Must a State Provide Council in First-Tier Review?

Halbert v. Michigan

In 1994 Michigan's Constitution was amended to allow appeals of convictions based on guilty pleas only at the discretion of the appellate court. The courts then began denying public defenders to indigents in the appeals process. While Michigan is not required by the Constitution to provide an appeals process (and even if it does is not required to provide council in discretionary appeals) if it chooses to provide an appeals process to some, the Constitution does require Equal Protection. There is also the question of what level of Due Process is required. The Court here considers whether it was Constitutional for the Michigan courts to deny appellate council to a Mr. Halbert, making various allegations including ineffective assistance of council, and mistakes in scoring for his sentence.

The Court must decide whether this case should be controlled by Douglas v. California or Ross v. Moffitt. Douglas held that when an indigent has the right to a first appeal the State must provide council, specifically because a first appeal provides adjudication on the merits of the case and because in secondary appeals the defendant has already been provided with assisting documents from his original appeal. Ross held that "a State need not appoint counsel to aid a poor person seeking to pursue a second-tier discretionary appeal" to that State's highest court or to the Supreme Court. The majority rejects the argument that even if Halbert had a right to appellate council he forfeited that right by pleading "no contest," by noting that no such right existed for Halbert could "elect to forgo." The majority also cites Iowa v. Tovar requiring that the waiver of the Constitutional right to council "must be a ‘knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances" after implying that Halbert was not fully aware that he would not have access to council during his appeals process due to the obscurity of the legalistic way in which he was informed of this fact.

Justice Thomas, writing for the dissent, argues that the majority does not base its argument in the Constitution, but rather in the precedent of Douglas alone, which is distinguishable from this case because its aim was to condemn "invidious discrimination against indigent defendants;" a practice in which no one alleges Michigan has participated. More significantly, the dissent argues that the Douglas ruling only applied to appeals to which the defendant had an affirmative right, not discretionary appeals. Justice Thomas goes on to argue that the Equal Protection clause is not violated because the distinction made in the Michigan law is not arbitrary, but rather is made between those that plead guilty and those that do not. The dissent also argues that the division between appeals that are adjudicated on the merits of a case, and those that are not, is of little importance because the appellate court "may opt to correct errors" and thus, by necessity, considers the merits of the case. The dissent further attempts to distinguish Douglas by arguing against that under Douglas defendants are entitled to council because of a "barren" record, rather than the fact that they would be unable (as is the case here) to navigate the appeals process.

As far as Halbert's waiving of his right to council (if it existed), the dissent argues that if it did exist, Halbert could (and did) waive it, and if the right did not exist Halbert's plea was irrelevant to that condition. The dissent also asserts that the question before the Court is whether Halbert waived any federally provided right to council, making Michigan's law on the subject irrelevant.

What Does it Take to Waive Sovereign Immunity

Orff v. United States

In 1963 the United States agreed to a contract to deliver water to farmers in California. One provision of the contract, called §390uu, was a "waiver of sovereign immunity." The United States reneged on a part of the water delivery contract in order to protect the habitat of some threatened species, prompting cases alleging violations of the Due Process and Takings clauses. The question in this case is whether the farmers bringing the case may do so by §390uu's concession, stating

"Consent is given to join the United States as a necessary party defendant in any suit to adjudicate, confirm, validate, or decree the contractual rights of a contracting entity and the United States regarding any contract executed pursuant to Federal reclamation law."

The farmers claim that they are a "contracting entity" as "intended third party beneficiaries." First, the Court notes that §390uu permits the joining of the United States in such a case. The Court then describes the history of the term "necessary party," a class that was previously titled "Persons to be Joined if Feasible." The Court finally notes that in cases where sovereign immunity has been waived the discussion in the contract has been phrased in terms of granting jurisdiction, and bringing claims against the United States. This, combined with the "principle that a waiver of sovereign immunity must be strictly construed in favor of the sovereign" leads to a unanimous decision holding that the United States is saved from prosecution by sovereign immunity.

Boring: How Does the AEDPA Limit Rule 60(b) Motions

Gonzalez v. Crosby

The many time limits during which a prisoner may file a petition for postconviction relief are "tolled" during "pendency of 'properly filed' applications only," meaning that that time period is not counted toward the prisoner’s time limitation. Aurelio Gonzales filed two petitions claiming that his guilty plea was not knowingly and voluntarily entered. After loosing both petitions (his second being dismissed as procedurally barred), and his limitation period having run out, the Supreme Court decided Artuz v. Bennett, holding that "an application for state postconviction relief can be 'properly filed' even if the state courts dismiss it as procedurally barred." The question here is whether Mr. Gonzales' second petition is "properly filed" which would in turn required that his limitation period be tolled during its pendency.

Rule 60(b) which governs certain petitions is superseded by the AEDPA, which requires three things of "second or successive petitions." 1) "Any claim that has already been adjudicated in a previous petition must be dismissed" 2) Any claim that has not must be dismissed unless it relies on A) a new and retroactive rule or B) new facts showing a high probability of actual innocence, and 3) the court of appeals must determine that it "presents a claim not previously raised" that meets "new-rule or actual-innocence provisions." The question in this case thus becomes whether these requirements limit rule 60(b).

The Court first decides that rule 60(b) motions, due to their purpose and character, are Habeas motions and are subject to the same rules as such. At this point, if Mr. Gonzales' second petition did in fact raise a claim (revisiting the merits of a court's decision), it would be limited by the AEDPA. However, if it merely "attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal Habeas proceedings." The Court then finds that Mr. Gonzales' second petition meets the second definition. So Mr. Gonzales wins right? Nope. The Court then asserts that Mr. Gonzales' petition did not satisfy the "extraordinary circumstances" requirement of rule 60(b) because the alternate interpretation of successive appeals in Artuz did not qualify as an extraordinary circumstance.

The dissent argues that the merits of the petition were not before the Court, and the majority therefore had no right to rule on them. The dissent also argues that the discussion of ruling on the merits of the petition by the majority is insufficient, and questions whether the Artuz ruling could not be considered an "extraordinary circumstance" in this case, especially considering other contributing factors.

The "Public Use" Limit of the Takings Clause

Kelo v. New London

The Government is allowed to take private property for public use, in exchange for just compensation, by its powers of eminent domain. In this case, New London CT plans to use this power to acquire the remaining property it requires for its revitalization project, with the goal of creating in excess of 1000 jobs, as well as increasing the tax base. This in response to the closing of the Naval Undersea Warfare Center in 1996 which resulted in the loss of 1500 jobs. The question in this case is whether or not this project qualifies as "public use."

Connecticut's Supreme Court appealed to a legislative determination (chapter 132) which states that "the taking of land, even developed land, as part of an economic development project is a "public use" and in the "public interest." The Court first explains that "public use" has been interpreted not as "use by the public," in large part due to logistical complications, but rather as use for a "public purpose." The majority then goes on to cite past cases in which it "eschewed rigid formulas" and largely deferred to the legislatures. Because this case deals with a whole plan, which the Court describes as "greater than the sum of its parts," the Court considers it appropriate to rule in terms of the entire plan, as opposed to ruling for or against each petitioner individually. The majority argues that just because a private person or entity is benefited by the taking, this does not diminish the benefit to the public. The argument that the city should have to demonstrate "reasonable certainty" that the public benefits will actually be forthcoming is dismissed as an attempt to have an empirical debate over the wisdom of the city's plan in the courtroom (Comparing this tactic with Lingle v. Chevron). Finally, the Court suggests that any state is free to "plac[e] further restrictions on its exercise of the takings power."

Justice Kennedy, in a concurring opinion first addresses the question in terms of a "rational basis" test, by which he tests whether the taking is meant to benefit a private party. He then rejects the contention that there should be a strong presumption of invalidity for any taking because such a rule "would prohibit a large number of government takings that have the purpose and expected effect of conferring substantial benefits on the public at large and so do not offend the Public Use Clause."

Justice O'Connor, dissenting, makes a simple point that "The trouble with economic development takings is that private benefit and incidental public benefit are, by definition, merged and mutually reinforcing." This being the case, the motive behind the taking is of no consequence and cannot be used to determine valid and invalid takings. Further, the limitation that property can only be taken in an effort at improvement is, at best, redundant with the Due Process Clause. Justice O'Connor then accuses the majority of taking undue comfort in facts peculiar to this case. She also distinguishes the precedents used by the majority, defining Berman as a case regarding blight, and Midkiff as a redistributive solution to "the oligopoly in land ownership" in Oahu, and argues that the takings in both of those cases directly effected the legislative goals.

Justice Thomas, among other things, compares the meaning of the word "use" in this case to more restrictive uses elsewhere in the Constitution, as well as the alternate phrase used in the Constitution "public welfare." He goes on to argue that the Takings Clause is a limitation on power, rather than a grant, therefore, any such taking would have to be connected with a just exercise of Congressional authority. Justice Thomas also suggests that the expansive reading of the Takings Clause seen here originated in the early days of the United States when public projects were more important. The remainder of Justice Thomas' decision is largely a history of eminent domain jurisprudence.

The Dormant Commerce Clause

American Trucking Assns., Inc. v. Michigan Pub. Serv. Comm'n

The Commerce Clause of the Constitution is the clause that gives Congress the authority to pass legislation dealing with interstate commerce. In this case the American Trucking Association is objecting to a Michigan law which taxes each truck that engages in intrastate commerce a $100 tax to pay for regulating the size, weight, etc of trucks. The ATA argues that the law is unconstitutional because it fails a few tests that are used to invalidate laws which run counter to the freedom of commerce between the states, violating the "dormant commerce clause." The dormant commerce clause is the complimentary negative proposition to the stated commerce clause, and which prohibits “jeopardizing the welfare of the Nation as a whole” by “plac[ing] burdens on the flow of commerce across its borders that commerce wholly within those borders would not bear.”

The Court uses a number of tests to determine whether the law violates the dormant commerce clause. First, it applies a facial test, which the law passes because it is applied evenly to all trucks engaged in intrastate commerce, and there is no indication that the law in fact affects interstate commerce. The Court then determines that the law does not discriminate against interstate truckers because the taxes are appropriately placed, nor would an alternate tax on miles traveled instead of a lump sum be more appropriate. The Court also addresses the "internal consistency" test, which considers the ramifications if every state were to adopt the same law. While conceding that if every state were to adopt the same law trucks would have to pay several hundred dollars, the Court recognizes that this would only be the case for states in which the trucks engage in intrastate commerce.

Justice Scalia, in an opinion concurring in judgment, argues that the use of these tests is unnecessary. Rather, he asks "whether the fee facially discriminates against interstate commerce" and "whether it is indistinguishable from a type of law previously held unconstitutional by this Court." Justice Thomas on the other hand, rejects the entire concept of the "dormant Commerce Clause."

A Few Quick Notes

I'm going to skip some of these opinions since they are not that interesting, because there are so many issued at the end of the term, and because some even overlap. Below are some quick notes.

Rompilla v. Beard - A case about ineffective assistance of council. Only interesting in regards to the application of Strickland v. Washington, in which case it would be better just to read it. Otherwise its just about the aggregate evidence that proves that the defense lawyers didn't do their job.

Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson - Whatever interesting discussion there is to be had about this case can be found in Dodd v. United States, which refers to this case anyway. The only difference is that the language here is found to be ambiguous which gives the Court more leeway in its interpretation.

Exxon Mobil Corp. v. Allapattah Services, Inc. - This one is over my head. I can understand that it is about original vs. supplemental jurisdiction, and I understand why supplemental jurisdiction should be allowed for "diversity cases" where only one plaintiff meets the "minimum amount in controversy" requirement, but the opinion gets into the differences between Rule 19 and Rule 20 plaintiffs, and comparing Section 1332 and 1337, and its all just too much.

UPDATE 09/04/06: This is the second case that has come up in my law classes. It is disappointing that both of the first two have been ones that I decided to skip, but since I actually have to read this case now, and understand what it's talking about, I guess I'll actually put something up about it.

Mayle v. Felix - I just can't do another habeas case. Here the defendant amended his original filing, which was made in accordance with the AEDPA's one year time limit, but the Court holds that because his amendment asserts a new ground for relief that "differ[s]in both time and type from [the] original pleading" it does not escape the one year limitation.

Bell v. Thompson - Entirely procedural in terms of appeals, rehearings, and habeas corpus. Sometimes I think I should just skip any habeas case.

Can a Condition Alter the Proposition to Which It is Attached?

Dodd v. United States

Michael Dodd was convicted on multiple counts of drug possession as well as a charge of "engaging in a continuing criminal enterprise." More than a year before his conviction the Supreme Court held in Richardson v. United States that to be convicted of engaging in a continuing criminal enterprise the jury had to agree unanimously to the convictions of each of the charges constituting that enterprise, an instruction that was not given to the jury in Dodd's trial. For this reason Dodd filed a motion on April 4, 2001, to vacate his conviction. The applicable one year period in which Dodd could file such a motion began “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” The Court in this case must determine whether the one year limitation began on August 6, 1997 (the date his conviction became final), or on April 19, 2002 (The day that the courts recognized in Ross v. United States, that the right should apply retroactively).

Dodd argues that the right must be (1) recognized by the Court, (2) be newly recognized, and (3) be made retroactive in order to fulfill the prerequisites of the law. Appealing to the 'clear language of the law' the majority here holds that the only date referred to in the text is the date on which the right is first recognized and that the requirement that it be retroactively applicable is only a limiting condition. Essentially the Court is holding that in the proposition "A if B and C" A cannot be altered by condition B or C except to be made true or false.

The dissent argues that the alternate reading is more natural, and squares with the law because it begins the time limit at the point at which the new right is actually available. The dissent objects by arguing that it is nonsensical for Congress to set the length of the one year period, at one year minus whatever interval has gone by after the right has been recognized and until it has been made retroactive, when it is perfectly possible that that interval could be a year or more. Justice Stevens suggests that this dilemma arises out of a Congress' assumption that a right's retroactive application is established at the same time that he right is recognized. Thus, he appeals to the statement in Graham County Soil & Water Conservation Dist. v. United States that “Congress generally drafts statutes of limitations to begin when the cause of action accrues" while the majority distinguishes the Graham County case stating that the law in that case was additionally ambiguous.

A second dissent by Justice Ginsburg builds on Justice Stevens' argument that in this case, for many defendants, their ability to avail themselves of a new right would be effectively nullified. Justice Ginsburg's dissent closes by stating that "it exalts form over reality to equate" this case with Graham County because in the latter case a six year period of limitation is unlikely to (and in fact never has) prevented a defendant from bringing an action under a new right, whereas in that is the result of this case, and is a result that is likely to be repeated.