SC Lawyer, November 2007, #3. Review of the 2006-2007 Supreme Court Term.

• Author: By Richard Gershon

South Carolina Lawyer

2007.

SC Lawyer, November 2007, #3.

Review of the 2006-2007 Supreme Court Term

South Carolina Lawyer November 2007 Review of the 2006-2007 Supreme Court Term By Richard Gershon I. Introduction

In the interest of full disclosure, I want to make it clear that I am not a U.S. Supreme Court scholar. On the contrary, I am a tax professor, and I find that the Supreme Court decisions in the area of tax are often misguided. In fact, at a speech Justice Roberts gave to the Charleston School of Law community in October 2006, he commented that the justices fight over who gets stuck with the tax opinions. Nonetheless, I will humbly do my best to recap the most important cases from the U.S. Supreme Court's 2006-07 term.

The 2006-07 term was the first full term of the Roberts Court. During that first term, Justice Anthony Kennedy assumed the role as the swing vote now that Justice O'Connor has retired. It is interesting that during the 2006-07 term, Kennedy voted with the majority in every 5-4 decision as well as every split decision.

Roberts' first term had its share of high-profile cases. The most notable were decisions dealing with abortion, affirmative action, the death penalty and the environment. The Court also dealt with questions in antitrust, administrative law and procedure, education and patents.

Here are some highlights of the 2006-07 term:

2. Cases Involving Governmental Regulation

   It is probably not good to start with a trash case, but United Haulers Assn., Inc. v. Oneida- Herkimer Solid Waste Mgmt. Auth. involved waste processing facilities. In this case, the concern was whether a flow-control ordinance impermissibly burdened interstate commerce. The Second Circuit found that the ordinance did not impermissibly burden interstate commerce because it favored a public rather than a private facility. By a margin of 6-3, the Supreme Court affirmed the Second Circuit's judgment.

   Chief Justice Roberts, who wrote the majority opinion, distinguished the ordinance in question from one that the Court had found impermissible in C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994), "The only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. We find this difference constitutionally significant. Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas - but treat every private business, whether in-state or out-of-state, exactly the same - do not discriminate against interstate commerce for purposes of the commerce clause. Applying the commerce clause test reserved for regulations that do not discriminate against interstate commerce, we uphold these ordinances because any incidental burden they may have on interstate commerce does not outweigh the benefits they confer on the citizens of Oneida and Herkimer Counties."

   Qui Tam

   Rockwell International Corp. v. United States (05-1272) started as a qui tam suit initiated by a former Rockwell International engineer, who alleged environmental health and safety violations at Rockwell's Rocky Flats weapons production facility. Rockwell sought to dismiss the complaint by challenging the complainant's status as an original source. The Tenth Circuit Court of Appeals found in favor of the qui tam relator, holding that an independent source need only have "information underlying or supporting the fraud allegations." The Supreme Court granted certiorari to resolve a split in the circuits over the definition of an original source. In a 6-2 decision, the Court found that the complainant was not an "original source" and reversed the Tenth Circuit's decision. Only if the individual has "direct and independent knowledge" of the fraud, however, may that individual be considered an original source and therefore function as a qui tam relator.

   Federal regulation and jurisdiction

   In Watson v. Philip Morris Companies, Inc. (05-1284), the Supreme Court took up the question of whether parties in an industry subject to heavy federal regulation qualify under the federal officer removal statute 28 U.S.C. § 1442(a)(1). In what seems like an obvious decision, the Supreme Court said "no."

   The facts in this case were that Philip Morris removed a class action tobacco lawsuit from an Arkansas state court to the Federal District Court for the Eastern District of Arkansas. Plaintiffs Watson and Lawson sought to remand the case to state court, but their motion was denied. Surprisingly, the Eighth Circuit held that Philip Morris was a corporation qualifying as a "person acting under a federal officer" and thus entitled to removal under 28 U.S.C. § 1442(a)(1). In a unanimous decision, the Court reversed the Eighth Circuit's decision, confirming the boundary between regulatory compliance and government officer status.

3. Public Education Cases

   Individuals with Disabilities Education Act (IDEA)

   Winkelman v. Parma City School District (05-983) Citing disagreement among the circuit courts, the Supreme Court granted cert. to consider whether non-lawyer parents of disabled children may pursue an IDEA claim pro se in federal court. In its decision, the Court reviewed the IDEA statute, discussing specific...