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With this issue, Legal Times reintroduces Conference Call , which tracks the petitions for certiorari that have the best chance of being granted by the U.S. Supreme Court. Conference Call appears on the Monday before each of the regular conferences at which the justices consider petitions. Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Court’s jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed. Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case that is mentioned in this column, that fact will be disclosed. In the landmark 2003 case Lawrence v. Texas, the Supreme Court overturned Texas’ criminal prohibition on homosexual conduct. Three years later, in a case that if granted would provide one of the more salacious arguments in recent memory, another Texan has asked the Court to extend Lawrence to invalidate that state’s prohibition on the promotion and distribution of sex toys. In its private conference on Sept. 25, the Court will consider whether to grant review in that case, No. 05-1574, Acosta v. Texas. In September 2003 petitioner Ignacio Acosta was an employee of the Trixx Adult Bookstore in El Paso. After selling a vibrator to undercover police officers, Acosta was arrested on charges that the sale violated a Texas law that prohibits the promotion of “obscene devices,” which are defined as those “including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.” Acosta moved to dismiss the charges against him, arguing that because the Texas law prevents individuals from using sex toys, it violates a constitutional right to sexual privacy. The trial court agreed, but an intermediate appellate court reversed and reinstated the charges. After the Texas Court of Criminal Appeals denied discretionary review, Acosta filed his petition for certiorari. The state of Texas declined to respond to Acosta’s petition, but — in a move that required the vote of at least one justice — the Supreme Court ordered the state to file a response. Represented by California attorney Roger Diamond, who frequently litigates adult-entertainment issues, Acosta argues in court documents that certiorari should be granted because state courts are divided on the constitutionality of “anti-dildo” statutes such as Texas’. Three state supreme courts have struck down similar laws, while three other courts (including the Texas Court of Criminal Appeals, in a 1985 case) have upheld anti-dildo statutes. Acosta also emphasizes that at least two courts — including the U.S. Court of Appeals for the 11th Circuit, which upheld Alabama’s “anti-dildo” statute in 2004 — have specifically held that the statutes implicate not only the right to promote and distribute sex toys but also the privacy rights of those seeking to use the sex toys. As in Lawrence v. Texas, the Texas statute is defended by a local district attorney — here, Tom Darnold of the El Paso District Attorney’s Office — rather than state officials. Darnold dismisses the purported split among the state courts as illusory, explaining that the three state supreme courts that had invalidated anti-dildo statutes had done so because those statutes “failed to provide an exemption for medical-treatment purposes.” By contrast, he notes, the statutes that have survived constitutional challenges carve out such an exemption. The Texas statute, for example, provides an affirmative defense for anyone who promotes sex toys “for a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.” Acosta retorts, however, that the exemption is insufficient to “save the statute from constitutional attack,” explaining that “[o]ne should not need a doctor’s prescription to masturbate in private.” Turning to the underlying merits of his challenge, Acosta argues that a ruling that the anti-dildo statute is unconstitutional necessarily follows from the Court’s recognition in Lawrence that “the right of privacy derived from the Due Process Clause is no longer confined — if it ever was — solely to the sanctity of the home,” and that liberty instead involves “both . . . spatial and more transcendental dimensions.” It doesn’t matter, Acosta continues, that the Texas law prohibits only the promotion, but not the use, of sex toys; in cases such as Eisenstadt v. Baird and Carey v. Population Services International, the Supreme Court invalidated statutes prohibiting the distribution of contraceptive devices on the ground that such restrictions effectively infringed on the individual right to use contraception. Moreover, he emphasizes, because the Texas law prohibits not only the commercial distribution of sex toys but also the individual giving or lending of sex toys, its “effect is to prohibit their use.” For its part, the state hotly disputes that the Supreme Court has ever recognized any “generalized, fundamental right to sexual privacy,” much less a fundamental right to use, sell, or buy sex toys. But even if an individual had a right to use sex toys in his own home, there is no “corresponding privacy right to purchase . . . sexual devices.” The state concedes that the Court’s holding in Lawrence “was not limited to sexual activity within the home,” but it rejects Acosta’s broad reading of that holding. Instead, it argues, Texas’ prohibition on the distribution of sex toys is perfectly consistent with Lawrence, which it characterizes as “limited to private, noncommercial activity.” The Court may announce as early as Sept. 26 whether it will hear the case.
Other cases up for review include the following: • 05-1343, King, et al. v. Grand River Enterprises (CA2) Whether a court in one state may exercise personal jurisdiction over the attorney general of another state in certain circumstances. • 05-1345, United Haulers Assoc. v. Oneida-Herkimer Solid Waste Management (CA2) Whether local ordinances mandating the transfer and sale of solid waste to public entities are invalid under the dormant commerce clause. • 05-1361, Educational Credit Management v. Reynolds (CA8) Whether discharging student-loan debt requires, as a threshold, an inability to repay that debt. • 05-1378, Alabama v. Collins (Ct. of Crim. App. of Ala.) Whether Davis’ clear-invocation rule applies when the suspect ambiguously references a lawyer during an initial Miranda colloquy. • 05-1385, Oregon v. ASW (CA9) Whether Congress intended to create private rights to adoption-assistance benefits when it enacted the Adoption Assistance program. • 05-1387, Warch v. Ohio Casualty Insurance Co. (CA4) Whether a terminated employee must show that he continues to meet his employer’s legitimate job expectations in the prima facie stage of an age discrimination case. • 05-1401, Gonzales v. Tchoukhrova (CA9) Whether a parent may qualify for asylum and withholding of removal based solely on alleged persecution of her child. • 05-1411, Moore v. Maryland (Ct. of App. of Md.) Whether an indigent criminal defendant’s right to due process of law was violated when he was denied state funds for expert assistance because he was represented by private counsel, rather than a public defender. • 05-1422, Dillard’s v. AZPB (CA Ariz., Div. 1) Whether, under federal principles of claim preclusion and issue preclusion, an unsecured creditor of a debtor in bankruptcy is in privity with the Chapter 7 bankruptcy trustee. • 05-1429/05-1439, Travelers v. Pacific Gas and Electric (CA9)/ DeRoche v. Arizona Industrial Comm. (CA9) (The cases are consolidated below.) Whether a litigant may recover attorney fees under a contract or state statute where the issues litigated involve matters of federal bankruptcy law. (Disclosure: Tom Goldstein represents the respondent in the Travelers case.) • 05-1448, Beck v. Pace Int’l Union (CA9) Whether a pension plan sponsor’s decision to terminate a plan by purchasing an annuity is a plan-sponsor decision not subject to ERISA’s fiduciary obligations. • 05-1493, AT&T v. RLH (CA Calif., 4th App. Dist., Div. 3) Whether a state’s direct regulation of commercial conduct that occurs wholly outside that state and that has no effect on consumers or markets within that state is a per se violation of the commerce clause. • 05-1505, Allred v. Sup. Ct. of Calif. (CA Calif., 1st App. Dist.) Whether it violates the First Amendment for a trial court to issue an order in a criminal case preventing an attorney representing a nonparty witness from making public statements about a pending case. • 05-1512, Alvarado v. U.S. (CA4) Whether “dual sovereignty” principles apply in the Sixth Amendment context in circumstances where a person is charged with overlapping state and federal drug offenses. • 05-1568, Quarterman v. Graves (CA5) Whether a criminal defendant’s rights are violated when prosecutors fail to disclose certain statements by a co-defendant. • 05-1575, Schriro v. Landrigan (CA9) Whether defense counsel has an obligation to develop and present mitigating evidence in a capital case when the defendant actively thwarts counsel’s efforts. • 05-1607, US Bank Corp. v. Kroske (CA9) Whether a presumption against pre-emption permits state laws to apply to national banks despite the pre-emptive force of the National Bank Act. • 05-1622, Newell v. Mass. Dept. of Mental Retardation (S. Jud. Ct. of Mass.) Whether a judgment on the merits and a court-ordered consent decree are the only form of relief that meet the “judicial imprimatur” requirement for the award of attorney fees. • 05-1629, Gonzales v. Duenas-Alvarez (CA9) Whether a “theft offense,” which is an “aggravated felony” under the Immigration and Nationality Act, includes aiding and abetting. • 05-1638, Corzine v. Amer. Trucking Assoc. (CA3) Whether highway safety regulations that have an incidental effect on interstate commerce are subject to strict scrutiny under the dormant commerce clause. • 05-1645/06-11, Wallace v. Calogero (CA5)/ Leclerc v. Webb (CA5) (The cases are consolidated below.) Whether a state law that discriminates against nonpermanent visa-holding resident aliens ought to be analyzed under strict scrutiny for the purposes of an equal protection challenge. • 05-1657, Washington v. Washington Edu. Assoc. (S. Ct. of WA) Whether a requirement that nonmembers of a union must affirmatively consent before their fees may be used to support the union’s political agenda violates the union’s First Amendment rights. • 06-15, Tomic v. Catholic Diocese of Peoria (CA7) Whether the “ministerial exception” to federal employment discrimination laws bars the courts from adjudicating an age discrimination complaint brought by a lay employee of a religious organization. • 06-38, Detroit Entertainment v. Romanski (CA6) Whether private conduct that is contrary to state policy does not constitute “state action” for purposes of 42 U.S.C.�1983. (Disclosure: Tom Goldstein represents the petitioners in this case.) • 06-82/06-84/06-100, Hartford Fire Insurance Co. v. Reynolds (CA9)/ Safeco Insurance v. Barr (CA9)/ Geico v. Edo (CA9) (The cases are consolidated below.) Whether a defendant may “willfully” violate Section 616 of the Fair Credit Reporting Act (FCRA) by acting merely in “reckless disregard” of statutory obligations, rather than by acting with knowledge that its conduct violates the FCRA. • 06-102, Sinochem Int’l Co. v. Malaysia Int’l Shipping Co. (CA3) Whether a district court must first conclusively establish jurisdiction before dismissing a suit on the ground of forum non conveniens. • 06-134, Perm. Mission of India to the U.S. v. City of New York (CA2) Whether a tax lien on a foreign sovereign’s real property is valid when the municipality seeking the taxes does not claim any right to own, use, enter, control, or possess the property at issue.

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