At high court, states' authority in question

Of top concern to states — and to the tobacco and pharmaceutical industries — are a pair of cases testing whether federal law trumps state consumer-protection policies that let residents sue cigarette and drug makers over the way their goods are described.

The cases, one from Maine and the other from Vermont, could force changes in the way cigarettes and prescription drugs are marketed and labeled and could open up new avenues of litigation for consumers who feel they’ve been harmed by products.

The two cases “dwarf everything in terms of real effects,” said Michael S. Greve, who studies the Supreme Court at the American Enterprise Institute, a conservative think tank in Washington, D.C.

Entering its fourth year under Chief Justice John G. Roberts Jr., the high court already has agreed to hear arguments in more than a dozen cases important to states, including a  land dispute between Hawaii and native Hawaiians, a challenge to racially based redistricting in North Carolina and an appeal that could affect how forensic evidence is presented in criminal trials in Massachusetts and in at least 40 other states.

The justices refused to add to their calendar a fresh look at one of their most high-profile decisions of last term, in which they invalidated laws in Louisiana and five other states that imposed the death penalty on those who rape, but do not kill, children. Despite a rare factual error discovered in the 5-4 decision, the justices on Wednesday (Oct. 1) rejected Louisiana’s plea to reopen the case. The initial ruling drew sharp criticism from both presidential candidates, Democrat Barack Obama and Republican John McCain.

The high court will agree to hear more appeals as the term unfolds. But so far its docket — which is about 70 percent filled, according to Supreme Court watchers — is missing the kind of blockbuster disputes of last term, when it ruled that the Second Amendment guarantees an individual right to bear arms and that Indiana’s voter-identification requirements do not place an unfair burden on minorities and the poor.

This term, the court will continue its recent trend of testing the intersection of state and federal product-liability laws, commonly called “federal pre-emption” cases.

Tensions between state and federal laws are at issue in the court’s first case of the term. The justices will hear arguments in Altria Group v. Good, which pits a group of smokers in Maine against the cigarette manufacturer Philip Morris and its parent company. The question is whether the smokers may sue under state law for what they consider Philip Morris’s deceptive marketing of “light” cigarettes.

The smokers contend that cigarettes labeled “light” are no less harmful than regular cigarettes because, they say, smokers frequently consume more of them or take longer puffs, resulting in tar and nicotine intakes that pose the same health problems as regular cigarettes. They claim they are entitled to sue for damages under a Maine consumer protection statute.

But Philip Morris says the smokers’ lawsuit is pre-empted in part because of a federal law preventing the firms from being “impeded by diverse, nonuniform and confusing cigarette labeling and advertising regulations.”

Arguing that they have authority to protect their residents from potentially dangerous products, Maine and 46 other states side with the smokers in the dispute. The states say they “have a vital interest in preserving their power to regulate businesses to protect consumers from unfair and deceptive practices,” according to a brief filed at the court. The federal government, notably, also sides with the smokers, while pro-business groups including the U.S. Chamber of Commerce back Philip Morris.

On Nov. 3, the high court will hear its second major pre-emption case. Wyeth v. Levine  centers on a Vermont woman who claims that a drug manufacturer, Wyeth, failed to sufficiently warn that an anti-nausea drug could cause harm if injected improperly. The woman — who was given the drug intravenously, contracted gangrene and lost part of her arm through amputation — is seeking to keep a state court award of nearly $7 million, damages upheld by the Vermont Supreme Court.

The drug’s manufacturer argues the woman’s lawsuit should be thrown out because the federal Food and Drug Administration approved the label and instructions for administering the drug, Phenergan. The federal government backs Wyeth in the case; Vermont and 46 other states argue their courts should be able to hear such claims.

“The business community is watching this case very closely,” said David C. Vladeck, a law professor at Georgetown University Law Center. “If you look at the civil docket in federal and state courts, drug cases occupy an enormous percentage.”

Besides the pre-emption cases, states will be watching how the North Carolina redistricting dispute could affect their own procedures for redrawing legislative or congressional districts after the 2010 census. The justices must decide whether North Carolina correctly drew a new voting district to help African-Americans elect a candidate of their choice. The case is Bartlett v. Strickland.

Stepping into two land disputes between states and native communities, the justices in Carcieri v. Kempthorne will address whether the federally recognized Narragansett tribe is entitled to a 31-acre plot of land in Rhode Island. In Hawaii v. Office of Hawaiian Affairs, the court will result a dispute between the state and native Hawaiians.

Criminal matters traditionally make up much of the court’s work, and the justices already have agreed to hear several cases that affect prosecutors, police and other law enforcers at the state and local level.

In Melendez-Diaz v. Massachusetts, the justices will resolve a dispute over whether forensic experts must testify in person against defendants or instead can submit written reports. A criminal defendant in Massachusetts argues that he is entitled under the U.S. Constitution to confront his accusers in person. The case could have far-reaching practical effects: at least 40 states allow forensic experts to present written reports, according to court documents.

Another noteworthy case is an appeal brought by the former district attorney of Los Angeles County, John Van de Kamp, who is fighting for immunity from a civil lawsuit charging that his management failures resulted in a wrongful murder conviction.

While district attorneys can’t be sued for their in-court actions, the 9^th U.S. Circuit Court of Appeals last year ruled that the shield of immunity does not apply to out-of-court managerial duties such as the oversight of employees. One of Van de Kamp’s deputies obtained the murder conviction at the center of the case.

Fearing that district attorneys and state attorneys general across the country could face a wave of civil lawsuits unless the Supreme Court overturns the ruling, every state but New Jersey has joined the case in support of Van de Kamp. The case is Van de Kamp v. Goldstein.

On the docket

The Supreme Court kicks off its 2008-09 term on Monday, Oct. 6. Among cases being closely watched by states, listed by date of oral arguments, are:

Altria Group v. Good: A test of whether smokers can sue a cigarette manufacturer under Maine law for allegedly deceptive labeling of “light” cigarettes. The manufacturer says federal law pre-empts such lawsuits.  Maine and 46 other states — as well as the federal government — have filed briefs supporting state jurisdiction. Oral arguments Oct. 6.

Herring v. United States; Arizona v. Gant; Pearson v. Callahan; and Arizona v. Johnson: A group of challenges to how law enforcers carry out searches involving suspected criminals. Herring v. United States and Arizona v. Gant – oral arguments Oct. 7; Pearson v. Callahan – oral arguments Oct. 14; Arizona v. Johnson – oral arguments Dec. 9.

Bartlett v. Strickland: A racially charged dispute over legislative redistricting in North Carolina. The justices must decide whether the state was correct in drawing a new voting district to help African-Americans elect a candidate of their choice. The ruling could affect state redistricting plans nationwide after the 2010 census. Oral arguments Oct. 14.

Oregon v. Ice: A lawsuit brought by a convicted child molester in Oregon who claims that the judge in his trial improperly sentenced him by considering facts not determined by the jury and not admitted by the defendant himself. Oregon and other states are asking the court to uphold the sentence. Oral arguments Oct. 14.

Carcieri v. Kempthorne: A showdown between Rhode Island and the federal government over whether the federally recognized Narragansett tribe has rights to 31 acres in Charlestown, R.I., under two federal statutes. The case could have major implications for states with American-Indian populations. Oral arguments Nov. 3.

Wyeth v. Levine: The case of a Vermont woman who claims that a pharmaceutical firm failed to sufficiently warn of dangers from one of its drugs. The woman — whose forearm had to be amputated after a physician’s assistant injected the drug — won a judgment in state court. Wyeth, the drug’s manufacturer, says the lawsuit is invalid because the federal government approved the drug’s label. Vermont and 46 other states support the woman; the Bush administration backs Wyeth. Oral arguments Nov. 3.

Ysursa v. Pocatello Education Association: A First Amendment case that tests whether Idaho can force local governments to limit their employees’ political activities. A federal appeals court upheld the limits as they apply to state employees only. Oral arguments Nov. 3.

Van de Kamp v. Goldstein: A former district attorney of Los Angeles County is seeking immunity from a lawsuit over a wrongful murder conviction obtained by one his deputies. While district attorneys can’t be sued for in-court actions, a federal appeals court ruled that immunity does not apply to out-of-court actions, such as oversight of employees. Every state but New Jersey has joined the case in support of immunity, fearing that state attorneys general could face lawsuits if the justices do not overturn the lower court’s ruling. Oral arguments Nov. 5.

Melendez-Diaz v. Massachusetts: A challenge to the way forensic evidence is presented in criminal trials in criminal trials in Massachusetts and at least 40 other states.The defendant claims that a written report on forensic evidence presented at his trial violates his Sixth Amendment right to confront state forensic experts in person at his trial. Oral arguments Nov. 10.

Pleasant Grove City v. Summum: A clash between religion and government in Utah.  The court will decide whether Pleasant Grove City, Utah, can bar a little-known religious group, the Summum, from displaying a monument in a public park where a display of the Ten Commandments already exists. Cities and states around the country have filed briefs in support of the city. Oral arguments Nov. 12.

Kansas v. Colorado: An ongoing feud between Colorado and Kansas over Arkansas River water rights. Oral arguments Dec. 1.

Hawaii v. Office of Hawaiian Affairs: A dispute between Hawaii and native Hawaiians who claim rights to 1.2 million acres under a 1993 act of Congress. Native Hawaiians say the act — a resolution apologizing for the U.S. government’s role in the overthrow of the Hawaiian monarchy 100 years earlier — requires the state to reach a political settlement with them before selling or transferring the land. No date set for argument.