What’s a Court to do?

Medellín v. Dretke

A Mexican national, Medellin, who was convicted of a capital crime, was granted review by the Supreme Court regarding the deprivation of his right to consular access during his trial, afforded by the Vienna Convention on Consular Relations. The Court granted review to determine (1) whether federal court is bound by the International Court of Justice’s (ICJ) ruling that the convictions of Medellin, and 54 other Mexican nationals, must be reconsidered “without regard to procedural default doctrines” (whatever that means); and (2) whether federal court should give effect to the ICJ’s judgement.

Then, President Bush issued a memorandum stating that State courts would give effect to the Convention. Meanwhile, Medellin began habeaus corpus proceedings in lower court, relying on this memorandum. The majority here sees these proceedings in lower court as possibly providing the relief that Medellin sought in the Supreme Court with this case.

The majority explains that the lower court would have to rule on a number of issues to determine if Medellin is entitled to win his habeas corpus proceedings. The lower court could the rights afforded by the ICJ are not “cognizable,” since habeas corpus is only provided where there has been a “fundamental defect” in the court. The lower court could also find that Medellin failed to show that the law had been applied in a way that had been “contrary to, or an unreasonable application of clearly established Federal law, as determined by the Supreme Court.” Additionally, there is the issue that defendants are not generally allowed to enforce a new rule of law. Finally, Medellin needs a Certificate of Appealability, which is only allowed where “there is ‘a substantial showing of the denial of a constitutional right,’” and therefore Medellin would have to show that the denial of a right afforded by an international treaty violated his constitutional rights.

The dissent is concerned with the propriety of avoiding a decision on Medellin’s current appeal, and whether these questions should be left for lower courts to decide, though the Supreme Court would have jurisdiction to clarify any lower court decision. I don’t understand most of this because so much of it is procedural stuff that I have no exposure to. The Supreme Court decided to revoke certiorari for now, but this case will probably be back.

Can a Defendant/Convict Appear in Shackles During Sentencing?

Deck v. Missouri

Camaren Deck and his sister gained entrance to an elderly couple’s home by asking for directions. After robbing them, Deck considered for 10 minutes whether or not to kill them, ultimately deciding to do so. After being found guilty, Deck appeared before a jury during sentencing in shackles. The Court here decided that the appearance of a defendant in shackles during sentencing violates due process of the court.

It is unconstitutional for a defendant to be put in shackles during trial because it prejudices the jury, and implicitly violates the proviso that defendants are innocent at all times during their trial. However, during sentencing, the defendant is no longer innocent. In this case, the majority of the court found that for a number of reasons, a defendant appearing in shackles violates due process because it prejudices the jury as to the dangerousness of the defendant.

The dissent argues (citing vast amounts of precedent) that the common law supporting the majority’s opinion does not apply today, and that there is no national consensus as the majority argues. However, it seems that the majority only refers to common law to ascertain broad principles of objectivity during trial, rather than true precedent. The dissent also argues that there was sufficient cause to put the defendant in shackles, including the fact that he had participated in prison breaks before. The majority argued that while this may be true, the lower court did not address this issue in order to show cause, indicating that the decision was arbitrary. The dissent goes on to counter each argument that the majority makes as to prejudice, arguing that the proper balance should be in favor of courtroom security.

As compelling as the arguments for the majority are (I will not list them here), including the argument regarding prejudice, because the defendant is in fact guilty during sentencing, I would hope that jury could put aside any prejudice that shackles would convey. It may be necessary for a judge to intimate that to the jury, but the judgement here goes much further.

To what Extent Can the State Limit Participation in a Primary?

Clingman v. Beaver

Oklahoma’s semi-open primary law is challenged by the Libertarian party (LPO) because it prohibits anyone registered as anything other than Libertarian or Independent from voting in its primaries, even while the LPO is seeking the votes of Democrats and Republicans.

This case is framed in the First and Fourteenth Amendment’s right to association. The majority indicates that a voter maintains the ability to freely associate by changing parties, and that voters have no associational right to vote with the LPO while maintaining their association with another party because they are not “banding together” with the LPO, a term that is traditionally used to describe free association. The majority declares that strict scrutiny need not be applied because the burden of this law on speech is not “severe.” Thus the law does not have to be “narrowly tailored to a valid State interest,” but rather must simply fulfill an “important regulatory” State interest

The majority then gives 5 reasons that legitimate Oklahoma’s interest. By opening the primaries to all voters, (1) the LPO will be overrun by non Libertarians, (2) This will create voter confusion, (3) The State has an interest in maintaining voter classifications as viable and identifiable, (4) This would interfere with electioneering and reduce the ability of the State to encourage voter participation, and (5) This would allow for “party raiding.” For example: Democratic voters could choose a candidate to siphon off votes from a Republican candidate, or a disenfranchised Democratic candidate could switch to the LPO and destroy any possibility of another Democratic candidate from succeeding.

I entirely agree with Justice O’Connor’s opinion, concurring in part. While she concurs with the majority, she disagrees with the premises (1) “that a voter forms a cognizable association with a political party only by registering with that party” and (2) “that a voter can only form a cognizable association with one party at a time.” Justice O’Connor also argues that some other issues raised after trial and before the review by the Supreme Court should not be addressed, but do raise serious questions that may change the outcome of the case as the effect of the law would have to be considered cumulatively. She states that “even if each part of a regulatory regime might be upheld if challenged separately, one or another of these parts might have to fall if the overall scheme unreasonably curtails associational freedoms.”

The dissent simply argues that none of the five intersts are sufficient to justify this law. As to the fifth reason (the only one that I find truly compelling) the dissent argues that the District Court found it “unpersuasive,” and that voters and candidates would have to be exceptionally cunning to make this reason viable. However, from experience I am led to believe that (especially in elections) anything is possible, and thus the dissent’s argument is itself unpersuasive.

Compelled Speech: “Beef, it’s what’s for dinner.”

Having just linked this case in the recent Rumsfeld v. Forum for Academic and Institutional Rights, Inc. case, I find this summary inadequate in its explanation of the exception for compelled Government speech. Sorry.

Johanns v. Livestock Marketing Association

This case deals with an objection by some beef producers that advertisements, paid for by a "checkoff" (which requires that a $1 assessment on each beef product), produced by a governmental board, and attributed to "Beef Producers of America," violate their First Amendment protection against compelled speech. The producers believe that the ads promoting that "Beef. It's what's for dinner" do not allow the producers to promote their own type of beef.

The opinion of the Court describes an exception to the First Amendment via governmental speech. This case is evaluated in terms of a previous case which was almost identical to this one where mushroom farmers won a case against similar ads. The majority distinguishes the mushroom case from this case because of the statutorily required governmental oversight of the beef advertisements. The first part of the objection, that the views of a limited interest group are represented and attributed to all beef producers, is dismissed because of the required governmental oversight, and the argument that the beef producers have no right to pay their taxes into a general fund rather than to a specific purpose. The second part of the objection, that the tagline "paid for the beef producers of America" attributes views to beef producers that are not their own, is dismissed because the statute does not require that the advertisements be attributed to "beef producers" and because this would not sufficiently attribute these views to any given beef producer.

The dissent describes this relatively new governmental speech exception to the First Amendment as the propositions that (1) that the government must be able to speak without a First Amendment heckler's veto, and (2) that the First Amendment is served by a check on the government provided by the political process. The dissent argues that (2) is not fulfilled by this law, attributing to the majority the view that the absence of a deceptive requirement in the law is sufficient. The dissent then argues that the First Amendment is not protected by the possibility of discovery, but rather that the attribution to the governmental board must be apparent.

While it is factually true that the ads are "paid for by the beef producers of America," this tagline would make me think that they, rather than the Federal government, produced the ad. This tagline seems to be a half truth. Yes, the beef producers “paid for” the ads, but they did not produce them. It would then be better if the tagline were “paid for by the beef producers of America, and produced by the Beef Board…something, something.” The governmental speech exception is important and should be upheld, but I would be inclined to agree with the dissent that the attribution should be absolutely apparent, rather than merely available to count as an exception to the First Amendment’s protection from compelled speech.

Re-reading the 'Takings' Clause

Lingle v. Chevron U. S. A. Inc.

This is a unanimous decision by the Court, and one that overturns an important precedent in the Fifth Amendment ‘takings’ clause, that requires just compensation when property is appropriated by the government. I do not know as much about the Fifth Amendment as I do about others so I may miss a few intricacies.

In this case Chevron argued that Hawaii’s law capping rent on its leased property was an unconstitutional taking because it limited the economic benefit that Chevron could derive. The test used was whether the legislation advanced a legitimate State interest. Chevron won because their economist was more persuasive than Hawaii’s in showing that “oil companies would raise wholesale gasoline prices to offset any rent reduction required [the Act], and that the result would be an increase in retail gasoline prices.” Thus, “even if the rent cap did reduce lessee-dealers’ costs, the [lower] court found, they would not pass on any savings to consumers.”

This opinion describes Holmes’ articulation that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking,” and highlights its ambiguity as to the phrase “too far.” The Court also recognized three tests that have been used to clarify this phrase. (1) “the extent to which the regulation has interfered with distinct investment-backed expectations,” (2) the “character of the governmental action”, and (3) whether the action merely affects property interests through “some public program adjusting the benefits and burdens of economic life to promote the com­mon good.” Each “of these tests focuses directly upon the severity of the burden that government imposes upon private property rights.” Alternatively, the standard used in the Chevron case, and the standard that has been generally accepted, is whether the act “substantially advances legitimate State interests.”

In Agins v. City of Tiburon the court articulated that a taking has occurred when the legislation passes the “denies an owner economically viable use of his land” test or the “substantially advances” test. Justice O’Connor demonstrates in this opinion that the disjunctive ‘or’ has been read so as to leave the “substantially advances” test as independent of other tests. She further argues that the “substantially advances” test is a “means-end test,” requiring the law to be based on the extent to which it is effective, something that she views judiciary as being particularly unsuited to evaluate.

Therefore, the Court here holds that legislation may be found to be unconstitutional by alleging a “physical” taking, a “total regulatory taking,” any of the above three tests, or a “land-use exaction” that does not advance the same governmental interest as the legislation addresses.

Is Alcohol Subject to The Commerce Clause’s Restrictions?

Granholm v. Heald

New York and Michigan had laws that regulated the importation of alcohol, and as it happens, these regulations made it much more difficult (if not prohibitively so) for out of state wineries to sell directly to the consumer. For example, in New York, to be able to ship directly to the consumer, a winery would have to open a physical branch in the state. Truth be told this is a very long (73 pages) and relatively boring decision, especially considering how much of it is simply a historical analysis of previous cases dealing with the 21^st Amendment.

The second clause of the 21^st Amendment states that “[t]he transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” In addition, two acts are addressed in this decision, the Webb-Kenyon Act (which is as far as I can tell the same), and the Wilson act. Essentially, the majority is of the opinion that while these acts, in light of the 21^st Amendment, allow states to essentially limitlessly regulate alcohol, the “state laws violate the Commerce Clause if they mandate ‘differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.’” The majority also holds that whatever interest a state has in limiting commerce in alcohol is not justified by this differential treatment because there would be more effective ways of guarding this interest.

The dissent on the other hand uses (among other things) historical decisions regarding clause 2 of the 21^st Amendment to show that when it was enacted its purpose, and the purpose of the two congressional acts, were to put alcohol in a special situation in terms of Congress’ power to regulate commerce.

Here’s my two cents. This decision is long on history and short on real justification (on both sides). Yes, our country is founded on economic freedom, and the prohibition against states discriminating against imports is not new, but by the terms of the amendment and laws, the dissent has a point. As for the dissent, these laws are no more wrong now than they were before, so if it is ok for the states to discriminate against imports, fine (though I doubt it). Otherwise, this is just the way it goes.

EPA Preempting State Law?

Bates v. Dow Agrosciences LLC

29 peanut farmers are appealing a decision against them in a case where they alleged that Dow Agrosciences sold them a pesticide named “Strongarm” with a label that indicated it should be used wherever peanuts are grown. This was also expressed to the farmers verbally. In applying with the EPA for a label Dow learned that their pesticide was not safe anywhere where the Ph level of the soil was over 7.0. The soil in Texas generally has a Ph level of 7.2.

The lower court ruled in favor of Dow on claims of strict liability, negligence, fraud, breach of warranty, and violation of the Texas Trade Practices-Consumer Protection Act (DTPA) because these claims were pre-empted by the EPA’s statute “that States ‘shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.’” The lower court also held that because “oral statements by Dow’s agents… did not differ from statements made on the product’s label, success on those claims would give Dow a “strong incen­tive” to change its label,” which was pre-empted by the EPA’s statute. Similarly, the lower court saw the strict liability claim as a “’disguised’ failure-to-warn claim” which would also be pre-empted.

The Supreme Court here decided that mere motivation to change the packaging was not sufficiently a “requirement,” so the claims against Dow were not preemted. The Court recognized that “requirements” “[reach] beyond positive enactments, such as statutes and regulations,” to include common-law duties, but held that these duties must be a requirement “for labeling or packaging,” and must impose a labeling or packaging requirement “in addition to or different from those re­quired under [the EPA statute].”

The majority found that the fraud and negligent-failure-to-warn claims, since they are premised on common-law rules, qualify as “requirements for labeling or packaging,” but that “a state-law labeling requirement is not pre-empted by [the EPA statute] if it is equivalent to, and fully consistent with… [federal] misbranding provisions.” The Court then left it to the lower courts to determine if these common-law rules are consistent with the Federal statute. The majority also explained that while failing Congress’ “clear and manifest intent” to supplant state federal law is assumed not to do so, “a state-law labeling re­quirement must in fact be equivalent to [its federal counterpart] in order to survive pre-emption.”

The opinion concurring in judgment and dissenting in part argued that the breach of warranty claim, and the claim under the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) should also be remanded.

What Does "Properly Filed" Mean (Boring)

Pace v. DiGuglielmo

A very boring case. Like many people on death row, or serving life in prison, Pace is in the process of exhausting ALL legal options. At some point the court gets tired of hearing it, and the legislature has required that all habeus corpus petitions be filed within a year of sentencing. This time is extended or 'tolled' if there is petition pending.

The majority found that simply getting a clerk to accept the paper was not enough for a petition to be "properly filed," while the dissent argues that it is properly filed when "[the petition's] delivery and acceptance are in accordance with the applicable laws and rules governing filings." This would allow the filing to be considered for 'tolling' even when its "legal claims are procedurally barred." The dissent then questioned whether a statute of limitation is akin to A) a precondition to filing (like a fee) or B) a procedural bar, where A would make his application improperly filed, and B would not. There is then a somewhat interesting discussion about case law, and whether standard A or standard B is most congruent with our notions of justice, but it is all procedural. Like I said, a boring case (guess which one the dissent thought it was).