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  • Supreme Court Report

  •   Supreme Court to Hear Dispute Over Ellis Island

    By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, September 30, 1997; Page A02

    In the first order of its 1997-98 term, the Supreme Court announced yesterday it would hear 10 new cases, among them the long-smoldering dispute between New York and New Jersey over control of Ellis Island, the historic entry point for more than 12 million immigrants that today has much commercial potential.

    The justices, acting a week before their term officially begins, also agreed to decide whether a white defendant may challenge an indictment from a grand jury on which blacks were excluded from serving as foreman.

    The justices also said they would consider whether the liability for copyright infringement – in this case, involving the television shows "Silver Spoons" and "Who's The Boss?" – must always be heard by a jury rather than only by a judge.

    The court also said it would use a Nebraska murder case to decide whether jurors in death penalty cases must be told they can consider convicting the defendant of a lesser crime that does not warrant death.

    All of these disputes are likely to be heard in early 1998. Decisions would be handed down by the end of June.

    Meeting for the first time since they recessed last June, the justices gathered in private yesterday to review hundreds of petitions. Their new term does not officially begin until the first Monday in October, but for the past five years the justices have gotten an early start on filling their winter calendar by announcing in the last week of September some of the new cases to be heard.

    New York and New Jersey have been arguing in various ways for more than a century over control of Ellis Island. When the dispute came to the high court in 1994, the justices appointed a special master to hear both sides. The testimony in the 1996 trial – held in a chandeliered, gold-trimmed conference room at the Supreme Court – at times took on the tone of two grudge partners, each saying, "It's mine and you can't have it."

    At stake are not just bragging rights to the former gateway, but the potential for future commercial development and historic preservation that would draw more tourist dollars. While several legal documents were introduced in the case, at its core is an 1834 boundary agreement, under which New York got the above-water land of Ellis Island, then only about three acres in New York Harbor, and New Jersey was granted significant submerged portions – much of which has since been filled in and over which New Jersey said it has always had sovereignty.

    After the 1996 trial, special master Paul R. Verkuil said the two states should share authority over the island and recommended how to divide up the land and buildings on the 25.7-acre island. The oral arguments to be held at the high court in January will allow the states to challenge the Verkuil report and try to persuade the justices to rule their way.

    Ellis Island served as an immigration station for 60 years, officially closing in 1954. Since 1976, some of the island has been open to the public as part of the Statue of Liberty National Monument. For its part, the federal government says it has authority over the island.

    In the grand-jury bias case, convicted Louisiana murderer Terry Campbell said that although he is white he should have legal "standing" to challenge the exclusion of blacks from serving as grand jury foreman on the panel that indicted him. He said such bias would invalidate his indictment and conviction.

    The Supreme Court in 1986 ruled that people could not be excluded from juries because of race and in a 1991 ruling said specifically that a criminal defendant may object to race-based exclusions on an ordinary trial jury even if the defendant is not the same race as the excluded jurors. The Supreme Court has never addressed the question in the context of state grand juries. In Louisiana, a trial judge chooses the foreman from a grand jury's members.

    Campbell contends that blacks in Evangeline Parish, where his case was heard, were systematically kept from serving as grand jury foremen. In his petition to the high court in Campbell v. Louisiana, he noted that for a period from January 1976 to August 1993, all 35 people who served as grand jury foremen were white, even though about a quarter of the registered voters in the parish are black.

    The copyright infringement case of Feltner v. Columbia Pictures Television arises from an $8.8 million liability verdict against television stations in Florida and Alabama operated by Krypton International Corp., owned by C. Elvin Feltner Jr. Columbia Pictures Television sued Feltner after it alleged his company had failed to pay royalties on TV shows it broadcast, including "Silver Spoons," "Who's The Boss?" and "Hart to Hart." The case tests whether the Constitution's guarantees of a trial by jury in certain high-stakes cases cover copyright infringement lawsuits involving so-called statutory damages up to $100,000 per violation.

    Before they returned to town yesterday, the justices had already accepted 48 cases for oral argument. In addition to the 10 new cases taken yesterday, they will continue to accept appeals until they have about 80 disputes on the calendar for the 1997-98 term.

    © Copyright 1997 The Washington Post Company

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