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This is the second installment of a new column examining pending cases that the Supreme Court is expected to discuss at its private conference for possible inclusion on its docket. The Court will meet Oct. 6 for its second conference of the term. Based on when new cases have been filed, D.C. lawyer Thomas Goldstein has chosen the following cases from the non-pauper docket as ones that the Court is likely to discuss and is most likely to grant. Goldstein does not otherwise participate in preparation of the column. Goldstein’s picks have been on the mark so far. The first installment of the column, which looked at cases considered at the justices’ major post-summer conference, identified all nine of the non-pauper cases that the Court agreed to hear. Following are summaries of the cases identified by Goldstein. Action on these cases could be announced on Oct. 10. Also on that date, the disposition of some cases carried over from the first conference could be announced. Campaign finance. Just in time for Election Day, the justices could agree to re-enter the never-ending debate over campaign finance reform and the First Amendment. Both sides in Federal Election Commission v. Colorado Republican Federal Campaign Committee, 00-191, are asking the justices to review a 10th Circuit ruling that struck down federal restrictions on political party expenditures made in conjunction with party candidates. The appeals court, following up on an earlier Supreme Court ruling in the case, found the law to be a “significant interference with the First Amendment right of political parties.” “I’m in my fifteenth year dealing with this case,” says Jan Baran, election law expert at Wiley, Rein & Fielding. The cap on the amount parties can spend on candidate, he says, limits “the cleanest money there is in the system.” It is hard money, with contributors publicly named, and is at the core of political speech, says Baran. But the Clinton Administration argues that because the money is coordinated with candidates, it should be viewed as a contribution that can, under Buckley v. Valeo, be limited. Play ball. With a name like U.S. v. Cleveland Indians, 00-203, this case sounds like it could be a test of the antitrust exemption enjoyed by Major League Baseball. It’s not that at all, however, posing instead a dry question involving payroll taxes. The case stems from the $280 million payment the baseball clubs made to players who claimed that their free agency rights were violated in the late 1980s. The payments were made in 1994. The issue before the Court is whether FICA and income taxes should be withheld for the year the money was paid or for the years when the violations occurred. The Justice Department tells the Court the issue is a “frequently recurring question” that has been differently answered by different appeals courts — making it ripe for Supreme Court review. Attorney fees. A longstanding dispute over the award of attorney fees in employment discrimination cases is posed in EMC Corporation v. Braitsch, 00-167. The case stems from a sex discrimination claim made by Joan Braitsch, who says she was fired by the computer firm because of her gender. The Fairfax County Human Rights Commission in Virginia investigated and found that poor performance, rather than gender, was the cause of the firing. After the case was taken to federal court and dismissed, the employer sought an award of attorney fees. The 4th Circuit affirmed a judge’s denial of attorney fees. “The federal courts are plagued by an onslaught of meritless employment discrimination cases,” says Theodore Olson of Gibson, Dunn & Crutcher, EMC’s lawyer in the case. He urges the Supreme Court to take the case to resolve differences between the 4th Circuit’s lax standards for attorney fees cases and standards adopted by the 1st, 7th, and 11th circuits. Richard Swick of D.C.’s Swick & Shapiro argues that the 4th Circuit decision does not create a circuit conflict and says Braitsch’s discrimination claim was not frivolous. OTHER CASES UP FOR REVIEWLandry v. FDIC, 99-1916. Constitutional status of administrative law judges who conduct proceedings for federal banking agencies. � Alabama v. Department of Energy, 99-1952. Jurisdiction of U.S. Court of Appeals for the Federal Circuit over disputes stemming from oil price controls imposed in the early 1970s. � Florida v. Shadler, 99-1963. Admissibility of evidence obtained by police based on erroneous information in a driver’s license database. � NextWave Personal Communications v. FCC, 99-1980. Bankruptcy court jurisdiction over a decision by Federal Communications Commission on radio spectrum licenses. � Lechuga v. Perryman, 99-2082. Judicial review in habeas corpus proceedings of deportation orders for illegal aliens who have committed certain crimes. � Koch v. Koch Industries,00-28. In a civil suit over misrepresentations in the sale of stock, what is the standard for harmless error? � CSU L.L.C. v. Xerox Corp.,00-62. Antitrust case involving a copyright holder’s refusal to sell copyrighted material. � � Bradshaw v. G&G Fire Sprinklers, 00-152. State penalties for a subcontractor’s failure to pay prevailing wages. � Johnson v. J.C. Penney National Bank,00-205. Tennessee’s taxation of companies without a physical presence in the state. � Bagley v. White, 00-228. Whether states must provide criminal defendants with effective post-appeal counsel so they can make ineffective-assistance-of-counsel claims about their original appellate lawyer. � � Zadvydas v. Underdown,99-7791, and Reno v. Ma, 00-38. Detention beyond 90 days of aliens who have been ordered removed from the U.S.

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