The Supreme Court agreed yesterday to decide the constitutionality of the law establishing independent counsels to investigate wrongdoing by high-level government officials.
The court at the same time cleared the way for independent counsel Alexia Morrison to continue her investigation of former assistant attorney general Theodore B. Olson, lifting a restriction imposed on her by an appeals court panel that last month struck down the law as unconstitutional.
The justices also agreed to review an appeals court ruling throwing out as unconstitutional Richmond's program to set aside a certain percentage of city contracts for minority-owned firms, a program similar to ones used in 32 states and 160 municipal and county governments.
The high court also let stand a ruling that a Texas hospital must turn over names of blood donors to a woman whose infant daughter contracted AIDS after receiving blood transfusions.
And the court, apparently deadlocked 4 to 4 and waiting for newly sworn-in Justice Anthony M. Kennedy to break the tie, announced that it has decided to rehear two cases argued earlier this term. One, Boyle v. United Technologies Corp., argued in October, involves the liability of military manufacturers for injuries to military personnel caused by defects in the contractors' products. The second, Ross v. Oklahoma, argued last month, involves jury selection procedures in death penalty cases.
Yesterday marked Kennedy's first appearance on the bench. Orders released by the court indicated that he participated in most of the cases the court agreed to review, but not the one involving the independent counsel.
That case, Morrison v. Olson, will be reviewed on an accelerated schedule, the court said, with oral argument set for April 26, and a ruling likely by late June or early July.
The case affects the perjury conviction in December of former White House aide Michael K. Deaver, whose lawyers have asked that his conviction be set aside. Deaver's sentencing, originally scheduled for this week, has been posptoned until April.
It also may affect the Feb. 11 illegal lobbying conviction of former White House political director Lyn Nofziger won by independent counsel James C. McKay. Both McKay and Iran-contra independent counsel Lawrence E. Walsh have received backup appointments by Attorney General Edwin Meese III. But both began collecting evidence before receiving those appointments and may face obstacles in using some of that information.
A divided three-judge federal appeals court panel here struck down the law, saying it violated the constitutional doctrine of separation of powers among the branches.
The majority opinion, written by Judge Laurence H. Silberman, said the law was unconstitutional because it allowed a criminal prosecution -- a key function of the executive branch -- to be performed by someone who was neither appointed, supervised nor effectively subject to removal by the head of that branch, the president.
In addition, Silberman said, the law impermissibly involved the judiciary in prosecutorial matters by having a three-judge panel supervise independent counsels.
The decision was a major victory for the Justice Department, which joined in challenging the constitutionality of the independent counsel provision of the 1978 Ethics in Government Act.
Congress voted overwhelmingly last year to extend for five years the system of having court-appointed independent counsels investigate allegations of wrongdoing by high-ranking government officials.
President Reagan signed the legislation despite what he said were "very strong doubts about its constitutionality." Although the new law was not directly at issue in the appeals court ruling, the reasoning indicates that it too would be found unconstitutional.
In the minority set-aside case, Richmond v. Croson, the city is appealing a decision by a divided three-judge panel of the 4th U.S. Circuit Court of Appeals striking down the program as unconstitutional reverse discrimination.
The city, which is 50 percent black, began the program in 1983 after determining that only two-thirds of 1 percent of the $124 million in construction contracts had been awarded in the preceding five years to minority-owned business.
Under a five-year plan established by the city, any construction firm awarded a contract by the city, unless it is granted a waiver, is required to subcontract 30 percent of the value of the contract to minority-owned businesses.
A local firm, J.A. Croson Co., which was interested in obtaining a contract for installation of plumbing fixtures at the city jail, sued to have the plan declared unconstitutional.
A federal district judge, after trial, ruled in favor of the city, as did the appeals court. Croson appealed, and in 1986 the high court, after ruling in a Michigan teachers affirmative-action case, sent the Croson case back to the appeals court for further review.
The appeals court then reversed itself, finding that the Richmond plan was a remedy for general "societal discrimination" rather than based on proof of discrimination by the city. The panel majority decided that, under the high court's reasoning in the Michigan case, "a racial preference cannot rest on broad-brush assumptions of historical discrimination." Richmond must find evidence of its discrimination in awarding construction contracts, the panel said.
A ruling in the case, which is expected to be argued next fall, could affect not only set-aside programs but affirmative-action programs in general, attorneys said yesterday. The court also has an appeal pending in a case involving a federal set-aside program. The justices recently asked for the federal government's viewsin that case.
The blood-donor case, Tarrant County Hospital District v. Hughes, involves a medical malpractice lawsuit against a Fort Worth hospital in which the mother of a premature baby claimed that her daughter contracted acquired immune deficiency syndrome (AIDS) through blood transfusions.
During the discovery process in her suit, the woman, Belinda Jackson, asked the hospital to turn over the names and addresses of all blood donors.
The hospital refused, saying that the information was protected from discovery by the donors' constitutional right of privacy and that release of the information would reduce the number of donors needed to maintain adequate blood supplies. The trial judge disagreed, ordering the list provided, and a Texas appeals court upheld the ruling.
The Florida Supreme Court last year reached the opposite conclusion in a similar case. That court said the plaintiffs, once they knew the names of donors, might then contact co-workers, friends, employers and others about each donor, attempting to find out about their sex lives, drug use or general life style.
The Texas appeals court, however, said there was no "impermissible" violation of the donors' right to privacy and that the trial judge could take adequate steps to assure that the privacy rights of donors were protected.
In other action, the court:
Agreed to decide whether police must obtain warrants before conducting aerial searches for marijuana from low-flying helicopters. The Florida Supreme Court, acting in Florida v. Riley, ruled that such a search violated Michael Riley's right to privacy under the Fourth Amendment.
Turned down Marine Lt. Col. Oliver L. North's latest effort to block investigation of his role in the Iran-contra affair. The justices let stand a two-paragraph appeals court ruling that North may not use a civil lawsuit to block independent counsel Lawrence E. Walsh's criminal investigation.