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State Cases Prominent on 2008 U.S. Supreme Court Docket

Dan Schweitzer, Supreme Court Counsel

The United States Supreme Court commenced its 2008 Term this month, and has already heard arguments by five Attorney General offices as well as arguments in a major preemption case. The Court does not have any blockbuster cases on its docket, but it is hearing a steady stream of cases that could significantly affect the states’ enforcement of their criminal and civil laws.

Starting with the big picture: The Court is hearing more cases than it has heard in a while. If it fills up its calendar with two cases for each of the remaining scheduled argument days, it will end up hearing 83 cases ― the first time in years it has heard that many arguments. Of the 54 cases the Court has agreed to hear so far, 19 of them come from state Attorney General offices. This makes the Attorney General offices, collectively, the most frequent party in the Court.

As always, the Court’s cases span an array of issues ranging from habeas corpus to civil rights to the construction of obscure federal statutes. This Term appears to stand apart for its heavy load of criminal law and environmental cases. Together they account for fully half of the docket (there being 22 criminal laws cases and 5 environmental cases). Whereas last Term the Court decided only two cases involving Fourth, Fifth, and Sixth Amendment issues, this Term the Court is hearing 10 such cases (so far).

Let’s now turn to some of the specific cases the Court will be hearing.


Two of the most important cases on the docket address whether federal laws preempt state tort actions. At issue in Altria Group, Inc. v. Good, No. 07-562, is whether the Federal Cigarette Labeling and Advertising Act preempts state law deceptive practice claims in connection with the advertising of cigarettes as “light” or containing “lower tar and nicotine.” The federal law has a provision that expressly preempts any state “requirement or prohibition based on smoking and health . . . with respect to . . . cigarettes.” The principal issue in the case is whether a state tort action based on the general ban on deceptive commercial practices is an action “based on smoking and health.”

At issue in Wyeth v. Levine, No. 06-1249, is whether the Food and Drug Administration’s preapproval of a label for a drug impliedly preempts a state tort law failure-to-warn claim that is premised on the inadequacy of the drug label. The Vermont Supreme Court ruled that federal regulation of drug safety only provides a floor on labeling requirements, and leaves states free to impose more restrictive labeling under their own duty-to-warn tort laws. Wyeth argues that it is impossible for it to comply with the federal regulatory regime (which, it claims, mandates use of the approved label) and with the state tort regime (which, it claims, mandates use of a revised label). Wyeth further argues that allowing state juries to second guess the FDA’s approval of a drug and its labels frustrates the objectives of the federal regulatory scheme. If the Court rules on the latter issue, it could have a major impact on the law of implied preemption.

First Amendment

Two of the four First Amendment cases on the Court’s docket are especially interesting. FCC v. Fox Television Stations, No. 07-582, addresses the FCC’s conclusion that two television networks violated the ban on indecent speech when performers (Bono and Nicole Richie) cursed during live award shows. The precise issue before the Court is whether the Second Circuit was correct in holding that the FCC failed to articulate a reasoned justification for changing its indecency policy with respect to fleeting and isolated expletives.

In Pleasant Grove City v. Summum, No. 97-665, the Court tackles a very different First Amendment issue: whether the Free Speech Clause requires that a city which displays numerous monuments in its park ― including one that depicts the Ten Commandments ― also display a monument donated by the Summum church containing its “Seven Aphorisms.” The Tenth Circuit held that it does, concluding that the display of monuments constitutes private (not government) speech and that the park is a traditional public forum. The City argues that cities are entitled to decide what monuments to place on city property.

Environmental Law

As noted, the Court has agreed to hear five environmental cases, all involving complex statutory and jurisdictional issues. Summers v. Earth Island Institute, No. 07-463, addresses when environmental organizations may assert facial challenges to federal environmental regulations. Entergy Corp. v. EPA, 07-588, concerns the steps existing power plants must take under the Clean Water Act to limit the damage to fish caused by cooling intake structures (the power plants’ structures that take water from rivers and circulate the water through their equipment to absorb heat). Winter v. Natural Resources Defense Council, No. 07-1239, asks whether a federal district court properly enjoined the Navy’s use of sonar during training exercises based on the court’s conclusion that the sonar harms whales and the Navy failed to comply with the National Environmental Policy Act.

At issue in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, No. 07-984, is whether discharges of dredged or fill material that are subject to the permitting authority of the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act are also subject to the permitting authority of the EPA under Section 402 of the Act. And in Burlington Northern & Santa Fe R. Co. v. United States, 07-1601, the Court will address two issues related to the reimbursement the government may obtain under CERCLA for the costs of remediating hazardous waste sites. Most notably, the Court will address the appropriate standard by which a district court should determine whether to impose joint and several liability on the defendants or to instead apportion responsibility among the many potentially responsible parties.

Other Civil Cases

Among the other civil cases of particular note to the states are Bartlett v. Strickland, No. 07-689, Van de Kamp v. Goldstein, 07-854, Carcieri v. Kempthorne, No. 07-526, and Hawaii v. Office of Hawaiian Affairs, 07-1372. Bartlett v. Strickland involves the showing a minority group must make to have a viable claim of vote dilution under Section 2 of the Voting Rights Act. Specifically, the question is whether a minority group that constitutes less than 50% of a proposed district’s population can state such a claim. The Van de Kamp case involves a civil rights claim of an altogether different sort. At issue is whether, even though individual prosecutors are absolutely immune from §1983 liability based on their decisions to present false testimony or suppress evidence, an elected District Attorney and his chief deputy can nonetheless be subjected to liability based on their alleged failure to have proper policies and training on the subject.

Carcieri v. Kempthorne and Hawaii v. Office of Hawaiian Affairs both concern states’ sovereign authority over land. At issue in Carcieri is whether the Secretary of Interior had the power to take land into trust in Rhode Island for the Narragansett Indian Tribe under the Indian Reorganization Act ― even though that statute, enacted in 1934, only authorizes land to be taken into trust for “any recognized Indian tribe now under Federal jurisdiction,” and even though the Rhode Island Indian Land Claims Settlement Act expressly extinguished the Narragansett’s aboriginal title throughout the state. Office of Hawaiian Affairs pertains to 1.2 million acres of land that, under its admission statute, the State of Hawaii holds in trust and may sell or dispose of for specified reasons. Under review is a Hawaii Supreme Court decision holding that a 1993 Joint Resolution of Congress that acknowledged and apologized for the 1893 overthrow of the Kingdom of Hawaii strips the state of its authority to sell or dispose of those lands unless and until it reaches a political settlement with native Hawaiians about the lands’ status.

Criminal Law Cases

As noted earlier, the Court is hearing a plethora of criminal law cases this Term. The cases that will likely have the greatest impact on law enforcement are the criminal procedure cases. Here is a brief summary of them:

  • Herring v. United States, No. 07-513. The question presented is “[w]hether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent.” Specifically, a clerk in a county sheriff’s office mistakenly told another sheriff’s office that there was an outstanding arrest warrant for petitioner. In Arizona v. Evans, 514 U.S. 1 (1995), the Court held that the exclusionary rule does not apply to evidence obtained incident to an arrest based on such a mistake when the negligent error was made a court clerk. This case will resolve whether Evans extends to negligent errors made by law enforcement personnel ― and could result in the Court further chipping away at the exclusionary rule.
  • Arizona v. Gant, No. 07-542. The question presented is whether “the Fourth Amendment require[s] law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless search incident to arrest conducted after the vehicle’s recent occupants have been arrested and secured?” Although the Court had previously held that no such demonstration is required, the Court had indicated in a prior case that it might revisit that holding. If the Court changes course on this issue, it would force law enforcement to change what has become standard police practice.
  • Oregon v. Ice, No. 07-791. The question presented is “[w]hether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant.”
  • Melendez-Diaz v. Massachusetts, No. 07-591. At issue is “[w]hether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is ‘testimonial’ evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004).” The Massachusetts Court of Appeals held it is not, and therefore held that the Confrontation Clause was not violated when the prosecution introduced laboratory reports declaring that packages seized in connection with Melendez-Diaz’s arrest weighed over 14 grams and all contained cocaine, but did not call any state forensic examiners to the stand.
  • Pearson v. Callahan, No. 07-751. Under the “consent once removed” doctrine recognized by most federal circuits, narcotics investigators may make a warrantless entry into a home after an undercover agent who entered the home at the express invitation of the homeowner observes narcotics there. The Fourth Amendment issue in the case is whether the doctrine applies when the undercover individual is a confidential informant, rather than a law enforcement officer. Because this case arises in the context of a §1983 action, it also presents important issues related to when officers are entitled to qualified immunity.
  • Arizona v. Johnson, No. 07-1122. At issue is whether, after a car is stopped for a minor traffic infraction, an officer may “conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but has no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense.”
  • Kansas v. Ventris, No. 07-1356. The question presented is whether a criminal defendant’s voluntary statement obtained in the absence of a knowing and voluntary waiver of his Sixth Amendment right to counsel is admissible for impeachment purposes. In Michigan v. Harvey, 494 U.S. 344 (1990), the Court held that a defendant’s statement may be used for impeachment purposes when he has knowingly and voluntarily waived his right to counsel, but his waiver is deemed invalid because the police initiated interrogation in violation of Michigan v. Jackson, 475 U.S. 625 (1986). At issue here is whether the same result obtains when no waiver was given ― for example, where the defendant made statements to a cellmate whom the state had recruited for that purpose.
  • Vermont v. Brillon, No. 08-88. Under review is a Vermont Supreme Court decision vacating a conviction on the ground that the defendant’s speedy trial rights were violated ― even though the continuances and delays were caused by the indigent defendant’s public defenders. The Vermont Supreme Court reasoned that the public defender’s “office is part of the criminal justice system,” and that, therefore, “a significant portion” of the delay “is attributable to the criminal justice system provided by the state.”
  • Rivera v. Illinois, No. 07-9995. Under review is an Illinois Supreme Court decision holding that the erroneous denial of a criminal defendant’s preemptory challenge that resulted in the challenged juror being seated does not require automatic reversal of a conviction.

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