Justices to Hear Controversial Cases : Seat Still Vacant as High Court Convenes

The Supreme Court, with one seat still vacant, returns to work today facing a series of highly charged controversies varying from the rights of homosexuals at the CIA to the legal status of trash cans outside California homes.

This month, the eight justices will hear arguments and vote on 15 cases. If it should split along liberal and conservative lines, the court may find itself unable to issue an opinion. This occurred twice during the fall.

However, this is likely to be the last month in which the high court lacks a tiebreaker. Early in February, the Senate is expected to vote to confirm Judge Anthony M. Kennedy of Sacramento, enabling him to fill the ninth seat in time for the court’s next round of arguments, beginning Feb. 22.

But by court tradition, Kennedy will not be called on to resolve difficult, but still undecided, cases that were heard before he arrives.

“A justice who was not on the bench cannot decide a case,” court spokeswoman Toni House said. “That has never been done.”

However, if a case is judged to be of extraordinary importance and the eight justices are evenly split, they could vote to have it reargued next fall, she said.

The key cases to be heard this month include:

--Whether the CIA can fire an employee simply because he is an admitted homosexual.

In 1982, the intelligence agency fired an electronics technician with an “excellent” work record one week after he told a supervisor he was gay. He sued, charging that his constitutional rights were violated, and he won a partial victory in a federal appeals court in Washington.

By a 2-1 vote, that court said the CIA had wide discretion in hiring and firing employees, but it could not follow a blanket policy of dismissing all homosexuals. The government has appealed to the Supreme Court, arguing that the courts have no authority to review the CIA’s employment decisions (William H. Webster (former director of the CIA and now FBI director) vs. John Doe, 86-1294).

--Whether a union in the private sector can collect mandatory dues from workers and spend the money on political causes.

An appeals court in Richmond, Va., said no, relying on earlier Supreme Court rulings involving government employees such as schoolteachers. But the union appealed this ruling and picked up an unexpected ally: the Reagan Administration’s Justice Department.

Government attorneys say federal labor law allows unions in the private sector to collect dues and spend them as they choose. This has outraged the conservative National Right-to-Work Committee, which says no worker should be compelled to pay dues for political campaigns (Communications Workers of America vs. Harry Beck Jr., 86-637).

--Whether a court may allow a child who was a victim of sexual abuse to testify behind a one-way screen.

In this case, the court must decide again whether to carve out special rules for child victims of crime. Last year, the justices said a court may keep a child molester out of court during a pretrial hearing. An Iowa court permitted a child to testify behind the screen, but the suspect says this arrangement violates his Sixth Amendment right to confront his accuser (Coy vs. Iowa, 86-6757).

--Whether a black employee can show she was a victim of race bias in the workplace by presenting statistics showing that no blacks have been promoted.

Last year, the court ruled that statistical evidence--the absence of women in skilled jobs--can justify an employer’s policy of giving preference to females seeking promotions. In this case, the court is called upon to decide whether statistical evidence can force an employer to take affirmative action.

Civil rights groups say statistics can help prove a case of job discrimination. The Reagan Administration says the employee must show she was better qualified than the employee who won the promotion (Clara Watson vs. Fort Work Bank & Trust, 86-6139).

--Whether police in California can examine trash after it has been picked up from a curb.

A state court in Orange County said no. In 1971, the California Supreme Court said household trash must be considered a household possession and, therefore, police may not search through it without a search warrant. Last year, the Supreme Court considered a case of a West Hollywood bookmaker who was arrested based on a search of his trash, but issued no ruling.

This case arose when a Laguna Beach man was arrested for drug dealing after police found drug paraphernalia in his trash. A court in Santa Ana said the evidence could not be used in court, and the state Supreme Court--then under Chief Justice Rose Elizabeth Bird--refused to hear the county’s appeal (California vs. Greenwood, 86-684).

The high court is also expected to issue rulings next week in a series of cases heard during the fall.