Justices will pick up with 'mess' from last termSeattle Post-Intelligencer, 9/25/04

Potomac Watch

by Mark Helm
The Supreme Court returns to work next week to weigh whether to hear several key cases that could be the hallmarks of its new term, including whether a Connecticut city can take away a person's home to clear the way for upscale development.

The court also will consider whether to hear appeals in four cases involving displays of the Ten Commandments on public property.

The court will officially start the term on Oct. 4 by hearing oral arguments in some of the 40 cases it has already accepted.

The Connecticut case involves Susette Kelo's pink house on the Thames River in New London and whether the city of New London can take her land away and sell it to real estate developers because they promise to pay more taxes and create jobs by converting the neighborhood into trendy condominiums.

"This case hits at the heart of the American dream ... a person's home," says Gregory Garre, a former law clerk to Chief Justice William Rehnquist and a former assistant to the solicitor general. "The idea that the government can kick you out of your home because they want expensive condos in your neighborhood really scares people."

But the issue is much bigger than the fate of one house on the Thames -- businesses, developers and homeowners throughout the United States have a stake in its outcome, says Garre, who doesn't represent any party in the case.

The Constitution allows governments to take private land for "public use," also known as the eminent domain authority.

Garre says many constitutional scholars consider the phrase "public use" to restrict government takings to uses that are directly owned or primarily used by the general public, such as roads, bridges or public buildings.

But the Connecticut Supreme Court said the term "public use" means that a taking need only have some anticipated public benefit, such as increased tax revenues and improving the area's economy. Kelo lost in the state courts and is asking the U.S. Supreme Court to hear her case.

"If the court agrees with the Connecticut Supreme Court on the definition of 'public use,' cities would have a much easier time justifying the taking of any property," Garre says.

In one of the Ten Commandments cases, Thomas Van Orden challenged a Ten Commandments monument that has stood on the grounds of the Texas state Capitol in Austin since 1961. The 6-foot-high granite monument includes several religious and patriotic symbols, including the Star of David.

Three other cases involve displays in courthouses in McCreary County, Ky., and in schools in Adams County, Ohio, and Harlan County, Ky.

The justices already have accepted 40 cases for the term, about half the number expected to be heard for the entire session.

The court's first order of business when it returns will be to "clean up a mess left over from last term," says Donald Verrilli Jr., a Washington lawyer, referring to federal sentencing guidelines.

Federal judges throughout the country have been grappling with the legality of federal sentencing guidelines since the high court ruled on June 24 that a similar sentencing system used by the state of Washington was unconstitutional.

In that case, Blakely v. Washington, the high court ruled 5-4 that Washington state's sentencing system violated a person's right to a trial by jury because it allowed judges to make findings on factors that were never presented to jurors. Such a system lets judges increase a sentence dramatically.

The Justice Department later complained that the Blakely ruling has created chaos in the courts and confusion over "tens of thousands" of pending sentencings nationwide. In an effort to clear up pending questions, the Supreme Court agreed to hear two cases involving federal sentencing rules.

The court also will attempt to end confusion on the issue of medical marijuana. In a case involving Angel Raich of Oakland, Calif., and Diane Monson of Oroville, Calif., the court will decide whether Congress has the authority to prohibit the medical use of marijuana in states where the voters or the Legislature have approved the drug's use under a doctor's care.

The Justice Department argues that state laws making exceptions for medical marijuana are trumped by the federal law banning the use of marijuana.

But last year, the 9th U.S. Circuit Court of Appeals in San Francisco ruled that prosecuting medical-marijuana users is unconstitutional under federal law if the pot isn't sold, transported across state lines or used for non-medicinal purposes. In another case out of Lancaster, Calif., the court will consider whether that state can segregate inmates by race during their first 60 days of incarceration. The state has defended the policy, and the 9th U.S. Circuit Court of Appeal in San Francisco has upheld it, as a sensible way to minimize interracial violence at the reception centers where inmates are housed while being screened for long-term placement.

But civil rights groups argue the policy violates the 14th Amendment's protection against racial discrimination.

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