Publications

Greetings, Court fans!

In a week filled with election news and partisan grumbling, it is refreshing to conjure the image of Justices Scalia and Kagan skeet shooting together, a rumor reported in several news outlets in late October. We have no idea if the rumor is true, but find it fascinating nevertheless.

We have a number of cert grants and miscellaneous orders to bring you. We’ll start with the Court’s five new additions to its docket:

Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems (09-1159), which presents an issue important to all research universities: “Whether a federal contractor university’s statutory right under the Bayh-Dole Act, 35 U.S.C. §§ 200-212, in inventions arising from federally funded research can be terminated unilaterally by an individual inventor through a separate agreement purporting to assign the inventor’s rights to a third party.”

J. D. B. v. North Carolina (09-11121), asks “[w]hether a court may consider a juvenile’s age in a [M]iranda custody analysis in evaluating the totality of the circumstances and determining whether a reasonable person in the juvenile’s position would have felt he or she was not free to terminate police questioning and leave?”

Davis v. United States (09-11328), presents this question for review: “Whether the good-faith exception to the exclusionary rule [i.e., the rule requiring exclusion of evidence resulting from a search in violation of the Fourth Amendment] applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional.”

Turner v. Price (10-10), asks the Court to determine “whether the Supreme Court of South Carolina erred in holding . . . that an indigent defendant has no constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration.” In addition to the question presented by the petition, the Court directed the parties to brief and argue the following question: “Does the Court have jurisdiction to review the decision of the South Carolina Supreme Court?”

Fox v. Vice (10-114), presents two related questions for review: “(1) Can defendants be awarded attorneys’ fees under [42 U.S.C. § 1988] in an action based on a dismissal of a claim, where the plaintiff has asserted other interrelated and non-frivolous claims? (2) Is it improper to award defendants all of the attorney’s fees they incurred in an action under Section 1988, where the fees were spent defending non-frivolous claims that were intertwined with the frivolous claim?”

The Court also asked the Acting SG for his views on petitions in two cases, both of which raise federal preemption issues.

The first, PPL Montana, LLC v. Montana (10-218), concerns the ownership of certain riverbeds in Montana. The case would ask the Court to rule on (1) the appropriate constitutional test for determining whether a section of a river is navigable for purposes of determining title to the riverbed, specifically whether evidence that the river was navigable as of the date the State joined the Union is required or whether evidence of present day use is sufficient, and (2) whether Montana’s efforts to claim ownership to the riverbed (and millions of dollars of back and future rent for use of the riverbed) are preempted, where a hydropower project has been licensed under the Federal Power Act and the hydropower producer has obtained easements from private parties and paid rents to the federal government on the understanding that the riverbeds under the hydropower facilities are owned by those private parties or the federal government.

The second, John Crane Inc. v. Atwell (10-272), would ask whether the Boiler Inspection Act, 49 U.S.C. §§ 20701-20703, impliedly preempts the field of locomotive equipment, and thereby bars a former railroad employee from making asbestos-related claims under state law.

Additionally, the Court released two miscellaneous orders since our last Update worthy of report. In Brewer v. Landrigan (10A416), the Court, in a 5-4 split, vacated a temporary restraining order (“TRO”) prohibiting Arizona from executing Jeffrey Landrigan via lethal injection by using a drug obtained from a foreign source that was not FDA-approved. The Court found that the district court’s speculation that the non-FDA approved drug might cause pain and suffering did not meet the standard for a TRO because it could not “substitute for evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering.'” Justices Ginsburg, Breyer, Sotomayor and Kagan would have denied the application to vacate the TRO.

Respect Maine PAC v. McKee (10A362), involved a challenge to three election laws in Maine: (1) a matching fund provision providing a public subsidy to candidates joining in a “clean elections” program; (2) a provision requiring disclosure of spending by independent political committees; and (3) a provision limiting individual donations to statewide candidates to $750. While the Court had blocked a similar matching provision in an Arizona law, the Court declined to do so here because the Arizona decision arose from “a stay of an appeals court decision, whereas applicants here are asking for an injunction against enforcement of a presumptively constitutional state legislative act. Such a request ‘demands a significantly higher justification’ than a stay because, unlike a stay, an injunction ‘does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.'” Justices Scalia and Alito would have granted the application for injunction as to the matching fund provisions.

This week also brought an opinion from Justice Alito, dissenting from a denial of cert in a habeas case, Wong v. Smith (09-1031). Smith had been charged and tried in California, where the State Constitution recognizes the authority of judges to “comment on the evidence.” When Smith’s jury appeared unable to reach a decision on one of the counts against him, the judge exercised his authority by recapping the incriminating evidence on that count. The judge also reiterated that the jurors were the exclusive judges of the facts, and said that his comments were “advisory only.” On direct appeal, Smith argued that the judge’s comments coerced the jury’s guilty verdict on that count. The California appellate courts rejected the argument. On habeas review, however, the district court and the Ninth Circuit agreed with Smith that the California appellate court unreasonably applied the Court’s clearly established law forbidding coercive jury instructions. The Court denied the State’s petition for cert.

Justice Alito, joined by the Chief and Scalia, would have granted the petition and reversed the Ninth Circuit. Alito noted a long common-law tradition, albeit on the wane, of allowing judges to comment on the evidence. In Justice Alito’s view, that long tradition, combined with the “complete absence of constitutional precedent” on how to apply the Court’s sparse case law on coercive jury instructions in this context, showed that “federal courts should tread lightly when faced with a claim that judicial comment on the evidence runs afoul of clearly established federal law.” Here, the Ninth Circuit had expressed concern that the judge’s comments had pointed the jury to evidence against Smith, while omitting evidence favorable to him. But, Justice Alito observed, the common-law privilege to comment on the evidence permits a judge to focus on the evidence the judge thinks is important. Thus, he and the other dissenters would have granted cert and ruled that the trial judge’s comments and the California appellate court’s approval of those comments were not unreasonable under clearly established federal law.

We expect more orders next week. Until then, thanks, as always, for reading!

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400