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The U.S. Supreme Court said on Oct. 14 that it will hear arguments on whether the words “under God” within the Pledge of Allegiance create an improper mix of church and state. Last year, the 9th U.S. Circuit Court of Appeals ruled that when teachers lead school children in recitation of the pledge, inclusion of the phrase violates the First Amendment’s establishment clause. Elk Grove Unified School Dist. v. Newdow, No. 02-1624. The court will also decide if Michael Newdow, the father of the student on whose behalf the suit was filed, has standing. Until last month, Newdow, an attorney who is proceeding pro se, was not the girl’s custodial parent and did not have the right to direct her formal or religious education. Apparently responding to Newdow’s criticism of comments he made in January, Justice Antonin Scalia has recused himself. 9th Circuit opinion The court also agreed to hear arguments in the following cases: CIVIL PRACTICE The justices will decide at what point diversity must be determined in a case where the plaintiff was a Texas limited partnership and the defendant a Mexican corporation. Groupo Dataflux v. Atlas Global Group, No. 02-1689. When the suit was filed, two of the plaintiff’s five partners were Mexican. But the Mexicans were removed in pre-trial reorganization. After the jury returned an award against it, however, the defendant Mexican corporation moved for dismissal, citing a lack of diversity at the outset. The 5th Circuit said that in cases such as this, where the dispute has been adjudicated, diversity jurisdiction should be assessed from that point rather than from when the complaint was filed. 5th Circuit opinion CONSTITUTIONAL LAW The high court will revisit the Child Online Protection Act (COPA), which seeks to regulate Internet content available to children. Ashcroft v. ACLU, No. 03-218. In 2002, the justices reversed a 3d Circuit ruling that COPA’s reliance on “community standards” to identify “material that is harmful to minors,” by itself, did not render the statute unconstitutional. But, on remand, the 3d Circuit again concluded that the act violated the First Amendment, this time because the statute is substantially overbroad in that it places significant burdens on Web publishers’ communication of speech that is constitutionally protected as to adults and adults’ ability to access such speech. 3d Circuit opinion CRIMINAL PRACTICE In a capital case out of Texas, the court will hear arguments on whether instructions given during the punishment phase of Robert James Tennard’s trial were defective because they did not provide a mechanism to allow for the mitigating effect of evidence of mental retardation. The 5th U.S. Circuit Court of Appeals approved the jury instructions. Tennard v. Dretke, No. 02-10038. 5th Circuit opinion The justices will consider whether the “actual innocence” exception to procedural default rule for federal habeas corpus claims applies to noncapital sentencing errors. Dretke v. Haley, No. 02-1824. In a federal habeas petition, Michael Wayne Haley challenged the sentence enhancement imposed in state court. The state said he is procedurally barred from raising the argument because a state appellate court previously ruled that the issue had not been preserved for review. Haley argued the procedural bar did not apply when he was making a claim of actual innocence. The 5th Circuit agreed with him. 5th Circuit opinion The court will review the federal bribery statute, 18 U.S.C. 666, in the matter of Sabri v. U.S., No. 03-44. Minneapolis developer Basim Omar Sabri was convicted on three counts of bribery for his payments to a member of the commission overseeing the budget of a city redevelopment authority. The authority got part of its budget from federal funds, but Sabri claimed that the statute is unconstitutional because it criminalizes acts of bribery lacking nexus to a federal interest. The 8th Circuit disagreed, holding that Congress had the power to enact the statute. 8th Circuit opinion The justices will decide whether the Fourth Amendment requires Customs Service officers at international border stations to have a reasonable suspicion before removing, disassembling and searching a vehicle’s fuel tank for contraband. U.S. v. Flores-Montano, No. 02-1794. The 9th Circuit ruled in favor of the defendant who, as part of stepped-up security measures against terrorism, was subject to a random search at the Mexican border that yielded more than 80 pounds of marijuana. LAND USE The court will examine the scope of its requirement that challenges to local rules regulating the zoning of adult businesses include a mechanism for “prompt judicial review.” Littleton v. Z.J. Gifts D-4 LLC, No. 02-1609. The 10th Circuit had found that Littleton, Colo.’s ordinance was unconstitutional because it specified no time frame in which the city would have to act on a challenge. Littleton argues it is only required to provide a prompt commencement of judicial proceedings, not a prompt judicial determination. 10th Circuit opinionMegan Rhyne

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