Supreme Court PreviewAuthor(s): ANDREA NEALSource: ABA Journal, Vol. 73, No. 12 (OCTOBER 1, 1987), p. 50Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20759546 .

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Supreme Court Preview

BY ANDREA NEAL

SCHOOL PRAYER

Karcher v. May (No. 85-1551)

Argued Oct. 6, 1987

A quarter century ago, the Su preme Court ruled that state laws re

quiring prayer or other religious exercises in public schools violate the First Amendment. Abington School Dist. v. Schempp, 374 U.S. 203 (1963). This Term, the Court will decide the fate of a New Jersey statute that pro vides for a moment of silence at the beginning of the school day but does not specifically mention prayer.

Two members of the New Jersey Legislature are challenging a ruling by the U.S. Court of Appeals that the law is unconstitutional.

The Court's decision could clar ify whether any such laws meet con stitutional muster. About half the states have enacted some form of a

moment-of-silence statute.

The Court also could sidestep the issue entirely. The lawmakers bring ing the case, Alan Karcher and Car

men Orechio, have been removed from leadership positions in the New Jersey House and Senate, and the Court could decide they do not have standing.

The law at issue says public schools shall "permit students to ob serve a one-minute period of silence to be used solely at the discretion of the individual student, before open ing exercises of each school day for quiet and private contemplation or

introspection."

Shortly after it was imple mented in 1982, a suit was filed by a

group of parents, students and teach ers, who alleged the measure violated the establishment clause.

When the state attorney general refused to defend the law in court, Karcher and Orechio took over the task. They argued the law had a sec

ular, not religious, purpose, in that it provided students with a period of transition from outside concerns to

Andrea Neal is a reporter for UPI in Washington, D.C.

their day's school work. A federal district court said the

statute's purpose was religious, citing a long history of attempts by the leg islature to return prayer to public schools. The Third Circuit affirmed the lower court ruling in December 1985.

The case is the second in three years to test moment-of-silence laws.

In June 1985, the Court struck down an Alabama law calling for a moment of silence for "meditation or volun tary prayer." Wallace v. Jaffree, 472 U.S. 38 (1985).

ATTORNEY FEES

Pierce v. Underwood (No. 86-1512)

Cert, granted May 18,1987

This attorney-fee dispute, aris ing out of a case that has been in the courts for more than a decade, asks the Court to review the Equal Access to Justice Act.

The act, passed in 1980, allows the winner in a non-tort civil action against the United States to collect attorney fees and other costs unless the government's position in the lit igation is "substantially justified."

The Department of Housing and Urban Development is appealing an order to pay $322,700 in fees and costs to lawyers representing a class of public-housing tenants who success

fully challenged HUD's failure to im plement a subsidy program.

The government argues that its position in the case was justified and therefore it should not be liable for fees. A secondary question is whether the district court acted properly in departing from the EAJA's usual $75 per-hour cap on attorney fees in set ting the award.

The U.S. Court of Appeals for the Ninth Circuit ruled in 1985 that HUD's position was not justified be cause tenants had brought previous suits to require payment of subsidy funds and in each the district court held that payment by the govern ment was mandatory. On calculating

the fee, the court held that judges may justify exceeding the $75 hourly cap after considering such factors as complexity of litigation and availa bility of qualified lawyers.

Hartigan v. Zbaraz (No. 85-673)

Cert, granted Oct. 10,1986

The Rehnquist Court will tackle the abortion issue for the first time with a case involving the Illinois Pa rental Notice of Abortion Act of 1983. The case was on the Court's agenda for last Term, but arguments were canceled at the last minute. Later, the Court expanded its review to include two issues not initially addressed.

The state is challenging a ruling by the U.S. Court of Appeals for the Seventh Circuit, which struck down a provision of the Illinois law requir ing doctors to notify a minor's par ents and then wait 24 hours before performing an abortion on her.

The justices also asked the law yers to brief them on the legality of the act's "bypass system" under which judges can waive the parental notification requirement. In addi tion, the Court must decide if it has jurisdiction?an issue that could en able it to skip the merits of the case altogether.

The law was challenged in Jan uary 1984 by two doctors, David Zbaraz and Allan Charles, on behalf of minor patients seeking abortions. A federal court struck down the law in its entirety later that year.

On appeal in 1985, the Seventh Circuit held only the 24-hour waiting period unconstitutional and sent the case back to the lower court for fur ther proceedings. Because of that, the appellees contend the Supreme Court lacks jurisdiction to hear the case.

Although many observers feel the Supreme Court is ready to take another look at Roe v. Wade, 410 U.S. 113 (1973), it is unlikely the Court will use this case to do so since it focuses on the narrow issue of abortions for minors.

50 ABA JOURNAL / OCTOBER 1, 1987

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