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Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme 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 mentioned in this column, that fact will be disclosed.
Ronald Butler didn’t have tuberculosis when he entered Minnesota’s Ramsey County Adult Detention Center in July 2001 to await trial on charges that he sexually assaulted his girlfriend’s 12-year-old daughter. But when he entered prison after his conviction, he tested positive for the deadly pulmonary disease. According to Butler, because he spent all of his time awaiting trial in a detention center, there is but one conclusion to draw: He must have contracted the disease while in the detention center because of that center’s “deplorable sanitary conditions.” He filed a pro se complaint against the sheriff in charge of the center, alleging that his treatment rose to the level of a civil-rights violation under Section 1983 of the Civil Rights Act (42 U.S.C. �1983), but it’s doubtful that he ever suspected his case would reach the U.S. Supreme Court. But now, aided by professor Bruce LaPierre of Washington University in St. Louis School of Law’s appellate clinic, his petition for certiorari in Butler v. Fletcher, No. 06-955, will be considered by the justices in their private conference April 27. In the district court, Butler contended that while in the detention center he and others were confined in “two-person cells and in larger holding cells, where as many as twenty-six short-term detainees were held.” In Butler’s view, holding so many detainees — all of whom had been charged but not convicted — in such close quarters without taking basic steps to prevent the spread of disease violated his right under the 14th Amendment to substantive due process. Ergo, claimed Butler, Sheriff Robert Fletcher should be held legally responsible. The magistrate judge who heard the case, however, rejected Butler’s theory and granted the sheriff’s motion for summary judgment. The judge noted that in the U.S. Court of Appeals for the 8th Circuit, the relevant standard for determining whether a pretrial detainee’s civil rights have been violated does not focus on whether due-process rights have been violated, but instead on whether the detainee’s Eighth Amendment right to be free from “cruel and unusual punishment” has been violated. Here, the magistrate concluded, no such Eighth Amendment violation had occurred. Using the two-part test first outlined by the Supreme Court in the 1991 case Wilson v. Seiter, the court considered first whether Butler was forced to stay in conditions that were so bad that they constituted a “serious” deprivation of his rights; and second whether public officials were “deliberately indifferent” to Butler’s health or safety. The magistrate judge found that “[t]here is simply no material question of fact which could allow a reasonable fact-finder to conclude that [Fletcher] acted with deliberate indifference.” The district court adopted the decision of the magistrate; on appeal, the 8th Circuit affirmed. In his petition, Butler contends that the 8th Circuit improperly extended the “deliberate indifference” test to pretrial detainees. After all, he explains, “[p]retrial detainees . . . and convicted prisoners have different constitutional rights” that derive from “different sources.” While acknowledging that it is difficult to delineate precisely how the rights of the groups differ — indeed, it’s sufficiently difficult that the courts of appeals are “evenly divided five to five” on the proper standard — he asserts that other circuits hold (following a rule developed in the wake of the Court’s 1979 decision in Bell v. Wolfish) that an official commits a civil-rights violation if the conditions of pretrial detention “amount to punishment in the constitutional sense of the word.” Thus, Butler argues, the proper bar is lower than the one used by the 8th Circuit — i.e., no mental state of deliberate indifference is required on the part of the prison official. Moreover, Butler argues, that lower bar makes sense: As a pretrial detainee rather than a convicted felon, he is owed more robust constitutional protection than merely the right to be free from “cruel and unusual punishment.” Opposing certiorari, Fletcher — represented by David MacMillan of the Ramsey County Attorney’s Office — acknowledges the circuit conflict but contends that certiorari is not warranted because the policies in place at the detention center “did not violate either Butler’s Eighth Amendment right to be free of cruel and unusual punishment or his Fourteenth Amendment” due-process right. In any event, the sheriff asserts, it is essentially impossible for Butler to prove that his civil rights were violated. For one, there can be no direct causal link between anything the sheriff could have done (or failed to have done) and Butler’s contraction of TB. Finally, because the provision of comprehensive medical screening is a benefit — Fletcher claims that in his facility, detainees are given care that is “in many cases better care than they receive when they are not detained” — this case doesn’t lend itself to a due-process analysis at all, regardless of Butler’s status. Fletcher thus urges the Court to deny review because “reliance on the deliberate indifference standard is entirely appropriate in cases involving medical treatment of pretrial detainees.” — Jason Harrow
OTHER CASES UP FOR REVIEW INCLUDE THE FOLLOWING: • 06-462, Texas v. Meyers (5th Circuit) Whether a state still possesses immunity from suit when it removes claims for which the state’s sovereign immunity has not been waived by the state or abrogated by Congress. • 06-740, Lopez-Cancinas v. Gonzales (9th Circuit) Whether the REAL ID Act, which restored jurisdiction over “questions of law” in immigration cases notwithstanding specific jurisdictional bars, confers on the courts of appeals jurisdiction to review the proper interpretation of regulations and the application of law to undisputed facts where review of the underlying issue or form of relief is otherwise barred. • 06-1010/06-1011, Niagara Mohawk Power/New York v. Federal Energy Regulatory Commission (D.C. Circuit) Whether the D.C. Circuit erred in concluding that the Federal Energy Regulatory Commission has jurisdiction to prescribe terms and conditions for retail sales and local distribution service. • 06-1032, Newland v. Boyd (9th Circuit) Whether a state court reasonably applies Batson v. Kentucky by declining to undertake comparative analysis of challenged and nonchallenged jurors for the first time on appeal. • 06-1168, Buffalo Teachers Federation v. Tobe (2nd Circuit) Whether the standard of judicial review that applies in determining the reasonableness and necessity of state legislative action impairing a state political subdivision’s contractual financial obligations is the “careful scrutiny” standard or the “deference to [the] legislat[ure]” standard. • 06-1169, Hamdan v. Gates/Khadr v. Bush (D.C. Circuit) Even if the Military Commissions Act validly withdraws habeas jurisdiction over petitions filed by individuals detained as alleged enemy combatants, whether the petitioners in this case, who are facing criminal prosecution before military tribunals — and sentences of life imprisonment and death — are nevertheless protected by fundamental rights secured by the Constitution, including the right to challenge the jurisdiction of such a tribunal via the writ of habeas corpus.

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