Publications
Multimedia Holdings Corp. dba First Coast News v. Circuit Court of Florida (04A773) and order list
Greetings, Court Fans!
The Court returned from its recess today for the term’s last argument session, which will end next Wednesday with one of the most eagerly anticipated cases of the term, the Arthur Andersen criminal appeal. Look for that to be the last opinion issued in the term before July 1.
The Court released no opinions in argued cases today, but Justice Kennedy did release an “in chambers” opinion in Multimedia Holdings Corp. dba First Coast News v. Circuit Court of Florida (04A773), which concerned whether court orders limiting the publication of grand jury transcripts were unconstitutional prior restraints. After a Florida court discovered that grand jury transcripts had been leaked to the press, it issued an order directing that no “party” should release further transcripts and stating that any broadcast or publication of the contents of the transcripts would be a misdemeanor under Florida law. First Coast received a copy of the order directly from the court, and moved to intervene and set it aside as a prior restraint. This prompted the court to issue a second order stating that its first order barred only the “parties” — i.e., the state and defense counsel — from further disclosures. As to First Coast, the court’s first order did not bar it from publishing anything but “solely point[ed] out that [publication] might constitute further violations of criminal law.” First Coast was not satisfied, and after failing to get a hearing in Florida appellate courts it went to Justice Kennedy looking for a stay pending a cert petition.
Kennedy denied the stay. He noted that the court’s first order “bears many of the marks” of a prior restraint because it was not accompanied by any other procedural safeguards and singled out First Coast for the threat of prosecution. But he found that the second order substantially diminished any chilling effect by clarifying that the first order was directed only at the “parties” and was not meant to put First Coast on notice that publication would place it in contempt of court. Although the orders might suggest some animus toward First Coast, the judge had since retired from the bench, and there was no suggestion that he could institute a criminal case should First Coast publish the transcripts. Finally, the state had suggested that it would not prosecute First Coast if it published the transcripts. Under these circumstances, four Justices would be unlikely to grant cert, so no stay was warranted.
In today’s Order List, the Court granted cert in three new cases:
Maryland v. Blake (04-373): When a police officer improperly communicates with a suspect after the invocation of the suspect’s right to counsel, does Edwards [v. Arizona, 451 U.S. 477 (1981)] permit consideration of curative measures by police, or other intervening circumstances, to conclude that the suspect later initiated communication with the police? This question is a little unclear, so here are the facts as reported in U.S. Law Week: After an arrestee invoked his right to counsel, one officer tried to get him to talk by showing him a statement of charges that falsely indicated the possibility of the death penalty. Another officer immediately told the first that they could not talk to the suspect, but after thirty minutes of “stewing” — U.S. Law Week’s word, not ours — the suspect asked if he could still talk. The Maryland Supreme Court held that the suspect’s subsequent statements were inadmissible as his voluntariness was suspect.
Georgia v. Randolph (04-1067): Should this Court grant certiorari to resolve a conflict among federal and state courts on whether an occupant may give law enforcement valid consent to search common areas of premises shared with another, even though the other occupant is present and objects to the search? Presumably, the Court did not grant cert on whether it should grant cert, but instead will resolve the underlying issue.
Gonzales v. Centro Espirita Beneficiente Uniao do Vegetal (04-1084): Does the 1993 Religious Freedom Restoration Act require the government to permit the importation, distribution, possession and use of a Schedule I hallucinogenic controlled substance, when Congress has found that the substance has high potential for abuse, it is unsafe for use even under medical supervision, and its distribution would violate an international treaty?
Finally, the Court invited the SG to weigh in on the cert petition in Carpenters Health & Welfare Trust v. Vonderharr (04-1049), which presents three lengthy ERISA questions we’ll paraphrase here: (1) Does Section 502(a)(3) of ERISA authorize an action to enforce a plan’s reimbursement clause when it requires a participant to repay benefits paid for injuries caused by another party and when the source of repayment is a personal injury settlement? (2) Does the dismissal of such an action deprive the court of jurisdiction to award fees under Section 502(g)(1) of ERISA because the underlying dismissal was for lack of subject matter jurisdiction? (3) If the court can exercise jurisdiction to award fees, what standard applies in determining whether the prevailing participant is entitled to fees?
Rumor has it that the Court will release one or more opinions tomorrow, so stay tuned. Until then, thanks for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400
