JUSTICE SOUTER MAY HAVE RETIRED FROM THE SUPREME COURT, BUT HE IS STILL HEARING CASES

Justice David Souter retired from the Supreme Court in 2009 — Justice Sonia Sotomayor took his seat — but that doesn’t mean that he has stopped being a judge. At oral argument in the First Circuit Court of Appeals yesterday, Souter — “riding circuit,” as it used to be called — sat as a member of a three-judge panel hearing a case about the placement of a cell tower in Alton, NH. (Souter is not the only retired justice still wearing robes: Justice Sandra Day O’Connor has also spent some time on the appellate bench even though she left the High Court in 2007).

Yesterday’s argument gave Souter the opportunity to demonstrate some unusual judicial spunk. Here are the details of the case: The town of Alton originally deemed the cell tower too high to comply with a local ordinance. Alton residents David and Marilyn Slade also objected as they saw it disturbing their view of the White Mountains and a nearby lake. In response, the telecommunications companies then sued the town of Alton and the Slades entered as an “intervenor” in the suit, joining the side of the town to defend against the companies. (An intervenor, by legal definition, is someone who is not party to a lawsuit but who joins it to, in this case, resist the plaintiff’s claims.)

When the town then entered into a settlement with the companies, allowing the tower to be built, the Slades took issue with the settlement, preferring to continue the suit on their own. The question at hand yesterday, then, was whether an “intervenor” in a lawsuit can keep a suit alive once the original parties have come to a settlement.

The Slades’s lawyer argued that by preventing his clients from continuing the lawsuit the Court would be effectively denying them their constitutional right to due process. Souter, seeming to side with the Slades, said that the lawyer didn’t even need to get to a due process claim. “All you have to argue is that a party of a case cannot be thrown out without [agreeing to a] settlement or [a] judgment [removing the party],” he said.

That set up a heated exchange with the telecommunications company lawyer: “I agree that [the Slads] can’t stop the settlement between your client and the town, but [they’re] claiming the right to litigate by [themselves] to protect [their] own interests,” Souter said. The lawyer responded by asking Souter how there could be a federal remedy to a case where there is no controversy since there is already a settlement. “It means that your settlement agreement is not worth a nickel,” Souter shot back at him. “You settled with one party but haven’t settled with another party.”

TB