Supreme Court's Refusal to Resolve Differences Upsets Companies

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WASHINGTON -- If the Supreme Court won't resolve a dispute among lower courts, who will?

That's a question plenty of companies face because of cases like those involving Dillard Department Stores Inc. and Preferred Meal Systems Inc. Both opened themselves to penalties by firing workers without the 60-day notice required by a federal plant-closing law. Yet, one U.S. appeals court told Dillard it had to pay a little more than eight weeks' wages to fired Louisiana workers, while a different appeals court in Pennsylvania said Preferred owed about 12 weeks' pay.

The Supreme Court could lay down the law in a disagreement like this. But the high court balked, something it's doing more often when the nation's 13 federal appeals courts reach conflicting conclusions. "It's frustrating and confusing," said Elliot Mandel, a lawyer for Preferred, who asked the high court to clear up questions about the penalty. The Supreme Court doesn't say why it will or won't hear a case, and unlike other federal courts, it can take a case or leave it. To win high-court review, an appeal needs backing from four of the nine justices. "You never know why they consider certain things important or not," said Washington lawyer William Kilberg. This much is clear: The court hears about half as many cases as it did in the 1960s, and at least some of the reduction is due to the court's reluctance to tackle lower-court disagreements. Some of the credit or blame for this may lie with Chief Justice William Rehnquist. He says that the Supreme Court's main job is to deal with great constitutional or legal issues -- not pedestrian commercial squabbles that won't go down in the history books. These days, lawyers say, a conflict among two appeals courts isn't enough to grab the court's attention. Instead, the court waits for more lower courts to address the same question, hoping that things will clear up without intervention by Rehnquist and company. That looks like the Supreme Court's stand on the plant-closing law, which says companies must give 60 days notice before a plant closing or major layoff. If they don't, the law says employers must pay workers one day's wage for each day without the required notice. After Preferred closed a Pennsylvania plant that made pre-packaged school meals, a Philadelphia appeals court said the company owed workers 60 days pay, including weekends. …