Order List

November 1, 2004 Supreme Court Update

Greetings, Court fans!
The Court returned from its two-week recess today, and the big news is the health of Chief Justice Rehnquist, who just underwent treatment for thyroid cancer. The Chief did not return to work as expected, and his chambers issued the following statement:
"I underwent a tracheotomy nine days ago and, at the suggestion of my doctors, am continuing to recuperate at home. According to my doctors, my plan to return to the office today was too optimistic. I am continuing to take radiation and chemotherapy treatments on an outpatient basis. While I am at home, I am working on court matters, including opinions for cases already argued. I am, and will continue to be, in close contact with my colleagues, my law clerks, and members of the Supreme Court staff."
Hopefully, the Chief's recovery will be speedy and complete.
In other news, the Court granted cert in exactly one case today: Castle Rock, Colorado v. Gonzales, 04-278. That case has very tragic facts, as it stems from the kidnapping and murder of Ms. Gonzales' three daughters by her ex-husband. Ms. Gonzales had previously obtained a partial restraining order against her ex-husband, and she alleged that the town police refused to enforce the order despite her pleas that they find her daughters and despite a Colorado statute requiring police to enforce restraining orders. She sued the town under section 1983, on the theory that the restraining order and the statute together gave her family a property right to police protection and that the town denied that right without due process of law. The District Court dismissed her complaint, on the following grounds: (1) under DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), a state actor's failure to protect someone from private violence does not violate substantive due process absent special circumstances; and (2) although DeShaney did not strictly address procedural due process, Ms. Gonzales did not have a protectable property interest because the Colorado statute only required enforcement of restraining orders upon a showing of probable cause. The Tenth Circuit reversed on the procedural due process claim, and an en banc panel upheld that reversal by a 6-5 vote. The dissenters argued, in essence, that the majority was allowing artful pleading to circumvent DeShaney. The Supreme Court will decide the following questions: (1) Does the Tenth Circuit's decision permitting a procedural due process claim against a local government for its failure to protect the holder of a partial restraining order from private violence, when the state itself provides no such remedy, so circumvent as to effectively repudiate DeShaney? (2) If the Fourteenth Amendment's due process clause is read to permit, via its procedural aspects, the same substantive claims rejected in DeShaney, what kind of process is required for police inaction with respect to a partial restraining order so as not to violate the U.S. Constitution?
Finally, the Court invited the SG to weigh in on the pending cert petition in Honeywell International, Inc. v. Hamilton Sundstrand Corp., 04-293, which looks like a real patent law barn-burner. It concerns: (1) whether rewriting a dependent claim in independent form, combined with canceling the antecedent independent claim, is a "narrowing amendment" that gives rise to a presumption of "prosecution history estoppel" under Festo Corp. v. Shoketsu Kinzoku Kogyu Kabushiki Co., 535 U.S. 722 (2002); and (2) whether the Festo presumption arises whenever a broader claim is rejected and canceled during prosecution in favor of a separate narrower claim, even if the narrower claim was never itself amended during prosecution. We'll defer to the patent lawyers in the audience as to what all that means.
That's all for now. Thanks again for reading, and as always we welcome your comments.
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