T
wo opinions so far this week, with possibly more to come tomorrow!
 
Today, the Court issued its latest ruling in an original jurisdiction case, Kansas v. Colorado, No. 105 orig., which involves a longstanding dispute between the two states over the use of the Arkansas River (AKA “the Nile of America”). Kansas won a finding that Colorado had unlawfully depleted the river, but it took several exceptions to the fourth remedial report of the Court’s Special Master, chief among them (1) his recommendation that the Court retain jurisdiction rather than appoint a “River Master” to oversee future compliance and (2) his decision to award prejudgment interest on damages accruing since 1985 rather than from the start of Colorado’s depleting activity around 1950. Other exceptions had to do with nifty technical subjects like “calibration procedures” and “dry-up acreage monitoring” – if you’re an aspiring River Master (and who isn’t?) feel free to read the opinion for the rest. Writing for a near-unanimous Court, Justice Breyer overruled each of the exceptions. Justice Thomas concurred in the judgment but did not join the majority opinion on the issue of prejudgment interest; he agreed to overrule Kansas’ exception because he believed that Kansas was entitled to no interest whatsoever. Justice Stevens concurred in part but dissented from the prejudgment interest ruling, writing that, on the facts, Colorado owed Kansas interest from 1969, the time it knew or should have known it was violating the Compact. Nothing noteworthy legally, but it’s interesting to see the Justices act like trial judges.
 
In a decidedly juicier case, on Monday the Court issued a per curiam ruling reversing the Ninth Circuit in City of San Diego, Calif. v. Roe, No. 03-1669. Roe was a San Diego police officer with a very interesting second job – he would videotape himself performing sexually explicit acts in a police uniform, and then sell those videos on eBay. He also sold police equipment and other official items from the San Diego Police Department (“SDPD”). Roe was terminated after his supervisor discovered his activities – supposedly after coming across Roe’s eBay listing for an SDPD uniform and then searching for other items Roe was selling (we’ll take his word for it). Roe sued the city under section 1983, claiming that his termination violated his First Amendment rights. The District Court granted the city summary judgment on the ground that Roe’s speech was not on a matter of “public concern” as required by Connick v. Myers, 461 U.S. 138 (1983). The Ninth Circuit reversed, exempting Roe from the Connick test based on another Supreme Court decision, U.S. v. Treasury Employees, 513 U.S. 454 (1995) (“NTEU“), which held that the government could not impose monetary limits on employees’ speaking or writing engagements that did not affect their employment. Predictably, thankfully and unanimously, the Court reversed, holding that the Ninth Circuit’s reliance on NTEU was “seriously misplaced” because Roe deliberately linked his activities to his job in a manner detrimental to the SDPD. The District Court was therefore right to determine whether Roe’s speech was on a matter of “public concern” under Connick, and, if so, balance that speech against the SDPD’s interest in performing its services as required by Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968). Based on the content, form and context of Roe’s speech, there was no question that Roe’s speech was not a matter of public concern: His activities did nothing to inform the public of SPDP operations or address political issues. So the city wins on summary judgment, and Roe presumably will make demonstrating novel ways to get out of speeding tickets his full-time job, albeit without an official uniform.
 
Finally, there is one cert grant to report. Last Friday, the Court agreed to hear National Cable & Telecomm. Ass’n v. Brand X Internet Services, No. 04-277, and FCC v. Brand X Internet Services, No. 04-281, in which it will consider the regulation of high-speed Internet access. The FCC had ruled that cable modem services were only “information services,” not “telecommunications services,” and were therefore exempt from regulation under federal telecommunications laws. The Ninth Circuit, however, did not defer to the FCC and found that cable modem services were both “information services” and telecommunications services” and thus subject to regulation. Under the Ninth Circuit’s ruling, cable broadband providers would have to allow access to all internet service providers (“ISPs”) and not just to their own in-house ISPs. The FCC and, not surprisingly, cable providers are challenging the ruling.
 
That’s all for now. Thanks as always for reading!
 
As we’ve noted in the past, we do not normally report on cases prior to the grant of certiorari. However, if you have a particular case you would like us to track, we’d be happy to do so.
 

 

Ken & Kim
 

 

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400