge.  However, the Ninth Circuit concluded that students who refrained would feel left out and possibly ostracized by their classmates.  So the question becomes who is more obligated to show tolerance: those students willing to recite the pledge or those students unwilling to recite the pledge.

            As a historical footnote, the phrase “under God” has not been a part of the Pledge of Allegiance for centuries as many Americans believe.  The phrase was added by Congress in 1954 during the Cold War to distinguish the United States from the self-proclaimed atheistic, communist Soviet Union.  The original pledge, without the reference to God, was adopted in 1942.

            Second, the press significantly heralded the Ninth Circuit’s decision last June 2002 as holding the Pledge of Allegiance was unconstitutional.  However, the 3-judge panel of the Ninth Circuit revised its prior decision earlier this year and narrowly confined it to public schools.  The amended decision of the Ninth Circuit struck down state policies that require teachers to lead “willing students” in the pledge.  If the Supreme Court merely affirms the Ninth Circuit decision without offering further guidance, it will lead to further litigation of cases involving public school teachers who voluntarily choose to lead the class in the pledge.  Similar test cases are working their way through the federal courts in Colorado and Pennsylvania.  In accepting the Ninth Circuit Pledge case, the Supreme Court said it would rule only on the limited question of public schools, not on the constitutionality of the pledge in general.

            Third, the Supreme Court may never even reach the constitutional issues in this case, if the state is successful in challenging the appellee’s standing.  Michael Newdow, an atheist, filed the case in federal district court saying his daughter should not have to “watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that ours is ‘one nation under God.’”  Newdow is not married to the girl’s mother, and the mother has sole custody of their daughter.  The mother has been quoted in the press and in the opposition briefs as being opposed to the litigation:  she does not want her daughter involved as the subject of the litigation.  In accepting the Newdow case for its docket, the Supreme court stated that it would decide the issue of whether a non-custodial parent can bring a lawsuit against the wishes of a custodial parent.  Ironically, for justices of the Supreme Court, this issue of standing may turn out to be more important than the substance of the “under God” wording.

            Fourth, Michael Newdow is both a medical doctor (emergency room physician) and a lawyer representing himself pro se.  Only a select few lawyers will have the privilege of arguing a case before this nation’s highest court, and only a tiny fraction of those lawyers will ever appear before the court as a pro se litigant.  Dr. Newdow wrote his own brief and carried his case all the way to the U. S. Supreme Court.  It would take extensive research to find a precedent for the last time pro se litigation reached the U.S. Supreme Court, and the pro se party argued his own case before the High Court.  It gives new meaning to the phrase “the People’s Court.”            

            Fifth, Justice Antonin Scalia has recused himself from hearing this case.  Scalia did not offer any explanation for his recusal, but the recusal is likely tied to a speech Scalia delivered to the Knights of Columbus in Fredericksburg, VA, in January 2003.  According to news reports, Justice Scalia's speech before the Knights pointed to the Ninth Circuit's decision in his case as an example of how courts were misinterpreting the Constitution to "exclude God from the public forums and from political life."  Based on these news reports, Newdow questioned Scalia’s objectivity and suggested in a document that he filed with the Supreme Court that Scalia should recuse himself.   Newdow won.  Not only is Dr. Newdow arguing his own case before the High Court, he appears to have persuaded his harshest critic on the bench to withdraw from the case.

            Criminal Procedure.  The Supreme Court’s docket comprises three cases challenging  police searches and interrogations of prisoners with dubious Miranda warnings.  The Miranda cases have criminal law experts paying closing attention.  All three cases test the Court's "fruit of the poisonous tree" doctrine, which states that any evidence acquired as the result of a constitutional violation must be excluded. 

            The new Miranda cases will force the court to clean up an apparent discrepancy between two previous rulings.  In Oregon v. Elstad (1985), the Court struggled to define circumstances in which a confession can be "truly voluntary once the 'cat is out of the bag,'" yet concluded that confessions could be introduced as evidence despite a Miranda violation, so long as the confessions were not coerced.  The Elstad Court said these tainted confessions were admissible, because Miranda warnings were not constitutionally required.  But in a subsequent ruling in Dickerson v. U.S (2000), the court reaffirmed that Miranda warnings were indeed a matter of constitutional rights, and not merely a prophylactic measure.  The Supreme Court noted that "the modern practice of in-custody interrogation is psychologically rather than physically oriented."

            The police interrogation cases before the Court this term “are very, very serious threats to Miranda rights," said University of Michigan law professor Yale Kamisar. "They'll be determining whether Miranda means anything at all in these cases. If police can violate Miranda at will, and in one case, purposely, and still bring in evidence they got as a result of the violation, what good is it?"

            In Missouri v. Seibert, the Court will examine the increasingly popular police tactic to obtain first a statement from a suspect without Miranda warnings, then administer the warnings and obtain a confession from the suspect. The Court will decide whether such a confession, even if preceded by a "voluntary" waiver of a suspect's Miranda rights, can be used as evidence when the original failure to give the warnings was deliberate.

            In Seibert, a police officer deliberately chose not to give the Miranda warnings to a woman he suspected of taking part in a fatal house fire.  The defendant was arrested and questioned following the death of a teenager in a fire set by the defendant's son and his friend at the defendant's home.  The woman then admitted her role and that she knew the victim would die in the fire.  In a second round of questioning, the officer then read her the Miranda warnings but persuaded her to repeat her self-incriminating statement.  Missouri is appealing a ruling that said the second statement should not have been admitted into the trial of the woman, who was convicted of second-degree murder. 

            The Court will most likely conclude that deliberate and intentional police withholding of the Miranda rights justifies the exclusion of the evidence obtained in Siebert.  However, instead of excluding all statements by the suspect, the Court may try to limit the exclusion to the second confession in this case.  If so, that would leave the Court in the precarious position of holding the second confession was poisonous fruit, but the first confession was not poisonous fruit – even though both stemmed from a deliberate attempt to circumvent the Fifth Amendment’s  prohibition of compelled self-incrimination.

            In United States v. Patane, a Colorado man interrupted police while they were giving him the Miranda warnings, then he told them about an illegal weapon he had.  The Court’s decision will address whether physical evidence (a gun in this case) discovered as a "fruit" of an imperfect Miranda warning can be introduced at trial.  The Supreme Court will likely base its decision on the suspect’s voluntary interruption of the police officers and hold that the defendant sealed his own fate when he chose not to listen to the Miranda warnings.

            In a third Miranda case, police in Nebraska obtained a confession from a suspect before they had informed him of his right to an attorney.  Later, they arrested him and read him his rights, then took a second confession that they used at trial against him.  This case should be comparatively simple for the Court to decide.  Prior precedents indicate that police must advise suspects of their right to counsel at the point that they begin any interrogation, not at a point that is convenient or strategically useful for the police.

            In a drug arrest case, Maryland v. Pringle, the justices will review a decision by Maryland's highest court that a blanket arrest of all passengers in a car violates the U. S. Constitution's Fourth Amendment ban on unreasonable searches and seizures. The state court's ruling overturned the conviction and 10-year prison sentence of a passenger who, after the controversial arrest, confessed to police that the cocaine in the car belonged to him.  On appeal, the state of Maryland will argue that the Constitution allows police to arrest all passengers when a car is stopped, the police find drugs in the car, and no one admits ownership.

            "Having seen a large roll of bills and a quantity of crack cocaine in the car, the officer may not have been certain who possessed the money and drugs, but he certainly was reasonable in believing that one or more of the current occupants were guilty of crime," Maryland’s Attorney General argues in his brief to the High Court.  "Experience, logic and common sense suggest that where there are three occupants in a car, there is a fair probability that they are engaged in a common enterprise with the driver and all are implicated. Thus ... the officer had probable cause to arrest Pringle (as well as the other two occupants)."

            But Defendant Joseph Pringle counters that he was a front-seat passenger in the car, and the police had no probable cause to arrest him based on items found exclusively in the back seat. He argues his arrest marked a "deviation from the basic, fundamental principle that the right to search a vehicle for contraband does not carry with it a concomitant right to arrest a mere passenger in the vehicle absent a link connecting such passenger to the contraband."

            In a roadblock case, Illinois v. Lidster, the state is appealing a state Supreme Court decision overturning the drunk-driving conviction of Robert Lidster, who was arrested after driving erratically from a police checkpoint in a suburb of Chicago. The police had set up the barrier to find witnesses to a fatal hit-and-run incident that occurred at the same time the previous week.  While driving from the roadblock checkpoint, Lidster almost ran into an officer.  His vehicle was stopped again, and Lidster was then arrested on a charge of driving under the influence of alcohol.  He was convicted and sentenced to a year of conditional discharge, counseling and a 14-day work program. He was also ordered to pay a $ 200 fine.  Both the Illinois Court of Appeals and the Illinois Supreme Court held the police roadblock stopping all traffic as part of a criminal investigation violated the Fourth Amendment's prohibition on unreasonable seizures.

            On appeal, the state argues that the checkpoints were narrowly designed to investigate a single, well-publicized homicide and not created in a general effort to uncover crime. In addition, the motorist stops were very short in duration, a mere 10 to 15 seconds, during which police did not ask for the drivers' names, licenses, registrations or proof of insurance. The officers simply handed out flyers about the hit-and-run and asked whether the drivers or their passengers had seen anything related to the hit-and-run accident.

            The state’s brief to the Supreme Court argues, "[c]ommon sense dictates that setting up a checkpoint exactly one week after the crime, at approximately the same time of day -- in order to stop motorists who regularly travel that route at the end of their work shifts -- will increase the likelihood of finding witnesses to the crime."  The state would ask the Court to find that crime-specific informational checkpoints are constitutional, and that any adverse finding would prevent “law enforcement officers from performing their historic, normal and necessary functions of trying to find witnesses to a known crime."

            Lidster challenges the constitutionality of the roadblocks as intrusive on motorists.  His brief notes the police could have discovered witnesses to the hit-and-run accident by placing public service announcements on the radio, television, or newspaper, or by putting up flyers in adjacent businesses to the crime scene.  Unlike prior checkpoints upheld by the Supreme Court – –to catch drunk drivers or to stop the smuggling of illegal aliens ––Lidster argues the police must reasonably suspect that an individual has broken the law before pulling him or her over. He states in his brief, "[a]n investigative stop can be upheld only where individualized suspicion exists or a significant public interest faces an immediate and great threat. Otherwise, the police would be able to routinely stop citizens without just cause, thereby violating another public interest, that being the security guaranteed by the Fourth Amendment."

            In U.S. v. Banks, the government is urging the Supreme Court to overturn a Ninth Circuit decision that FBI agents broke down the door of a criminal suspect's apartment too quickly after announcing they had a search warrant for his apartment.  The agents waited 15-20 seconds before busting down the door to Lashawn Banks' apartment in North Las Vegas.  Inside the apartment, agents found a .40 caliber semi-automatic pistol; a .380 caliber semi-automatic pistol with a laser sight and seven rounds in the magazine; a .22 caliber Beretta pistol; a bullet-proof vest; rock and crack cocaine, and a scale.

            Banks was arrested and charged with possession of cocaine with intent to distribute and possession of a firearm. He sought to have the evidence suppressed, arguing that the officers violated his Fourth Amendment right against unreasonable searches by failing to follow appropriate knock and announce procedures when serving the warrant.  The federal government disputes this contention.  "Under an analysis for reasonableness, officers may almost always conclude that they have effectively been refused admittance, thus justifying a forcible entry, when 15-20 seconds have elapsed after knocking and announcing their presence," the government writes in its brief to the Supreme Court.  "Indeed, a shorter period of delay is generally reasonable when officers are executing a warrant to search for drugs, where the object of the search is subject to easy destruction and where violent armed responses are common. Officers need not let prolonged delay frustrate the purpose of the search or expose them to undue danger."

            Banks argues the Court should affirm the exclusion of evidence collected in his case, because the police should have waited more than 20 seconds. The officers had no reason to suspect that their lives would be placed in danger or that evidence would be lost if they waited for a verbal response from him.  "Apparently, the government wants this court to announce a rigid rule that 15-20 seconds constitutes sufficient time to infer a refusal under the knock and announcement statute," Banks states in his Supreme Court brief. "The adoption of a rigid rule of 20 seconds would short-circuit Fourth Amendment reasonableness inquiries."

            The Supreme Court will likely reverse the Ninth Circuit and hold the evidence is admissible, without adopting a rigid rule on how long police must wait before forcibly entering a suspect’s residence or business.  The Court will likely say the amount of time must be “reasonable,” but leave it to the individual officers to determine that length of time based on the exigencies of the circumstances they face.

            Finally, in United States v. Flores-Montano, the Court will review yet another Ninth Circuit search and seizure case.  This case will require the justices to decide whether customs officers, conducting searches at the border, can remove, disassemble and search a vehicle's fuel tank without the “reasonable suspicion” that the Constitution would ordinarily require.  The Ninth Circuit invalidated the search of a Ford Taurus station wagon’s gas tank, where agents found some 81 pounds of marijuana, in a vehicle that had crossed the Mexican border into California at the Otay Mesa entry point near San Diego.

            Writing for the Ninth Circuit panel, libertarian judge Alex Kozinski wrote that aside from delaying an innocent person, customs agents may put the driver in danger if they fail to reassemble the vehicle correctly.  "Where the search includes the dismantling of a mechanical part in the motor vehicle, the driver has little independent opportunity to allay his fear that the vehicle may leave him stranded on the freeway -- or far worse," he wrote.

            However, the Bush Administration’s Solicitor General Theodore Olson described the removal and inspection of gas tanks as "quick, safe and nondestructive" and "not outside the routine sorts of inspections that international travelers should anticipate when seeking entry into this country." It is not clear from Olson’s brief whether American citizens would be subjected to inspection of their vehicle parts, but presumably so.  Olson also cited the arrest and conviction of terrorist Ahmed Ressam, who was seized in 1999 by a U.S. Customs agent after he crossed the Canadian border with explosives hidden in the trunk of his car. As part of the so-called millennium terrorist plot, Ressam was supposed to detonate the bombs at the Los Angeles International Airport.  According to Olson, if the Supreme Court upholds the Ninth Circuit, then terrorists could seek to hide explosives in fuel tanks in the future. 

            Thus a routine case of interdicting drug traffic at the border has been recast by the Bush Administration into a homeland security case.  Clearly, the average American citizen would be highly offended at having the fuel tank removed from the car he was driving and inspected at the border.  Those inspections would never become  “quick [and] safe,” and would significantly deter most motorists from driving their own valuable cars outside of the country.  The Supreme Court will have to decide if practically any form of inspection by police at the borders can be justified in the name of homeland security.

            Congressional Spending Clause Power.   Under the so-called Spending Clause, Congress may attach conditions to the use of federal money that it could not impose directly on the money's recipients.  For example, the states were required by Congress to increase the age for legal consumption of alcohol in order to receive federal highway funds.  Up to now, the Spending Clause has not been subjected to the Supreme Court’s scrutiny to place curbs on Congress exceeding its authority.  In contrast, the Supreme Court has struck down Congresses attempts to interfere with the states under the (interstate) Commerce Clause.  See U.S. v. Lopez (1995) (limiting Congress’s ability to pass laws preventing guns to be carried on school grounds) or U.S. v. Morrison (2000).

            Many scholars predicted that the Court would soon focus its attention on limiting congressional authority under the Spending Clause. ``The conservatives have been looking for this opportunity,'' said George D. Brown, a professor at Boston College Law School.  For the fall 2003 term, the Court agreed to decide whether Congress had exceeded its authority under the Spending Clause in 1984 when it enacted a criminal law known as the federal bribery statute.  The statute makes it a federal crime to give a bribe of at least $5,000 to a state or local official if the official's government agency receives more than $10,000 a year from the federal government. The law does not require federal prosecutors to prove any connection between the offense and the federal money, other than its existence.

            In Sabri v. United States, a real estate developer in Minneapolis who was charged with bribing a city council member to get regulatory approval for a proposed development. The Minneapolis housing agency receives about $23 million a year from the federal government.  The federal district court in Minneapolis dismissed the indictment against the developer, Basim Omar Sabri, on the ground that the bribery law, also known as Section 666, was unconstitutional in the absence of a required nexus between the conduct and the federal money.  In a somewhat surprise move, the United States Court of Appeals for the Eighth Circuit, in St. Louis, then reinstated the charges under an alternative source of congressional authority.  In a split decision, the appeals court agreed that the law could not be justified under the Spending Clause, but it upheld the statute under under the constitution’s Necessary and Proper Clause.

            This ruling by the Eighth Circuit put it at odds with decisions by the Second and Third Circuits to strike down similar attempts to prosecute under the federal bribery statute.  The National Association of Criminal Defense Lawyers has filed a brief urging the Supreme Court to strike down the statute.  Congress is not authorized to “criminalize bribery merely because the corrupt transaction in question involves an agent of an organization that, somewhere, receives federal-program funds,” according to the criminal defense lawyers.

            The U.S. Supreme Court will likely overrule the Eighth Circuit and bring it into conformance with decisions of the other circuits.  Thus the dissent in the Eighth Circuit case may turn out to become the law of the land, as the Supreme Court will likely borrow from the Eight Circuit dissent’s reasoning for its decision.

            Judge Bye stated in his Eighth Circuit dissenting opinion, “[t]he majority’s sweeping view of the Necessary and Proper Clause calls to mind Congress' unbounded deployment of its Commerce Clause authority before Lopez and Morrison.  Both Lopez and Morrison curtailed federal power, forbidding Congress from piling ‘inference upon inference’ to demonstrate a relationship between crimes and federal interests.”

            He wrote that the federal bribery statute “upsets the delicate balance between federal and state authority that animates our Constitution. . . . Congress has no more power to punish theft from the beneficiaries of its largesse than it has to punish theft from anyone else. . . . The Constitution does not contemplate that federal regulatory power should tag along after federal money like a hungry dog.”

            Online Pornography.  For the third time since 1997, the Supreme Court has agreed to review the constitutionality of a congressional statute designed to punish the publication of sexually explicit material on the Internet.  The case now on the Court’s fall 2003 docket concerns the Child Online Protection Act, passed by Congress in 1998 to replace the Communications Decency Act, which the Supreme Court unanimously struck down in 1997.   In Ashcroft v. American Civil Liberties Union the Court will hear for the second time a case that it had overruled, with a divided majority, and remanded back to the U.S. Court of Appeals for the Third Circuit in Philadelphia.

            Once again, the Third Circuit invalidated the Child Online Protection Act, because it was too broad and was likely to deter too much expression that was appropriate for adults.  The Third Circuit also held that the undifferentiated definition of “minors,” comprising all children from birth to age 17, was too imprecise to meet the First Amendment's requirement of “narrow  tailoring” for restrictions on speech.  After all, the movie industry has classifications of G, PG, PG-13, and R, and recognizes the differences in appropriate entertainment for younger and older minors.

            The Child Online Protection Act makes it a crime to display material “harmful to minors” on the World Wide Web for “commercial purposes” in a manner that permits children to gain access. Requiring the use of a credit card or special access code is a permissible defense under the law; however, many adults want to view web sites anonymously.  They do not want to identify themselves with credit cards or other adult-access codes.  In addition, educational sites that offer information on controlling the spread of HIV often include explicit accounts.  These sites could be subject to prosecution if they operate at a profit, even though some teenagers might save their lives from viewing the material on these sites.

            The Bush Administration views the matter in black and white terms.  The administration wrote in a brief to the High Court that there "is no alternative to the Child Online Protection Act."  But of course there are better alternatives.  Warning pages designed to keep children under the age of 18 from viewing a site should be an acceptable defense under the Act.  Web site developers should not have the burden of policing the age of people who view their sites.  A warning page would enable adults to peruse personals and other entertainment sites without having to disclose their identities. 

            Dodging a Bullet.  Although the Supreme Court did not hear oral arguments on Monday, Oct. 6, in deference to the Jewish holiday of Yom Kippur, the Court did announce that it would let stand the decisions of lower courts in a number of cases, including one case that could have reignited passions over abortion rights in this country.  The case denied certiorari on Oct. 6 involved Regina McKnight, who was described in court documents as having low intelligence and whose mother helped manage her everyday needs.  Her lawyers said that after her mother was killed in a car accident, McKnight "quickly spiraled downward, becoming homeless, addicted to cocaine and marijuana and pregnant." 

            During her 35^th week of pregnancy, McKnight delivered a stillborn female baby, whom she had wanted to name Mercedes.  Blood samples taken from McKnight and her stillborn baby both tested positive for cocaine.  South Carolina had previously prosecuted women for child abuse if their delivered babies showed traces of cocaine, but McKnight's was the first drug-related case to be tried and convicted for murder under South Carolina’s "homicide by abuse" law.  The South Carolina Supreme Court first upheld the constitutionality of treating a fetus as a person in connection with the prosecution of pregnant women who used drugs.  The South Carolina Supreme Court then went on to affirm McKnight’s conviction for second-degree murder.  McKnight was given a 20-year prison sentence, with 8 years of the sentence suspended.

            Abortion rights proponents were justifiably concerned when any court finds a fetus has rights, let alone declares a fetus to be a person.  However, the U.S. Supreme Court apparently plans to stay clear of cases pertaining to abortion or fetal rights controversies this term.  It is expected that the Supreme Court will ultimately rule on the constitutionality of the ban on partial birth abortions that was signed into law on Nov. 4.

            Separately, Congress now faces a pending bill to confer limited legal rights to fetuses killed in a homicide.  The bill was inspired by the circumstances of the death of Laci Peterson and her eight-month old unborn child.  Both the bodies of Laci Peterson and her unborn son were recovered last year in a nationally publicized case from California.  The bill pending in Congress would attach criminal sanctions against attackers for harming a pregnant woman and her unborn fetus. The Bush administration supports the legislation.  Fifteen states currently have laws recognizing fetuses as victims, and 13 states have partial coverage, according to the National Right to Life organization.

 

 

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