Order List

October 14, 2003 Supreme Court Update

Greetings Court fans!

Of course, the big news out of the Court today is that they agreed to hear the Pledge of Allegiance case out of the Ninth Circuit (surprise!). They also agreed to hear 7 other cases, so here's the run down:

1. Littleton Co. v. Z.J. Gifts D-4 LLC (02-1609): A First Amendment case with the following question presented: "Whether the requirement of prompt judicial review imposed by FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990) entails a prompt judicial determination or a prompt commencement of judicial proceedings." This will resolve a circuit split that has been around for a long time.

2. Grupo Dataflux v. Atlas Global Group (02-1689): A case tailor-made for all you federal jurisdiction mavens out there: (1) Did court of appeals err by creating new exception to rule that diversity jurisdiction must be determined based on party's citizenship and circumstances as they existed at time suit was filed? (2) Did court of appeals err in allowing unilateral change in party's citizenship during course of litigation to create diversity jurisdiction that did not exist at the time the suit was filed?

3. Tennard v. Dretke (02-10038): The Court granted this petition and consolidated it with Smith v. Dretke (granted Sept. 30). I don't have the question presented, but it's generally about further application of the Court's Penry v. Johnson decision.

4. Sabri v. United States (03-44): A criminal case of interest to federal prosecutors (and potential federal defendants). The 8th Circuit held that 18 USC 666 (illegal to bribe agents of state or local entities that receive federal funds) does not require a connection between the offense and the federal funds. The Court will review this decision and also consider the constitutional authority for Congress' enactment of the statute.

5. Ashcroft v. ACLU (03-218): Once again, the Court will consider the constitutionality of the Child Online Protection Act. The 3rd Circuit held that it violates the First Amendment.

6. Elk Grove Unified Sch. District v. Newdow (02-1624): This is the Pledge of Allegiance case. The Court -- all except Scalia -- will decide the following two questions: (1) Whether respondent has standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance. (2) Whether a public school district policy that requires teachers to lead willing students in reciting the Pledge, which includes the words "under God," violates the Establishment Clause. Scalia is recused from this case. The Court didn't say why Scalia recused himself, but presumably it's because he has made public statements about this case. Really unclear why Scalia did that. The rest of the country knew this case was coming to the Court; didn't he?

7. United States v. Flores-Montano (02-1794): A case about border searches: Are Customs Service Officers at international border required by the Fourth Amendment to have reasonable suspicion to remove, disassemble, and search vehicle's fuel tank for contraband?

8. Dretke v. Haley (02-1824): This is a habeas case with the following question: Does the "actual innocence" exception to procedural default rule for federal habeas corpus claims apply to noncapital sentencing error?

That's all for now. Thanks for reading!

Sandy


From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at
www.wiggin.com.