- The Washington Times - Tuesday, June 10, 2003

The Supreme Court, for lack of a tie-breaking vote, cleared the way yesterday for veterans who believe Agent Orange caused their cancer to reopen long-settled legal actions against Dow Chemical Co. and Monsanto Co.

The two-paragraph Agent Orange decision was among a handful of otherwise routine cases resolved by the justices who begin Monday two climactic weeks in which they will decide the 14 remaining cases on which arguments were heard.

Those appeals include constitutional challenges to the University of Michigan’s race-based system for selecting new students, and a Texas sodomy law that applies only to homosexual conduct.

Monsanto and Dow feared that yesterday’s 4-4 decision would reopen a broad range of assertions that the 1984 settlement was intended to close and renew the companies’ exposure to an open-ended series of expensive lawsuits.

The 2nd U.S. Circuit Court of Appeals disagreed while considering a case filed by veterans whose cancer was diagnosed after that historic settlement. Under Supreme Court rules, the rare deadlock affirmed the 2nd Circuit decision in favor of retired helicopter pilot Daniel Stephenson of Florida and remanded for reconsideration the case of New Jersey vice principal Joe Isaacson, who also said his cancer was related to use of the herbicide in Vietnam.

The tie occurred because Justice John Paul Stevens refused to participate. As is the custom, he did not give a reason, but the Associated Press suggested that his decision was based on the 1996 cancer death of his son, John J., 47, a Vietnam veteran.

Yesterday’s rulings also included:

• A 9-0 decision that Iowa may tax slot machines at dog and horse tracks more heavily (36 percent) than riverboat slots (20 percent).

• Refusal to hear the appeal of pornography merchant Stephen Cohen, who says he is under house arrest in Mexico and seeks to avoid paying a $65 million judgment to Gary Kremen of San Francisco for fraudulently taking control of Mr. Kremen’s Sex.com Web site.

• Agreement to decide next term whether Sylvia Crawford’s incriminating statement to police was properly admitted as evidence at the assault trial of her husband, Michael Crawford. Mrs. Crawford, described as both a victim and a “potential accomplice,” invoked the spousal right not to testify against her husband, but a court admitted her written statement given to police on the night of the attack.

• Revival of lawsuits by Arizona and Nevada dairies contesting California milk-pricing regulations, which they say usurp congressional power to regulate interstate commerce. The only dissenter from the 8-1 vote was Justice Clarence Thomas, who formerly led the Equal Employment Opportunity Commission.

• The unanimous decision that the only woman employed at a Caesars Palace casino warehouse need not show “direct evidence of discrimination” and may use circumstantial evidence for her lawsuit charging that her firing was based on sex discrimination. Catharina Costa and Herbert Gerber were both disciplined for fighting, but she was fired and he was suspended for five days, ostensibly because he had a better disciplinary record.

• Rejected Cincinnati’s appeal to restore what is a “drug-dealer-free” zone in a high-crime neighborhood. The 1996 ordinance banned from city streets in the Over the Rhine neighborhood people arrested or convicted of certain drug crimes. Lower courts held the ordinance unconstitutional for intruding on freedoms of association and travel.

The law was successfully attacked by Patricia Johnson, who was arrested but never indicted on a marijuana-trafficking offense. She was barred for 90 days from entering the neighborhood, where one of her children and five grandchildren lived.

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