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M.M. is Among SCOTUS Blog’s Cases to Watch

withinthescope@gmail.com (E.L. Lipman) — Thu, 23 Oct 2008 22:31:01 GMT

A week from tomorrow, on September 29, 2008, the United States Supreme Court will convene for what is known as the "long conference." At this meeting, the Justices will make decisions on which of the petitions for certiorari that have been filed during the summer recess will be granted – placing the underlying cases on track for presentment to the Court during the Term that officially begins on the following Monday, October 6.

According to SCOTUS Blog, among the "Petitions for Certiorari to Watch" is the petition filed in the case of M.M. v. Special School District No. 1.

As readers of these pages will recall, in April of 2007, a panel of the U.S. Court of Appeals for the Eighth Circuit held that the burden of proof in special education matters under the Individuals with Disabilities Education Act was assigned to the party seeking relief. In most cases, as it was in M.M., this burden would be borne by the parent as the next friend of the disabled student.

Among the questions presented by the petition is whether the states, like Minnesota, may legislatively assign the burden of proof in special education administrative hearings.

Details about this case from the High Court’s Docket system are accessible here. Also, through the enormously helpful resources of SCOTUS Blog, a listing of all of their noteworthy petitions is accessible here; a copy petitioner’s brief in M.M. is accessible here; and a friend of the court brief in support of granting the writ filed by the State of Minnesota, is accessible here. (Note: While the Court Docketing system states that the opposition brief of the Minneapolis Public Schools has been distributed to Justices, SCOTUSblog had not yet received a copy for its posting.)

UPDATE: As noted here, on October 20, 2008, the High Court denied the petition for the writ of certiorari.

Notice and GITMO

Thu, 12 Jun 2008 16:10:50 GMT

Bad news: our clients are not entitled to notice that the sentencing court intends to exceed the guideline range. US v. Irizarry was issued by the USSCT today, and held that, "Any constitutionally protected expectation that a defendant will receive a sentence within the presumptively applicable Guidelines range did not, however, survive United States v. Booker, 543 U. S. 220, which invalidated the Guidelines’ mandatory features." Rule 32, the basis for the required notice under the mandatory guidelines, does not have the same effect on the advisory guidelines. Look out, Wichita.

Of little consolation is this admonition, "Sound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing itself, has given them an adequate opportunity to confront and debate the relevant issues." They also allow for a continuance for prejudicial surprise. I guess some due process lives.

Now for the big news: the Justices ruled in favor of the Gitmo detainees, here. The detainees can challenge their detention in federal court, as the military lacks the legal autonomy to prosecute. It will be interesting to see how this plays out. Here's the link to SCOTUSBlog on Boumediene v. Bush, and here's the SCOTUSBlog lede:
"In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the constitution allows — when the country faces rebellion or invasion."

Supreme Court filings focus on military death penalty system

caaflog@caaflog.com (Dwight Sullivan) — Fri, 19 Sep 2008 03:39:07 GMT

As discussed in this highly informative piece on SCOTUSblog, lawyers for Patrick Kennedy and the Acting SG filed the briefs today that the Supreme Court requested in Kennedy v. Louisiana to address whether the Supremes should rehear the case. Of course, the Acting SG said yes and Kennedy's lawyers said no. SCOTUSblog provides a great analysis of the implications of this for the Kennedy case itself. I'm more interested in the briefs' treatment of military law.

Kennedy's brief displayed unfamiliarity with the military justice system. Any number of military justice experts would have made themselves available to help Kennedy's counsel, but it's clear that no such assistance was accepted. Since petitioner's counsel knew that the Acting SG's brief would be prepared with the assistance of the DoD General Counsel's office -- and, in fact, two highly distinguished retired judge advocates had signed onto the Acting SG's previous motion for leave to file a brief in support of rehearing before also signing onto today's brief from the Acting SG -- why wouldn't petitioner's team have sought out reinforcements to keep from being outgunned on the military justice flank? For whatever reason, they didn't and it shows.

What is probably the most significant problem arises in the petitioner's brief's desuetude argument. The petitioner argues at one point that "[t]he military, to our knowledge, has not sought to impose the death penalty for rape in over forty years." Petitioner's Brief in Opposition at 3. The brief later argues, "The military last executed someone for rape in 1961, and it apparently has not even sought – let alone obtained – such a sentence since." Id. at 7-8. Wrong. As a published CAAF decision makes clear, the Navy sought the death penalty in a court-martial of a petty officer for rape and attempted murder in 1989. United States v. Straight, 42 M.J. 244, 247 (C.A.A.F. 1995). But because the members' finding of guilty to the death-eligible offense was not unanimous, id., death was no longer an authorized sentence after findings. Given that this information is available in a published opinion and was mentioned in a law review article published two years ago, see 189 Mil. L. Rev. 1, 13 n.45, it's surprising that petitioner's brief would make such a major mistake.

That large mistake is immediately followed by a smaller one. The brief states, "There are currently nine people on the military’s death row; all nine committed premeditated murder or felony murder." Petitioner's Brief in Opposition at 8. Again, wrong. If we are using "death row" to refer to a physical place in the United States Disciplinary Barracks, there are currently four men there. If we are using "the military's death row" to refer metaphorically to the number of servicemembers currently under a death sentence, then the actual number is five. (One person, Kenneth Parker, is under a military death sentence but is currently confined at Camp Lejeune.) Nine is the number of servicemembers currently under death sentences plus the number of servicemembers whose death sentences have been overturned but who might still be resentenced to death. The phrase "currently . . . on the military's death row" isn't descriptive of that more nuanced concept. It would have been easy to provide a completely accurate and more helpful statistic: all 15 servicemembers sentenced to death under the current military death penalty system were convicted of premeditated murder, felony murder, or both. No doubt had the petitioner's counsel consulted with a military justice expert, he or she would have steered them clear of such inaccuracies.

But wait; there's more. The brief seems to make a fairly major mischaracterization when it contends that "[t]he President's reaffirmation of death as a permissible punishment appears within the 800-plus-page Manual for Courts-Martial." Petitioner's Brief in Opposition at 9. Almost any military justice practitioner could have told petitioner's counsel that that's wrong. President Bush didn't reissue the MCM in toto in September 2007 with the rape amendments interspersed among more than 900 other pages of text. Rather, he issued an Executive Order with an annex that takes up 23 MCM pages that was devoted almost entirely to the new military rape statute. Especially since Congress had expressly authorized the President to choose whether to discontinue death as an authorized punishment for rape or rape of a child, the presidentially prescribed death penalty provision wasn't a needle in a haystack; it was a pitchfork in a hay bale.

The brief also features what seems to be an analytic lapse. The brief posits: "The important point for present purposes, however, is that this Court in Kennedy asked the right question – namely, whether petitioner is subject to the death penalty under federal law – and gave the right answer: he is not. Nothing more was, or is, required." Petitioner's Brief in Opposition at 7. But is that really what the Supremes do when they engage in jurisdictional nose counting? The question isn't whether Patrick Kennedy is subject to the death penalty under, say, Maryland law; he isn't -- not only because Maryland doesn't authorize a death sentence for rape of a child but also because Maryland has no jurisdiction over Patrick Kennedy's offenses. So the jurisdictional nose counting process doesn't ask how many jurisdictions can actually execute Patrick Kennedy for the particular offenses of which he was convicted; rather, it asks how many jurisdictions could execute someone who committed comparable offenses within that jurisdiction.

The brief suffers from minor problems as well, such as referring to the National Defense Authorization Act as an "appropriations bill," id. at 9, listing Article 120 of the UCMJ as a "Federal Rule" rather than a "Statutory Provision," id. at iv-v, and calling ¶45.f.(1) of Part IV of the MCM "Article 120(f)(1)." Id. at 3, 9 n.5. Again, had petitioner's counsel consulted with any competent military justice litigator, those would have been cleaned up.

Finally, the brief drops a footnote advancing what seems to be an untenable argument. Footnote 5 questions "whether the President’s continuation in Article 120(f)(1) [sic] of the Manual for Courts-Martial of the possibility of punishing rape with the death penalty is sufficient to authorize such punishment. The Uniform Code of Military Justice (UCMJ) provides that a court-martial may impose capital punishment only when 'the penalty of death [is] specifically authorized by this chapter.' 10 U.S.C. § 818 (emphasis added). Now that the NDAA has removed any reference to the death penalty from the UCMJ’s rape provisions, the UCMJ itself no longer 'specifically authorize[s]' such punishment." Id. at 9 n.5. That overlooks entirely the key provision in the National Defense Authorization Act for Fiscal Year 2006 that formed the basis for the rehearing petition. In that legislation, Congress stated:

Until the President otherwise provides pursuant to section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), the punishment which a court-martial may direct for an offense under section 920 of such title (article 120 of the Uniform Code of Military Justice), as amended by subsection (a), may not exceed the following limits:

(1) Subsections (a) and (b).-- For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct.

National Defense Authorization Act for Fiscal Year 2006, § 552(b), 119 Stat. 3136, 3264 (2006).

Since the President has not provided otherwise, this express statutory authorization for the death penalty is in force. This provision isn't trumped by Article 18; rather, to the extent that they are inconsistent the NDAA provision prevails over Article 18 because it is both the more specific and the more recent statute. See generally In re Northwest Airlines Corp., 483 F.3d 160, 168 (2d Cir. 2007).

By comparison, the Acting SG's brief was uneventful. Its treatment of zombie statutes is a bit problematic. The SG writes that "in Coker, the plurality's conclusion that capital punishment for the rape of an adult woman was unconstitutional accorded with Congress's silence on the subject at that time. See 433 U.S. at 593-596." Brief for the United States at 5. Of course, when the Supremes decided Coker v. Georgia in 1977, Article 120 of the UCMJ remained on the books with its provision that rape was punishable by death. The Acting SG attempts to escape from this inconvenient parallel to Kennedy by arguing: "In Coker, Congress was silent on the pertinent question because it had not reauthorized the death penalty for rape after this Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972), which 'invalidated most of the capital punishment statutes in this country, including the rape statutes.' Coker, 433 U.S. at 593 (plurality opinion)." Id. at 5 n.2. He then concludes: "The Court thus has never held the death penalty unconstitutional for an offense for which Congress has authorized such punishment at the time of its decision." Id. at 5-6. But at the time of Coker, Congress had authorized death as a punishment for rape and no court had held that Furman invalidated the military death penalty system, though Justice Blackmun had noted in his Furman dissent that the case "jeopard[izes], perhaps, . . . the death penalty provisions in various Articles of the Uniform Code of Military Justice." Furman v. Georgia, 408 U.S. 238, 412 (1972) (Blackmun, J., dissenting). And, interestingly, the Supremes ultimately held that there was no necessity for congressional action to revive the military death penalty system post-Furman. See Loving v. United States, 517 U.S. 748 (1996).

The SG also seems to gild the lily by arguing that "Congress recently enacted legislation authorizing capital punishment for child rape by an overwhelming 374-to-41 vote in the House . . . and a voice vote in the Senate." Brief for the United States at 6. While that is literally correct, it would be silly to suggest that 374 members of the House were endorsing Section 552(b) of the bill. It seems improbable that 374 members of the House even knew that Section 552(b) was in the bill.

The Acting SG's brief also contains an ingenious argument that congressional legislation about the military justice system shouldn't be excluded from jurisdictional nose-counting in part because such legislation now applies to some civilians in contingency operational areas. Id. at 7.

The next step in the case will be the filing of Louisiana's reply brief, which is due by 1400 next Wednesday, 24 September. We'll look at that brief once it's filed. And then, SCOTUSblog tells us, the "Court is scheduled to consider the rehearing plea at its Conference on Monday, Sept. 29, the first of the new Term. That could mean some action might be known as early as Tuesday, Sept 30."

cert watch: SCOTUS Conference of September 29, 2008

Fri, 19 Sep 2008 23:19:14 GMT

The SCOTUSBlog has launched the first of its docket reviews for the Court which has its first Conference of the new term on September 29, 2008. In addition to the motion in Kennedy and the Troy Davis petition there are roughly 55-60 capital cases scheduled for the conference. Three of those are deemed by the authors of the SCOTUSBlog more likely than the others to get cert. Additionally, there are a large number of noncapital cases the SCOTUSBlog also believes are more likely to get cert than the average matter. Three of those cases, from looking at the issues and briefs, have a very strong possibility of cert, as does the first cert petition below, Lucero v. Texas. The remainders of the cases, as well as all the capital matters on the September 29, 2008 conference, after the jump.

Capital

Docket: 07-1429
Case name: Lucero v. Texas
Issue: Whether, under the Sixth Amendment, a jury foreman may read Bible passages during deliberations to persuade holdout jurors to impose the death penalty.

Opinion below (Court of Criminal Appeals of Texas)
Petition for certiorari
Brief in opposition
Petitioner’s reply

__________________

Docket: 07-1482
Case name: Quarterman v. Mines, Jr.
Issue: Whether, under the federal habeas statute, the jury instructions given at the defendant’s capital murder trial were a clear violation of Penry v. Lynaugh (1989).

__________________

Docket: 07-1594
Case name: Rivera v. Quarterman
Issue: Whether a timely-filed motion for authorization in the courts of appeals, accompanied by the proposed habeas petition, satisfies the one-year filing deadline under the Antiterrorism and Effective Death Penalty Act (AEDPA).

noncapital, storng likelihood of cert

Docket: 07-1281
Case name: Kay v. United States
Issue: Whether an indictment that omits an element of an offense must be dismissed, and whether the rule of lenity should have been applied to the petitioners’ conduct under the Foreign Corrupt Practices Act. (Disclosure: Akin Gump represents the petitioner.)

Opinion below (5th Circuit)
Petition for certiorari
Brief in opposition
Petitioner’s reply
Brief amicus curiae of Chamber of Commerce of the United States of America (in support of petitioners)
Brief amicus curiae of National Association of Criminal Defense Lawyers (in support of petitioners)

__________________

Docket: 07-1436

Case name: Cate v. Anderson
Issue: Whether, under the federal habeas statute, the continued interrogation of a suspect who said “I plead the fifth” was a clear violation of Miranda v. Arizona (1966).

__________________

Docket: 07-1523
Case name: Lee v. Louisiana
Issue: Whether the Sixth Amendment, as applied to the states through the Fourteenth Amendment, allows criminal convictions based on non-unanimous jury verdicts.

Opinion below (Court of Appeal of Louisiana, First Circuit)
Petition for certiorari
Brief in opposition
Petitioner’s reply
Brief amicus curiae of Houston Institute for Race and Justice (in support of petitioner)
Brief amicus curiae of National Association of Criminal Defense Lawyers (in support of petitioner)
Brief amicus curiae of Louisiana Association of Criminal Defense Lawyers (in support of petitioner)
Brief amicus curiae of American Bar Association (in support of petitioner)
Brief amicus curiae of Federal Public Defender for the District Court of Oregon (in support of petitioner)

[more after the jump]other noncapital

Docket: 07-1042
Case name: Lett v. United States
Issue: Whether, under the Federal Rules of Criminal Procedure, a district judge may amend a prior criminal sentence mistakenly based on a misunderstanding of federal sentencing factors.

__________________

Docket: 07-1213
Case name: Kentucky v. Leach, et ux.
Issue: Whether police violate the Fourth Amendment by initiating a “knock and talk” investigation at a back door not viewable to members of the public.

Opinion below (Court of Appeals of Kentucky)
Petition for certiorari
Brief in opposition

__________________

Docket: 07-1295
Case name: Lewis v. United States
Issue: Whether, if a defendant violates the terms of supervised release, a district court may base the new sentence upon factors stated in 18 U.S.C. 3553(a)(2)(A). (Disclosure: Akin Gump represents the petitioner.)

__________________

Docket: 07-1356
Case name: Kansas v. Ventris
Issue: Whether prosecutors may use a defendant’s statement - made in the absence of a knowing and voluntary waiver of the right to counsel - to impeach a witness, as opposed to during its case-in-chief.

Opinion below (Supreme Court of Kansas)
Petition for certiorari
Brief in opposition
Petitioner’s reply
Brief amici curiae of New Mexico, et al. (in support of petitioner)

__________________

Docket: 07-1391
Case name: Vonner v. United States
Issue: Whether criminal defendants must object at the time a sentence is imposed in order to challenge the sentence as either procedurally or substantively unreasonable under United States v. Booker (2005).

__________________

Docket: 07-1411
Case name: Owens v. Kentucky
Issue: Whether, under the Fourth Amendment, police may frisk an individual based solely on the arrest of his companion.

Opinion below (Supreme Court of Kentucky)
Petition for certiorari
Brief in opposition
Petitioner’s reply

__________________

Docket: 07-1415
Case name: Campbell v. Phelps, Warden
Issue: Whether a state court’s application of a state procedural rule is “dependent” upon federal law when the state court reviews the merits of an otherwise waived federal claim for “plain error.”

__________________

Docket: 07-1452

Case name: Yanai, Warden v. Girts
Issue: Whether, under the federal habeas statute, a prosecutor’s indirect references during closing argument to a defendant’s failure to testify was a clear violation of Griffin v. California (1965).

__________________

Docket: 07-1483
Case name: Patrick, Warden v. Smith
Issue: Whether, under the federal habeas statute, the evidence relied upon to convict the defendant of shaking an infant to death was clearly insufficient under Jackson v. Virginia (1979).

Opinion below (9th Circuit)
Petition for certiorari
Brief in opposition (awaiting from counsel)
Petitioner’s reply

__________________

Docket: 07-1486
Case name: Pennsylvania v. Dunlap
Issue: Whether the observation by a trained police officer of two individuals exchanging currency for a small unknown object creates sufficient probable cause of a drug transaction to permit a warrantless search.

Opinion below (Supreme Court of Pennsylvania, Eastern District)
Petition for certiorari
Brief in opposition
Petitioner’s reply

__________________

Docket: 07-1529
Case name: Montejo v. Louisiana
Issue: Whether an indigent defendant must affirmatively accept the appointment of counsel to preclude future police interrogation in the absence the attorney.

Opinion below (Supreme Court of Louisiana)
Petition for certiorari
Brief in opposition
Petitioner’s reply

__________________

Docket: 07-1568
Case name: New York v. Hall
Issue: Whether police must obtain a warrant before conducting a body cavity search of an individual arrested for selling narcotics.

Opinion below (Court of Appeals of New York)
Petition for certiorari
Brief in opposition
Petitioner’s reply

__________________

Docket: 08-2
Case name: Martin v. Kansas
Issue: Whether prosecutors may introduce evidence obtained during a search incident to an arrest if the outstanding warrant was discovered only as a result of an illegal detention.

__________________

Docket: 08-17
Case name: Mercier v. Ohio
Issue: Whether, under Wyoming v. Houghton (1999), the Fourth Amendment requires probable cause for the search of a purse being worn or held by an automobile passenger.

__________________

Docket: 08-94
Case name: Pennsylvania v. Mallory, et al.
Issue: Whether a defendant convicted at a bench trial can prove ineffective assistance of counsel by demonstrating that, absent the lawyer’s actions, he would not have waived his right to a jury trial.

Opinion below (Supreme Court of Pennsylvania, Eastern District)
Petition for certiorari
Brief in opposition
Petitioner’s reply

other capital (from the Court’s docket)

Docket for 07-10888

No. 07-10888 Title: Frank Dale McCray, Petitioner v. Arizona Docketed: May 14, 2008 Lower Ct: Supreme Court of Arizona Case Nos.: (CR-05-0508-AP) Decision Date: February 14, 2008 Rehearing Denied: March 18, 2008

Docket for 07-11493

No. 07-11493 Title: Daniel Wilson, Petitioner v. Marc C. Houk, Warden Docketed: June 19, 2008 Lower Ct: United States Court of Appeals for the Sixth Circuit Case Nos.: (03-3362) Decision Date: August 15, 2007

Docket for 07-10137

No. 07-10137 Title: James Cornell Harrod, Petitioner v. Arizona Docketed: March 31, 2008 Lower Ct: Supreme Court of Arizona Case Nos.: (CR-05-0461-AP) Decision Date: February 14, 2008 Rehearing Denied: March 18, 2008

Docket for 07-10384

No. 07-10384 Title: Ronald Watson Lafferty, Petitioner v. Utah Docketed: April 18, 2008 Lower Ct: Supreme Court of Utah Case Nos.: (20060201) Decision Date: September 14, 2007 Rehearing Denied: January 4, 2008

Docket for 07-10436

No. 07-10436 Title: Juan Raul Navarro-Ramirez, Petitioner v. Texas Docketed: April 18, 2008 Lower Ct: Court of Criminal Appeals of Texas Case Nos.: (AP-75,167) Decision Date: December 12, 2007 ~~~Date~~~

Docket for 07-10475

No. 07-10475 Title: Thomas Edwin Loden, Jr., Petitioner v. Mississippi Docketed: April 21, 2008 Lower Ct: Supreme Court of Mississippi Case Nos.: (2002-DP-00282-SCT, 2006-CA-00432-SCT) Decision Date: October 4, 2007

Docket for 07-10568

No. 07-10568 Title: Spencer Rawlins Brasure, Petitioner v. California Docketed: April 24, 2008 Lower Ct: Supreme Court of California Case Nos.: (S072949) Decision Date: February 7, 2008 Rehearing Denied: March 26,

Docket for 07-10578

No. 07-10578 Title: Chelsea Lea Richardson, Petitioner v. Texas Docketed: April 28, 2008 Lower Ct: Court of Criminal Appeals of Texas Case Nos.: (AP-75,200) Decision Date: January 23, 2008 ~~~Date~~~

Docket for 07-10605

No. 07-10605 Title: Calvin Letroy Hunter, Petitioner v. Texas Docketed: April 29, 2008 Lower Ct: Court of Criminal Appeals of Texas Case Nos.: (AP-74983) Decision Date: November 7, 2007 Rehearing Denied: January 16,

Docket for 07-10627

No. 07-10627 Title: Antonio Devoe Jones, Petitioner v. Alabama Docketed: April 29, 2008 Lower Ct: Court of Criminal Appeals of Alabama Case Nos.: (CR-03-1504) Decision Date: August 25, 2006 Rehearing Denied: October

Docket for 07-10641

No. 07-10641 Title: Ronald Jeffery Prible, Petitioner v. Texas Docketed: April 30, 2008 Lower Ct: Court of Criminal Appeals of Texas Case Nos.: (AP-75,519) Decision Date: February 13, 2008 ~~~Date~~~

Docket for 07-10708

No. 07-10708 Title: Christopher Edward Goss, Petitioner v. North Carolina Docketed: May 2, 2008 Lower Ct: Supreme Court of North Carolina Case Nos.: (316A05) Decision Date: November 29, 2007 ~~~Date~~~

Docket for 07-10761

No. 07-10761 Title: Albert Greenwood Brown, Petitioner v. Robert Ayers, Warden Docketed: May 7, 2008 Lower Ct: United States Court of Appeals for the Ninth Circuit Case Nos.: (05-99008) Decision Date: September 19,

Docket for 07-10762

No. 07-10762 Title: Shannon Wayne Agofsky, Petitioner v. United States Docketed: May 6, 2008 Lower Ct: United States Court of Appeals for the Fifth Circuit Case Nos.: (07-40330) Decision Date: January 31, 2008

Docket for 07-10853

No. 07-10853 Title: Troy Merck, Petitioner v. Florida Docketed: May 13, 2008 Lower Ct: Supreme Court of Florida Case Nos.: (SC04-1902) Decision Date: December 6, 2007 Rehearing Denied: February 11, 2008 ~~~Date~~~

Docket for 07-10920

No. 07-10920 Title: Walter Barton, Petitioner v. Missouri Docketed: May 15, 2008 Lower Ct: Supreme Court of Missouri Case Nos.: (SC 87859) Decision Date: December 18, 2007 Rehearing Denied: January 15, 2008

Docket for 07-10940

No. 07-10940 Title: Curtis Moore, Petitioner v. Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division Docketed: May 16, 2008 Lower Ct: United States Court of Appeals for

Docket for 07-10950

No. 07-10950 Title: Eric Lawrence Call, Petitioner v. Gerald J. Branker, Warden Docketed: May 19, 2008 Lower Ct: United States Court of Appeals for the Fourth Circuit Case Nos.: (06-27) Decision Date: November 20, 2007

Docket for 07-11036

No. 07-11036 Title: Paul Gamboa Taylor, Petitioner v. Jeffrey A. Beard, Secretary, Pennsylvania Department of Corrections, et al. Docketed: May 21, 2008 Lower Ct: United States Court of Appeals for the Third Circuit Case

Docket for 07-11073

No. 07-11073 Title: Douglas Oliver Kelly, Petitioner v. California Docketed: May 23, 2008 Lower Ct: Supreme Court of California Case Nos.: (S049973) Decision Date: December 6, 2007 Rehearing Denied: February 20, 2008

Docket for 07-11127xxxx

No. 07-11127 Title: William Henry Raines, Petitioner v. North Carolina Docketed: May 28, 2008 Lower Ct: Supreme Court of North Carolina Case Nos.: (211A06) Decision Date: December 27, 2007 ~~~Date~~~

Docket for 07-11146

No. 07-11146 Title: Ronnie Johnson, Petitioner v. Walter A. McNeil, Secretary, Florida Department of Corrections Docketed: May 29, 2008 Lower Ct: United States Court of Appeals for the Eleventh Circuit Case Nos.:

Docket for 07-11167

No. 07-11167 Title: Michael Dale Rimmer, Petitioner v. Tennessee Docketed: May 30, 2008 Lower Ct: Supreme Court of Tennessee, Western Division Case Nos.: (W2004-02240-SC-DDT-DD) Decision Date: February 20, 2008

Docket for 07-11177

No. 07-11177 Title: Dean Kilgore, Petitioner v. Florida Docketed: June 2, 2008 Lower Ct: Supreme Court of Florida Case Nos.: (SC06-1763) Decision Date: November 21, 2007 Rehearing Denied: February 28, 2008

Docket for 07-11218

No. 07-11218 Title: George Michael Hodges, Petitioner v. Walter A. McNeil, Secretary, Florida Department of Corrections, et al. Docketed: June 5, 2008 Lower Ct: United States Court of Appeals for the Eleventh Circuit

Docket for 07-11237

No. 07-11237 Title: Joseph M. L. Gardner, Petitioner v. Jon Ozmint, Director, South Carolina Department of Corrections Docketed: June 5, 2008 Lower Ct: United States Court of Appeals for the Fourth Circuit Case Nos.:

Docket for 07-11284

No. 07-11284 Title: William Jay Gollehon, Petitioner v. Mike Mahoney, Warden Docketed: June 6, 2008 Lower Ct: United States Court of Appeals for the Ninth Circuit Case Nos.: (05-99000) Decision Date: October 25, 2007

Docket for 07-11306

No. 07-11306 Title: James McGowan, Petitioner v. Alabama Docketed: June 9, 2008 Lower Ct: Court of Criminal Appeals of Alabama Case Nos.: (CR-95-1775) Decision Date: July 8, 2005 Rehearing Denied: November 23, 2005

Docket for 07-11308

No. 07-11308 Title: Roland Davis, Petitioner v. Ohio Docketed: June 9, 2008 Lower Ct: Supreme Court of Ohio Case Nos.: (04 CR 464) Decision Date: January 3, 2008 Rehearing Denied: March 12, 2008 ~~~Date~~~

Docket for 07-11402

No. 07-11402 Title: Alvin Andrew Kelly, Petitioner v. Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division Docketed: June 13, 2008 Lower Ct: United States Court of

Docket for 07-11425

No. 07-11425 Title: Samuel Zamudio, Petitioner v. California Docketed: June 17, 2008 Lower Ct: Supreme Court of California Case Nos.: (S074414) Decision Date: June 11, 2008 ~~~Date~~~ ~~~~~~~Proceedings and

Docket for 07-11435

No. 07-11435 Title: Jimmie Wayne Lawrence, Petitioner v. Gerald J. Branker, Warden Docketed: June 17, 2008 Lower Ct: United States Court of Appeals for the Fourth Circuit Case Nos.: (07-2, 07-4) Decision Date: February

Docket for 07-11497

No. 07-11497 Title: Ernest Lee Johnson, Petitioner v. Missouri Docketed: June 20, 2008 Lower Ct: Supreme Court of Missouri Case Nos.: (SC 87825) Decision Date: January 15, 2008 Rehearing Denied: February 19, 2008

Docket for 07-11542

No. 07-11542 Title: Stephen Christopher Stanko, Petitioner v. South Carolina Docketed: June 24, 2008 Lower Ct: Supreme Court of South Carolina Case Nos.: (26442) Decision Date: February 25, 2008 Rehearing Denied:

Docket for 07-11558

No. 07-11558 Title: Paul Gregory Watson, Petitioner v. California Docketed: June 24, 2008 Lower Ct: Supreme Court of California Case Nos.: (S024471) Decision Date: May 8, 2008 Rehearing Denied: June 18, 2008

Docket for 07-11566

No. 07-11566 Title: Dionne Eatmon, Petitioner v. Alabama Docketed: June 24, 2008 Lower Ct: Court of Criminal Appeals of Alabama Case Nos.: (CR-04-2241) Decision Date: August 31, 2007 Discretionary Court Decision

Docket for 07-11572

No. 07-11572 Title: Charles Thompson, Petitioner v. Texas Docketed: June 24, 2008 Lower Ct: Court of Criminal Appeals of Texas Case Nos.: (AP-73,431) Decision Date: October 31, 2007 ~~~Date~~~ ~~~~~~~Proceedings and

Docket for 07-1383

No. 07-1383 Title: Shozdijiji ShisInday, aka Danny Dean Thomas, Petitioner v. Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division Docketed: May 7, 2008 Lower Ct: United

Docket for 07-1429

No. 07-1429 Title: Jimmie Urbano Lucero, Petitioner v. Texas Docketed: May 16, 2008 Lower Ct: Court of Criminal Appeals of Texas Case Nos.: (AP-75,247) Decision Date: February 13, 2008 ~~~Date~~~ ~~~~~~~Proceedings

Docket for 07-1482

No. 07-1482 Title: Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Petitioner v. Charles E. Mines, Jr. Docketed: May 29, 2008 Lower Ct: United States Court of Appeals for the Fifth Circuit

Docket for 07-1529

No. 07-1529 Title: Jesse Jay Montejo, Petitioner v. Louisiana Docketed: June 9, 2008 Lower Ct: Supreme Court of Louisiana Case Nos.: (2006-KA-1807) Decision Date: January 16, 2008 Rehearing Denied: March 7, 2008

Docket for 07-1536

No. 07-1536 Title: Derrick Todd Lee, Petitioner v. Louisiana Docketed: June 11, 2008 Lower Ct: Supreme Court of Louisiana Case Nos.: (2005-KA-2098) Decision Date: January 16, 2008 Rehearing Denied: March 7, 2008

Docket for 07-1594

No. 07-1594 Title: Jose Alfredo Rivera, Petitioner v. Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division Docketed: June 23, 2008 Lower Ct: United States Court of

Docket for 07-9456

No. 07-9456 Title: Angela Jane Johnson, Petitioner v. United States Docketed: February 21, 2008 Lower Ct: United States Court of Appeals for the Eighth Circuit Case Nos.: (06-1001) Decision Date: July 30, 2007

Docket for 08-5039

No. 08-5039 Title: Alfredo Valencia, Petitioner v. California Docketed: July 1, 2008 Lower Ct: Supreme Court of California Case Nos.: (S051451) Decision Date: April 14, 2008 ~~~Date~~~ ~~~~~~~Proceedings and

Docket for 08-5074

No. 08-5074 Title: Kenneth Biros, Petitioner v. Marc C. Houk, Warden Docketed: July 2, 2008 Lower Ct: United States Court of Appeals for the Sixth Circuit Case Nos.: (07-3313) Decision Date: April 1, 2008 ~~~Date~~~

Docket for 08-5163

No. 08-5163 Title: Konstantino X. Fotopoulos, Petitioner v. Walter A. McNeil, Secretary, Florida Department of Corrections, et al. Docketed: July 9, 2008 Lower Ct: United States Court of Appeals for the Eleventh Circuit

Docket for 08-5204

No. 08-5204 Title: Raymond Mata, Jr., Petitioner v. Nebraska Docketed: July 10, 2008 Lower Ct: Supreme Court of Nebraska Case Nos.: (S-05-1268) Decision Date: February 8, 2008 Rehearing Denied: April 9, 2008

Docket for 08-5254

No. 08-5254 Title: Michael Martin McDonnell, Petitioner v. Oregon Docketed: July 15, 2008 Lower Ct: Supreme Court of Oregon Case Nos.: (S049368) Decision Date: April 14, 2008 ~~~Date~~~ ~~~~~~~Proceedings and

Docket for 08-5255

No. 08-5255 Title: Kenneth Wayne Morris, Petitioner v. Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division Docketed: July 15, 2008 Lower Ct: United States Court of

Docket for 08-5328

No. 08-5328 Title: Darold Stenson, Petitioner v. Jeffrey Uttecht, Superintendent, Washington State Penitentiary Docketed: July 17, 2008 Lower Ct: United States Court of Appeals for the Ninth Circuit Case Nos.: (05-99011)

Docket for 08-5371

No. 08-5371 Title: Leroy Pooler, Petitioner v. Florida Docketed: July 21, 2008 Lower Ct: Supreme Court of Florida Case Nos.: (SC05-2191) Decision Date: January 31, 2008 Rehearing Denied: April 17, 2008 ~~~Date~~~

Docket for 08-5384

No. 08-5384 Title: Randolph Moore, Petitioner v. Nevada Docketed: July 23, 2008 Lower Ct: Supreme Court of Nevada Case Nos.: (46801) Decision Date: April 23, 2008 ~~~Date~~~ ~~~~~~~Proceedings and

Docket for 08-5385

No. 08-5385 Title: Artemus Rick Walker, Petitioner v. Georgia Docketed: July 22, 2008 Lower Ct: Supreme Court of Georgia Case Nos.: (S07P0687) Decision Date: October 9, 2007 Rehearing Denied: December 13, 2007

Docket for 08-5456

No. 08-5456 Title: Mumia Abu-Jamal, Petitioner v. Pennsylvania Docketed: July 25, 2008 Lower Ct: Supreme Court of Pennsylvania, Eastern District Case Nos.: (485 CAP) Decision Date: February 19, 2008 ~~~Date~~~

Docket for 08-5495

No. 08-5495 Title: William Bruce Marshall, Petitioner v. Alabama Docketed: July 28, 2008 Lower Ct: Court of Criminal Appeals of Alabama Case Nos.: (CR-05-1035) Decision Date: August 31, 2007 Discretionary Court

Docket for 08-5547

No. 08-5547 Title: Roderick D. Newton, Petitioner v. Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division Docketed: July 30, 2008 Lower Ct: United States Court of Appeals

Docket for 08-5573

No. 08-5573 Title: Jose Ernesto Medellin, Petitioner v. Texas Docketed: August 1, 2008 Lower Ct: Court of Criminal Appeals of Texas Case Nos.: (WR-50,191-03) Decision Date: July 31, 2008 ~~~Date~~~ ~~~~~~~Proceedings

Docket for 08-66

No. 08-66 Title: Troy Anthony Davis, Petitioner v. Georgia Docketed: July 16, 2008 Lower Ct: Supreme Court of Georgia Case Nos.: (S07A1758) Decision Date: March 17, 2008 Rehearing Denied: April 14, 2008 ~~~Date~~~

Law blog round-up

Mon, 10 Dec 2007 15:54:56 GMT

Here's an instructive anecdote about two lawyers talking capital gains and child support over coffee. The upshot: judges must consider recent capital gains in any requested recalculation of child support but are not required to then factor them into a revised support amount.

A bit about blog law on a law blog: The Volokh Conspiracy speculates about the differing levels of protection various media may have against charges that they - Canada's McClean's magazine, in this case - are publishing hate speech.

Today from the Supreme Court: Below-guidelines sentencing is OK in certain cases. Most notably for cities like Baltimore, judges can consider the disparity in prescribed punishment for crack cocaine vs. powder cocaine crimes.

-BRENDAN KEARNEY, Legal Affairs Writer

Supreme Court To Consider Certiorari Petition Re Constitutionality of PTO Judicial Appointments

JWelch@LL-A.com (John L. Welch) — Fri, 19 Sep 2008 13:21:45 GMT

The SCOTUS blog reports here that on September 29, 2008, the U.S. Supreme Court will take up the Petition for a Writ of Certiorari filed in Translogic Technology, Inc. v. Dudas (Docket No. 07-1303) . The issues: "Whether the director of the Patent and Trademark Office lacked constitutional authority to appoint members of the Board of Patent Appeals and Interferences (BPAI), and, if so, whether the board's decision below must be vacated as a result." Links to the briefs may be found at the SCOTUS blog posting.

The TTABlog previously reported (here and here) on this controversy and its potential impact on the TTAB. The same legislation (The Intellectual Property and Communications Reform Act of 1999, 113 Stat. 1501 et seq.) that gave the Director of the USPTO the power to appoint BPAI judges also gave him or her the power to appoint TTAB judges. (See Section 4716 and see 15 U.S.C. Sec. 17(b)). It is that legislation that is at the heart of the Supreme Court case.

Text Copyright John L. Welch 2008.

Supreme Court Justices Consider Whether to Reconsider Landmark Death Penalty Decision

Tue, 30 Sep 2008 14:22:24 GMT

Last term, the Supreme Court decided that it is unconstitutional to apply the death penalty to a person convicted of raping a child. The opinion stated that there is a national consensus against using the death penalty for the rape of a child. However, the opinion overlooked legislation making the death penalty available in child rape cases under military law.

Today, in their private conference, the Justices will decide whether to reconsider their decision. In the final brief submitted by the State of Louisiana and joined by the Department of Justice, it is argued that policy is moving toward making the death penalty available as punishment in child rape cases. The brief concedes that the Court may base the ruling on its own judgment only, but states that the military law passed by Congress and signed by the president should also be considered when interpreting the Eighth Amendment. Both Barack Obama and John McCain criticized the Court’s initial ruling in this case, and the final brief cites the candidates' statements as further evidence that the public supports using the death penalty in child rape cases.

Source: SCOTUS Blog

US Supreme Court denies rehearing in Kennedy v. Louisiana

jonell@jonellthomas.com. (JoNell Thomas) — Wed, 01 Oct 2008 16:20:33 GMT

Via Scotusblog, this morning the United States Supreme Court denied the petition for rehearing in Kennedy v. Louisiana (no death penalty for rape of a child). The Court modified the opinion. The modified version is available here. Justice Scalia issued a statement respecting the denial of rehearing. It was joined by Chief Justice Roberts. The five members of the majority also issued a statement. Justices Thomas and Alito voted to grant the petition for rehearing.

SCOTUS plays foot(note)sie as it denies rehearing in Kennedy

berman.43@osu.edu (Douglas A. Berman) — Wed, 01 Oct 2008 15:20:59 GMT

As I had expected (and had predicted here and elsewhere), the Supreme Court denied Louisiana petition for rehearing in the Kennedy child rape case. Over at Sex Crimes, Corey has this effective post covering this ruling and the footnotes added...

As I had expected (and had predicted here and elsewhere), the Supreme Court denied Louisiana petition for rehearing in the Kennedy child rape case. Over at Sex Crimes, Corey has this effective post covering this ruling and the footnotes added to the main opinion and the dissent to address the previously overlooked military law that prompted the rehearing petition. In addition, Justices Kennedy and Scalia wrote short opinions about the rehearing decision.

I may comment more on this decision after I get a chance to consume the specifics and do some posting on the other action from the SCOTUS order list today. Tony Mauro has this report on the ruling at The BLT, and SCOTUSblog more on all the action from One First Street today.

A Preview of the Supreme Court Term

Thu, 02 Oct 2008 19:50:18 GMT

While the Court has announced the results of its conference of this past Monday, the Court's term begins next Monday, October 6 -- the first Monday in October -- when three cases will be argued. At Stateline, John Gramlich provides...

While the Court has announced the results of its conference of this past Monday, the Court's term begins next Monday, October 6 -- the first Monday in October -- when three cases will be argued.

At Stateline, John Gramlich provides a preview of the term, "At high court, states' authority in question."

The U.S. Supreme Court on Monday (Oct. 6) begins a new term that so far lacks the controversy of last term’s politically explosive cases on gun control, the death penalty and voter-identification laws, but that still is grabbing the attention of states.
Of top concern to states — and to the tobacco and pharmaceutical industries — are a pair of cases testing whether federal law trumps state consumer-protection policies that let residents sue cigarette and drug makers over the way their goods are described.

And:

Entering its fourth year under Chief Justice John G. Roberts Jr., the high court already has agreed to hear arguments in more than a dozen cases important to states, including a land dispute between Hawaii and native Hawaiians, a challenge to racially based redistricting in North Carolina and an appeal that could affect how forensic evidence is presented in criminal trials in Massachusetts and in at least 40 other states.

The justices refused to add to their calendar a fresh look at one of their most high-profile decisions of last term, in which they invalidated laws in Louisiana and five other states that imposed the death penalty on those who rape, but do not kill, children. Despite a rare factual error discovered in the 5-4 decision, the justices on Wednesday (Oct. 1) rejected Louisiana’s plea to reopen the case. The initial ruling drew sharp criticism from both presidential candidates, Democrat Barack Obama and Republican John McCain.

The high court will agree to hear more appeals as the term unfolds. But so far its docket — which is about 70 percent filled, according to Supreme Court watchers — is missing the kind of blockbuster disputes of last term, when it ruled that the Second Amendment guarantees an individual right to bear arms and that Indiana’s voter-identification requirements do not place an unfair burden on minorities and the poor.

This term, the court will continue its recent trend of testing the intersection of state and federal product-liability laws, commonly called “federal pre-emption” cases.

I expect to see more previews in the coming days and will link to significant ones. Since its creation, THE place to watch daily developments is SCOTUS Blog.

2008 - 2009 U.S. Supreme Court Term

Mon, 06 Oct 2008 14:45:40 GMT

Happy First Monday in October. For those who enjoy watching the U.S. Supreme Court terms, they are open for business as of today. You can keep track of the developments at the SCOTUS blog and other sites. For alternative viewpoints on the upcoming term, take a look at the articles in the LA Times or the Christian Science Monitor. Meanwhile, to take you back to your law school days, commemorate the new term by perusing an old friend (enemy?), Pennoyer v. Neff.

For alternative viewpoints on the upcoming term, take a look at the articles in the LA Times or the Christian Science Monitor.

Meanwhile, to take you back to your law school days, commemorate the new term by perusing an old friend (enemy?), Pennoyer v. Neff.

2008 - 2009 U.S. Supreme Court Term

Mon, 06 Oct 2008 14:45:40 GMT

For alternative viewpoints on the upcoming term, take a look at the articles in the LA Times or the Christian Science Monitor.

Meanwhile, to take you back to your law school days, commemorate the new term by perusing an old friend (enemy?), Pennoyer v. Neff.

First Case Of Supreme Court Term: Altria Group v. Good

lbaird@reedsmith.com (Lisa Baird) — Mon, 06 Oct 2008 17:51:10 GMT

Scotusblog has its usual comprehensive coverage of the first Supreme Court case of this term, Altria Group v. Good, which involves questions of express and implied preemption in the context of tobacco.

As Lyle Denniston explains, "More than four decades ago, the Federal Trade Commission – the federal government’s main regulator of business conduct – told the major companies making and selling cigarettes that it would not challenge factual statements they made about the tar and nicotine content of cigarettes, if the claims were based on tests done using what is called the “Cambridge Filter Method.”

* * *

Three individuals who live in Maine – Stephanie Good, Lori A. Spellman and Allain L. Thibodeau – filed a class-action lawsuit, based on state law . . . . The low yields of the test method, according to the lawsuit, were offset by the actual smoking habits of users: they “compensated” by taking deeper puffs, holding the smoke in their lungs longer, or smoking more cigarettes. The lawsuit did not seek compensatory damages, but rather a return of the money smokers had paid for “light” cigarettes, along with a claim for punitive damages and recovery of their attorneys’ fees.
Philip Morris sought dismissal of the case, contending that state law claims had been displaced by the federal cigarette labeling and advertising law or FTC actions. The company made two claims of “preemption” of such state law claims: it said they were expressly pushed aside by the federal law controlling cigarette marketing, and were impliedly preempted by the FTC’s four-decades-long effort to implement a uniform policy on disclosing the health risks of smoking. A U.S. District Court dismissed the lawsuit on preemption grounds, but the First U.S. Circuit Court of Appeals in Boston reinstated it."

Links to the full analysis and briefs are on the case's SCOTUSwiki page, and links to the argument should be up very soon.

What Liability Do Arrangers And Owners Have On Superfund Sites?

Sat, 04 Oct 2008 07:53:39 GMT

It's difficult to parse a 191-page District Court ruling and a 78-page Ninth Circuit ruling down to something easy to understand, but here's my attempt. Note in the last link that the the actual opinion starts on the 37^th page - the first part is the dissent. Shell and several railroads, the Burlington, Northern & Santa Fe Railroad, the Atchison, Topeka & Santa Fe Railroad and the Union Pacific Railroad were involved in a toxic contamination site. It's located in Arvin, California just southeast of Bakersfield in an agricultural area, and the United States Environmental Protection Agency and the California DTSC (Department of Toxic Substances Control) have attempted to clean it up. The Arvin site isn't completely clean yet, and both agencies may have to spend more money to clean it up. The chemicals stored on the site were nematocides, which are designed to kill nematodes, microscopic worms that attack the roots of crops.

After their initial cleanup, the two agencies sued Shell and the railroads for the cost under CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act, the federal statute more commonly known as Superfund) that imposes strict and joint and several liability on the potentially responsible parties. Based on various factors such as time, ownership, size of the parcels and fractions of the hazardous chemicals found on the parcels, the District Court apportioned the cleanup costs, but the manner of apportionment didn't allow the agencies full recovery of the money they spent on the cleanup. The District Court held the railroads only nine percent liable and Shell only six percent liable.

The agencies appealed, and the Ninth Circuit determined that the District Court did not apportion the cost properly, instead assessing the entire cost of cleanup to both Shell and the railroads under CERCLA's strict and joint and several liability scheme. The companies appealed, and the Supreme Court has now agreed to hear the case, which will most likely occur next term in 2009 since their docket is full for the 2008 term. So we probably won't know the outcome until sometime in 2010.

But let's get back to the case. First, the Ninth Circuit majority opinion held Shell liable with the following language: "Shell arranged for the sale and transfer of chemicals under circumstances in which a known, inherent part of that transfer was the leakage, and so the disposal, of those chemicals." Under CERCLA, an entity that "arrange[s] for disposal or treatment . . . of hazardous substances" is strictly liable for the clean-up costs. 42 U.S.C. § 9607(a)(3). The Free Dictionary defines strict liability as: "absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault." Shell argues it was not an arranger. Shell's potential liability arises from its delivery of the chemicals to the site, but it contends it has no liability for the cleanup.

Not everyone on the Ninth Circuit agrees that Shell is liable, however, which makes the matter into a horse race. The dissent argued with the majority's finding of liability for Shell, saying: "the panel [improperly] imposes ‘arranger' liability on Shell Oil for agricultural fertilizers that were spilled on the site by the buyer of Shell's product, shipped by a common carrier in non-defective truck tankers, F.O.B. [Free on Board at the] delivery point. The [majority] panel's imposition of arranger liability on a mere seller, which relinquished control over its products upon delivery and before spillage occurred, goes far beyond the statutory language and creates inter- and intra-circuit splits." The Court notes that FOB means "when the term is F.O.B. the place of destination, the seller must at his own expense and risk transport the goods to that place and there tender delivery of them." U.C.C. § 2-319(1)(b). Even so, CERCLA has provisions for transporter liability, which is not yet an issue in this case.

Part of the problem the court faces is the absence of a major player at the Arvin site. The site's operator, Bryant & Bryant is now defunct, but "owned and operated an agricultural chemical distribution facility" for 29 years, and about 15 years into its operations, leased just less than an acre of land from the railroads. That 0.9 acre lease for 14 years drew the railroads into the lawsuit and made them a potentially responsible party liable for the cleanup costs under the statute. The railroads are owners of the site, which makes them liable for the cleanup, a point universally agreed to in the opinion. The question for the railroads revolves around the amount of their liability.

Here's how CERCLA lays out liability according to the Court: "Under its provisions, parties can be liable for cleaning up toxic chemicals if they fit into one or more of the four PRP categories set out in § 9607(a):

(1) the owner and operator of . . . a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person . . . , and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities . . . . "

The next question, then, becomes how does the court apportion the liability of those liable? Apportionment is a common law tort remedy, however, not a statutory remedy. Part of the problem in developing the apportionment lies in the statutory remedy afforded by CERCLA - the round hole of common law divisions normally used in typical tort cases don't easily handle the square peg of CERCLA. For example, the causation issue is particularly troublesome. There's nothing that an owner of the property does to "cause" the contamination. Likewise, the delivery of the chemicals didn't cause the contamination. It was the poor handling of the chemicals - spills during transfer and leaking tanks that actually caused the contamination. Nevertheless, CERCLA holds both parties equally responsible. The rub here then is the missing operator who is, under common law, "more liable."

Likewise, the concept of harm has the same round-hole, square-peg problem. The harm to be divided is not the actual contamination, as you would first think, but rather the payment for someone else's remedy of the harm. Then there's the question of equity - how to divide and according to what factors - time, amount of contribution to the contamination or other reasonably applicable measures. Not an easy thing to do between an owner and an arranger. Finally, there's the question of strict liability - the responsibility for the whole amount of the cleanup - something difficult to achieve when the remaining defendants have so far been held to be 15% responsible, especially when the Court says Congress originally intended to collect the cost of cleanup from those who are more responsible than the government, who so far is the only one who paid to clean the site.

It's obviously a mess that will take the Supreme Court a few hundred pages to sort out. MIPTC will keep its ear to the ground and you informed of the outcome in a few years, but in the meantime, I'll go out on a limb and predict that Shell will be kept in and the amount of liability paid by Shell and the railroads will be a lot closer to 100%.

Can't wait for election lawsuits?

tdc@kkbrf.com (Tami Cowden) — Thu, 09 Oct 2008 00:09:41 GMT

Unwilling to waste time waiting for the election to speculate about resulting law suits, the Georgetown University Law Center is planning a Supreme Court argument, set for October 20, revolving around a hypothetical challenge on voting issues.

The facts of the hypothetical McCain v. Obama argument revolve around an election day blizzard in Denver, making it difficult for voters to get to the polls. Denver’s The Democratic election director and Democratic mayor order polling places to stay open two extra hours. Colorado being a battleground state, Republicans object...

Sounds like fun.

BTW - I’ve survived a few blizzards in Denver; this could actually happen!

Hat tip to Scotusblog.com

SCOTUS May Consider Another Punitive Damages Issue Arising Under Maritme Law

Fri, 17 Oct 2008 14:01:00 GMT

A pending petition for certiorari to the U.S. Supreme Court raises a question involving the availability of punitive damages in maritime cases, specifically, whether a seaman may recover punitive damages against a shipowner for failing to pay for injuries suffered in a shipboard accident. The case, Atlantic Sounding Co. v. Townsend, is featured on SCOTUSblog's "Petitions to Watch," presumably because there is a circuit split on this issue. Even if the Supreme Court grants cert., this case is unlikely to have any impact outside of the maritime context.

Any readers with a passion for maritime punitive damages issues can read the 11th Circuit's opinion, the cert. petition, the brief in opposition, and amicus briefs by the American Waterways Operators, the Cruise Lines International Association, and United Maritime Group, all in support of the petitioner.

SAN DIEGO CRIMINAL DEFENSE: CONSECUTIVE SENTENCING AND APPRENDI

Sun, 26 Oct 2008 04:43:05 GMT

The U.S. Supreme Court this week heard argument on a case presenting the question of whether Apprendi (530 U.S. 466) applies to consecutive sentences. In Cunningham (549 U.S. 270), the U.S. Supremes held that Apprendi applies to California's upper term...

The U.S. Supreme Court this week heard argument on a case presenting the question of whether Apprendi (530 U.S. 466) applies to consecutive sentences.

In Cunningham (549 U.S. 270), the U.S. Supremes held that
Apprendi applies to California's upper term scheme. So can a judge impose a consecutive sentence based on facts not found by a jury or admitted by the defendant?

It looks like, from a review of all the pundits on the subject, that we will win this one. However, the California Supremes will also claim that somehow this doesn't apply in California, so we
won't get the benefit of this, until we get back to DC. Incidentally, check out (and subscribe to) the SCOTUS blog, a fabulous resource for U.S. Supreme Court stuff like this.

Oregon v. Ice; http://www.scotusblog.com/wp/