Per Curiam Roundup

Lance v. Dennis

After the Colorado General Assembly redrew the districting lines after winning a seat in the House the Colorado Supreme Court held that the assembly was precluded from redistricting more than once every ten years, and mandated that the state’s court’s redistricting plan be implemented. Two cases arose. The question in this case is whether federal court jurisdiction is barred due to the “Rooker-Feldman” doctrine, which reserves jurisdiction over final state-court judgments to the Supreme Court. This rule denies federal court jurisdiction, requiring “(1) ‘the party against whom the doctrine is invoked must have actually been a party to the prior state-court judgment or have been in privity with such a party’; (2) ‘the claim raised in the federal suit must have actually been raised or inextricably intertwined with the state-court judgment’; and (3) ‘the federal claim must not be parallel to the state-court claim.’”

The District Court held that the citizens (plaintiffs here) fulfilled the first requirement because “the outcome of the government’s litigation over a matter of public concern binds its citizens.” The Court, here, holds that this conclusion conflates Rooker-Feldman with general preclusion rules which would find the parties to be in “privity,” because to hold otherwise would “supplant Congress’ mandate [that] federal courts ‘give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.”

Justice Stevens dissents, arguing that because the plaintiffs here are, by Colorado state law, clearly in privity with the assembly. Additionally, he argues that Feldman was wrongly decided.

Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi

This case is at the same time boring and complicated, like an international tax case or something. The Court hold that “the Ninth Circuit either mistakenly relied on a concession by respondent that could not possibly bind petitioner, or else erroneously presumed that there was no relevant distinction between a foreign state and its agencies or instrumentalities.” Blugh.

Ash v. Tyson Foods, Inc.

Here, in a Title VII discrimination case, the court holds that A) although it is true that [calling someone, in this case a black man, “boy”] will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign, and B) the Eleventh Circuit’s standard that the disparity between employment records must be “so apparent as virtually to jump off the page and slap you in the face” in order to establish that the employer’s justification is pretextual is unhelpful and imprecise, and suggests that it may also be too narrow.

An Invalid Contract May Still Contain a Valid Arbitration Agreement

Buckeye Check Cashing, Inc. v. Cardegna

The Cardegnas entered into various contracts with Buckeye Check Cashing, which they now challenge as usurious, and thus, illegal from the outset. These contracts included a clause mandating arbitration of disputes. The case worked its way up the court system over the question of whether a court or an arbitrator should determine the legality of the contract.

The Federal Arbitration Act (FAA) “embodies the national policy favoring arbitration, and places arbitration agreements on equal footing with all other contracts,” and mandates that a written provision or an agreement in writing to submit existing controversies arising out of a contract to arbitration “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” These challenges on the grounds of law or equity, the Court reasons, can be divided into those that challenge the validity of the agreement to arbitrate, and those that challenge the contract as a whole, and that this case is one of the second type.

In Prima Paint Corp. v Flood & Conklin the Court held: “First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance. Third this arbitration law applies in state as well as federal courts. Where the Florida court found that its contract law and public policy do not allow for severable and salvageable parts of an illegal contract, the Court rejects the argument that “enforceability of the arbitration agreement should turn on ‘Florida public policy and contract law.’” The Court then rests its argument that controversies arising under contracts void ab initio (from the start) are still controversies arising under a contract, because the statutory language uses the word to apply to “contracts that later prove to be void” (see FAA, above).

Justice Thomas “remain[s] of the view that the Federal Arbitration Act … does not apply to proceedings in state courts."

The Burden of Proof in Preliminary Injunctions, and Strict Scrutiny

Gonzales v. O Centro Espírita Beneficente União do Vegetal

The Religious Freedom Restoration Act (RFRA) prohibits the Government from “substantially burdening a person’s exercise of religion,” unless (1) the Government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of advancing that compelling governmental interest.” In considering a motion for a preliminary injunction, brought by an Indian tribe engaged in the importation of substances outlawed under Schedule 1 of the Controlled Substances Act (CSA), to be used for concededly genuine religious practice, the Court considers who bears the burden of proof in a motion for preliminary injunction, and whether the Government has demonstrated its compelling interest.

The Court holds that the Free Exercise clause, in cases such as this where it is attached to a ‘compelling interest’ test (strict scrutiny), (1) does require case-by-case assessment of the religious burdens imposed by facially constitutional laws, and (2) that even while it is well established that “the party seeking pretrial relief bears the burden of demonstrating a likelihood of success on the merits,” the burden placed on the Government to demonstrate ‘that application of the burden is in furtherance of a compelling interest,’ is not limited to a trial of the Government’s affirmative defense, but must be borne in a preliminary injunction. Citing Ashcroft v. ACLU, holding that “[a]s the Government bears the burden of proof on the ultimate question of [the challenged Act’s] constitutionality, [the movants] … must be deemed likely to prevail unless the Government has shown that [the movants] proposed less restrictive alternatives are less effective than [enforcing the Act],” the Court refuses to accept that this principle should be limited to “content-based restrictions on speech.” In this case, the arguments made by both sides are equally compelling, and therefore, by the previous rule, the Government must bear the burden.

In addressing the Government’s arguments regarding its compelling interest, the Court rejects the “slippery slope” argument that the CSA can allow for no exceptions whatsoever (see Cutter v. Wilkinson). While accepting that the Government may present evidence that such an exception would cause administrative harm, the Court does not accept that the Government’s argument that an exception would necessarily cause such a harm, or that the Government’s argument that its ability to fulfill its treaty obligations relating to the war on drugs would be hindered, meets the necessary burden. Finally, in opposition to the Government’s contention that the reasons for which Congress placed the substance in Schedule 1 are sufficient to meet such a burden, the Court argues that “Congress had a reason for enacting the RFRA, too,” and that Congress’ recognition that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise” prompted the adoption of the “compelling interest test” to “strik[e] sensible balances between religious liberty and competing prior governmental interests.”

Article 1 vs. 11th Amendment: Sovereign Immunity

Central Va. Community College v. Katz

The Constitution grants Congress the power to create “uniform Laws on the subject of Bankruptcies throughout the United States.” This case addresses the question as to whether Congress attempt to abrogate state sovereign immunity in bankruptcy cases in the US Code is valid in light of Art. 1 Sec. 4 Cl. 8, and the 11th Amendment, and thereby give the bankruptcy court jurisdiction in this case. This case is also about “preferential treatments,” a concept with which I am entirely unfamiliar, so I left it alone.

The majority starts off by observing that “bankruptcy jurisdiction, at its core, is in rem,” (which seems to mean that the court’s jurisdiction is satisfied solely by the person, such as Habeas Corpus cases) a fact that is reasserted throughout the opinion to demonstrate that such “in rem” cases do not implicate state sovereign immunity. After distinguishing a precedent, the opinion then delves into the history of the clause since the framing. The opinion discusses how bankruptcy laws began when individual states would “discharge” bankrupt persons from jail, and how, were this to happen in England the debtor would be free, whereas in America, the debtor was subject to later imprisonment in another jurisdiction. Then, during the framing, citizens were granted the right of Habeas Corpus in connection with bankruptcy cases, 67 years before they would enjoy the right generally (14th Amendment).

In regards to the 11th Amendment, which the Court observes was passed in response to outrage over injustices arising from the treatment of bankruptcy cases, and declares that the amendment stands “not so much for what it says, but for the presupposition of our constitutional structure it confirms.” Thus the Court reaches the implication that the understanding of Art. 1 Sec. 4 Cl. 8, at the time of the 11th Amendment, included the proposition that States were “not to assert any sovereign immunity defense thy might have had in proceedings brought pursuant to “Laws on the subject of Bankruptcies.’” Therefore, “the relevant ‘abrogation’ is the one effected in the plan of the Convention, not by statute.’

The dissent rejects the notion that this decision can stand without explicitly overruling prior cases (Hoffman). The dissent characterizes the 11th Amendment as the rejection of Chisholm v. Georgia (the ruling of which is not set out in the opinion except to indicate that it somehow elucidates the phrase “Unless, therefore, there is a surrender of this immunity in the plan of the [constitutional] convention, it will remain with the states”). Mostly, the dissent argues that it is illogical to say that one clause of Article 1 abrogates state sovereign immunity where none of the others do. This seems to be an apples:oranges comparison, or rest on a property attributed to a group (Article 1) from a set of particulars (the other clauses/sections of Article 1), or simply beg the question. However, without researching Seminole I can’t really make any of those claims. On the other hand, the dissent suggests that sovereign power to enact law (given up in Art. 1), and sovereign immunity from private suit (retained in the 11th Am.) need not run together. The dissent argues that the majority’s Habeas Corpus arguments have no bearing on the case at hand, that uniform laws have nothing to do with sovereign immunity, and that whether bankruptcy cases are generally in rem is not conclusive of the question in this case.

“It would be one thing if the majority simply wanted to overrule Seminole Tribe altogether. That would be wrong, but at least the terms of our disagreement would be transparent.” (Justice Thomas)

P.S: I don't think I really understood this one.

Roundup

Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc.

By the rules of Civil Procedure, if a lawyer believes there is insufficient evidence to uphold a ruling in favor of the opposing party, she may file a motion under Rule 50, requesting a ruling “as a matter of law.” Rule 50(a) sets out this procedure after the evidence has been heard, but before the question is left to the jury. Rule 50(b) sets out the procedure after the ruling has been returned from the jury. This case considers whether the failure to apply for a Rule 50(b) ruling as a matter of law precludes later appeal for lack of evidence.

The majority holds that because of precedent, the common understanding that it is a formality to request a ruling under Rule 50(b) if the circumstances apply, the fact that it is the trial court that is fully acquainted with the original trial, and because courts are encouraged to submit the question to the jury and rule after the verdict, wherever the federal jurisdiction is concerned, the failure to apply for a Rule 50(b) ruling precludes appeal on the basis of lack of evidence. The majority also asserts that precedent dictates that “whether an appellate court may enter judgment in the absence of a postverdict motion, as opposed to whether an appellate court may order a new trial (as the Federal Circuit did here) … is immaterial.” Additionally, the majority refutes the arguments of the dissent by highlighting that the statutory language uses the word “may.” While this word would allow courts jurisdiction, which the majority seems to deny, it does not mandate it. The dissent, for its part, argues that the majority’s assertion that the court of appeals lacked the power to review the case is incorrect (“may” not ‘must’), and that in the interests of the spirit of the law, and justice per se, the appeal should be allowed.

Will v. Hallock (Boring)

When federal agents confiscated computers from a home business those computers and data were damaged. The plaintiffs argue that the waiver of sovereign immunity applies to them in that there was a determination in a lower court that was, while not final (which is usually necessary), was determinative and not reviewable. The Court held that, per the collateral order doctrine, determinative non-appeal-able non-final decisions are directly appeal-able where specific rights are violated (a practical construction of the law rather than a reinterpretation of it), and that whereas this case was decided on purely procedural grounds, jurisdiction in the case is lacking.

Wisconsin Right to Life, Inc. v. Federal Election Comm'n (Per Curium)

A lower court misinterpreted a footnote in McConnel v. Federal Election Commission, and thereby held that "as-applied" challenges to a particular law were barred. The case was sent back.

Alaska v. United States (Decree)

The result of this case, effectively in favor of the US

Standard of Review for Preemptory Challenges

Rice v. Collins

In this case Collins appeals from a conviction, arguing that the prosecutor based a preemptory challenge on an unconstitutional factor; race. The race-neutral reason proffered by the prosecutor was that Juror 16 rolled her eyes in response to a question; that she was young and “might be too tolerant of drug crime;” and that she was “single and lacked ties to the community.” The prosecutor also relied on gender, which was disallowed by the trial court. The Ninth Circuit reversed, holding it was unreasonable to accept the prosecutor’s explanation.

The standard of review follows three steps (1) the defendant is required to make a prima facie showing that the preemptory challenge was based on race; (2) the prosecutor must then offer a race-neutral explanation; at which point (3) the court must “determine whether the defendant has carried his burden of proving purposeful discrimination,” with the burden resting on the challenger. The Ninth Circuit relied (in addition to the fact that the trial court had not witnessed the eye rolling) on the fact that the prosecutor’s erroneous statements about the jurors’ age, the prosecutor’s attempt to use gender as a basis, and skepticism about whether youth and lack of ties to the community were genuine reasons.

The Court here suggested that the first reason could be explained by a simple misstatement, that the improper basis in gender was not sufficient to overturn, and that the third reason could be accepted, and at the very least, it was not unreasonable to do so.

In a concurrence, Justices Breyer and Souter argue that preemptory challenges are often based more on instinct that reason, and that the system is inherently flawed as to their review. They also argue that “legal life without peremptories [sic] is no longer unthinkable” and that the framework should be revisited.

Must Courts Srike Down the Whole Statute When it is Just a Litte Unconstitutional?

Ayotte v. Planned Parenthood of Northern New Eng.

This case concerns a parental notification law in New Hampsire, which bars abortions to minors until 48 hours after a guardian or conservator has been notified (in person or by mail), unless (1) the abortion is necessary to prevent the minor’s death, and there is insufficient time to notify the guardian; (2) the guardian certifies that they have been notified; or (3) a district and appellate judge rule, in an entirely confidential, unconditionally accessible, and expedited judicial process that (a) the minor is mature and capable of informed consent, or (b) that the abortion is in the minor’s best interests. The issue in this case is, having found the law unconstitutional for (among other things) a lack of provision to protect the health of the minor, and the vagueness of the life protection requirement, whether a lower court must invalidate the entire law.

A unanimous Court first recognizes the legitimacy of the law’s purpose, stating that the state unquestionably has the authority to require parental involvement, and then notes that New Hampshire concedes both that a law may not prohibit abortions that are “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother,” and that cases could exist where the law would be unconstitutional as applied. The Court then puts forth three considerations that bear on the question. First, the Court tries to minimalize its nullification. Second, it avoids rewriting legislation, a consideration that depends on how well articulated “the background constitutional rules.” Finally, “the touchstone of any decision about remedy is legislative intent,” though the Court must be “wary of legislatures who would rely on [its] intervention, for ‘[i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside.’”

Since the New Hampshire law contains a severability clause (“[i]f any provision of this subdivision or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions or applications of this subdivision which can be given effect without the invalid provisions or applications.”), and because “so long as they are faithful to the legislative intent, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute’s unconstitutional application,” the case is remanded so the lower courts can consider other issues involved.

What Does "Located" Mean? (And When Does That Meaning Change?)

Wachovia Bank, N. A. v. Schmidts

A business is “’deemed to be a citizen of any state by which it has been incorporated’ and, since 1958, also “of the State where it has its principal place of business” for the purpose of federal-court diversity jurisdiction. National banks specifically are “deemed citizens of the States in which they are respectively located.” The question presented here is whether or not a plaintiff is entitled to a federal forum (to which they are entitled when there is ‘complete diversity’ between the citizenships of the parties) when suing a national bank that maintains a branch in the same state in which the plaintiff is a resident, while being incorporated elsewhere.

The whole issue comes down to a question about the meaning of the word “located.” Congress originally gave automatic federal jurisdiction to national banks, but changed that rule in 1882 to put national banks “on the same footing as the banks of the state where they were located.” In 1887 all banks became “citizens of the States in which they are respectively located.” The Court of Appeals interpreted this term to be congruent with its ordinary meaning, its meaning in precedents regarding subject matter jurisdiction (as opposed to venue jurisdiction), and to have a discrete meaning from “established.”

The unanimous court ruled that (1) the term “located” is a “chameleon word” and that “there is no enduring rigidity about the word;” (2) Congress had in the past, and gave no reason to believe it did not at present, use the words “located” and “established” as synonyms; and (3) that subject matter jurisdiction and venue jurisdiction are different enough in purpose and concept to attach different meaning to the same word. So, effectively, the same word (“located”) will now encompass two oppositional concepts, depending on the context in which it is used. Interesting.

“The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must be constantly guarded against.”

Deference Principles and Statutory Interpretation (Physician Assisted Suicide)

Gonzales v. Oregon

This was one of those extremely long, rather piecemeal, decisions. The arguments made by the dissent help, in places, to illuminate the arguments made by the majority, though neither is, on balance, particularly persuasive.

The Oregon Death With Dignity Act (ODWDA) legalized assisted suicide in accordance with specific (suffice it to say, extensive) safeguards, by which physicians could prescribe legal doses of drugs which are regulated by the federal Controlled Substances Act (CSA). Senators Orrin Hatch and Rep. Henry Hyde invited the DEA to prosecute those doctors. Janet Reno denied the authority to do so, and a measure to grant that authority failed in 1998. This case regards the validity of an interpretive rule issued by the Attorney General Gonzales in 2001 stating that this practice does not conform to a 1971 regulation by the Attorney General requiring that drugs listed in “Schedule II” of the CSA be “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice,” and is thus unlawful.

To qualify to prescribe these drugs, doctors must be certified by the Attorney General, who may “deny, suspend, or revoke” their registration if that registration would be “inconsistent with the public interest.” This requires that the Attorney General “shall” consider (1) the recommendation of the State licensing board (2) the applicant’s experience with dispensing or conducting research with respect to controlled substances (3) the applicant’s conviction record … relating to controlled substances (4) “compliance with applicable State, Federal, or local laws relating to controlled substances” and (5) “such other conduct which may threaten the public health and safety.

The majority suggests that deference to a rule is appropriate when it interprets the agency’s own ambiguous regulation, or if Congress delegated authority to the agency to “make rules carrying the force of law and that the agency interpretation claiming deference was promulgated in the exercise of that authority” (Auer). However, the majority argues, the Regulation simply restated the terms of the statute. Thus, any interpretation of this term should not be considered internal, and “does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute.” Additionally, the regulation was enacted before the amendment in 1984 giving the Attorney General the power to (de)/register physicians, and thus the interpretation “runs counter to the ‘intent at the time of the regulation’s promulgation.’”

Another case (Chevron) suggesting deference “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority” is distinguished because even while the statute’s “legitimate medical use” provision is ambiguous, here the Attorney General is given only “limited” interpretive powers. “The Attorney General is authorized to promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the efficient execution of his functions [of promulgation of rules and regulations, of charging fees relating to registration, and of control of manufacture, distribution, and dispensation of controlled substances].” This is interpreted as power to promulgate rules relating to (1) registration, (2) control, and (3) efficient execution of his duties.

The Court then argues that “control” does not encompass the definition of medical standards because it is limited, by statute, to control over the schedule of substances. The 5 step “registration” portion is not exemplified in the rule, which rather interprets the substantive provisions of the statute. The Government argues that the “public interest provision” grants the power to interpret the statute, which the Court considers to be too expansive to justify, especially considering the power sharing that the Attorney General must engage in with the Secretary as demonstrated by the CSA and post-enactment commentary. In fact the Court presumes that Congress delegated interpretive authority to the “administrative actor in the best position to [do so]” noting that it is the secretary, not the Attorney General, who has medical expertise, and goes on to argue that the definition of “legitimate medical purpose” is necessarily a medical, not legal, decision. The Court also looks to examples where Congress was considerably more explicit than the Attorney General would require to illustrate that Congress never intended to delegate so much power to one executive officer. There is effectively no discussion of federalism other than a recognition that police power and protective power is traditionally the purview of the states.

Scalia, for the dissent, argues (1) the Attorney General’s interpretation of “legitimate medical purpose” is entitled to deference per Auer, (2) this interpretation is by far the most natural interpretation of the Regulation—whose validity is not challenged and is thus correct even upon de novo review, (3) the Attorney General is explicitly given the authority to interpret “public interest’ and thereby implicitly given the authority to interpret “public health and safety,” both interpretations of which are entitled to deference (presumably per Auer).

(1) Because the Directive interpreted an internal regulation, it is entitled to deference under Auer, and resists the suggestion that the Regulation parroted the statute, showing that it interpreted the word “prescription.” In this argument the dissent is even more strained than the majority. (2) Because the definition of the word to which the majority appeals comes from a different section it should be disregarded for an “ordinary meaning.” In the relevant part of the statue, the dissent argues, “control” must take [a substance] as its direct object, whereas the definitional term takes [a process].

The dissent goes on to assert that interpreting “legitimate medical purpose” (in terms of the Attorney General’s power to interpret ‘perscription’) not to include physician assisted suicide is eminently reasonable. Against arguments that the CSA is primarily concerned with recreational drug abuse, the majority argues that “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed ” (Oncale).

(3) The dissent also impugns the argument that Congress chooses to be more explicit, and cites the majority’s example as doing no more than including steroids in the CSA (rather than separately regulating them). Additionally, the dissent argues, that the requirement for more explicit delegation predates Chevron. According to the dissent, the various interpretive powers specifically delegated to the Attorney General were sufficient for him to interpret. Delegation to the Secretary was indirect at best, the Attorney General should not have been expected to undertake the five-factor test outside of actual proceedings, and the authority to interpret “public health” and “public interest” is sufficiently broad so as to delegate the authority contested here.

Justice Thomas essentially argues that “In stark contrast to Raich’s broad conclusions about the scope of the CSA as it pertains to the medicinal use of controlled substances, today this Court concludes that the CSA is merely concerned with fighting ‘drug abuse’ and only insofar as that abuse leads to ‘addiction or abnormal effects on the nervous system.”