UPDATED 11:32 a.m.

The Supreme Court agreed on Monday to clarify the scope of legal immunity that policymakers in the top ranks of prosecutors’ offices have to claims that they failed to protect the rights of accused individuals. The Court also announced it will rule on whether the Environmental Protection Agency may compare costs with benefits when it orders major electricity-generating plants to install new technology when they draw water out of rivers and streams to cool their turbines.

In one of the most significant denials of reviewon Monday, the Court declined to hear a test case on the constitutionality of lengthy prison sentences imposed on youthful offenders when they are in their early teen years. The Court turned aside without comment an appeal seeking to test a 30-year prison sentence, without a chance for parole, for a 12-year-old boy for the murder of his grandparents.  The case is Pittman v. South Carolina (07-8436).  The appeal on behalf of Christopher Pittman sought to extend to prison sentences some version of the constitutional limits the Court has imposed on death sentences for minors.

The new case on prosecutorial immunity (Van De Kamp, et al., v. Goldstein, 07-854) does not involve line prosecutors.  Rather, it tests whether supervisory officials in the chain of command on prosecution may be sued for damages for failure to develop policies to ensure that evidence favorable to the defense is shared with defense counsel.  Basicially, the appeal by two former Los Angeles officials — a district attorney and his chief deputy –  seeks immunity for all actions within a prosecution team that relate to the obligations imposed by the 1963 Supreme Court decision in Brady v. Maryland.

Besides the scope of the Brady decision, the new review will no doubt examine the impact on ranking prosecutorial officials of Giglio v. U.S. (1972), expanding the Brady rule to require prosecutors to share with defense counsel any promises of leniency to informant witnesses, and Imbler v. Pachtman, the basic ruling in 1976 giving prosecutors absolute immunity to lawsuits for actions that are “intimately associated with the judicial phase of a criminal process.”

The appeal by John Van De Kamp, who was Los Angeles District Attorney in 1980, and Curt Livesay, his chief deputy at the time, is seeking to head off a civil rights damages lawsuit by a man, Thomas Lee Goldstein, who was prosecuted and convicted of murder in 1980.  Goldstein’s lawsuit was based on a claim that Van De Kamp and Livesay were responsible for not having trained line prosecutors to fulfill their duty under the Brady and Giglio decisions.  A jailhouse informant had testified against Goldstein at trial, saying Goldstein had confessed the crime to him. The informant said on the stand that he had not received any benefis for testifying for the prosecution.  In fact, the man had been an informant for the Long Beach police for several years, and had received a number of reduced sentences for his crimes, in return.  That evidence was never shared with the prosecutors who actually handled the case against Goldstein,, even though the Los Angeles District Attorneys’s office was aware of it, according to Goldstein’s lawsuit.  The Ninth Circuit Court rejected the claims of immunity, finding that the lawsuit only changed administrative, not prosecutorial, conduct.

In the electric industry case, the Court actually consolidated three petitions for review, and limited its review to a question as it has been composed by the U.S. Solicitor General’s office in response to the petitions.  Here is the question: “Whether 316(b) of the Clean Water Act, 33 U.S.C. 1326(b), authorizes the Environmental Protection Agency (EPA) to compare costs with benefits in determining the ‘best technology available for minimizing adverse environmental impact’ at cooling water intake structures.”  One hour of oral argument will be scheduled in the combined cases of Entergy Corp. v. EPA (07-588), PSEG Fossil v. Riverkeeper (07-589), and Utility Water Act Group v. Riverkeeper (07-597).

 The Court agreed to rule in those cases even though the Solicitor General had urged it not to do so. While arguing that the Second Circuit Court had been wrong in concluding that EPA could not make a cost-benefit analysis under the specific provision in the Clean Water Act, the SG also said that the EPA was conducting a new review that may take some months, and that review might change the shape of the legal dispute.  The SG conceded, though, that electric-generating plants could well incur significant new costs in the interim, and might even have to shut down their facilities to retrofit their water-intake structures. 

Although the electric companies had raised other issues beyond the cost-benefit question –whether EPA could offset environmental harms by restocking the fish supply or improving aquatic habitat in the streams, and whether EPA could impose new technology requirements on existing plants as well as new ones — the Court did not agree to hear those.

The cases granted on Monday will be heard in the new Term starting Oct. 6.

Among other orders, the Court accepted a new brief by the Solicitor General providing the government’s post-argument views in the two detainee cases heard Dec. 5 — Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196).  Both sides have now put before the Court their interpretations of the impact on those cases of the D.C. Circuit Court’s action in the so-called Bismullah case (another detainee case now pending on certiorari in the Supreme Court in Gates v. Bismullah, 07-1054).

Among cases denied review on Monday were these:

** Whether a federal employee may be punished for insisting on a right to silence in an internal investigation (Sher v. Department of Veterans Affairs, 07-595).

** Whether an individual who pleads guilty to a criminal charges is barred from appealing to challenge a trial court ruling that he was mentally competent to be tried (Wallace v. U.S., 07-785).

** Whether Congress in 1996 intended to take away the authority of federal appeals courts tgo review a refusal to delay deporation proceedings (Ali v. Mukasey, 07-798, and Gulati v. Mukasey, 07-1005).

** Whether the filing of a lawsuit waives a right to arbitration, when there is no finding that the other side’s legal interests would be prejudiced (Rossi v. Joseph Chris Personnel Services, 07-929).

** Wbether the state of Kentucky acted unconstitutionally in its system of taxing multi-channel television providers — cable TV companies and satellite TV companies (DIRECTV v. Treesh, 07-1004).

** Whether harmless error analysis is available if a jury is given a flawed instruction before it imposes a death sentence (Quarterman v. Garcia, 07-1052).

Posted in Entergy Corp. v. EPA, Van de Kamp v. Goldstein, Uncategorized