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After a two-week break, the Supreme Court resumes its agenda-setting private conferences on Oct. 27. The justices will meet in private to discuss certiorari petitions pending before them, and will likely grant review in only a small number. Among the cases the justices are expected to discuss are the following, selected by D.C. lawyer Thomas Goldstein. Goldstein, who does not otherwise participate in preparation of this column, picks those cases with the highest likelihood of being granted review by the Supreme Court. Action on the cases highlighted in this week’s column will likely be announced the following Monday, Oct. 30, though the Court, without explanation, sometimes holds cases for future discussion. KLAN CLEANUP Seeking to save money on road maintenance, 48 states run “adopt a highway” programs that encourage private groups to volunteer to keep roadsides trash-free. In several states, however, the programs have led to knotty First Amendment disputes when local Ku Klux Klan chapters try to participate. Ten states, including Missouri, have turned the Klan down, not wanting to give the organization publicity via roadside signs that recognize program participants. In Yarnell v. Cuffley, No. 00-289, the state of Missouri is asking the Court to overturn a ruling of the 8th U.S. Circuit Court of Appeals that said the Klan was improperly rejected for participation in the program. The Klan, represented by the American Civil Liberties Union, has said that the state’s action violates its First Amendment rights. But Charles Rothfeld of the D.C. office of Mayer Brown & Platt, representing the states, asks rhetorically whether “picking up garbage is speech.” He said the roadside signs constitute speech by the state itself and the state can control its messages. Rothfeld also argues that volunteers in the program perform a state function, and therefore are covered by civil rights laws that prohibit discrimination in hiring on the basis of race. Klan chapters, by their nature, would not allow blacks and other minorities to become volunteers to clean up the roadway assigned to them. Twenty-eight states have joined in a brief also urging the Court to rule in favor of Missouri in the case. “They all want to establish a helpful rule before the Klan comes knocking on their door,” says Virginia Solicitor General William Hurd, who wrote the states’ brief. �DICKERSON’ FOLLOW-UP A case that tests the vitality of Miranda v. Arizona in the wake of last term’s ruling in Dickerson v. United States is pending before the Court. In Tankleff v. Superintendent of Clinton Correctional Facility, No. 00-327, the issue is whether a confession given to police after a belated Miranda warning is tainted by the earlier unconstitutional interrogation. Marty Tankleff, convicted in the 1988 murder of his parents in New York, brought the federal habeas corpus case after 10 years of state appeals. Then age 17, Tankleff was questioned on and off for four hours before being read his Miranda rights. He confessed to the murders, but insisted he was coerced. Efforts in the lower courts to have the confession tossed out were unsuccessful. Before the Supreme Court, Tankleff’s attorney Stephen Braga of D.C.’s Miller, Cassidy, Larroca & Lewin argues that lower courts are split over the application of Supreme Court precedent such as the 1985 decision Oregon v. Elstad to the admissibility of confessions given after belated Miranda warnings. The Court in Elstad said that confessions given after Miranda warnings do not necessarily have to be suppressed just because police had also obtained earlier statements before the Miranda warning was given. In Dickerson, the Court decided last June that Miranda was a rule based on the Constitution, contradicting the premise of Elstad. That determination in Dickerson, says Braga, weakens Elstad and strengthens his argument that the statements made by Tankleff are inadmissible. “It is critically important that the Court offer guidance as to how Elstad is to be interpreted post- Dickerson,” Braga wrote in his brief. (A recently filed cross petition in the case could postpone the Court’s discussion to a later date.) OTHER CASES UP FOR REVIEW Raquel v. Education Management Corp., No. 99-1489. Sufficiency of copyright registration to support infringement claim. May v. Hand, No. 99-2067. First Amendment rights of law enforcement officer terminated after running for sheriff against his boss. Prosperi v. United States, No. 99-2078. Handling of claims of juror misconduct before jury verdict is returned. Strand v. GTE North Inc., No. 00-101. Sovereign immunity for public service commissioners under the 11th Amendment for violations of Federal Telecommunications Act of 1996. Colorado Department of Corrections v. Chambers, No. 00-112. Due process issues involved in classifying prison inmates as sex offenders. Sinkfield v. Kelley, No. 00-132. Standing in racial gerrymandering cases. Brazos Electric Power Cooperative v. Federal Energy Regulatory Commission, No. 00-160. Definition of a cogeneration facility under the Public Utilities Regulatory Policies Act of 1978. A cogeneration plant produces electric energy and steam or some other form of “useful” energy, used for commercial, industrial, heating, or cooling purposes. Burilovich v. Board of Education of Lincoln Consolidated Schools, No. 00-180. Deference to state proceedings in disputes over individualized education programs under Individuals with Disabilities Education Act. Torrence v. Oryx Energy Co., No. 00-185. Whether violation of Coast Guard regulations constitutes negligence per se on part of oil drill operator in the death of a contractor’s employee. Cohen v. Office Depot, No. 00-246. Handling of punitive damages and attorney fees in determining whether a class action meets “amount in controversy” threshold for diversity jurisdiction of federal courts. C & L Enterprises Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, No. 00-292. Sovereign immunity of Indian tribe in arbitration agreements. Nixon v. Merrill Lynch, Pierce, Fenner & Smith Inc., No. 00-317. Whether arbitrator’s dismissal of employment discrimination claims bars administrative action by state human rights agency. Wharf (Holdings) Ltd. v. United International Holdings, No. 00-347. Whether Section 10(b) of Securities Exchange Act of 1934 applies to disputes over ownership of securities when there is no claim that financial information was misrepresented.

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