The Case Of Where To Hang The National Flag: Paone V. Heritage Plantation Owners

In that dour prediction lies this week's meditation from the high court. The case is Paone v. Heritage Plantation Owners Association. In this less-than-landmark litigation, an unreconstructed Yankee couple asks the Supremes to reopen a state real estate case in the light of an intervening federal act.

Hope springs eternal in every litigant's breast. It must spring with extraordinary vigor in the breasts of William and Janice Paone. Onetime residents of Oak Ridge, N.J., they came as visitors to South Carolina more than a decade ago. Ensorcelled by its charms, they decided to stay there. In 2000 they purchased a lot and built a home on Pawleys Island, on the Atlantic coast some 55 miles north of Charleston. A covenant came with it: All plans for construction, including landscaping, had to be approved by the island's Architectural Review Board (ARB).


The covenants said nothing, specifically, about flagpoles. Counsel for the petitioners summarize the dispute:

"The Paones erected a flagpole to solely fly the American flag in the middle of their front yard. The owners' association, through the ARB, informed the Paones that the location of the flagpole was not permitted and demanded that it be taken down. A dispute arose between the parties over whether the location of the flagpole had been reviewed and approved."

Naturally, a lawsuit followed. The case went to trial. The Paones lost. The trial court awarded the owners' association $42,600 in penalties and attorneys' fees. In January of last year, South Carolina's Court of Appeals affirmed. The state's Supreme Court appeared to be their last hope. In March 2006 they filed a final appeal.

Then, in the best tradition of ancient stagecraft, deus ex machina, the possibility of relief descended from Washington, D.C. On July 24, 2006, President Bush signed into law the Freedom to Display the American Flag Act of 2005. It provides in part:

"A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association ..."

Alas for the Paones, the act goes on to authorize "any reasonable restriction pertaining to the time, place or manner of displaying the flag necessary to protect a substantial interest of the ... residential management association."

This past March, the federal act notwithstanding, South Carolina's Supreme Court refused to hear the Paones' appeal. The homeowners' association is now triumphant. Barring an order from the U.S. Supreme Court, the owners must pay the penalty, transplant the flag, and must also relocate a portable basketball hoop. Will the high court hear their plea? Tension mounts.

Other cases await. Last week the court announced its argument schedule for October. The prospects are wildly exciting.

On Oct. 1 the court will hear two consolidated cases involving Republican politics in the state of Washington. The dispute turns upon a unique system in which hopeful office seekers may get their names on a party's primary ballot "regardless of that party's willingness to be associated with that candidate." Presumably some Washington Republicans do not want to be publicly associated with other Washington Republicans. It seems highly probable. One hour has been allotted for oral argument.

Following argument in the Washington case, the court will hear No. 06-637, Board of Education v. Tom F. , which has at least some human interest. The case demands an interpretation of a law on federal aid that authorizes tuition reimbursement to parents of certain disabled children.

On Tuesday, Oct. 2, the nine justices will find their attention absorbed by two cases involving federal guidelines for imposing sentences. The first case involves the distinction between crack cocaine and powder cocaine. It comes from the 4th Circuit. A companion case, from the 8th Circuit, concerns the justification for extraordinary downward variance in mandatory sentencing guidelines.

On Oct. 3 the court will first hear argument in a case involving the election of trial judges in New York state. A second argument of equal magnitude, this one over money laundering, will settle the meaning of the word "proceeds" in Sect. 1956 of the U.S. Code. The following Monday, the 8th, is Columbus Day. The exhausted court will take the day off.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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