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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.
Located just north of Dayton, Ohio, the small town of Union (population 6,400) sounds downright idyllic: Its Web site boasts that it is “a place to grow a family or grow a business, a place to watch kids play soccer or whack the bat at a summer softball game.” Until 1997, the town never even had its own fire department — in rare emergencies, it relied on firefighters from neighboring Randolph Township. So when the Union City Council passed a resolution that year finally establishing the town’s own fire department, some residents objected, and in 1998, the final verdict on keeping the new fire department rested — in the form of a ballot initiative — in the hands of the citizenry. As part of what the lower court described as a “lively campaign,” the City Council authorized several city workers to put up a large banner supporting a separate fire department. Nine years later, in Kidwell v. City of Union (No. 06-1226), the banner that was suspended above — you guessed it — “Main Street” is at the center of a petition that will be considered this week by the Supreme Court in its private conference. At issue in Kidwell is whether, in using city funds to encourage voters to support the separate fire department in the referendum, the City Council violated either the guarantee clause of the Constitution (which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government”) or the First Amendment rights of the citizens who opposed the fire department. Kidwell is especially intriguing because of its posture: As a majority of the U.S. Court of Appeals for the 6th Circuit — which held that the city’s actions did not violate the Constitution — wrote, this is the “rare case” that involves private citizens actually attempting to curb the speech of the government, rather than the other way around. Supported by a “vigorous” dissent by Judge Boyce Martin (who went so far as to write that “perhaps it is time for the Supreme Court to reconsider its Guarantee Clause jurisprudence”), the petitioners — three city residents who live and pay taxes in Union — contend that the government cannot use taxpayer funds to publicly support an issue (or, less controversially, a candidate) on the ballot. Represented by Christopher Landau of Kirkland & Ellis, the petitioners argue that Supreme Court review is necessary because the 6th Circuit’s holding that “the government is free to spend public funds directly to influence the outcome of an election” effectively “hold[s] that the government is free to ensure its own perpetuation in power.” But while the petitioners view the City Council’s actions as tantamount to contaminating the free and fair election mandated by the Constitution, the city instead sees itself as simply fulfilling its duty to “support its own policies.” Represented by Lynette Ballato of Dayton’s Subashi, Wildermuth & Ballato, the city’s brief in opposition retorts that its actions were “germane to its essential, government functions” and that no private citizen can prevent the city from “speaking on election issues that reasonably relate to the municipality’s ability to govern.” Here, the city echoes the 6th Circuit’s view that there is a constitutionally meaningful difference between using public funds to openly support one side of a hot-button issue and, on the other hand, allowing the City Council to weigh in on subjects that are “squarely within its competence as governor”; referenda relating to “emergency services and tax initiatives” fall within the latter class. Distinguishing between these two types of governmental advocacy leading up to an election, the city explains, allows a city to educate its citizens and publicize its current policies without jeopardizing the fairness of elections. The petitioners counter that the distinction on which the city relies is illusory: Even if partisan politics are not at issue in an election, the election may still be “partisan or ideological.” Quoting once again from Martin’s dissent, the petitioners assert that “[t]o determine that something is in the common needs of citizens is itself a political decision.” In their view, and even if the issue before the citizenry is something as mundane as whether to issue a municipal bond, the Constitution prevents the government from using public funds to advocate for one side or the other. The petitioners state their claim emphatically: “It’s hard to think of a more grave threat to a constitutional democracy than the expenditure of public funds directly to influence the outcome of an election.” The Supreme Court may unfurl its own banner across First Street announcing whether it will hear the appeal — or, more likely, simply release a regular orders list revealing its decision — as soon as May 14. — Jason Harrow
OTHER CASES UP FOR REVIEW INCLUDE THE FOLLOWING: • 06-1060, Dietrich v. Belleque (9th Circuit) Whether equitable tolling is available to permit the filing of an otherwise untimely petition seeking relief in federal habeas corpus or whether the provisions of 28 U.S.C. �2244(d) fully define and circumscribe the circumstances in which the AEDPA one-year statute of limitations can be tolled or extended. • 06-1209, Hightower v. Terry (11th Circuit) Whether the appeals court should have determined whether any or all of a prosecutor’s proffered reasons for striking six black jurors were credible, rather than determining that they were facially race-neutral. • 06-1217, Iowa Network Services v. Qwest (8th Circuit) Whether the 8th Circuit improperly refused to apply a federal tariff deemed lawful by Congress and the Federal Communications Commission on the basis of a state agency’s decision to disregard the tariff. • 06-1248, Coliseum Square v. Jackson (5th Circuit) Whether an agency must prepare an environmental impact statement whenever a major federal action is likely to significantly affect the quality of the environment or whether it need not prepare an EIS unless a major federal action will certainly significantly affect the quality of the environment. • 06-1284, USF-Red Star Express v. Taylor (3rd Circuit) Whether, in an action under the Americans with Disabilities Act, an instruction to the jury that a “major life activity” means an activity that an average person can perform with “little or no difficulty” was consistent with the Supreme Court’s decision in Toyota Motor Manufacturing Kentucky Inc. v. Williams, which ruled that “major life activities” are “those activities that are of central importance to daily life.” • 06-1291, Amgen v. Hoechst Marion Roussell (Federal Circuit) Whether all aspects of a district court’s claim construction are subject to de novo review, as the Federal Circuit has held, or instead should the court have reviewed the factual determinations underlying the district court’s claim construction deferentially.

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