The Constitutionality of Suspicionless Searches Based on Parole Status.

Samson v. California

California law requires parolees to sign a document “[agreeing] to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant, and with or without cause.” Donald Curtis signed such a waiver and was searched solely on the basis of his status as a parolee. The question here is whether a condition of release can so diminish or eliminate a released prisoner’s reasonable expectation of privacy under the Fourth Amendment to allow a suspicionless search.

The lower courts held that the search conformed to the Fourth Amendment so long as it was not “arbitrary, capricious, or harassing” (California provision). The Court takes the “totality of the circumstances” into account to weigh the individual’s interest in privacy against the legitimate government interest effectuated by the search. On this basis, in United States v. Knights the Court held that a warrantless search based on parolee status as well as reasonable suspicion was constitutional. Describing parole as one step on a continuum from solitary confinement in a maximum security prison to a couple hours of community service, the Court argues that parolees have fewer expectations of privacy than probationers because “parole is more akin to imprisonment than probation is.” Parole, then, is an extension of incarceration which happens to provide the opportunity of serving it outside the prison walls.

The analysis is based on balancing. The parolee has diminished interest in privacy, and the state has an “overwhelming” interest in supervising parolees, reducing recidivism, protecting its population, etc. The Court also gives reasons to believe that these arguments apply specifically to California. By finding the search reasonable on the basis of standard Fourth Amendment analysis the majority avoids finding either that acquiescence to the terms of parole constituted consent, or that as parolees (and thereby, as a class of prisoners) parolees are not entitled to protection under the Fourth Amendment.

Curtis argues that there is a less restrictive means possible, citing programs by other states and the federal government. The majority counters that this forgets the recognition of California’s particular interest, as noted earlier. The Court also denies that “individualized” suspicion goes far beyond what ‘reasonableness’ requires. There is also the argument that these searches make it more difficult for the parolees to reintegrate into society and are therefore arbitrary. The Court rejects this argument because it would apply under a regime requiring suspicion as well. Finally, the majority avoids addressing whether these searches are capricious in fact by arguing that, according to the California constitutio, which prohibits “arbitrary, capricious, or harassing” searches,” the search at issue is not capricious by hypothesis.

According to the dissent the requirement of individualized suspicion has only been dispensed with to satisfy a “special need” beyond the state’s general interest in law enforcement. The dissent also points out that the immediate precedent to which the majority appeals involved a “search by a probation officer that was supported by reasonable suspicion.” In that case the “ongoing supervisory” relationship between the probation officer and the probationer changed the character of the search in that the relationship was not entirely adversarial. Even where the Court has allowed suspicionless searches the dissent argues that it has required programmatic safeguards.

The dissent accuses the majority of reasoning that (1) (as per Hudson v. Palmer) prisoners have no legitimate expectation of privacy; (2) parolees are like prisoners; therefore (3) parolees have no legitimate expectation of privacy. The dissent disagrees with the premise that a parolee is the same as a prisoner, or even materially different from a probationer, since the severity of a parolee’s crimes should only bolster the state’s interest in supervision rather than diminishing the individual’s Fourth Amendment interest. Additionally, the extent to which a prisoner’s Fourth Amendment right to privacy is diminished is based entirely on institutional practicalities of incarceration, practicalities that do not apply to parolees.

The dissent argues that the legitimacy of the individual’s expectation of privacy is not diminished by California’s refusal to acknowledge it. Whatever the dissent might think about the majority’s reliance on the idea that the state could incarcerate parolees and therefore has the power to search them, this does not conform to precedent since a search is an illegitimate punitive measure.

What Statements Are Covered by the Sixth Amendment Confrontation Clause?

Davis v. Washington

Michelle McCottry called told a 911 operator that her ex-boyfriend was attacking her and identified him by name. When the police (who would be the only witnesses other than McCotttry) arrived they observed fresh injuries on her arms and face. She later failed to show in court. The question here is whether the 911 call is admissible under the Confrontation Clause of the Sixth Amendment. “In all criminal prosecutions the accused shall enjoy the right … to be confronted with the witnesses against him.”

In Hammon v. Indiana, the other consolidated case, there was a similar set of circumstances except that there was no 911 recording and upon arrival the police separated the couple and questioned them individually, during which Mrs. Hammon wrote out and signed a battery affidavit. Mr. Hammond’s council objected to a recount of Mrs. Hammon’s statements by the police officers in her absence as well as the affidavit. The trial court admitted the affidavit as an “excited utterance,” an exception to the hearsay rule. The appeals court affirmed, holding that Mrs. Hammon’s statements were not “testimonial,” which it defined as statements “given or taken in significant part for purposes of preserving it for potential future use in legal proceedings,” and therefore admissible in the absence of the witness despite the Confrontation Clause.

Only statements of a “testimonial” nature cause the declarant to be a “witness” and are treated separately from other hearsay. In Crawford the Court held that statements made to police during a Mirandized interrogation were clearly testimonial. The line the Court draws here is between statements made during interrogations “under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency” (nontestimonial) and statements made under “circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution” (testimonial).

The Court then turns to the meaning of “interrogations.” Noting that testimony may arise outside of interrogations the Court addresses whether (1) the Confrontation clause extends only to “testimonial hearsay;” and (2) whether a 911 recording counts. Crawford, held that the Confrontation Clause is targeted at witnesses, and defined witnesses as those who “give testimony,” and in turn defined “testimony” as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” The Court notes that all the Confrontation Clause cases in American precedent involve testimony of the most formal sort, but that the English cases preceding them “did not limit the exclusionary rule to prior court testimony and formal depositions.” The Court distinguishes between the kind of statements made in Crawford and those made in Davis because in Crawford the declarant was recalling events and in Davis the declarant was conveying those events “as they were actually happening” and because the declarant in Davis, as opposed to Crawford, was facing an ongoing emergency. The two cases differ also in that the questions in Davis were clearly directed at resolving the situation rather than documenting it and the level of formality of the questioning.

However, a conversation that begins as an interrogation to determine a need for emergency assistance could “evolve into testimonial statements,” a delineation the Court marks out by saying that “trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial.” As an example of this standard the Court holds that the statements in Hammon were testimonial because of their increased formality (separated questioning, Miranda warning), the fact that the officers were objectively trying to ascertain, not “what is happening,” but “what happened,” and because of the “striking resemblance … to civil –law ex parte examinations.” These statements are clearly testimonial because they aim to supplant actual testimony in court.

In response to some concerns about domestic violence cases in general the Court reminds of an important rule. “The rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds” (one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation).

Justice Thomas argues that two years ago the Court did away with the “general reliability” test under the Confrontation Claus because it was “inherently, and therefore permanently unpredictable” and that the majority’s test here suffers the same fault. The test, additionally, fails to follow the contours of the interests protected by the Confrontation Clause. Justice Thomas does not want to follow the narrowest view of what “witnesses against him” means because that view does not conform to the Clauses history or development, but does not want to follow the broadest view either.

Justice Thomas would look to the resemblance between today’s practices and those of civil ex parte examinations to determine those practices relation to what is prohibited by the Clause. This approach would find an implied exception to the rule for testimony that derived from examination of the suspect and accusers and was transcribed and physically transmitted to a judge within two days. Justice Thomas’ rule would allow some nontestimonial statements to be considered so if their admission in court would resemble the ex parte statement abuses. Finally, Justice Thomas argues that the majority’s rule’s reliance on objectivity would prevent police and prosecutors from deciding when they want to collect testimonial statements, and would leave that question to a judge post hoc.

The Meaning of “Navigable Waters” in the Clean Water Act: Limits on CWA Jurisdiction

Rapanos v. United States

John Rapanos was informed that the wetlands on his property, which were 11 to 20 miles from the nearest body of navigable waters, were waters of the United States. Rapanos filled the wetlands without a permit. The Clean Water Act’s wide ranging criminal liability and civil fines make the process of filling a wetland a difficult and expensive one, and the Army Corps of Engineers “exercises the discretion of an enlightened despot” (as the Court puts it). The “waters of the United States” include “territorial seas” and just about any possible waterway imaginable (temporary streams, storm drains, etc). The Act prohibits “the discharge of a pollutant” including “dredged spoil, … rock, sand, [and] cellar dirt,” a prohibition from which a person may be exempted by a permit issued from the Administrator of the EPA or the Secretary of the Army.

Dissatisfied with the definition of “navigable waters” (“navigable in fact or readily susceptible of being rendered so”) the Corps adopted a far broader definition which included wetlands, rivers, streams, mudflats, sandflats, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and those immediately adjacent to those for which “the use or degradation of which could affect interstate commerce.” The Corp, adopting the “migratory bird rule” interpreted this to include “tributaries” and interpreted that to include, in the Court’s words “virtually any land feature over which rainwater or drainage passes and leaves a visible mark – even if only ‘the presence of litter or debris.’” In Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) the Court clarified that its previous (Riverside Bayview) case which allowed the Corp to extend jurisdiction over a wetland immediately abutting a navigable water did not extend to “nonnavigable isolated, intrastate waters;” a ruling which some lower courts interpreted to not include a direct abutment requirement.

The defined meaning of “navigable waters” in the Act is “the waters of the United States” which explicitly extend further than those waters that are navigable in fact or readily susceptible to be rendered so “as a means to transport interstate or foreign commerce.” Justice Scalia, writing for four Justices and relying on Kennedy’s opinion concurring in judgment for a majority, avoids relying on the qualifiers “navigable” and “of the United States” and focuses on the difference between “waters” and “water” of the United States. “Waters,” Justice Scalia argues, refers to “relatively permanent standing or flowing bodies of water.” Though the Court extended this definition to include the wetlands abutting “hydrographic features” it did not extend that definition to non-hydrographic features in their own right. The CWA refers to other features, like channels and conduits, in the definition of a “point source” which itself is used to define a source of navigable waters. This reading, Scalia argues, is congruent with the stated purpose of the law. Whatever the definition of “waters” may be, the majority argues that “regulation of land use … is quintessential state and local power,” so the Corps interpretation requires a much more concrete basis to usurp such power.

Whenever the opinion refers to Riverside it notes that the extension of the ‘navigable waters’ was effected through a recognition of the significant nexus between those waters and the wetlands with which it was difficult to distinguish, rather than the ecological considerations that were also raised in the case. Scalia takes the opportunity here to define “adjacent” only to include “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right.” To quell concerns he points out that the Act prohibits the discharge of pollutants even into a point source feeding a water of the United States.

The opinion then derides the dissents, arguing that it is almost exclusively based in policy considerations, and criticizes Justice Kennedy’s argument that the case should hinge on the meaning of “significant nexus” from SWANCC, as Fourth Amendment cases hinge on the meaning of “reasonable,” arguing that this is illegitimate as the term is derived from the case rather than the law, and was used as a test to see if a given water was practically indistinguishable from waters of the United States and calling Justice Kennedy’s standard “perfectly opaque.”

Chief Justice Roberts, concurring, laments the fact that there is no clear rule, since the majority

Justice Kennedy argues that the case should be remanded for proper consideration of what “significant nexus” means. “[A]n agency’s construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not I conflict with the expressed intent of Congress.” Justice Kennedy notes that it was the significant nexus that allowed extension in Riverside and the lack thereof that precluded extension in SWANCC. Relying on Congressional intent as well as the text itself Kennedy endorses the premise that “navigable waters” is a broader term than what is in fact or might be made truly navigable. Next, Kennedy suggests that the first limitation the plurality places on the law, that of relative permanency, makes little practical sense given that huge riverways sometimes run dry and that the plurality’s definition of “hydrographic features” has no basis in precedent. As for Scalia’s argument that a point source is defined separately, Kennedy attributes the inference that (a) a point source is a waterway that is intermittent; (b) the separate definitions imply point sources are distinct from navigable waters (this was, to be sure, the upshot of the argument); therefore, navigable waters cannot be intermittent. As for the second limitation, that there must be continuity of water surface Kennedy argues that the Court in Riverside relied on adjacency, not distinguishability to justify the Corp’s jurisdiction since the wetlands were by no means “indistinguishable” from waters of the United States in their own right. The matter of distinguishability then went only to whether the Corp’s conclusion was logical. Kennedy also argues some factual matters about the way wetlands interact with navigable waters that support the Corp’s broader definition and suggests that the definitive character of Scalia’s ruling ties the hands of the Corps.

On the other hand, Justice Kennedy continues, while the word “navigable” in the law cannot mean navigable in fact, it must have some limiting role. Here Kennedy introduces the rule that to the extent that a significant nexus between the disputed feature and truly navigable waters that feature falls within the statute. As for wetlands in particular, this opinion leaves the Corps free to designate some wetlands adjacent to tributaries to be sufficiently incorporated into the system of the navigable waterway. Kennedy sees no conflict between this test and traditional federalism concerns.

Applying this test to one of the consolidated cases Kennedy asserts that this test would require a real quantification of the hydrologic connection between wetlands and the navigable in fact waterways before such a connection could be found to be sufficient. In the next, Kennedy conveys skepticism about speculative or conditional connections.

Justice Stevens’ dissent cites Chevron, holding that the Court’s review is limited to the reasonableness of the agency’s determination, and recalls the practical concerns that suggested that the Corps’ assertion of jurisdiction over the wetlands in Riverside was reasonable. Justice Stevens also aims to distinguish SWANCC because it was not based on the adjacency of a water feature, but with an isolated feature (to which the majority earlier responded that the point is that if an isolated water feature is not covered, and isolated wet feature cannot be either). The “integral” value of abutting wetlands to the “Nation’s waters” is supported by their ecological function and underscored, so the argument goes, by Congress’ acquiescence to the Corps’ regulations.

After echoing the criticism by Justice Kennedy that the rules imposed by the plurality are without basis in the text, purpose, or development of the law, Justice Stevens argues that the requirement of relative permanence is arbitrary and mistaken as a practical matter. Stevens then argues that the plurality’s reliance on the statutory difference in definition between point sources and navigable waters is irrelevant and that the appeal to the stated purpose of the act ignores congressional findings that States should have a larger role to play upon the Acts’ reevaluation 5 years later. Next, Stevens argues that the cannon of construction requiring protection of state authority is misplaced because Congress may pursue its interest in protecting its own waters by, as the congressional record indicates, controlling the discharge of pollutants at the source. Stevens then addresses a second cannon of construction, that of ‘constitutional avoidance,’ arguing that there is no reason to believe that Congress may not control the watersheds that interact with its navigable waters. As for the plurality’s second rule (that “adjacent” wetlands share a water surface) Stevens argues that this neglects the plain meaning of “adjacent” which means lying near, close, or contiguous, and that this should be left to the Corps per Chevron deference.

Stevens then suggests that wetlands categorically have a significant nexus with their adjacent navigable waters and while he does not substantially disagree with Kennedy’s opinion he does not think it prudent to write a judicially crafted rule into the law.

Justice Breyer writes, dissenting, that the Army Corps of Engineers’ role in carrying out the CWA extends to the limits of Congress’ interstate commerce authority, and thus is not for the Court to question, nor are the courts in any position to question, the Corps’ professional determinations.

Does “Employee Benefit Plan” in the Bankruptcy Code Include Compensation Liability Plans?

Howard Delivery Service, Inc. v. Zurich American Ins. Co.

The Bankruptcy code prioritizes claims for unpaid “wages, salaries, or commissions” and unpaid contributions to “an employee benefit plan.” The question here is whether this extends to a compensation liability plan. The law was expanded to include employee benefit plans (one tier below wages) in response to two previous cases holding that neither unpaid contributions to a union welfare plan, nor an employee’s bargained-for contributions to an annuity plan qualified under the previous law which was limited to “wages.”

Noting that because preferential treatment diverges from the general purpose of bankruptcy laws of evenly dispersing funds that preferential treatment should only exist when clearly authorized by Congress, the Court believes that, given a choice between employee benefit plans and liability insurances (such as vehicle, fire, theft insurance), a compensation liability plan should fall within the latter. The Court of Appeals split, one judge finding the statute to clearly authorize the priority, another finding it ambiguous and searching the legislative history to find it covering the compensation liability plan, and another relying on the plain meaning to find the plan not covered.

The majority refuses to look to another statute (the ERISA) for a definition, in part because the definition used there “specifically exempts the ERISA from the genre of plan here at issue,” (any plan “maintained solely for the purpose of complying with applicable workers’ compensation laws”) but mainly because the ERISA was not written with bankruptcy in mind as the Bankruptcy code was, and instead looks to “the essential character of workers’ compensation regimes.” Compensation liability plans benefit both workers and employers, distinguishing those benefits from others covered by the law. The plans are also distinguished by being a response to a State statutory requirement, and the existence of state funds to fall back upon if the employer fails to do so.

The dissent agrees with the observed broader purpose of the law and the rule that priorities should be construed narrowly, but reminds that “this is different, though, from establishing an interpretive principle of strict construction,” since a strict construction can be “in tension” with that broader goal. The dissent sees compensation plans as net benefits to employees and argues that neither the benefit to employers, nor the mandatory nature of the plans, nor even the state fallback funds, should not be used to deny that the plans are employee benefit plans.

The EIRSA defines “employee benefit plan” to include employee welfare benefit plan” which in turn includes “any plan, fund, or program which… was established or is maintained for the purpose of providing … benefits in the event of sickness, accident, disability, death, or unemployment.” The dissent argues this is a term of art, and the exception for legally required plans was deliberately placed in the statute rather than the definintion.

When is Appeal Precluded by 28 U.S.C §1447?

Kircher v. Putnam Funds Trust

To curb perceived abuses of the class-action vehicle Congress passed the Securities Litigation Uniform Standards Act which provides that “state-law ‘covered’ class actions alleging untruth or manipulation in connection with the purchase or sale of a ‘covered’ security may not ‘be maintained in any State or Federal court,’” where a “covered” class action is one “in which damages are sought on behalf of more than 50 people” and a “covered security” is one traded nationally on a recognized exchange. Conversely, any “covered class action brought in any State court involving a covered security” may be removed to federal district court. Eight claimants made claims based in state law on behalf of a class of investors which the respective funds moved to remove to federal court. The district court remanded for lack of subject matter jurisdiction since the claimants, as “holders” of the mutual funds did not satisfy the “in connection with the purchase or sale” requirement of the Act. The question here is, given that a decision by a district court remanding for lack of subject matter jurisdiction are not appealable under 28 U.S.C §1447, is the district court’s decision appealable? The Court of Appeals held that the district court did not have the final say as to the disposition of its opinion, and the preclusion under the Act is not a jurisdictional matter, but a substantive matter.

The majority initially notes that it has “relentlessly” held that an order remanded on the ground that it was removed “improvidently and without jurisdiction” is not appealable under §1447. The Court does not dispute that the case law recognizes that some cases are remanded for lack of jurisdiction where the basis for remand is decidedly substantive. The funds argue that federal jurisdiction did exist because of the Act’s introduction describing “Any covered action,” while the Court notes that this phrase is followed by the phrase “as set forth in subsection (b).” This sounds crazy, but the Funds argue that their reading is necessitated by the doctrine of nonsuperfluousness, but the Court suggests that their reading makes other parts of the law superfluous as well. The Funds also argue that their claim need only be colorable, but for policy reasons, textual reasons, and based on the development of the act, the Court rejects the argument (in a footnote). The Court also distinguishes a precedent on which the Funds rely because it involved an independent basis for federal jurisdiction.

The Court then addresses the implicit argument in the Court of Appeals decision. The Court of Appeals argued that the Act “gives federal courts exclusive jurisdiction to decide the preclusion issue,” collaterally estoping the State court on the issue. The Court holds that the federal court does not have the last word on the issue, and that whereas a State court could rule on the issue in the first instance, it could do so on remand. Additionally, “While the state court cannot review the decision to remand in an appellate way, it is perfectly free to reject the remanding court’s reasoning.”

Justice Scalia writes separately to emphasize that wherever a district court even “purports” to base its ruling on an issue of jurisdiction it is unappealable in accordance with the purpose of the law at issue; to “prevent delay in the trial of remanded cases by protracted litigation of jurisdictional issues."

Limits of the Exclusionary Rule

Hudson v. Michigan

The rule that officers executing a search warrant must knock and announce and provide the occupants an opportunity to open the door is contained in a federal statute and embodied in the Fourth Amendment. (Wilson v. Arkansas). This rule has its natural exceptions (threat of physical violence, destruction of evidence, etc). When executing a search warrant on Brooker Hudson’s home the police did “knock and announce” but only waited 3 to 5 seconds before opening the door. Michigan concedes that the knock and announce rule was violated, the question here is whether the exclusionary rule (evidence obtained illegally is inadmissible in court) applies.

The Court begins by rejecting the broad application of the exclusionary rule from Mapp v. Ohio and points to precedent which indicates that the violation of the Fourth Amendment does not necessarily imply exclusion (Unites States v. Leon). Illegal seizure as a but-for cause of the evidence being obtained is, then, necessary but insufficient to trigger the exclusionary rule. The majority argues that the interests protected by an application of the knock and announce rule must have some relation to the interests protected by the law, and that “The interests protected by the knock-and-announce requirement are quite different—and do not include the shielding of potential evidence from the government’s eyes” (this after implying that such shielding is what the Fourth Amendment protects). What the majority does think is protected by the knock and announce rule is the interest in life and limb, property, and privacy and dignity but not the interest in preventing the police from obtaining the evidence listed in the warrant. “Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable”

The Court points to the societal cost of excluded evidence, extended litigation, and the consequences of police officers waiting longer than necessary to enter in determining whether the “deterrence benefits [of the exclusionary rule’s application] outweigh its ‘substantial social costs. Focusing on the fact that the violation of the knock and announce rule should (assuming no evidence would have been illegally destroyed in the meantime, which does not constitute a constitutional interest anyway) never result in the discovery of more evidence than had it been followed, the majority considers the deterrent effect of the rule to be minimal.

Acknowledging the divergence from the expansive rule in Mapp v. Ohio, and pointing to the statutory protection of the Civil Rights Act that did not then exist, Justice Scalia warns against “forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago.” The Court points to civil remedies and the increasing professionalism of the police forces as reasons against a broad exclusionary policy.

At this point, Justice Scalia’s opinion turns into an opinion concurring in judgment. This opinion notes past cases that did not warrant exclusion of evidence, including a case where police entered and secured the premises for 19 hours before finally obtaining a warrant. This was upheld because of the warrant’s independent basis. Scalia notes another case where a window was broken during a lawful entry, and in which the Court stated that had a Fourth Amendment violation occurred (breaking a window could rise to that level) it would have to determine whether there was a “sufficient causal relationship between the breaking of the window and the discovery of the guns to warrant suppression of the evidence.” However, this case seems to suggest the opposite, that where a but-for causal relationship exists the evidence would be presumably excluded, so long as exclusion in fact turns on the causal relationship.

Justice Kennedy picks up the part of the opinion where Justice Scalia’s looses the majority but only suggests that if stronger policy reasons existed the law might be fortified, and indicates that this case does not signal a departure from other exclusionary rule applications. Justice Kennedy’s decision seems to do no more than undercut the majority’s basis in precedent.

The dissent places the knock and announce principle in the reasonableness requirement of the Fourth Amendment, recalls a case (Weeks) suggesting that as a matter of principle unlawfully seized effects could not be used in court in accordance with the Fourth Amendment. Later, Sileverthorne held that facts obtained by subpoena were not excluded by virtue of a prior illegal search so long as the subpoena was obtained on an independent basis. Mapp extended the exclusionary rule to the States through the Due Process clause.

The dissent argues that since the knock and announce rule is part of the reasonableness requirement of the Fourth Amendment, its violation renders the search unconstitutional, and thus inadmissible under Mapp, and that as a matter of policy, to do otherwise would be to hollow out the Fourth Amendment. The dissent argues that the majority’s reliance on civil suits makes Wolf, not Mapp law. Prior to this ruling there were two situations where the exclusionary rule did not apply: (1) where there is specific reason to believe that the rule would not result in an appreciable difference (good faith and for impeachment purposes) and; (2) outside criminal trials. The dissent takes issue with the assertion that the unconstitutional manner of entry was not a but-for cause of obtaining the evidence, since while the police could have entered legally, they did not, and that illegal entry was a necessary condition for the readily foreseeable consequence of finding the evidence. Referring to Silverhorne the dissent argues that the inevitable discovery doctrine covers evidence that would have been discovered (1)“despite (not simply in the absence of) the unlawful behavior and (2) independently of that unlawful behavior,” and goes on to criticize what it forcefully argues are mischaracterizations of the case law by Justice Scalia’s opinion.

The majority uses the word attenuation, the dissent argues, means to refer to the attenuated connection between the interest protected and the remedy sought, rather than between the cause and effect. The dissent takes issue with the limited scope the majority gives to Fourth Amendment interests, it argues that once the search becomes unlawful its fruits must be excluded, and criticizes its divergence from the case law. Finally, the dissent outright rejects the idea that the majority can properly make assertions, with the force of law, regarding the balance of interests when no precedent prescribes it.

Looking back on it, this case is much less remarkable than I originally thought. It is quite simple really: "What the knock-and-announce rule has never protected, however, is one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable." What got me was Justice Scalia's contempt for the rule per se.

When Does a Civil Rights Claim Become a Habeas Corpus Claim?

Hill v. McDonough

Clarence Hill is challenging the constitutionality of the chemical combination used for lethal injections. The question here is whether he must proceed on a action for a writ of Habeas Corpus, or whether he may proceed directly under the Civil Rights Act. The Court describes a Habeas Corpus action as concerning “the lawfulness of the confinement [or the] particulars affecting its duration.” Challenges to the circumstances of confinement, on the other hand, may be brought under the Civil Rights Act. The precedent in this case, Nelson, affirmed that suits can be barred under the Civil Rights Act when success in that suit necessarily implies the invalidity of a prisoner’s sentence, which is not the case here. The Court rejects policy suggestions based on capital punishment litigation tactics, which suggested that because Hill does not propose an alternative method of execution the open-endedness of his case should be considered as an attack on his capital punishment per se, while accepting that if the relief sought would foreclose execution it would be proper to recharacterize the complaint as a Habeas action. Finally, the Court emphasizes that a stay of execution is an equitable remedy, and must therefore balance all interests, and the standard requirements (such as a showing of likely success on the merits) apply

Skipped: They Haven't Learned How to Sell It

I can't possibly be expected to stay awake when the third sentance of the 40 page opinion is:

"This case concerns the proper forum for reimbursement claims when a plan beneficiary, injured in an accident, whose medical bills have been paid by the plan administrator, recovers damages (unaided by the carrier-administrator) in a state-court tort action against a third party alleged to have caused the accident."

Come on Justice Ginsburg, I know this stuff is dry, but at least make an effort. Next.

Why the Odd Titles?

You might notice that my entries have obscure titles like "No Standing Merely by Virtue of Membership in the Tax Base" which the news titled "Supreme Court Dismisses Case on Tax Breaks." I know, the second title is a lot more understandable, but its wrong. The news outlets constantly misconstrue what the real question is. In fact, almost the only time they are right is when they are talking about those few cases at the end of the term where the question really is as broad as they make it out to be (like Kelo v. New London).

Anyway, my titles are my small personal revolt against the way the news media get it wrong.

The Extent of Procedural Bars on Habeas Corpus

House v. Bell

This case turns, in large part, on factual/evidentiary issues, which could take a very long time to digest and are outside the aim of my reading of these opinions. If something here makes very little sense it is probably because I tried to avoid evidentiary wrangling as much as possible. Federal Habeas Corpus courts do not permit defendants to proceed on claims that would be procedurally barred in their respective state court, in deference to the finality of state court decisions. This case addresses the exception to that rule, that of an exceptional case presenting a compelling claim of actual innocence.

The story can get quite long, so here is the three sentence version. Mrs. Muncey went missing one night after her children heard a stranger’s voice telling her that her husband had suffered an accident in the creek. Mrs. Muncey was found dead in the creek and all circumstantial evidence pointed to an obscure friend, House, who was seen at the spot where Mrs. Muncey was found and whose alibi for her time of death was a scuffle between himself and his girlfriend’s ex-husband. House’ pants had blood stains and his shirt was never recovered, and Mrs. Muncey had semen stains on her nightgown.

The semen on Mrs. Muncey’s nightgown was a type A “secretor,” which secretes other substances. One secretion substance which was inconsistent with House’s DNA was attributed to degradation of type A secretions. The secretion status of Mr. and Mrs. Muncey was never determined. More nuanced tests showed that the Blood on House’s pants was a sort of type A (House, Mr. and Mrs. Muncey are all type A) consistent with Mrs. Muncey and only 6.75% of the population, and positively not that of House. There was no blood on House’s shoes and his shirt was never recovered. The defense pointed to an incident where Mr. Muncey drunkenly struck his wife and indications that she feared for her safety. The jury found House guilty. The prosecution used House’s parole status for aggravated sexual assault in Utah, the depravity of murder per se, and the involvement of (attempted) rape or kidnapping. The jury found all three aggravating factors and recommended death, which the judge imposed.

House appealed, arguing ineffective assistance of counsel. He lost. House appealed again, on nearly the same grounds. The Tennessee Supreme Court held that the state considered his second appeal barred because any claim that was not raised in his first appeal was presumptively waived at that time. The federal court considered whether House’s appeal fell into an “actual innocence” exception to the procedural bar. House presented a putative confession suggesting that Mr. Muncey had committed the murder. The federal court certified state-law questions to the Tennessee Supreme Court, which went unanswered. The federal court, en banc and divided 8:7, then upheld House’s conviction.

“Claims forfeited under any state law may support federal habeas relief only if the prisoner demonstrates cause for the default and prejudice from the asserted error” (cannot be harmless error). This rule carries a miscarriage-of-justice exception. The Court notes (1) this exception requires that, in light of new evidence the prisoner can show that it is more likely than not that any reasonable juror would have reasonable doubt; (2) while new evidence is required the evidence as a whole must be evaluated; and (3) this rule is different than cases of insufficient evidence because in this case the evidence that was not presented to the jury must be evaluated by the judge. The Court rejects arguments that the AEDPA replaced the law at issue (Schlup) with a stricter test because the AEDPA does not address “a first federal habeas petition seeking consideration of defaulted claims based on a showing of actual innocence.” The Court also rejects arguments that absent a “clear error” by the lower court it must defer to that court’s decision because Schlup looks to the evidence not in the record, and because the lower court did not apply the predictive standard (how would a reasonable juror react?).

As far as the evidence is concerned, the semen has been conclusively shown to be that of Mr. Muncey, a fact which detracts from House’s motive, something the Court is unwilling to believe was inconsequential to the jury. New evidence also shows that the microscopic blood stains on House’s pants were grossly improperly handled, showing signs of deterioration that are inconsistent with blood spilling on the pants. The opinion then surveys speculation about how the evidence could end up as it did. The Court also pointed to Mr. Muncey as an alternative suspect based on his request that a friend lie about his whereabouts the night of, and the morning after the murder, as well as two people who claim to have witnessed Mr. Muncey confess. On both occasions Mr. Muncey had been drinking heavily and said that he hit his wife for yelling at him about going to the dance instead of taking her fishing and that she fell and hit her head. The rest of the evidence is brought into question as well. On a number of occasions the majority emphasizes that the inquiry at hand takes the probable reaction by a reasonable juror to the evidence as a whole, and that the decision that this case is extraordinary enough to overcome the procedural bar is not the same as an exoneration. The Court, therefore, declines to expand on the rule in Hererra that an exceedingly compelling freestanding claim of innocence would constitutionally bar an execution.

The dissent emphasizes the rule that factual findings should only be set aside on appeal for clear error, and notes that the majority did not find such a clear error. The dissent also emphasizes that the test concerns the entire jury, and requires that it be more than likely that no juror would vote to convict. The dissent points to the majority’s reliance on the combination of evidentiary issues to reach this point and tries to show that one or more of these issues was presented to the jury. The dissent also attacks numerous factual and speculative assertions by the majority.

The Long Version (if you are so inclined):

Mrs. Muncey brought her children to the neighbor’s house one afternoon and commented that her husband was out digging a grave, but that she was going to make him take her fishing the next day. She brought her children home, and they went to bed. One child testified that she heard a deep voice that sounded like her grandfather’s (not that she thought it was, but just that it sounded similar) saying to her mother that her father had been in an accident by the creek. When her father came home he took the children back to the neighbor’s so he could look for Mrs. Muncey. The next day Billy Hensly (Mrs. Muncey’s cousin) got the news that Mrs. Muncey was missing and drove down to her house. On his way he saw Mr. House “come out from under a bank wiping his hands on a black rag.” The veracity of this account came into serious question at trial. Across the street was a white car and a child walking away from it. When Hensley reached the house and saw that Mr. Muncey was not home he turned around and was flagged down by Mr. House, in the white car that Hensley had earlier seen on the side of the road. Mr. House said he was looking for Mr. Muncey, which made Hensley suspicious. Mrs. Muncey was later found dead in the creek, directly across from where the white car had been parked. She had been choked and died of a head injury. The local sheriff questioned House who falsely stated that he had spent the previous night with his girlfriend and that the scratches on his arms and hands were from her cats, and that the bruise on his knuckle was from construction work. House had left his girlfriend’s house at about 10:30, within the range of Mrs. Muncey’s estimated time of death. He had gone for a walk and was allegedly confronted by an unknown armed assailant, who House’s girlfriend speculated might have been her ex-husband. When House returned he told his girlfriend that the fight was how he got the scratches and bruise. That evening Mr. Muncey had been at a dance which he left early to go to the beer store. With House’s girlfriend’s consent the police seized House’s pants, on which the FBI found blood stains.

Conditions of Continuances Over the Statutory Limits

Zedner v. United States

Zender unsuccessfully tried, seven times, to open bank accounts with an obviously fraudulent $10 million dollar savings bond. When Zender requested a second continuance the judge became concerned about the statutory requirement that (except in certain cases) a defendant be tried within 70 days of his first appearance and that if the trial takes place after that 70 day period, and the defense does not move to dismiss, that defendant is deemed to have waived his statutory right. To ease these concerns the defense waived its statutory right to a speedy trial “for all time.” Four years, and an interesting story, later the defendant was found to be incompetent. This case addresses whether the defendant’s waiver was valid, whether the judge’s failure to make findings to show that the period of delay after the 70 day requirement, and before the defendant’s next appearance (91 days later), in conformity with the statute, was a harmless error.

The Act lists categories of delay that are not counted in the Act’s deadline and because the Act does not contain an exception for informed waivers the defense must move for a continuance on the basis of the numerous present exemptions. The Court bases this reading on the fact that the absence of a waiver provision was deliberate and the fact that the law was enacted not just to protect personal rights to a speedy trial, but public interests in swift and effective justice. It even goes so far to require a judge to consider the public interest along with the defendant’s in granting a continuance. This reading is supported by the legislative history. The Court then argues that the Act’s provision for retrospective waivers does not imply the ability to prospectively waive the right

Next the Court addresses the rule of judicial estoppel: “Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” (Davis v. Wakelee, 1895). Three factors of this test (there is no precise test because the rule is “equitable”) are whether the two positions taken are inconsistent, whether the court was persuaded to accept the previous position, and whether this would give one party an unfair advantage.

If the defense position was that it promised not to move to dismiss, estoppel would not be appropriate because this would run contrary to the rule set out above that there can be no prospective waivers. If the defense position was that it mistakenly relied on a prospective waiver judicial estoppel would not apply because it was not the defense that convinced the court to waive the right, but the other way around. Finally, if the defense position was simply that it required more time to investigate this position is not inconsistent with the one it currently takes.

The Government also argues that the absent express finding that the ends of justice require a continuance can be supplied retrospectively on remand. The Court rejects the argument because at the very least a Court must make those findings before ruling on a motion to dismiss. Finally, the Government argues that this error was harmless, especially because the Act generally provides for ends-of-justice continuances based on the request of the defense, and being harmless does not subject the case to relitigation. The Court rejects this argument in the face of the Act’s “unequivocal” language (the court “shall…”) and because an ends-of-justice harmless-error rule is extremely open ended and does not square with the Act’s attempt to limit the extent of the ends-of-justice rule.

Justice Scalia writes separately to warn against the use of legislative history, and to re-assert that the only law that exists is positive statutory law (as opposed to congressional intent). “…If legislative history is relevant when it confirms the plain meaning of the statutory text, it should also be relevant when it contradicts the plain meaning, thus rendering what is plain ambiguous.”

The Causation Requiremets of RICO

Anza v. Ideal Steel Supply Corp.

RICO (Racketeer Influenced and Corrupt Organizations) Act provides a private right of action to “[a]ny person injured in his business or property by reason of a violation,” which has been held to require that the RICO violation be the “proximate cause” of the injury. Ideal and National steel companies both operate in the Bronx and are primary competitors in the field of steel mill products, supplies, and services. Ideal alleges that National made a practice of waiving New York sales tax for cash paying customers, thus reducing its price without affecting profit margins. The causes of action alleged by National are that (1) two of Ideal’s owners conducted or participated, directly or indirectly, in the conduct of the affairs of an enterprise affecting interstate commerce through a pattern of racketeering activity or collection of unlawful debt; and (2) that all three owners “use[d] or invest[ed]” income deriving from a pattern of racketeering activity in an enterprise engaged in interstate commerce. A lower court threw out Ideal’s suit because in order for Ideal to state a claim it must allege that it relied on National’s false tax returns. The appeals court held that an intent to create, and the successful creation of, a competitive advantage was an actionable RICO violation.

In Holmes the Court held that the legislative history and the text of the statute showed that Congress modeled the civil action portion of the RICO act on the Clayton Anti-trust laws and the Act therefore required not only that the RICO violation be a “but for” cause of the injury but that it must also be the “proximate cause” of the injury. As this Court sees it, it was the State of New York that was being defrauded, not Ideal and that Ideal was harmed by “a set of actions (offering lower prices) entirely distinct from the alleged RICO violation (defrauding the State).” The majority argues that this coheres with the fact that the more tenuous the connection is the more difficult it becomes to quantify the harm done. Proximate cause, in the Court’s view, has nothing to do with the particular motive behind the acts as the appeals court seemed to believe. The Court leaves some other questions open on remand.

Justice Thomas, dissenting, seems to see it the other way; “…it was not New York’s injury that cause respondent’s damages; rather, it was petitioners’ own conduct - namely, their underpayment of tax - that permitted them to undercut respondent’s prices and thereby take away its business.” Thomas also rejects the Court’s characterization of the link between the violations and the injuries, saying when the Holmes Court held that “one reason that indirect injuries should not be compensable is that such injuries are difficult to ascertain” it did not “adopt the converse proposition that any injuries that are difficult to ascertain must be classified as indirect.” Thomas also contrasts two concepts of proximate cause and makes a forceful argument for why National could be considered to be the proximate cause of Ideal’s injury. The dissent goes on to suggest that courts have been unhappy with the development of the RICO Act but that this ruling will prevent some cases that Congress clearly contemplated, such as cases of unfair competitive advantage. In short, Justice Thomas accuses the majority of reading the common law requirement for reliance into an area where it was precluded by design.

Justice Breyer says, metaphorically, “ordinary competitive actions undertaken by the defendant competitor cut the direct causal link between plaintiff competitor’s injuries and the forbidden acts.” Breyer supports this argument by noting a lack of contrary precedent, on policy grounds of practical administration, policy grounds of societal need (since there will be those who are directly injured by the illegal acts there is no societal necessity to empower those injured secondarily to sue), by arguing that this would permit the cases that Congress contemplated, and by suggesting that a broader rule would invite the collision of RICO and general antitrust policy.

Must Courts Balance Speech Made Pursuant to Job Responsibilities?

Garcetti v. Ceballos

Ceballos was a calendar deputy with the D.A.’s office, and performed certain supervisory roles. When he was asked to review an affidavit used to get a crucial search warrant he found what he believed to be serious inaccuracies and misrepresentations and wrote two memos to his superiors that caused no small discomfort for the office. When the D.A.’s office went forward with the prosecution, over Ceballos’ recommendation, Ceballo testified for the defense. Ceballos was later reassigned, transferred, and denied a promotion. Ceballos argues that he is the victim of retaliation which violates the First and Fourteenth Amendments. The question here is whether speech made in an official capacity is protected by the First Amendment.

Under Connick courts must first consider whether the statements at issue were made by the speaker “as a private citizen upon matters of public concern.” The Court of Appeals for the Ninth Circuit argued that government misconduct is inherently a matter of public concern and relied on Circuit precedent to establish that speech is not deprived of First Amendment protection when it is made “pursuant to an employment responsibility.” The court then employed a Pickering test to balance the employee’s interest as a citizen to comment on matters of public concern and his employer’s interest in the efficiency of the service. The Government as employer has broader discretion to limit speech than the Government as sovereign. That Ceballos made his speech in a memo to his boss is not dispositive, neither is the fact that the content of the speech concerned the subject matter of his employment. What is dispositive, the Court argues, is the fact that the statements were made by Ceballos “pursuant to his duties as a calendar deputy.” The speech was therefore not made in the role of a citizen and not afforded First Amendment protection. The Court contrasts this rule with the case in Pickering where the statements drawing retaliation were made in a letter to a newspaper saying the analogue to paradigmatic free speech can only be drawn when non-governmental employees could engage in the same speech. The majority also believes this is good as a matter of public policy because it will encourage agencies to create internal mechanisms receptive to criticism in order to prevent employees from concluding that the safest method of expression is public expression.

The majority also cautions against over-broad definitions of employment responsibilities, noting that this is a practical matter and that job descriptions often bear little resemblance to the employee’s real official capacity. Finally, without responding to arguments that the Constitution embodies a specific protection for academic freedom (an argument that surfaces from time to time in this line of jurisprudence) the Court states that this ruling may not apply, at least in the same manner, to a “case involving speech related to scholarship or teaching.”

Justice Stevens, dissenting, argues that the ruling is misguided because the answer to the question should be that such speech is sometimes protected by the First Amendment, not never (such as cases of retaliation for exposing corruption to superiors). Justice Souter argues that the Pickering test should apply to employment-speech so that one side could clearly win over the other in given cases but that in any given case there is no foregone conclusion. Souter criticizes the line being drawn at speech included in the employee’s job responsibilities because the need for Pickering protection does not disappear at that point. Souter’s dissent seems to take the rule of the majority regarding speech made “pursuant to” an employee’s duties to regard, instead, speech made “relating to” those duties except for one paragraph that argues that the public interest is not reduced at all when the speech is required as per employment responsibilities.

Attacking the majority, Souter criticizes the reliance on a reading of Rust v. Sullivan that accepted the Government’s prohibition on abortion counseling in connection with Title X finds. Relaying substantive policy is an integral part of some government jobs but not others, and it is only in the cases of the former that the government may have a claim of ownership on that speech (consider the difference between a District Attorney and a public university professor). This may explain the majority’s side-note about academic freedom. Souter is also unwilling to rely on statutory protection for whistleblowers.

Justice Breyer is not satisfied with Justice Souter’s change to the Pickering test, pronouncing that the Government should win unless the employee (1) “speaks on a matter of unusual importance,“ and (2) “satisfies high standards of responsibility in the way he does it” because this test would not screen out many cases. Breyer also notes that the Constitution demands certain speech such as discovery evidence sharing and thereby confers constitutional protection over some areas of speech made pursuant to job responsibilities

Reasonableness and the Fourth Amendment: Exceptions to the Warrant Requirement

Brigham City v. Stuart

Police in Brigham City, responding to a noise complaint, heard shouting and saw two juveniles drinking beer in a backyard (it is unclear whether the officers entered the backyard first or saw the juveniles drinking beer first; compare pg. 1 with pg. 7). When police entered the backyard they saw, through the window and screen door, that inside there were four adults engaged in an altercation with another juvenile. One of the adults was struck and began bleeding. The police entered and arrested the people inside. This case concerns whether the officers’ warrantless entry violated the Fourth Amendment. Specifically, there is a difference of opinion between the lower courts concerning two exceptions to the warrant requirement. The first exception, the “emergency aid doctrine,” (as the lower court presented it) allows such an entry given an “objectively reasonable belief that an unconscious, semi-conscious, or missing person feared injured or dead [was] in the home.” At issue with this exception is the test’s objective requirement and the question of the capacity in which the officers are allowed to enter without a warrant. The second exception, the “exigent circumstances exception,” (again, as the lower court presented it) allows a warrantless entry where “a reasonable person [would] believe that the entry was necessary to prevent physical harm to the officers or other persons.”

In addressing the objectivity requirement of the first test, and after emphasizing that the word “unreasonable” in the Fourth Amendment is indeed a caveat, the Court argues that the officer’s subjective state of mind and the capacity in which he enters the house are irrelevant so long as the entry is objectively reasonable. However, where the purpose is ‘programatically’ and indiscriminately (such as checkpoints) applied the Court leaves open its investigation in Fourth Amendment challenges.

Next, the Court distinguishes a case where the need to preserve evidence failed to justify a warrantless search of a suspect’s blood alcohol level from this case where the officers confronted “ongoing violence occurring within the home.” (emphasis in original). The Court also considers one of the officers’ yelling through the screen door to make their presence known as equivalent with a knock in terms of the Fourth Amendment’s ‘knock and announce’ rule.

Justice Stevens, concurring, suggests that the peculiarity of this case and the rulings by the lower courts may be due to those courts’ reliance on the Utah constitution as an independent source of protection from the federal Constitution.

When Should Courts Permanently Enjoin a Patent Infringer?

eBay Inc. v. MercExchange, L. L. C.

MercExchange holds “a business method patent for an electronic market designed to facilitate the sale of goods between private individuals by establishing a central authority to promote trust among participants.” When MercExchange and eBay failed to reach an agreement on a licensing fee MercExchange took eBay to court and a jury found that is patent was valid. Later, a federal court applied a “general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances.” The question here is whether that was the appropriate rule to follow.

“Well-established principles of equity” require that for a plaintiff to win a permanent injunction it must demonstrate (1) that it has suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that “considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) “that the public interest would not be disserved by a permanent injunction.” The Court holds that principles of equity apply to the Patent Act, especially since it expressly provides that injunctions may issue “in accordance with the principles of equity.”

The Patent Act also declares that patents shall have the attributes of personal property (“subject to the provisions of [the Act]”), including “the right to exclude others from making, using, offering for sale, or selling the invention,” a right which the lower court used to justify its rule. The Court, however, states that “the creation of a right is distinct from the provision of remedies for violations of that right.” The Court also notes that this is analogous to the workings of copyright law. In response to assertions by the lower courts Justice Thomas, for the majority, argues that a patent holder does not necessarily fail to meet the conditions of the test above simply by failing to practice the patents (such as a university researcher). The majority here merely holds that the traditional four factor test is the correct one, without taking a position on what its outcome should be.

Chief Justice Roberts and Justices Scalia and Ginsburg concur, noting that “Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike,” and that “in this area, as other, ‘a page of history is worth a volume of logic.’” Justices Kennedy, Stevens, Souter and Breyer concur and endorse the court’s role in issuing injunctions in accordance with the fourth part of the above test, arguing that “the traditional practice of issuing injunctions against patent infringers” does not rest, as the preceding concurrence suggests, on “the difficulty of protecting a right to exclude through monetary remedies that allow an infringer to use an invention against the patentee’s wishes."

Does “Discharge” Imply an Addition?

S. D. Warren Co. v. Maine Bd. of Environmental Protection

If operating a hydro-electric dam “may result in any discharge into the navigable waters” of the United States a license requires a state certification that water protection laws will not be violated. In this case Warren argues that his series of dams do not cause a discharge into the navigable waters of the United States so that he can avoid having to certify compliance with an agency requirement that his dams maintain a minimum waterflow and allow bypass by certain fish and eels. The issue turns on the definition of “discharge” which is left undefined. The act provides that “[t]he term ‘discharge’ when used without qualification includes a discharge of a pollutant, and a discharge of pollutants,” making “discharge” either broader or else superfluous (and we all know the law cannot have any superfluous wording), and left to be construed “in accordance with its ordinary or natural meaning.”

In the only other case before the Supreme Court concerning this particular law the Court used the word “discharge” numerous times in describing the process of water passing out of a dam. This reading of the terms is compatible with that of the EPA. Since the EPA never officially settled on a definition its construction is not entitled to deference, however, this does serve as an indication of the term’s natural usage.

Warren, the dam owner, argues first that the cannon of statutory construction noscitur a sociis (“a word is known by the company it keeps”) in conjunction with the definitions of “discharge of pollutant(s)” suggests that the word implies an addition of something foreign to the water. The Court responds that pairing a broad statutory term with a narrow one does not shrink the former and notes that uncritical application of interpretive rules is dangerous. Next, Warren argues that a previous case demands reading “discharge” as an addition, but the case dealt with the “discharge of pollutants” and its presumption that such a discharge would require an addition to the water was specifically directed at the narrowing term “pollutant(s).” Finally, in what the Court refers to as “a lawyer’s argument, Warren argues that the word “includes” was carelessly left in the definition after a failed attempt to specifically address thermal discharges, so as to include them in one section of the law and not another, and that the word should not be read as an indication to extend the definition beyond those specifically listed. If this had been the case there would have been a short list with a common aspect of addition, strengthening the noscitur argument, but as it stands the only thing this indicates is a rejection of that list. The Court also notes that this interpretation fits with the broad aim of the law to prevent pollution and chemical or artificial alteration of natural water sources

No Standing Merely by Virtue of Membership in the Tax Base

DaimlerChrysler Corp. v. Cuno

DaimlerChrysler entered into a contract with the city of Toledo Ohio whereby the city would increase a widely available tax credit and grant an outright property tax exemption (with the agreement of the school district) in exchange for specific expansions of the company’s Jeep production. A group of citizens sued, alleging that the tax credits/exemptions violated the commerce clause by diminishing the funds available to the city and disproportionately burdened the plaintiffs (who were mostly residents of the city). The question here is whether the group has standing to sue. The lower court ruled that the “municipal taxpayer standing” rule guaranteed them that standing.

In this case, the Court holds, the burden falls to the plaintiffs to demonstrate that they have standing, specifically by demonstrating that there is some “case or controversy” for the courts to concern themselves with. Apparently the Court has denied U.S citizens standing to challenge a federal tax simply by virtue of those citizens’ membership in the tax base because the individual’s interest in the funds of the treasury is so minute and indeterminate that it affords no basis for a suit. More concretely, the Court argues that tax breaks are not designed to ‘deplete the treasury,’ but are rather designed to increase revenues. Also, the Court argues, the injury on which such an action is premised in conjectural because even if the treasury is depleted no individual injury necessarily occurs. Finally, the outcomes of these schemes are paradigmatically policy decisions, as are the decisions as to how to respond to any increase or decrease in the treasury funds. This is to say that being a taxpayer is a necessary but insufficient condition for standing to challenge specific tax schemes. The Court carries out this same argument at the federal, state and municipal levels, and fights the plaintiffs where they try to conflate these areas, including where the plaintiffs try to take a rule allowing federal supplemental jurisdiction over state law claims where they derive from a "common nucleus of operative fact” as the established federal claim. Clearly, to do so inverts the rule.

The same logic does not extend to First Amendment challenges according to Flast, but the Establishment Clause has been the only law to support such challenges. The Court is not willing to draw a direct analogy from the Establishment Clause to the Commerce Clause and maintains that Flast is consistent with the underlying principle that “a litigant may not assume a particular disposition of government funds in establishing standing.” “Standing is not dispensed in gross.”

Arbitrary Limits on the Defense are (Surprise) Unconstitutional

Holmes v. South Carolina

Holmes was convicted by a jury of murder, rape, burglary and robbery. On appeal he was granted a new trial where the prosecution offered nearly conclusive forensic evidence of the defendant’s guilt. The defense attacked the handling of the evidence, argued that the police attempted to frame the defendant, and pointed to various statements in which a third party (White) accepted the blame, and acknowledged the defendant’s innocence, for the crime. White denied these statements in court. The question here is whether a rule which bars the admission of evidence pointing to a third party, in the face of nearly conclusive evidence of the defendant’s guilt, violates the defendant’s constitutional rights.

The trial court excluded the evidence based on a South Carolina rule that such evidence is admissible if it “raise[s] a reasonable inference or presumption as to [the defendant’s] own innocence” but is if it merely “cast[s] a bare suspicion upon another” or “raise[s] a conjectural inference as to the commission of the crime by another.” The South Carolina Supreme Court ruled that where there is strong (forensic) evidence of a defendant’s guilt, the evidence of a third party’s guilt does not raise a reasonable inference about the defendant’s innocence. On the other hand, the Court notes here, the Constitution “guarantees criminal defendants a ‘meaningful opportunity to present a complete defense,’” and prohibits rules that are arbitrary or disproportionately restrictive in light of the legitimate interests they are designed to further. Conversely, the Constitution permits judges “to exclude evidence that is ‘repetitive . . . , only marginally relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.’”

The Court gives a number of examples of the instances on either end of this spectrum, including a number of cases on either side addressing the very question here. The Court suggests that the South Carolina Supreme Court diverged from the general rule that evidence of a third party’s involvement is admissible to the extent and only to the extent that it is inconsistent with the defendant’s guilt, and inadmissible where its only effect can be to cast bare suspicion or raise conjectural inference. Specifically, the court inappropriately extended the rule to situations, as here, where the trial judge is concerned not with “the probative value or the potential adverse effects” of the evidence, but rather with the strength of the prosecution’s evidence. The Court takes issue with the way the South Carolina rule evaluates only one side of the evidence, arguing that the rule is only logical if the prosecution’s proof is conceded or presumed, and without such a presumption the rule is not more logical than a rule prohibiting the prosecution from introducing evidence of the defendant’s guilt if it seems that there could only be one perpetrator and the defendant could produce evidence implicating someone else. The rule is therefore arbitrary.

That this took a Supreme Court ruling to clear up is just sad.

The Extent of the Probate Exception to Federal Subject-Matter Jurisdiction

Marshall v. Marshall

Anna Nicole Smith was married to J. Howard, who she claimed intended to transfer a not-so-small fortune to her upon his death. When Howard died the beneficiary of his will was his son, Pierce, who proceeded to charge Smith with defamation for her lawyer’s claims that he had engaged in forgery, fraud, and overreaching in order to gain control of his father’s assets. Smith’s responding documents asserted the truth of the allegations as a defense and charging Pierce with tortious interference. Smith won summary judgment on Pierce’s claims and won a trial on the merits for her claims, receiving an award of $449 million for compensatory damages, and $25 million in punitive damages. Pierce then argued that the Bankruptcy court lacked jurisdiction because of what is called the “probate/domestic-relations exception,” a common law rule that leaves probate matters to the States and allows federal jurisdiction only over “core matters,” which do not include final judgment. The question here is how far the “probate exception” reaches.

Because probate matters deal with property that is either held privately by citizens or publicly by the State itself, so the logic goes, the federal government has no place engaging in probate matters. As far as the Ninth Circuit was concerned, this exception from federal ‘subject-matter jurisdiction’ included all “questions which would ordinarily be decided by a probate court in determining the validity of the decedent’s estate planning instrument” and that to the extend that the State had partitioned authority over probate matters out of the hands of state courts of general jurisdiction it had done so with respect to all federal courts as well.

The Court traces the origins of the exception to Barber v. Barber where it announced the rule in dicta that federal courts lacked jurisdiction, even in cases where that jurisdiction is based on diversity of citizenship (See here), over cases for divorce and alimony; dicta which the Court later (in Ankenbrandt) traced to Congress’ original provision of federal diversity jurisdiction. This original law granted jurisdiction in “all suits of a civil nature at common law or equity,” a phrase that the Barber dissenters argued was tied to the English common law practice of denying English courts of chancery the right to issue divorce or alimony decrees. The Ankenbrandt Court stated that it did not rely on the historical accuracy of the Barber dissent, but rather Congress’ apparent acceptance of this construction prior to 1948, and the lack of any indication that it intended to overturn the construction with the replacement of the phrase with the term ‘all civil actions.’

In another case (Markham) the Court held that federal district courts did not have jurisdiction to administer an estate, but did have jurisdiction to adjudicate rights in that property that it could not itself administer “so long as [it did] not interfere with the probate proceedings.” This Court reads the phrase “interfere with the probate proceedings” to mean that the district court may not ‘disturb or affect the possession of property in the custody of a state court.’ In doing so, the Court points to the rule that ‘when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res (where I’m pretty sure res is action and rem is property – comment if it’s something else).”

Finally, the Court argues that the bankruptcy court adjudicated a tort matter, not a probate matter, and that while the ‘Full Faith and Credit’ clause may make a State Court determination binding elsewhere, it does not interfere with the federal court’s right to adjudicate and determine the same issue as a matter of federal law, nor may a State destroy a person’s right to sue in federal court over any matter simply because the State has destroyed that party’s right to sue in State court.

Third Party Liability Provisions and Medicaid Compelled Pursuit of Reimbursement

Arkansas Dept. of Health and Human Servs. v. Ahlborn

In Arkansas, when someone receives Medicaid funding for an injury, for which she subsequently receives a legal settlement, Medicaid automatically places a lean on that payment in the amount that it paid out for the injury and requires that it be notified and given reasonable opportunity to establish its interest. This was the case where Ahlborn sustained permanent serious injuries. Medicaid covered $215,645.30 in medical payments while Ahlborn sued a third party for past and future medical costs; permanent physical injury; past and future pain, suffering, and mental anguish; and past and future loss of earnings and working time. Her claims (of which the Arkansas Department of Health Services (ADHS) was aware, but never formally notified or named as a party in the suit) were settled out of court for $550,000 without any allocation of the money for the specific categories of damages. Ahlborn charged that the lien violated Medicaid law by depleting the funds that she was awarded for reasons other than medical costs and that, given the percentage of her total claim that she was awarded, ADHS was only entitled to $35,581.47 (the portion that constituted reimbursement for medical payments made).

The federal Medicaid law requires that States “take all reasonable measures to ascertain the legal liability of third parties … to pay for care and services under the plan” and requires that the State seek reimbursement and grants the State the rights of the individual to “to support (specified as support for the purpose of medical care by a court or administrative order) and to payment for medical care from any third party.” The Court first notes that where the federal law compels States to seek full reimbursement to the extent of a third party’s legal liability, the liability at issue is “the legal liability of third parties … to pay for care and services available under the plan.” This same clarification arises in the second point, that while ADHS argues that its obligation seek reimbursement for its whole cost implies that it is limited only by the amount it pays out, and the Court’s response that the previous caveat still applies. Finally, ADHS argues that its right to be “reimbursed fully from ‘any amount collected by the State under an assignment’ before ‘the remainder of such amount collected’ is remitted to the recipient implies the absence of any restriction. The Court explains, however, that “an assignment” does not mean the whole settlement but is limited to the portion of it relating to medical expenses.

The federal law goes on to prohibit any (other) such lien on a person’s property on account of medical expenses, making the lien at issue here an exception to a broader rule. ADHS argues that the proceeds of the settlement were not Ahlborn’s property because it was automatically transferred to the State. The Court rejects this argument because until the process materialized Ahlborn retained her interests in the case in full so the lien could not have attached until afterwards and because Ahlborn could not have waived her right to the settlement by applying for medical assistance because the State would not need to put a lien on its own property.

The State also argues that in this case Alhborn engaged in obstruction by failing to cooperate with the State by notifying it of her case and that there must be a rule of full reimbursement in order to discourage settlement manipulation. The Court, however, reads the law to imply that Alhborn had a duty to cooperate in cases initiated by the State (“assist the State in pursuing”) and because the Government did not ask to be a party to Alhborn’s suit or participate in settlement negotiations. The Court also overrules the findings of the regulatory board, findings which are usually accorded substantial deference where the board is acting on delegated authority, because the findings seem to be internally inconsistent (in the same ways that the State’s arguments were).