U.S. Supreme Court Oral argument previews:
Prepared by the liibulletin editorial board:
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http://www.law.cornell.edu/bulletin/board_current.htm >
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LETHAL INJECTION, CRUEL AND UNUSUAL PUNISHMENT, EIGHTH AMENDMENT, DEATH
PENALTY
Baze v. Rees (07-5439)
Oral argument: January 7, 2008.
Ralph Baze and Thomas K. Bowling brought a civil suit against the State
of Kentucky in Franklin Circuit Court, claiming that the lethal
injection procedure that the state uses creates an unnecessary risk of
pain and suffering and is thus in violation of the Eighth Amendment.
After denying the state's motion to dismiss, the trial judge found that
the lethal injection procedure was not unconstitutional. The Supreme
Court of Kentucky affirmed, holding that the U.S. Supreme Court has
never required a completely painless execution. Baze and Bowling argue
that Kentucky's lethal injection procedure violates the Eighth
Amendment because it creates a "significant and unnecessary risk of
pain," in addition to citing poor administrative measures and untrained
personnel. Kentucky, however, argues that a method of execution only
amounts to "cruel and unusual punishment" if it creates a "substantial
risk" of unnecessary pain, and Kentucky's procedure does not meet that
threshold. By granting certiorari in this case, the Supreme Court has
seemingly imposed a "de facto moratorium" on lethal injections across
the country. While the outcome of this case is unlikely to outlaw the
death penalty on the whole, it may have a profound effect on the kinds
of procedures that will be used to carry out future executions.
Continues:
http://www.law.cornell.edu/supct/cert/07-5439.html=============================================================
VOTING, ELECTIONS, PHOTO-IDENTIFICATION, STATE LAW, PRIVACY, FOURTEENTH
AMENDMENT, FIRST AMENDMENT, ELECTION FRAUD, VOTING FRAUD
Crawford v. Marion County Election Board (07-21); Indiana Democratic
Party v. Rokita (07-25)
Oral argument: January 9, 2008
In 2007, for the first time, Indiana voters were required to present
photo identification at the polls in order to vote. These two
consolidated cases turn on the issue of whether this requirement is a
severe burden on the right to vote, or merely an incidental burden
justifiable as part of the State of Indiana's regulatory power. If the
Court finds a severe burden to exist, the State will need to show that
its justification is "compelling" and its solution is "narrowly
tailored." Both parties cite the 1992 Supreme Court case of Burdick v.
Takushi for the proposition that a balancing test applies. Applying
that standard, the Seventh Circuit determined that a deferential review
of the law was appropriate and found the law to be constitutional. The
State argues for this deferential standard of review, since the
legitimate state interest in preventing voter fraud prompted this law.
Crawford, Simpson, and the Indiana Democratic Party argue for strict
scrutiny review, insisting that the law poses an unconstitutional
burden on the right to vote. This case presents the Court with the
opportunity to pronounce on the severity of the burden presented by a
photo identification requirement, and to apply the resulting
appropriate standard of review to determine constitutionality. Because
over half of the states currently have some type of voter
identification requirement, this case will have an impact across the
nation and doubtless will guide future legislation in the voting
regulation arena.
Continues:
http://www.law.cornell.edu/supct/cert/07-25.html=============================================================
AGE DISCRIMINATION IN EMPLOYMENT ACT, PRIMA FACIE, ARBITRARY
DISCRIMINATION, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Kentucky Retirement Systems, et al v. EEOC (06-1037)
Oral argument: January 9, 2008
After finding that older individuals faced discrimination in the
workplace, Congress passed the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. �621 et seq. The ADEA prohibits employers from
arbitrarily discriminating against older employees. The Equal
Employment Opportunity Commission ("EEOC") brought suit against the
Jefferson County Sheriff's Department, the Commonwealth of Kentucky,
and Kentucky Retirement Services ("KRS"), who administers the state
retirement program, because the retirement program distinguishes among
recipients, at least in part, on the basis of age. The U.S Court of
Appeals for the Sixth Circuit, sitting en banc, held that the
retirement scheme in question violated the ADEA. In this case, the U.S.
Supreme Court will determine whether an employer may deny an employee
disability benefits because of his or her eligibility to receive normal
retirement benefits under the ADEA.
Continues:
http://www.law.cornell.edu/supct/cert/06-1037.html=============================================================
VOLUNTARY DEPARTURE, MOTION TO REOPEN, IMMIGRATION, REMOVAL PROCEEDINGS
Dada v. Mukasey (06-1181)
Oral argument: January 7, 2008
Samson Taiwo Dada, a citizen of Nigeria, overstayed a temporary
visitor's visa. After removal proceedings, Dada was granted voluntary
departure. Dada failed to leave the United States within the voluntary
departure period and instead moved before the Board of Immigration
Appeals to reopen his removal proceedings. Dada argued that the
voluntary departure period should be tolled pending the outcome of his
motion. Dada contended that otherwise, he and similarly situated aliens
would be forced either to abandon their motions to reopen or illegally
remain in the United States beyond the voluntary departure period. The
Board denied Dada's motion and the Fifth Circuit affirmed. The outcome
of this case will settle a circuit split concerning the legal effect of
motions to reopen and will influence aliens' decisions to seek to
reopen removal proceedings.
Continues:
http://www.law.cornell.edu/supct/cert/06-1181.html=============================================================
CRIMINAL PROCEDURE, MAGISTRATE JUDGE, JURY SELECTION, VOIR DIRE
Gonzalez v. United States (No. 06-11612)
Oral argument: January 8, 2008
A federal court convicted Homero Gonzalez of drug charges in a trial in
which a magistrate judge presided over jury selection. Though counsel
for the defendant consented to the magistrate conducting voir dire (the
questioning and evaluation of potential jurors) in lieu of an Article
III judge, Gonzalez neither personally consented nor objected. Gonzalez
argues that the right to personally choose whether an Article III judge
will or will not preside over voir dire is an important constitutional
right; the government argues that the rule in Peretz v. United States
does not require personal consent, that the consent of counsel was
adequate, and that conducting voir dire was within the scope of duties
that may be delegated to magistrates. Gonzalez counters that the
government misconstrues the language in Peretz.
Continues:
http://www.law.cornell.edu/supct/cert/06-11612.html=============================================================
RETURN OF CAPITAL, U.S. TAX CODE, TAX EVASION, "CONTEMPORANEOUS INTENT
REQUIREMENT"
Boulware v. United States (06-1509)
Oral argument: January 8, 2008
Michael Boulware was convicted of filing false tax returns, tax
evasion, and conspiracy to make false statements to a federally insured
financial institution in Hawaii District Court in 2001. He appealed his
conviction to the Ninth Circuit on various grounds multiple times. In
his current appeal, he argues that the funds he diverted from his
closely held corporation, Hawaiian Isles Enterprises, qualified under
Sections 301 and 316 of the U.S. Tax Code as a non-taxable return of
capital. If this is true, he argues, the government failed to meet its
burden of proof in showing a tax deficiency because it did not
establish that the funds Boulware diverted were taxable as income.
However, the Ninth Circuit upheld his conviction based on its decision
in United States v. Miller, which established that in a criminal tax
evasion case, a defendant must show not only that a diversion of funds
meets the requirements in the Tax Code to be a non-taxable return of
capital, but also that the shareholder and/or corporation intended it
to be one at the time the diversion was made. Since Boulware could not
make this showing, he failed to demonstrate that the diversion
qualified as a nontaxable return of capital under Miller. Boulware has
challenged his conviction and argues that the Miller "contemporaneous
intent" requirement has no basis in the statutory text of the Tax Code
and creates a disparity in treatment of defendants in civil and
criminal tax cases, and for these reasons should be overturned. The
Supreme Court, in answering the question of what requirements must be
fulfilled for a diversion to qualify as a return of capital, will
resolve a conflict in positions between the Second and the Ninth
Circuits.
Continues:
http://www.law.cornell.edu/supct/cert/06-1509.html=============================================================
