Order List

September 28, 2005 Supreme Court Update

Greetings, Court Fans!
As promised, here is the summary of the new cases from yesterday's order list. They range from several interesting election-law cases to a, well, quirky case on the probate exception to federal jurisdiction. The list is lengthy (eleven cases, some consolidated), so we'll dispense with the commentary and get right to the questions presented.
In Randall v. Sorrell (04-1528), Vermont Republican State Committee v. Sorrell (04-1530), and Sorrell v. Randall (04-1697), the Court will hear similar challenges to Vermont's campaign finance laws. Here are the questions presented in Randall (the first one, that is): (1) Do Vermont's mandatory limits on candidate expenditures violate the First Amendment and this court's decision in Buckley v. Valeo? (2) Is Vermont's treatment of independent expenditures by political parties and committees as presumptively coordinated if they benefit fewer than six candidates, and thereby subject to strict contribution and expenditure limits, consistent with the First Amendment and this court's decision in Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n? (3) Do Vermont's contribution limits, which are the lowest in the country, which allow only a single maximum contribution in an entire two-year general election cycle, and which prohibit even state political parties from contributing more than $400 to their gubernatorial candidate, fall below the acceptable constitutional threshold?
The Court will consider another election-law issue in Wisconsin Right to Life, Inc. v. Federal Election Comm'n (04-1581), in which it noted probable jurisdiction – that is, the case has not been brought on a petition for cert, but instead on appeal (a relative rarity). Wisconsin Right to Life sought to enjoin enforcement of federal Bipartisan Campaign Finance Reform Act prohibitions on its use of funds for ads related to politics or legislation, but a three-judge District Court panel denied it an injunction and then dismissed its case. They appealed under 28 U.S.C. 1253 (for appeals from decisions of three-judge panels denying permanent injunctions) and the BCFRA (which provides a right of appeal to the Supreme Court). These are the questions presented: (1) Are as-applied challenges permitted to the prohibition on corporate disbursements for electioneering communications at 2 U.S.C. 441b after [last year's ruling] in McConnell v. FEC? (2) If so, is the prohibition on electioneering communications unconstitutional as applied to the facts of this case, and particularly (a) three particular grass-roots lobbying broadcast communications sponsored by Wisconsin Right to Life Inc., or (b) grass-roots lobbying communications generally, as carefully defined, with any communications to be funded either from a general corporate account or, alternatively, from a separate bank account to which only qualified individuals may donate, as defined in 2 U.S.C. 434(f)(2)(E)?
Another notable (or perhaps notorious) case from yesterday is Marshall v. Marshall (04-1544). The questions presented are mundane: (1) What is the scope of the probate exception to federal jurisdiction? (2) Did Congress intend the probate exception to apply when a federal court is not asked to probate a will, administer an estate, or otherwise assume control of property in the custody of a state probate court? (3) Did Congress intend the probate exception to apply to cases arising under the Constitution, laws or treaties of the United States, including the Bankruptcy Code, or is it limited to cases in which jurisdiction is based on diversity of citizenship? (4) Did Congress intend the probate exception to apply to cases arising out of trusts, or is it limited to cases involving wills? But here are some facts you won't get from the questions or the case caption: this one involves former Playboy Playmate Anna Nicole Smith's suit to obtain part of her wealthy late husband's estate and damages from his son, who allegedly was trying to freeze her out and deplete his father's assets. (Note: when they married, she was 26, he was 89). A Texas probate court originally ruled that Anna Nicole, who was not included in her husband's will, was entitled to nothing, but a federal bankruptcy judge awarded her $474 million. Her award was later reduced to $89 million before the Ninth Circuit threw it out altogether, holding that the federal courts lacked jurisdiction and that the Texas ruling should stand.
Here are the other cert grants from yesterday.
Day v. Crosby (04-1324): (1) Does a state waive a limitations defense to a habeas corpus petition when it fails to plead or otherwise raise that defense and expressly concedes that the petition was timely? (2) Does Rule 4 of the Rules Governing Section 2254 Cases permit a district court to dismiss a habeas petition sua sponte after the state has filed an answer based on a ground not raised in its answer?
Holmes v. South Carolina (04-1327): Does South Carolina's rule governing the admissibility of third-party guilt evidence violate a criminal defendant's constitutional right to present a complete defense grounded in the due process, confrontation, and compulsory process clauses of the Constitution?
Merrill Lynch v. Dabit (04-1371): As the Seventh Circuit held earlier this month and in direct conflict with the decision below, does [the Securities Litigation Uniform Standards Act] preempt state law class action claims based upon allegedly fraudulent statements or omissions brought solely on behalf of persons who were induced thereby to hold or retain (and not purchase or sell) securities?
United States v. Grubbs (04-1414): Does the Fourth Amendment require the suppression of evidence when officers conduct a search under an anticipatory warrant after the warrant's triggering condition is satisfied, but the triggering condition is not set forth either in the warrant itself or in an affidavit that is both incorporated into the warrant and shown to the person whose property is being searched?
Jones v. Flowers (04-1477): When a mailed notice of a tax sale or property forfeiture is returned as undeliverable, does due process require the government to make any additional effort to locate the owner of the property before taking the property?
Arkansas Dep't of Human Services v. Ahlborn (04-1506): Does federal Medicaid law, which requires that a medical assistance recipient assign to the state any right to a payment from a third party who is liable for the recipient's medical expenses, and which also prohibits placement of a pre-death lien upon the recipient's "property," entitle the state to full reimbursement from personal injury settlement proceeds of Medicaid benefits paid on the recipient's behalf, regardless of what portion of the settlement proceeds are designated as compensation for medical care?
DaimlerChrysler v. Cuno (04-1704) and Wilkins v. Cuno (04-1724): DaimlerChrysler asks "Does Ohio's investment tax credit, Ohio Revised Code 5733.33, which seeks to encourage economic development by providing credits to taxpayers when they install new manufacturing machinery and equipment in the state, violate the commerce clause of the U.S. Constitution?" Wilkins similarly asks "Does the dormant commerce clause allow a state to attempt to attract new business investment in the state by offering credits against the state's general corporate franchise or income tax, when the amount of the credit is based on the amount of the business's new investment in the state?" The Court also asked the parties to address whether the respondents even have standing to challenge Ohio's tax credit.
Finally, the Court granted cert in Samson v. California (04-9728), an in forma pauperis case regarding whether police can carry out a warrantless search of a parolee solely because of his parole status (i.e., there is no suspicion of criminal wrongdoing).
That's it for the order list. The confirmation vote for Judge John Roberts as the next Chief Justice is set for tomorrow, and the Term officially opens next Monday, when we can expect to see another order list with more cert grants and many hundreds of denials. 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.