Supreme Court Update: Orders

September 28, 2004 Supreme Court Update
Greetings, Court fans, and welcome to another season of Supreme Court Updates!
The Court is back from summer recess and is already getting down to business. For criminal lawyers, the Court's first argument session next Monday probably couldn't come fast enough --hopefully the Court will provide some answers to the post-Blakely disarray. 
With the Court's term underway, the Wiggin and Dana Appellate Practice Group will follow in Sandy Glover's estimable footsteps and continue her long-running series of e-mail updates on the Court. When the Court issues an order or opinion, we will send an e-mail summarizing the highlights of the action to provide all of you with a way to follow the Court with a minimal investment of time. Hopefully, you will find these updates to be quick and user-friendly summaries of the Court's actions and decisions.
With those introductory comments out of the way, there is real news to report. The Court granted cert in eight cases today.
In a case that hits very close to our home, the Court granted cert in Kelo v. New London, Conn., 04-808, in which it will consider the following question: "What protection does the Fifth Amendment's 'public use' requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of 'economic development' that will perhaps increase tax revenues and improve the local economy?" The case stems from the New London Development Corporation's effort, using property seizure power delegated by the city, to construct a new hotel and conference center and other office space on property occupied by private homes and small businesses. Seven property owners challenged the taking of their property, arguing that the takings did not satisfy the Fifth Amendment's requirement that seizure serve a "public use" such as a road, public building, or urban renewal/blight removal. In a 4-3 ruling, the Connecticut Supreme Court upheld the takings, on the ground that that this type of taking -- even a "private-to-private transfer" like this one -- serves a public use where it creates "public benefits" such as new jobs, increased tax revenue, or a revitalized community. Kelo could be very important to eminent domain jurisprudence and the future of urban development, and is worth watching closely.
The Court also granted cert in these cases:
Clingman v. Beaver, 04-37: In this case, the Libertarian Party of Oklahoma, along with individual voters registered as Democrats and Republicans, challenged Oklahoma's semi-closed primary system, in which a party may invite only its own voters and registered independents to vote in its primary. The Tenth Circuit found the system to be an unconstitutional infringement on the party's right of association. The questions presented are as follows: (1) Does Oklahoma's semi-closed primary election law, which allows a political party to invite independents but not members of another party to vote in its primary, violate the First Amendment rights of parties and their members to associate? (2) Does the Court's decision in California Democratic Party v. Jones, 530 U.S. 567 (2000), require the state to allow a party, at its option, to open its primary to all registered voters, regardless of their political affiliations? (3) Did the Tenth Circuit err in finding that Oklahoma's restrictions constituted a severe burden on the right of association of political parties, thereby requiring that the regulation be narrowly tailored to meet a compelling state interest?
Tory v. Cochran, 03-1488: In a defamation case, does a permanent injunction remedy preventing all future speech about an admitted public figure violate the First Amendment? This case is notable because the "Cochran" involved is none other than defense lawyer Johnnie Cochran, whose former client picketed him with defamatory signs and admitted that, absent court restraint, he would continue to do so.

Spector v. Norwegian Cruise Line Ltd., 03-1388: Does Title III of the Americans with Disabilities Act, which bans discrimination based on disability in public accommodations and "specified public transportation services," apply to companies that operate foreign-flag cruise ships in U.S. waters and, if so, to what extent is it applicable?
City of Rancho Palos Verdes v. Abrams, 03-1601: This case involves the Telecommunications Act of 1996, which preserves, with certain limits, the authority of state and local governments over the placement of "personal wireless service facilities" such as cell phone tower antennae and provides a mechanism for aggrieved parties to challenge decisions on these matters. The question presented is whether an individual who has been denied a permit to build a cell phone tower antenna can sue to enforce these provisions (and for damages) under 42 U.S.C. 1983. The Ninth Circuit said yes, contrary to the rulings of the Third and Seventh Circuits. Another case of the "Ninth Circuit rule," perhaps?

Johnson v. U.S., 03-9685: When a state court conviction is used to enhance a federal sentence, but the state court conviction is subsequently vacated, should the one-year statute of limitations under 28 U.S.C. 2255 for a motion for reduced sentence commence upon the vacatur of the state court conviction?
Pace v. DiGuglielmo, 03-9627: May a habeas petition be considered filed on time in federal court if the federal one-year filing deadline has been suspended by pursuit of a post-conviction challenge in state court, even where the state challenge was itself denied as untimely under state law?

Rompilla v. Beard, 04-5462: In this capital punishment case, the Court also allowed the petitioner to proceed in forma pauperis. We have been unable to nail down the questions presented in this case, but they appear to concern: (1) the Court's previous ruling in Simmons v. South Carolina, 512 U.S. 154 (1994) on the right of an individual seeking to avoid a death sentence to have the jury instructed that it may consider a life sentence without parole; and (2) whether a defense lawyer is ineffective for failing to review his client's background, particularly prior convictions that the prosecution will use to support a death sentence. Once we have determined the actual questions presented, we will send out a supplemental update.
Finally, on an interesting procedural note, on Friday the Court directed the parties and the Solicitor General to weigh in on whether federal or state substantive law governs the questions presented in Norfolk Southern Railway Co. v. James N. Kirby, Pty. Ltd., 02-1028. The case involves complex (some might say mind-numbing) issues regarding federal maritime law, the liability limits under the Carriage of Goods by Sea Act, and basic contract law. What's noteworthy is that argument on the case is scheduled for next Wednesday, October 6, and the parties and the SG have until next Monday to file their briefs -- on what one would think is a fundamental issue in the case. So it seems that the Court can experience last-minute revelations just like the rest of us.

That's all for now. We hope you find these updates helpful, and we welcome your comments and suggestions.

Ken Heath & Kim Rinehart

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, or visit our website at