No. 06-116
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United Haulers Association, Inc., et al. v. Oneida-Herkimer Solid Waste Management Authority, et al.
No. 05-1345
Subject:
Commerce Clause, Interstate Commerce, Solid Waste, Flow-Control Ordinance, Preferred Processing Facility
Question:
The Court held in C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 386
(1994), that “a so-called flow control ordinance, which require[d] all solid waste to
be processed at a designated transfer station before leaving the municipality,’
discriminated against interstate commerce and was invalid under the Commerce
Clause because it “depriv[ed] competitors, including out-of-state firms, of access to
a local market.” This case presents two questions, the first of which is the subject of
an acknowledged circuit conflict:
- Whether the virtually per se prohibition against “hoard[ing] solid waste” (Id. at
392) recognized in Carbone is inapplicable when the “preferred processing
facility” (ibid.) is owned by a public entity
- Whether a flow-control ordinance that requires delivery of all solid waste to a
publicly owned local facility and thus prohibits its exportation imposes so
“insubstantial” a burden on interstate commerce that the provision satisfies the
Commerce Clause if it serves even a “minimal” local benefit.
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Tuesday, January 9
Sinochem International Co., Ltd. v. Malaysia International Shipping Corporation
No. 06-102
Subject:
Jurisdiction, Personal Jurisdiction, Forum Non Conveniens, Civil Procedure
Questions:
A divided panel of the Court of Appeals for the Third Circuit held that a district court
must first conclusively determine if it has personal jurisdiction over the defendant
before it may dismiss the suit on the ground of forum non conveniens. The court
acknowledged that its holding was inconsistent with the interests of judicial
economy, recognized that its decision in the case deepened an-already existing 2-4
split among the circuits, and invited this Court’s review.
The question presented is:
Whether a district court must first conclusively establish jurisdiction before
dismissing a suit on the ground of forum non conveniens?
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Dora B. Schriro, Director, Arizona Department of Corrections v. Jeffrey Timothy Landrigan, aka Billy Patrick Wayne Hill
No. 05-1575
Subject:
Capital Cases, Capital Sentencing, Mitigation, Anti-Terrorism and Effective Death Penalty Act of 1996, Ineffective Assistance of Counsel
Question:
Respondent Jeffrey Landrigan actively thwarted his attorney’s efforts to develop
and present mitigation evidence in his capital sentencing proceeding. Landrigan told
the trial judge that he did not want his attorney to present any mitigation evidence,
including proposed testimony from witnesses whom his attorney had subpoenaed to
testify. On post-conviction review, the state court rejected as frivolous an ineffective
assistance of counsel claim in which Landrigan asserted that if counsel had raised
the issue of Landrigan’s alleged genetic predisposition to violence, he would have
cooperated in presenting that type of mitigating evidence.
- In light of the highly deferential standard of review required in this case pursuant
to the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), did the
Ninth Circuit err by holding that the state court unreasonably determined the facts
when it found that Landrigan “instructed his attorney not to present any mitigating
evidence at the sentencing hearing”?
- Did the Ninth Circuit err by finding that the state court’s analysis of Landrigan’s
ineffective assistance of counsel claim was objectively unreasonable under
Strickland v. Washington, 466 U.S. 668 (1984), notwithstanding the absence of any
contrary authority from this Court in cases in which (a) the defendant waives
presentation of mitigation and impedes counsels attempts to do so, or (b) the
evidence the defendant subsequently claims should have been presented is not
mitigating?
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Counsel of Record
For Petitioner Dora B. Schriro:
Kent E. Cattani
Office of the Attorney General
Capital Litigation Section
Phoenix, AZ
For Respondent Landrigan:
Dale A. Baich
Office of the Federal Public Defender
Capital Habeas Unit
Phoenix, AZ
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Wednesday, January 10
Zuni Public School District No. 89, et al. v. Department of Education, et al.
No. 05-1508
Subject:
Federal Impact Aid Program, Federally Impacted Districts, School Districts, Indian Reservations, Federal Lands, Equalization
Questions:
The Federal Impact Aid Program, 20 U.S.C. § 7709, was enacted to subsidize local
State school districts which have a federal presence within the district such as
military bases or, as in the present case, Indian Reservations. These local districts
are not able to tax such federally impacted lands. The Impact Aid Program prohibits
the State from counting these federal subsidies as part of an impacted district’s
budget when the State allocates operational funds to the local districts, unless the
State’s operational funding to districts throughout the State is “equalized” under an
equalization formula under the Impact Aid Program. If the State’s operational
funding is determined to be “equalized,” the State can reduce operational funding to
an impacted district by the amount of the Impact Aid subsidy.
In 1994, the equalization formula was statutorily created and effectively repealed
the equalization formula previously created by the Secretary of the United States
Department of Education by regulation. However, in 1996, the Secretary, by
regulation, reinstated his repealed and conflicting equalization formula and refuses
to follow Congress’ equalization formula. Under Congress’ formula, New Mexico is
not “equalized” and the intended beneficiaries receive the Impact Aid. Under the
Secretary’s formula, New Mexico is deemed “equalized” and the Impact Aid is taken
from the impacted districts. The impacted districts are losing approximately
$50,000,000 per year in Impact Aid. The Tenth Circuit was split 6 to 6 on the
question, leaving the Secretary’s formula in effect.
The question presented is:
- Whether the Secretary has the authority to create and impose his formula over
the one prescribed by Congress and through this process certify New Mexico’s
operational funding for fiscal year 1999- 2000 as “equalized,” thereby diverting the
Impact Aid subsidies to the State and whether this is one of the rare cases where
this Court should exercise its supervisory jurisdiction to correct a plain error that
affects all State school districts that educate federally connected children.
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Gary Davenport, et al. v. Washington Education Association
No. 05-1589
Washington v. Washington Education Association
No. 05-1657
Subject:
Unions, First Amendment, Wages, Campaign Finance Laws, Nonmember Wage Seizure, Labor Law
Questions:
- Do labor union officials have a First Amendment right to seize and use for politics
the wages of employees who have chosen not to become union members?
- Does a state campaign finance law that prohibits labor unions and their officials
from seizing and using the wages of nonmembers for partisan political campaigns
without obtaining the nonmembers’ affirmative consent violate the First Amendment
rights of labor unions?
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Counsel of Record
For Petitioner Davenport:
Milton L. Chappell
National Right to Work Legal Defense Foundation, Inc.
Springfield, VA
For Respondent Washington Educ. Ass'n:
John M. West
Bredhoff & Kaiser, P.L.L.C.
Washington, DC
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Tuesday, January 16
Safeco Insurance Company of America, et al. v. Charles Burr, et al.
No. 06-84
GEICO General Insurance Company, et al. v. Ajene Edo
No. 06-100
Subject:
Fair Credit Reporting Act, Willful Violation, Mens Rea, Consumer Credit, Adverse Action
Questions:
In 06-100:
The Fair Credit Reporting Act (“FCRA” or the “Act”) requires a user of consumer
credit information to notify a consumer when the consumer has been treated
adversely on the basis of his or her credit information. To enforce this requirement,
Congress provided two tiers of civil remedies. Under § 1681o of the Act, if a
consumer shows that a user’s failure to send an adverse-action notice was
negligent, the consumer is entitled to recover actual damages. But under § 1681n of
the Act, if the consumer makes a higher showing and proves that the user’s failure
to send an adverse-action notice was “willful,” the consumer is entitled to recover
statutory damages between $100 and $1,000 (in lieu of actual damages) and
punitive damages.
A conflict exists between the Fourth, Fifth, Sixth, Seventh, and Eighth Circuits, and
the Third and (now) Ninth Circuits over the mens rea required for a “willful” violation
of FCRA. Separating itself from any other circuit to have decided the issue and
compounding the circuit split, the Ninth Circuit held that a company may be deemed
to have acted recklessly—and thereby willfully under the Act—if the company relied,
even in good faith, upon an interpretation of the Act that a court later determines to
be “unreasonable [],“ “implausible,” “creative,” or “untenable,” even if that
interpretation was derived from a legal opinion that the company sought for the very
purpose of ensuring compliance with the law.
Two questions are presented:
- Whether the Ninth Circuit’s construction of “willfully” under § 1681n of FCRA
impermissibly permits a finding of willfulness to be based upon nothing more than
negligence, gross negligence, or a completely good-faith but incorrect interpretation
of the law, and upon conduct that is objectively reasonable as a matter of law,
rather than requiring proof of a defendant’s knowledge that its conduct violated
FCRA or, at a minimum, recklessness in its subjective form?
- Whether the Ninth Circuit improperly expanded § 1681m of FCRA by holding that
an “adverse action” has occurred and notice is required thereunder, even when a
consumer’s credit information has had either no impact or a favorable impact on the
rates and terms of the insurance that would otherwise have been offered or
provided?
In 06-84:
Whether the Ninth Circuit erred in holding that a defendant can be found liable for a
“willful” violation of the Fair Credit Reporting Act (FCRA) upon a finding of
“reckless disregard” for FCRA’s requirements, in conflict with the unanimous
holdings of other circuits that “willfulness” requires actual knowledge that the
defendant’s conduct violates FCRA.
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Travelers Casualty and Surety Company of America v. Pacific Gas and Electric Company
No. 05-1429
Subject:
Attorney's Fees, Contracts, Bankruptcy Law
Question:
Petitioner and Respondent entered into a contract that included a provision that
Petitioner is entitled to recover its attorneys’ fees incurred in connection with the
enforcement, protection, or litigation of its contractual and legal rights. Petitioner
incurred attorneys’ fees litigating its rights during the course of Respondent’s
bankruptcy case and sought to recover them from Respondent. Adhering to its prior
decision in Fobian v. Western Farm Credit Bank (In re Fobian), 951 F.2d 1149 (9th
Cir. 1991), the Ninth Circuit held that Petitioner could not recover its attorneys’ fees
because the relevant litigation in the bankruptcy court involved issues of federal
bankruptcy law. The court reasoned that, as a matter of general federal common
law, a party may not recover its attorneys’ fees pursuant to a contract or state
statute where the issues litigated involve matters of federal law because only
federal law may authorize such a recovery. The question presented is:
Should the Court grant certiorari to resolve a conflict among nine courts of appeals
concerning whether a litigant may recover attorneys’ fees under a contract or state
statute where the issues litigated involve matters of federal bankruptcy law?
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Wednesday, January 17
Jalil Abdul-Kabir, fka Ted Calvin Cole v. Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division
No. 05-11284
Brent Ray Brewer v. Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division
No. 05-11287
Subject:
Capital Sentencing, Death Penalty, Jury Instructions, Penry v. Johnson, Mental Disorders, Mitigation, Mitigating Evidence
Questions:
- Do the former Texas “special issue” capital sentencing jury instructions — which
permit jurors to register only a “yes” or “no” answer to two questions, inquiring
whether the defendant killed “deliberately” and probably would constitute a
“continuing threat to society” — permit constitutionally adequate consideration of
mitigating evidence about a defendant’s mental impairment and childhood
mistreatment and deprivation, in light of this Court’s emphatic statement in Smith v.
Texas, 543 U.S. 37, 48 (2004), that those same two questions “had little, if
anything, to do with” Smith’s evidence of mental impairment and childhood
mistreatment)?
- Do this Court’s recent opinions in Penry v. Johnson, 532 U.S. 782 (2001) (“Penry
II”) and Smith, both of which require instructions that permit jurors to give “full
consideration and full effect” to a defendant’s mitigating evidence in choosing the
appropriate sentence, preclude the Fifth Circuit from adhering to its prior decisions
— antedating Penry II and Smith — that reject Penry error whenever the former
special issues might have afforded some indirect consideration of the defendant’s
mitigating evidence?
- Has the Fifth Circuit, in insisting that a defendant show as a predicate to relief
under Penry that he suffers from a mental disorder that is severe, permanent or
untreatable, simply resurrected the threshold test for “constitutional relevance” that
this Court emphatically rejected in Tennard v. Dretke, 542 U.S. 274 (2004)?
- Where the prosecution, as it did here, repeatedly implores jurors to “follow the
law” and “do their duty” by answering the former Texas special issues on their own
terms and abjuring any attempt to use their answers to effect an appropriate
sentence, is it reasonably likely that jurors applied their instructions in a way that
prevented them from fully considering and giving effect to the defendant’s mitigating
evidence?
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LaRoyce Lathair Smith v. Texas
No. 05-11304
Subject:
Capital Sentencing, Death Penalty, Penry v. Johnson, Mitigation, Mitigating Evidence
Question:
- In Smith v.
Texas, 543 U.S. 37 (2004), this Court summarily reversed the Texas Court of Criminal Appeals and found constitutional error under Penry v. Lynaugh,
492 U.S.302 (1989) (Penry I), and Penry v. Johnson, 532 U.S. 782 (2001) (Penry II). Is it consistent with this Court’s remand in this case for the Texas Court of
Criminal Appeals to deem the error in petitioner’s case harmless based on its view
that jurors were in fact able to give adequate consideration and effect to petitioner’s
mitigating evidence notwithstanding this Court’s conclusion to the contrary?
- Can the Texas Court of Criminal Appeals, based on a procedural determination that
it declined to adopt in its original decision that this Court then summarily reversed,
impose on remand a daunting standard of harm (“egregious harm”) to the
constitutional violation found by this Court?
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