Federal Judiciary

Court grants 3, won’t reargue Montejo

By Akin Gump Supreme Court Practice Group

The Supreme Court on Monday added three new cases for decision at its next Term, but refused to order a new argument this Term or next in a significant right-to-counsel case, Montejo v. Louisiana (07-1529) that tests whether the Justices will overrule Michigan v. Jackson.

The new cases are Schwab v. Reilly (08-538), seeking clarification of the valuation of assets in bankruptcy (limited to first two of three questions); NRG Power Marketing v. Maine Public Utilities Commission (08-674), on the standard federal courts are to use in judging the legality of rates for wholesale purchase of electric power for re-sale to using customers; and Kucana v. Holder (08-911), on the scope of Congress’ withdrawal of court review of deportation decisions.

The Montejo case, heard by the Court on Jan. 13 and now awaiting a decision, tests whether a suspect who has a court-appointed lawyer must take specific action to prevent police from further questioning without the attorney present.  After the hearing, however, the Court on March 27 told counsel to file new briefs on the question of whether to overrule Michigan v. Jackson, a 1986 decision that was intended to assure that the right to counsel was not lost during police interrogation.

Those briefs have now been filed.  Lawyers for Jesse Jay Montejo on April 15 asked the Court to order new argument, saying the extra discussion was needed to explore Jackson more fully. They asked for the new hearing either in April, or during the new Term. The Court turned down that request in a brief order without explanation, and thus will now proceed to decide the case.

The Court asked the U.S. Solicitor General to file the federal government’s views on a bar to filing an unpaid civil case after three previous filings have failed =- a case of interest to individuals too poor to pay filing fees.  At issue is how to apply the so-called “three strikes rule” that Congress included in the Prison Litigation Reform Act of 1995, to try to discourage prison inmate court challenges that lack merit.

The case is Patton v. Harris (08-7683) and the petition is available here.  This is the question presented:

“28 U.S.C. Section 1915(b)(1) provides that ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.’ The circuits are divided on the question of whether, when a prisoner files a notice of appeal and application to proceed in forma pauperis, and his (or her) application is denied, should the prisoner be treated as having ‘file[d] an appeal in forma pauperis’ so that the fee requirement attaches?”

Full post as published by SCOTUSBLOG on April 27, 2009 (boomark / email).