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U.S. SUPREME COURT UPDATE The U.S. Supreme Court on April 17 and April 18 issued the following opinions: The justices held, 5-4, that the Partial-Birth Abortion Ban Act of 2003 is not void for vagueness and doesn’t impose an undue burden on a woman’s right to an abortion. Gonzales v. Carhart, No. 05-380, and Gonzales v. Planned Parenthood of America Inc., No. 05-1382. LeRoy Carhart, William G. Fitzhugh, William H. Knorr and Jill L. Vibhakar, doctors who perform second-trimester abortions, challenged the constitutionality of the Partial-Birth Abortion Ban Act and sought a permanent injunction against its enforcement. A district court granted an injunction prohibiting the attorney general from enforcing the act in all cases but those in which there was no dispute the fetus was viable. The 8th U.S. Circuit Court of Appeals affirmed. The justices reversed. Writing on behalf of the court, Justice Anthony M. Kennedy said that the act’s text demonstrates that it only regulates and proscribes the intact dilation and evacuation (D&E) procedure; it does not restrict abortions involving delivery of an expired fetus or those not involving vaginal delivery. The act is not unconstitutionally vague, for it satisfies both requirements of the void-for-vagueness doctrine. First, it provides doctors “of ordinary intelligence a reasonable opportunity to know what is prohibited.” Second, it does not encourage arbitrary or discriminatory enforcement. The act doesn’t impose an undue burden: It limits its reach to those physicians who carry out the intact D&E procedure. However, “doctors must adjust their conduct to the law by not attempting to deliver the fetus to an anatomical landmark,” Kennedy wrote. Chief Justice John G. Roberts Jr. and justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. concurred. Justices Ruth Bader Ginsburg’s dissent was joined by justices John Paul Stevens, David H. Souter and Stephen G. Breyer. BANKING The justices ruled, 5-3, that the National Bank Act and the regulations promulgated by the Office of the Comptroller of the Currency (OCC) pre-empt state laws on mortgage lending by national banks and their subsidiaries. Watters v. Wachovia Bank N.A., No. 05-1342. Wachovia Bank N.A. conducts its real estate lending business through Wachovia Mortgage Corp., a wholly owned subsidiary. Michigan law exempts banks from state mortgage-lending regulation, but requires subsidiaries to register with the state’s Office of Insurance and Financial Services (OIFS) and submit to state supervision. Wachovia Mortgage and Wachovia Bank filed suit against Linda A. Watters, OIFS commissioner, in a Michigan federal court seeking declaratory and injunctive relief, contending that the National Bank Act and OCC’s regulations pre-empt application of Michigan mortgage-lending laws to a national bank’s operating subsidiary. Watters countered that, because Wachovia Mortgage wasn’t itself a national bank, Michigan laws applied. The district court granted summary judgment to Wachovia; the 6th Circuit affirmed. The justices affirmed. Writing on behalf of the court, Ginsburg said that federally chartered banks are subject to state laws in their daily business to the extent such laws do not conflict with the letter or purposes of the bank act. The bank act expressly authorizes national banks to engage in mortgage lending, subject to OCC regulation. State law may not significantly burden a bank’s exercise of that power. In particular, real estate lending, when conducted by a national bank, is immune from state control: The act specifically vests exclusive authority to examine and inspect in the OCC. Ginsburg’s opinion was joined by Kennedy, Souter, Breyer, and Alito. Stevens’ dissent was joined by Roberts and Scalia. COMMUNICATIONS The justices ruled, 7-2, that under the federal Communications Act, a provider of pay-phone services can sue a long-distance carrier for allegedly violating regulations governing compensation for coinless pay-phone calls. Global Crossing Telecommunications Inc. v. Metrophones Telecommunications Inc., No. 05-705. The Federal Communications Commission established rules that require long-distance carriers to compensate a pay-phone operator when a caller uses a pay-phone to obtain free access to the carrier’s lines. The commission determined that a carrier’s refusal to pay the compensation is a “practice . . . that is unjust or unreasonable,” within the terms of the Communications Act of 1934, 47 U.S.C. 201(b). Section 207 of the act says that “[a]ny person claiming to be damaged by any common carrier . . . may bring suit” against the carrier for “recovery of the damages for which such common carrier may be liable.” In 2003, citing Section 207, Metrophones Telecommunications Inc., a pay-phone operator, sued Global Crossing Telecommunications Inc., a long-distance carrier, arguing it had violated Section 201(b) by failing to pay Metrophones for coinless pay-phone calls. A Washington federal court agreed that Global Crossing’s refusal to pay violated Section 201(b), thereby permitting a Section 207 suit. The 9th Circuit affirmed. The justices affirmed. Writing on behalf of the court, Breyer said that the underlying regulated activity at issue resembles activity long regulated by both transportation and communications agencies. Traditionally, the FCC, exercising its rate-setting authority, has divided revenues from a call among providers of segments of the call. The pay-phone operator and long-distance carrier resemble those joint providers of a communication or transportation service. When Congress revised the telecommunications laws in 1996, it left Section 201(b) in place. Breyer’s opinion was joined by Roberts, Stevens, Kennedy, Souter, Ginsburg and Alito. Scalia and Thomas dissented. CRIMINAL PRACTICE The justices ruled, 5-4, that attempted burglary, as defined by Florida law, qualifies as a “violent felony” under the Armed Career Criminal Act (ACCA). James v. U.S., No. 05-9264. Alphonso James pleaded guilty in a Florida federal court to one count of possessing a firearm. In his plea, James admitted to three prior felony convictions, one of which included a conviction in Florida state court for attempted burglary. At sentencing, the government argued that James was subject to ACCA’s 15-year mandatory minimum term because of his three prior convictions. James claimed attempted burglary did not qualify as a “violent felony” under ACCA. The court held it was a violent felony. The 11th Circuit affirmed. The justices affirmed. Writing on behalf of the court, Alito said that though attempted burglary doesn’t count as violent felony under ACCA, the act’s text does not exclude attempt offenses from its scope. Attempted burglary, as defined by Florida law, “involves conduct that presents a serious potential risk of physical injury to another.” Unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein, “presents a serious potential risk of physical injury to another.” Alito’s opinion was joined by Roberts, Kennedy, Souter and Breyer. Stevens, Scalia, Ginsburg and Thomas dissented. SCHOOLS AND EDUCATION The justices ruled, 5-4, that the U.S. Department of Education is permitted by statute to refer to the number of students in a school district, as well as to the amount of per-student expenditure in a school district, when determining whether a state “equalizes expenditures” among public school districts. Zuni Public School District No. 89 v. Dept. of Education, No. 05-1508. Breyer’s opinion was joined by Stevens, Kennedy, Ginsburg and Alito. Roberts, Scalia, Souter and Thomas dissented.

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