Monthly Archives: September 2010

Muni-mail – Controversial Issues before U.S. Supreme Court in New Term

Supreme Court 2010–2011 Term Preview

This year’s term will be the first for Associate Justice Elena Kagan, who was confirmed by the Senate on August 5 by a vote of 63 to 37. Kagan is the Court’s 112th justice and fourth female justice. Kagan is the first justice since William Rehnquist to have no prior experience as a judge, and most recently served as Solicitor General of the United States. Due to her advocacy on behalf of the United States as Solicitor General, Kagan must recuse herself from a number of cases before the Supreme Court this term. Kagan has already identified at least 12 cases that she will not be able to hear as a Justice, and that number will likely increase as the Court grants certiorari for additional cases later in the term. As a result, there is a greater likelihood of deadlocked 4-4 decisions during this term.

The Court’s 2010–2011 term begins in October. Below are several high-profile cases from the upcoming term.

Controversial Issues on the Docket

Freedom of Speech
The Court will consider two cases which implicate the First Amendment freedom of speech. Snyder v. Phelps, No. 09-751, involves an incident in which Rebekah A. Phelps-Davis and Shirley L. Phelps-Roper picketed and disrupted the funeral of Albert Snyder’s son, a soldier killed in Iraq. Snyder sued members of the Westboro Baptist Church and its pastor Fred Phelps for intentional infliction of emotional distress. The Court will determine whether the protest should be protected by the government as “statements on matters of public concern,” and ultimately whether Phelps’ freedom of speech overrides Snyder’s freedom of religion and assembly.
In a second case, Schwarzenegger v. Entertainment Merchants Assoc., No. 08-1448, the Court will consider whether freedom of speech protection applies to and invalidates California Civil Code sections 1746–1746.5, which prohibit the sale of violent video games to minors. The Court might also consider whether California must show a direct link between violent video games and harm to minors before prohibiting the sale of games to minors.


The Court will also consider two cases impacting immigration and citizenship. In Flores-Villar v. United States, No. 09-5801, the Court will decide whether to invalidate the gender classification in 8 U.S.C. §1409(a), which was previously upheld by the Court in 2001 in the case of Nguyen v. INS. Currently, 8 U.S.C. §1409(a) automatically grants citizenship to a child born abroad to an unmarried citizen mother, but a child born abroad to an unmarried citizen father only attains citizenship after the father fulfills certain statutory requirements. In addition to ruling on the immigration statute at issue, the Court’s decision could have far-reaching effects on family law.
In the second immigration case, Chamber of Commerce v. Candelaria, No. 09-115, the Court will address two sections of an Arizona employment law relating to illegal aliens. The first section penalizes employers who hire unauthorized workers, and the second requires all employers to participate in a federal employment verification system which is optional under federal law. The Court will decide whether these sections of the statute are preempted by federal law or whether Arizona may legislate in this area.

Copyright Law

In Costco Wholesale Corp. v. Omega, S.A., No. 08-1423, the Court will examine the applicability of the “first sale doctrine” of the Copyright Act to imported goods. Under the “first sale doctrine” of Section 109(a) of the Copyright Act, a purchaser of certain copyrighted material may transfer goods without obtaining permission of the original copyright holder. Costco purchased Swiss-made Omega watches from foreign distributors, and then resold these goods at a below-market price in the United States. Omega claimed that its watches, which have a small copyrighted logo, are protected by Section 602(a) of the Copyright Act, which bans importation of copyrighted works without the owner’s permission. The Court’s decision could have far reaching effects on secondary markets of copyrighted goods, such as eBay and Amazon.


In the consolidated cases of Arizona Christian School Tuition Org. v. Winn, No. 09-987 and Garriott v. Winn, No. 09-991, the Court will consider an Arizona law that provides dollar-for-dollar tax credits for donations to school tuition groups. Because many religious schools run the school tuition groups and award the scholarships on condition that the recipients attend a religious school, certain residents contend the system encourages taxpayers to make donations to religious, as opposed to nonreligious, organizations. The Court may determine whether the effects of the Arizona system constitute a violation of the First Amendment, although the Court must first determine whether the taxpayers have the right to challenge a state program that does not involve the spending of any tax dollars.
In Sossamon v. Texas, No. 08-1438, the Court will determine whether an individual may sue a state or state official for damages under the Religious Land Use and Institutionalized Person Act, or RLUIPA. Prisoner Harvey Sossamon filed a lawsuit against the state of Texas and a prison warden, claiming that he was denied access to a prison chapel in violation of RLUIPA. The Court will resolve a split among the circuit courts of appeals concerning whether a state prisoner may file an action under the federal RLUIPA law.

Childhood Vaccines

The Court will address whether the National Childhood Vaccine Injury Act, or NCVIA, bars personal injury claims based on design defects of a vaccine. In the case of Bruesewitz v. Wyeth, No. 09-152, the parents of a Pittsburgh girl claim that their daughter developed a seizure disorder from a vaccine she received at six-months old. The circuit court of appeals held that the lawsuit was foreclosed by the NCVIA. The Supreme Court’s decision could significantly impact the pharmaceutical industry’s exposure to civil liability.

Best regards,
Chris Maier, Editor-in-Chief
Joanna Chen, Executive Editor
Legal Information Institute’s Supreme Court Bulletin

Category: Muni-Mail Archive

Muni-mail – Data Download Prior to Defendant’s Arrest Required – State v. Maricic (UNPUB)

[09-01-10 – 8:37 pm] In an UNPUBLISHED decision released yesterday captioned State v. Maricic, the Appellate Division ruled that a defendant in a drunk driving case has the right receive as part of his discovery the data download stored on the Alcotest instrument used for his test for the period ranging from the date of the last calibration until the date of the defendant’s arrest. The defendant is required to pay for any associated, additional costs with producing this discovery. In addition, the defendant is also entitled as part of his discovery to the repair records for the Alcotest instrument upon which he was tested.

Download a copy of the UNPUBLISHED opinion in State v. Maricic.

Category: Muni-Mail Archive

Muni-mail – Protection of Civil Rez is Limited – State v. Lacey

[08-30-10 – 11:00 am] In Friday morning’s Appellate Division holding in State v. Lacey, the Court ruled that the protections afforded by a civil reservation as part of a guilty plea are limited to those civil actions where the plaintiff seeks to recover money damages. It does not apply to other collateral, civil actions where, for example, the State or other governmental entity is the plaintiff.

This case is of particular importance in criminal cases in both the municipal and Superior Courts.

Download a copy of State v. Lacey

Category: Muni-Mail Archive