The Requirements of the Charge of Retaliatory Prosecution: Making Policy

Hartman v. Moore

William Moore, with Recognition Equipment Inc. (REI) had already received $50 million to develop a multi-line optical character reader when the post office began its push to get people to start using their full zip codes (6 digit – 4 digit) which would permit the post office to retrieve routing information from a single line. Some congressmen had reservations about the single line technology which REI exploited, allegedly against direct requests by the Postmaster General, by hiring a P.R. firm, recommended by a Postal Service governor, and successfully lobbying Congress. The multi-line contract, however, went to a competing firm, and two investigations were initiated against REI. After 6 weeks a court determined that there was a “complete lack of direct evidence” and granted REI’s motion for summary judgment. REI alleges here that the prosecutor and inspectors had engineered the cases against it in retaliation for its criticism of the Postal Service in violation of the First Amendment. The question here is whether the plaintiffs must provide evidence a lack of probable cause.

The Court states that it is a matter of settled law the Constitution prohibits Government officials from retaliating against free speech and that “retaliation is subject to recovery as the but-for cause of official action offending the Constitution.” The inspectors argue that (1) without a no-probable-cause requirement frivolous “Bivens actions” (actions for retaliatory prosecutions) cannot be screened effectively, and (2) that the common law tort of “malicious prosecution” indicates that there should be such a requirement. Calling the common law a “source of inspired examples’ (rather than “prefabricated components”) the Court argues that there are no more Bivens actions in circuits that do not have a no-probable-cause requirement than in ones that do, and that there is no more reason to believe that Bivens actions are any more synonymous with “malicious prosecution” than “abuse of process,” which has no such requirement.

The Court offers two reasons for requiring a plaintiff to plead and prove no-probable-cause. First, such a requirement is consistent with the requirement that the prosecution be the but-for effect of unconstitutional motives, noting that its litigation is “highly likely” because of its evidentiary value. Second, noting that in cases such as this one the prosecutor is not the one who allegedly harbored the unconstitutional animus. Therefore, in order to reflect an investigator’s inducement of the prosecution, as well as to overcome the presumption that a prosecutor acts appropriately, the Court decides that “the [necessary] connection, to be alleged and shown, is the absence of probable cause”. In the end, the Court accepts that the lack of probable cause is neither necessary nor sufficient, but considers it such an essential part of the necessary accusations that it should be considered part of the charge. This one sounds a lot like policy making.

The dissent takes issue with saddling the alleged victim with the burden of proving no-probable cause, and suggests that the appeals court struck the right balance.

What Does Due Process Require When a Notice of Tax Sale is Returned?

Jones v. Flowers

While Jones consistently paid his mortgage for 30 years the mortgage company paid the property taxes on his house. Once Jones had paid off the mortgage the property taxes went unpaid and the Government eventually decided to sell the delinquent property. The Government, in an attempt to comply with its Due Process requirement that it provide “notice and opportunity for hearing appropriate to the nature of the case” (a requirement that varies with the circumstances) mailed, by certified mail, a notice to the house which was returned as unrecieved. It also sent another notice that it would sell the property, which had been advertised in the paper. Jones finally discovered that his property had been sold when the new owner had him served with an unlawful detainer notice immediately following the 3o day period for post-sale redemption. This case addresses the question of the extent to which the Government must go in its attempts to contact the owner; specifically, whether the Government's notice being returned before the tax sale is a "circumstance or condition" that varies the notice required.

In order to fulfill the Due Process requirement the owner need not actually receive notice. Rather, taking all circumstances into account, notice need only be reasonably calculated to appraise the owner of the situation. The State argues that because Jones was responsible for the property the Governments mailing to that address satisfied the requirement. The Court had previously held that if notice is due the Government must employ the means of someone actually desirous of notifying the owner and that the determination must balance the interest of the State and the individual. The Court has also held that the Due Process requirement was not fulfilled when the State mailed notices to the home of someone it knew to be incarcerated, or when it posted and mailed notices regarding the property of a person it knew to be incompetent and without a guardian's protection. The State argues that the constitutionality of a notice procedure applies ex ante rather than post hoc (before the procedure, not after), but the Court asserts that when part of its notice procedure includes being informed as to the effectiveness of that procedure (as in the case of certified mail) further requirements do not contravene the principle, especially since in this case the notice was returned with almost two years left before the property could be sold.

The State's 3 remaining arguments are that (1) Jones himself provided the legal address, and had a duty to keep it updated; (2) Second, “after failing to receive a property tax bill and pay property taxes, a property holder is on inquiry-notice that his property is subject to governmental taking;" and (3) Jones was obligated to ensure that those in whose hands he left the property would alert him if it were in jeopardy. The Court holds that neither of the first two arguments change the State's obligation since Jones' failure to maintain his address did not forfeit any right he may have had, and since knowledge of a property's delinquency is not equal to knowledge of its pending tax sale. As for the third argument, the Court notes that the occupant is not the agent of the owner in all respects, and that the occupant cannot be expected to know what the mailing concerns. Finally, the Court addresses the question as to whether there were any other reasonable steps the State could have taken (if there were not, of course, the State's procedure would be considered adequate). The Court suggests that resending the notice by regular mail, so that no signature would be required, would have been reasonable. Since this fact is not changed by the publication of the tax sale, that publication did not satisfy the Due Process requirement either.

The Court also addresses the State's policy arguments. The additional requirements would not overly burden the state since it already engages in such practices under alternate circumstances, and because the cost is transferred to the estate. This rule would not motivate States to abandon certified mail (and other success-reporting methods) since they must often prove that notice was delivered. The Court does not, but I will, note the irony of the argument that public policy would be worse off if States did not use success-reporting delivery procedures because they refused to respond to reports of failure.

Justice Thomas, for the dissent, argues that because Jones provided his mailing address the State had good reason to believe that the notice would reach him, and exceeded its requirement when it published notice of the tax sale. The dissent endorses the distinction between ex ante and post hoc requirements as well as the policy arguments, and argues that because Due Process does not require actual notice (only an attempt) once the Government learns of the failure of its delivery the implication is that it need not take any additional steps. Justice Thomas also suggests that if the State had only used regular mail Jones would have argued that it was required to use certified mail, and that the Court's suggestion that the State re-send the notice to "occupant" diverges from the requirement that the State reasonably attempt to notify the owner.

Courts May Invoke Threshold Bars Over the State's Miscalculations

Day v. McDonough

The Antiterrorism and Effective Death Penalty Act puts a one year limit on appeals, but does not count the time that an appellant waits on a timely filed application for postconviction relief, towards that one year period (which begins after final judgment on direct review or the expiration of its availability). Here, the petitioner filed an application for a writ of habeas corpus after the one year time period. The State did not argue that the application was untimely, but apparently miscalculated its timeliness. A federal appeals court may not, on its own initiative disregard the State’s conscious decision to waive the limitations defense, and the failure to raise such a defense in responding submissions or amendments thereto is generally considered to be a waiver of the defense. The question here is whether, when the State does not consciously choose to waive the defense, but simply miscalculates, a court may deem to application untimely on its own initiative. Documents submitted by the State, which concede the application’s timeliness show that if the State had followed the Eleventh Circuit’s instruction on calculating timeliness no such concession would have been made.

Timeliness is a threshold bar, also termed “nonjurisdictional,” others of which include exhaustion of state remedies, procedural default, and nonretroactivity. The Court has held that the first may be invoked by a court despite the respondent’s failure to raise the issue. The AEDPA expressly mandates such a rule with regards to the exhaustion requirement. Day argues that because a Court is required to “promptly examine” an application upon its submission the court may not invoke a procedural bar on its own initiative after a petition has been answered. The Court holds that, with normal procedural safeguards (such as the requirement that it not be prejudicial and the recognition that a State may choose not to raise the issue), a Court need not suppress its independent conclusion regarding the timeliness of an application, but meanwhile need not make such an investigation. This decision implies that the same would hold for other nonjurisdictional rules.

Justice Stevens dissents, and suggests that it is improvident to rule on this case before ruling on how to calculate the tolling period, as the Court has already decided to do in a later case, an issue which will affect the outcome of this case as well. He suggests that the appeals court keep this case on its docket until the late decision deciding how to calculate the time has been decided.

The dissent argues that the Rules of Civil Procedure are binding to the extent that they do not contradict express federal law. Therefore, according to the dissent, because the Rules of Civil Procedure include the rule that failure to raise an issue amounts to forfeiture, and because this rule is not inconsistent with the express law governing habeas petitions, or a court’s sua sponte (own initiative) review, the Rules should carry. Justice Scalia argues that other nonjurisdictional rules were created by habeas courts in order to further the interests of comity and finality that habeas petitions served. Since the time limitation was not created in the same way, according to the dissent, there is no reason to treat it in the same way, even if it was arguably created for the same purpose. Since the Court unanimously agrees that “the Magistrate Judge, instead of acting sua sponte, might have informed the State of its obvious computation error and entertained an amendment to the State’s answer,” the dissent argues that there was no reason to diverge from the Rules of Civil Procedure

Are Counties Covered by Sovereign Immunity

Northern Ins. Co. of N. Y. v. Chatham County

Chatham County in Georgia operates a drawbridge which previously failed and caused damage to a private boat in excess of the amount of $130,000. The County’s insurance provider, Northern Insurance Company, paid the private owner and sued the County in admiralty for the amount, a suit which the County argues is barred by sovereign immunity. While sovereign immunity does not extend to counties per se, but does extend to counties where the counties exercise delegated state powers (Broward County v. Wickman). The Eleventh Circuit found this protection not in the Eleventh Amendment, but in residual common law (a footnote indicates that it is unclear whether the County argues that this expanded protection derives from the constitutional structure or bare common law). Here the Court notes that ‘Eleventh Amendment Immunity’ is a convenient shorthand for the concept of innate sovereign immunity, but is something of a misnomer, as this sovereign immunity is prior to the Eleventh Amendment (it neither derives from, nor is limited by the terms of the Amendment).

The County argues that the Court should therefore be willing to adopt a broader test that that employed under the Eleventh Amendment to determine whether the County (or any other entity) is acting as an arm of the state; the Court declines and limits its ‘arm-of-the-state’ determination to precedent. Alternatively, the County asks the Court to recognizes an extended sovereign immunity for counties and municipalities in admiralty suits because they are carrying out “core state functions with regard to navigable waters.” This the Court declines to do, as immunity in admiralty suits is considered to be merely an extension of simple sovereign immunity. Finally, the Court distinguishes between two cases, one of which addressed the substantive law of admiralty, the other of which addressed the question of a court’s jurisdiction in admiralty cases, and held that only the former is applicable since it addressed the substantive law of admiralty because it found that sovereign immunity does not protect municipalities.