Tuesday, September 25, 2007
10:30 AM | Ben Winograd | Comments (0)
The Supreme Court granted certiorari in 17 cases this morning. The orders list is here. For each case, you will find links below for the electronic docket and, where available, for the petition for certiorari, brief in opposition, and reply.
• Morgan Stanley Capital Group v. Public Utility Dist.1 (06-1457) and Calpine Energy Services v. Public Utility Dist.1 (06-1462): docket, docket, petition, petition, brief in opposition, reply, reply.
• Crawford v. Marion City Election Board (07-21) and Indiana Democratic Party v. Rokita (07-25): docket, docket, petition, petition, brief in opposition, supplemental brief in opposition, reply, reply.
10:03 AM | Lyle Denniston | Comments (0)
The Supreme Court on Tuesday agreed to add 17 new cases to its new Term's decision docket, including a pair of appeals on the constitutionality of requiring voters to show a photo ID before they may vote (Crawford v. Marion County Election Board, 07-21, and Indiana Democratic Party v. Rokita, 07-25). The Court also agreed to decide the constitutionality of execution by lethal drugs when the chemical protocol poses a risk of pain and suffering (Baze v. Rees, 07-5439).
In another order Tuesday, the Court denied a motion to dismiss a previously granted case -- LaRue v. DeWolff, Boberg & Associates (06-856). The case involves the right of a pension plan participant to sue the plan manager to recover losses that worker suffered in a pension account. The motion to dismiss claimed that the individual involved had cashed-out his account, so there remained no live issue.
Aside from the Indiana voter cases and the Kentucky lethal injection case, these are the docket numbers and summaries of issues in the newly granted cases:
06-937 -- Quanta Computer v. LG Electronics (definition of the exhaustion of patent rights hen licensee sells products containing the patent)
06-1037 -- Kentucky Retirement v. EEOC (age bias in disability benefits packages)
06-1082 -- Virginia v. Moore (lawfulness of search following arrest that violates state law)
06-1181 -- Dada v. Keisler (postponement of agreement for alien to voluntarily leave U.S.)
06-1321 -- Gomez-Perez v. Potter (federal employees protection against retaliation for complaining about age bias in workplace)
06-1346 -- Ali v . Achim (definition of aggravated felony for deportation purposes)
06-1413 -- MeadWestvaco v. Illinois Revenue Dept. (tax on sale of investment in LexisNexis)
06-1431 -- CBOCS West v. Humphries (race retaliation claim under Sec. 1981 of civil rights law)
06-1457 and 1462 -- Morgan Stanley v. Public Utility Dist. 1, Calpiine Energy Services v. PUD 1 (federal regulators' power to take an energy crisis into account in reviewing electric power sale contracts)
06-1463 -- Preston v. Ferrer (preemption of arbitration agreement)
06-1498 -- Warner-Lambert v. Kent (preemption of claim of fraud on a federal agency)
06-1509 -- Boulware v. U.S. (taxation on diversion of corporate funds to shareholder)
06-1646 -- U.S. v. Rodriquez (crimes that qualify for enhanced sentence under armed career criminal law; specific issue involves state drug crime conviction)
06-11543 -- Begay v. U.S. (whether felony drunk driving is a violent felony for purposes of enhanced sentencing under armed career criminal law)
06-11612 -- Gonzalez v. U.S. (waiver of right to Art. III judge to preside over jury selection when counsel agreed to have a U.S. magistrate instead)
09:00 AM | Ben Winograd | Comments (0)
The Court is scheduled to release orders at 10 a.m. Eastern of cases granted at yesterday's conference. We will provide coverage as soon as the list becomes available.
Monday, September 24, 2007
07:28 PM | Lyle Denniston | Comments (0)
A special military appeals court ruled on Monday that judges who preside over "military commissions" have the power to decide on their own who is an "unlawful enemy combatant" and thus can be tried on charges of war crimes. Deciding its first case in a way that gives the Pentagon a major -- but not a complete -- legal victory, a three-judge panel of the U.S. Court of Military Commission Review set the stage for a new review of the status of a 20-year-old Canadian, Omar Ahmed Khadr. If, as seems likely, a judge or a military commission concludes that he is an illegal combatant, that would revive charges that he killed a U.S. serviceman in Afghanistan fighting in 2002, along with other terrorism-related charges.
Khadr had been charged by the Pentagon in April 2007, some two years and nine months after he had been found to be an "enemy combatant" by a military panel -- formally, a Combatant Status Review Tribunal. But, last June 4, a military judge in Guantanamo Bay, Cuba, where Khadr is being held, threw out all of the charges. The judge, Army Col. Peter E. Brownback, was the presiding officer of a military commission set up to try Khadr.
The judge found that the only individuals who can be tried before military commissions are those found to be "unlawful enemy combatants"; it was not enough, the judge concluded, for the CSRT to have found Khadr simply to be an "enemy combatant." Moreover, the judge added, neither he nor the military commission itself could decide on their own that Khadr's status was that of an "unlawful" combatant. Since the commission had no jurisdiction, Khadr could not be tried, according to the judge. (A second judge also threw out war crimes charges against a Yemeni national, Salim Ahmed Hamdan; the Pentagon has not appealed that ruling, but it is likely to be overturned on the basis of Monday's decision by the CMCR.)
Judge Brownback's main conclusion threatened the prospect that the military might have to conduct new CSRT proceedings, perhaps in more than 550 cases of Guantanamo prisoners.
But the Pentagon was spared any new round of review in the CSRTs by the CMCR conclusion that Judge Brownback did have jurisdiction to decide on Khadr's status, and thus to proceed to try him. Its ruling came after an appeal filed by the Pentagon. Significantly, in other parts of its ruling (discussed below), the appeals court stripped the CSRTs of some of the authority that the Pentagon had claimed they had.
The ruling can be downloaded here. In a second decision released Monday, the CMCR concluded that its three members were validly appointed, so they had authority to decide the case. (That separate ruling is here.)
The Pentagon did not win on all points at issue, however. The appeals court rejected the Pentagon argument that there was no legal difference between a finding of an "enemy combatant" by a CSRT and an "unlawful enemy combatant." The former can be captured and held during a conflict, but cannot be charged with crimes, it ruled. Only an "unlawful enemy combatant" may be charged, it concluded, citing "the well recognized body of customary international law."
The appeals court also upheld Judge Brownback's conclusion that the CSRT finding of "enemy combatant" was not sufficient to set up a trial before a commission. It thus rejected the Pentagon conclusion that prior statements by President Bush and other high officials were sufficient to turn anyone accused of ties to the Al Qaeda terrorist network or to the Taliban into an "unlawful enemy combatant." Congress, in creating war crimes commissions in the Military Commissions Act of 2006, spoke clearly on the subject, CMCR concluded.
04:38 PM | Lyle Denniston | Comments (0)
The local government of Washington, D.C., on Monday urged the D.C. Circuit Court not to "interfere" with the Supreme Court's coming action on the city's gun control law, arguing that an existing order temporarily allowing enforcement of that law should be left intact. City officials were responding to a request by a local resident to allow him and others living in the capital city to have immediate access to rifles and shotguns in functioning condition, for self-defense use.
The opposition brief can be found here
The Supreme Court has not yet acted upon the city government's appeal (District of Columbia v. Heller, 07-290), seeking to overturn a Circuit Court ruling last March that the handgun ban -- one of the strictest gun control laws in the nation -- violates the Second Amendment. Attorneys for local resident Dick Anthony Heller, who had successfully challenged the pistol ban, have until Oct. 5 to reply to the city appeal, but are expected to file before that date.
In the meantime, Heller's attorneys took the unusual step of asking the Circuit Court to put into effect immediately a part of the local gun ordinance that requires owners of rifles and shotguns kept at home to be disassembled or have a trigger lock in place. Contending that the city had conceded that that part of the law could not be enforced if rifles and shotguns were used for self-defense, Heller's counsel said the Circuit Court should partially lift a stay of its ruling while Supreme Court action was awaited. An earlier post discussing this request in the Circuit Court can be found here.
Responding Monday, city officials said that they had made no concession that the disassembly-or-lock provision was invalid. And, they contended, if the Supreme Court were to side with the District's constitutional position, that part of the local law, too, would be upheld. Once again, though, officials noted that they do not contend that legally owned rifles and shotguns kept at home could not be used in self-defense. But they said that situation should not be compelled by the Second Amendment, as they said the Circuit Court had ruled.
To partially lift the temporary stay of enforcement on the gun law, officials told the Circuit Court, would be to split the case -- with part of it going forward in lower federal courts, while the Supreme Court was considering the city's pending appeal on the constitutional question. Federal court rules, they asserted, seek to prevent "such inefficient and undesirable proceedings."
The stay issued by the Circuit Court, putting off the effect of its ruling against the local law, "should continue until the Supreme Court has disposed of this case," the brief said.
As a practical matter, the city brief added, there is only a "distinctly remote" chance that Heller would have to use a rifle or shotgun to defend himself at home, and there is no likelihood that he would be prosecuted while the case is pending before the Supreme Court. No one has ever been prosecuted in the city for using a lawful weapon in self-defense, it noted.
Heller, the city added on another point, had agreed earlier to the stay of the Circuit Court ruling, to await the outcome of Supreme Court action. "The material circumstances have not changed," the city said. "As a consequence, neither should the status quo."