On the Docket: Supreme Court Cases, Week of March 17, 2008

The following is a summary of cases the U.S. Supreme Court will hear for the week of March 17-21, 2008:

Case: Philippines v. Pimentel

Argument Date: Monday, March 17

Law in Question: Rule 19 of the Federal Rules of Civil Procedure. Required Joinder of Parties

Concern: Can the Philippines be excluded from litigation that seeks to determine the proper ownership of assets when the government of Philippines is one of the parties claiming to hold ownership?

Impact: Presumably as the global financial market matures and more governments directly invest in the United States the ruling on this case will impact the development of future disputes on those funds. That notwithstanding, there is little impact from this case beyond the class involved and the Philippines government. Though that government and the United States argue a ruling against the Philippines will damage long-standing efforts by most nations to restore lost assets.

Questions Presented: 1) Whether the Republic and its PCGG, having been dismissed from the interpleader action based on their successful assertion of sovereign immunity, had the right to appeal the district court's determination that they are not indispensable parties under Fed. R. Civ. P. 19(b); and whether they have the right to seek this court's review of the Court of Appeals opinion affirming the district court.

2) Whether a foreign government that is a necessary party to a lawsuit under Rule 19(a) and has successfully asserted sovereign immunity is, under Rule 19(b), an indispensable party to an action brought in the courts of the United States to settle ownership of assets claimed by that government.

Background: This case has been in the legal pipeline for two decades and traces its origin to the Ferdinand Marcos dictatorship. Mariano Pimentel represents a class of 9,539 who brought human rights claims against the Marcos government which was overthrown in 1986. The lawsuit, filed in Hawaii, sought damages from the proceeds of Marcos's personal investments ostensibly made with public funds. In 1996 a $2 billion judgment was awarded for the class but this judgment remains unsatisfied.

One of the investments Marcos made was in a Panamanian based company called Arelma. It is estimated that the Philippino stake in this company is now worth $35 Million. In 1989, then president Corazon Aquino established a commission to recover all assets Marcos used for his illegitimate purposes. Under Philippino law those funds are to be returned to the government. In 2000, the Philippines asked New York based investment house Merrill Lynch to transfer the Arelma funds into its treasury. Merrill Lynch refused fearing that doing so would open itself to legal action from others—such as the Pimentel class—who might have a rightful claim to the funds. Merrill Lynch initiated an interpleader action to determine the rightful owner of the assets. The trial court determined that the Pimentel class was entitled to the Arelma money. The Philippines appealed that ruling but it was upheld by the Ninth Circuit and it is now before the high court.

Case: Rothgery v. Gillespie County

Argument Date: Monday, March 17

Law in Question: Sixth Amendment

Concern: At what point during an individual's arrest/arraignment process does the Sixth Amendment right to counsel kick in?

Impact: Minimal. The underlying charge against Mr. Rothgery was dismissed. This case is an appeal of his lawsuit against Gillespie County, Texas, for jailing him for three weeks. An incarceration he says would not have happened had the county not violated his Sixth Amendment right to counsel. It is difficult to see how the facts of this case can easily be extrapolated to legitimately concern all defendants in criminal proceedings.

Question Presented: Whether the Fifth Circuit correctly held-in a decision that conflicts with those of other federal courts of appeals and state courts of last resort-that adversary judicial proceedings nevertheless had not commenced, and petitioners Sixth Amendment rights had not attached, because no prosecutor was involved in petitioners arrest or appearance before the magistrate.

Background: In 2002, Walter Rothgery was arrested in Gillespie County, Texas, and charged as a felon in possession of a firearm. During an initial magistrate hearing Rothgery temporarily waived his right to counsel so the judge could impose bail. At the same time, Rothgery asked for a court-appointed attorney for all further proceedings. While out on bail, Rothgery made repeated attempts to secure court-appointed counsel. Six months later, and still without an attorney, a grand jury indicted him and he was re-arrested because his bail had been increased. Unable to post the higher bail amount he remained in jail for three weeks.

It was at this point that Rothgery was appointed a lawyer who secured an order reducing bail and then quickly uncovered the documentation to show that Rothgery was in fact not a felon. With that evidence the district attorney moved to have the charges dropped and the case was dismissed. But Rothgery sued the county claiming his second arrest and subsequent three week stay in jail would not have happened had he been appointed counsel. But so far his lawsuit has been unsuccessful as the trial court and the Fifth Circuit ruled that his initial appearance in front of the magistrate didn't trigger the adversary judicial proceedings that require the presence of a lawyer.

Case: District of Columbia v. Heller

Argument Date: Tuesday, March 18

Law in Question: The Second Amendment

Concern: Does the Second Amendment guarantee the right to bear arms to individuals?

Impact: Huge. There are more than 65 friend-of-the-court briefs filed in this case. Everyone from the NRA and Pink Pistols — a gay and lesbian gun rights organization — to the NAACP and the Brady Center to Prevent Gun Violence have advocating their peculiar positions to the court. In fact, with the exception of abortion or other life-related cases it hard to recall a case that stirs this much deep-seeded feeling from so many Americans. It is the first time in nearly seven decades that the court will hear a Second Amendment case and its ruling could have significant impact on the ability of average Americans to keep handguns in their homes and on lawmakers who craft legislation in an attempt to curb gun use.

Question Presented: Whether the following provisions-D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02-violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other fire-arms for private use in their homes?

Background: Shortly after the District of Columbia gained Home Rule from the Congress it enacted one the most stringent gun laws in the country. With very limited exceptions the law banned the possession of handguns. It did so out of concern over what city officials felt were high levels of criminal and domestic violence associated with handguns. In the years since, critics have questioned the effectiveness of the law especially during the city's so-called crack epidemic in which Washington D.C. became the "murder capital" of the country. Supporters of the law say handgun related violence would be even higher without the statute.

Washington D.C. resident Dick Heller attempted to register a handgun he owned but kept in Virginia. The city refused his application. He filed suit saying the D.C. gun law violated his Second Amendment rights to keep and bear arms in his house. The trial court ruled against him but Heller succeeded in his appeal to the D.C. Circuit. In a 2-1 opinion, that court ruled Heller and all Americans have an individual right of gun ownership as guaranteed by the Second Amendment. The ruling contravened decades of jurisprudence that did not recognize such an individual right but rather put the right guaranteed by the founders as one exclusive to a well-regulated militia. Heller is not a member of a militia.

In its filings to the court, the District of Columbia presents three main arguments why the D.C. Circuit Court of Appeals erred in its ruling. It first argues that "the text and history of the Second Amendment conclusively refute" the conclusion that individuals are legally entitled to own guns. The city goes on to argue that the Second Amendment does not apply to legislation specific to the District of Columbia. And finally the city says its laws "are reasonable and therefore permissible." In response, lawyers for Heller argue the D.C. Circuit's ruling was correct that individuals do in fact have a protected constitutional right to keep and bear arms. They contend that right "protects two of the most fundamental rights — the defense of one's life inside one's home, and the defense of society against tyrannical usurpation of authority."

There were more than 65 amicus briefs filed in support of both sides. As is often the case, the government is asked to submit its viewpoint and the solicitor general has been given 15 minutes to present that case to the court. Interestingly, the government's position is that the court should affirm the idea that the Second Amendment guarantees the individual right to bear arms but argues the court should remand the case for further proceedings. That idea doesn't sit well with Vice President Dick Cheney, who in his role as president of the Senate, joined a brief with 55 senators and 250 members of the House who say the court should outright affirm the lower court's ruling. Cheney's decision to openly disagree with the official government position is highly unusual for a sitting vice-president. 17 other House members plus the non-voting delegate for the District of Columbia joined in a brief supporting the D.C. government.

Case: Richlin Security Service v. Chertoff

Argument Date: Wednesday, March 19

Law in Question: Equal Access to Justice Act (EAJA)

Concern: Does the government have to cover the market rate costs for paralegals used by individuals who successfully sue the government and are entitled to reimbursement of legal expenses?

Impact: Minimal. This is a matter of importance to anyone who is successful under the EAJA.

Question Presented: Under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504(a)(1) and 28 U.S.C. § 2412(d)(1)(A), may a prevailing party be awarded attorney fees for paralegal services at the market rate for such services, or does EAJA limit reimbursement for paralegal services to cost only?

Background: The Equal Access to Justice Act was passed by Congress in 1980 in the interest that individuals and others might not be discouraged from filing suit against the government because of prohibitive legal costs. The law mandates that successful plaintiffs may recover damages from the government to include "fees and other expenses" incurred from taking of the government be reimbursed.

The Richlin Security Service had a contract with the Immigration and Naturalization Service (INS) before it became part of the Department of Homeland Security. After nine years of proceedings, Richlin was successful in its efforts to get full payment of the services it provided to the INS. As part of the process under the EAJA, Richlin sought and was awarded compensation for the legal fees incurred during its dispute with the government. However the fees for the paralegal work they were seeking were substantially less than what was awarded. Richlin sued looking to make-up the difference but a divided panel of the Federal Circuit upheld the determination that paralegal fees were included in — not separate and in addition to — lawyer fees.

Case: Chamber of Commerce v. Brown

Argument Date: Wednesday, March 19

Law in Question: National Labor Relations Act (NLRA)

Concern: Can states pass legislation prohibiting companies that get public money from using those funds to support or oppose unionization efforts?

Impact: This case doesn't seem to be one that ranks high in the pantheon of union-employer battles but it's interesting nonetheless especially given its location. California is one of the world's largest economies and a major engine for the U.S. economy. As such, any case involving so many vested economic interests is bound to have an impact. Though it is difficult to see how the economic arguments of this case go beyond the standard issue positions on strong versus weak union rights.

Question Presented: Whether the state of California's regulation of noncoercive employer speech about union organizing, California Assembly Bill No. 1889, Cal. Govt Code §§ 16645.2, 16645.7, is pre-empted by federal labor law.

Background: The California Legislature passed Bill #1889 in 2000. The law prohibits companies that accept public dollars from using those funds in a way that could influence union activities. The law's primary aim is to hinder employers in their efforts to discourage its employees from unionizing. The Chamber of Commerce filed suit in federal court saying the law was at odds with the National Labor Relations Act. Eventually the Ninth Circuit issued three opinions in the case, the first two in favor of the chamber, but the last upheld the law. That final ruling concluded the law was constitutional because it fell under the state's spending power to direct the use of public dollars.

The chamber argues that the California law is unconstitutional because it is contrary to the NLRA goal of providing employers the opportunity to present non-coercive information about unionization to its employees. "Positing that employer speech opposing union organizing efforts 'interferes' with employee choice, the state has sought to stamp out such speech through a sweeping exercise of its spending power." The chamber further argues the law "imposes cognizable burdens on speech that are unsupported by any legitimate state interest."

In response, the state contends its law is modeled after several similar pieces of federal legislation. And it defends the legitimacy of the law, which it says "was enacted to ensure that California does not subsidize an employers efforts to assist or deter union organizing, in order to preserve California's neutrality in such matters. This is a legitimate governmental interest."

While the named interests in the case are the Chamber of Commerce and Jerry Brown in his role as California attorney general, the full listing of participants in this case gives a sense as to how involved the California union/business community is in this case. Petitioners in this case are the Chamber of Commerce of the United States of America; California Chamber of Commerce; Employers Group; California Hospital Association (fka California Health Care Association); California Manufacturers and Technology Association; California Association of Health Facilities; Aging Services of California (fka California Association of Homes & Services for the Aging); Marksherm Corporation; Zilaco, Inc.; and Front Porch (fka Internext Group).

Respondents in this case are Edmund G. Brown Jr., Attorney General, in his capacity as Attorney General of the State of California; California Department of Health Services; Frank G. Vanacore, as the Chief of the Audit Review and Analysis Section of the California Department of Health Services; and Diana M. Bonta, R.N., Dr., Ph.D, as the Director of the California Department of Health Services. Respondents California Labor Federation, AFL-CIO, and American Federation of Labor and Congress of Industrial Organizations intervened in the district court.