U.S. Supreme Court Blog

/Blog

2007-10-06T00:11:00.002-04:00

I started this blog as a way to make myself read the opinions published by the Court. It has since begun to discourage me from doing that very thing, but substantially increasing the time it takes to do so. I have therefore decided to stop.

Tax Courts Have Exclusive Jurisdiction Over Interest Abatement Actions

2007-08-29T23:31:00.000-04:00

Hinck v. United States

IRS code section 6404(e) allows the Secretary of the Treasury to forgive (in whole or in part) any interest accrued on unpaid taxes if the assessment of the interest on a deficiency is attributable to an unreasonable error or delay on the part of the IRS. 6404(h), passed as part of the taxpayers bill of rights, allows for judicial review over the Secretary’s decision not to grant such an abatement. The question in this case is whether that review is available in district court, as opposed to tax court.

6404(h) states that “In general.—The Tax Court shall have jurisdiction over any action brought by a taxpayer who meets the requirements referred to in section 7430… to determine whether the Secretary’s failure to abate interest under this section was an abuse of discretion, and may order an abatement, if such action is brought within 180 days after the date of the mailing of the Secretary’s final determination.” “A precisely drawn, detailed statute pre-empts more general remedies.” “When Congress enacts a specific remedy when no remedy was previously recognized, or when previous remedies were ‘problematic’ the remedy provided is generally regarded as exclusive.” Both of these axioms fit the tax statute. That the primary argument against judicial review no longer applies (when Congress supplied a standard of review the argument that the agency’s determination should not be disturbed for lack of judicially manageable standards ceased to apply) does not affect the issue of the exclusivity of jurisdiction.

Petitioners argue that this interpretation impliedly repeals preexisting jurisdiction, something that is disfavored in statutory construction, but in actuality there had been no jurisdiction preexisting before this statute. Nor does this interpretation depart from the normal understanding of the metaphysical relationship between the tax courts and district courts, since granting any jurisdiction to the Tax Court, as Congress clearly did, breaks the general scheme whereby prepayment actions are brought in Tax Court and postpayment actions brought in District Court. The fact that there are no issues of substantive tax law in interest abatement claims suggests that the Tax Courts are at least as well situated to address these claims as the District Court. Finally, it is not odd that this interpretation prevents persons with wealth exceeding $2m, and companies with wealth exceeding $7m, from seeking judicial review, since this reflects Congress’ judgment that these classes of persons are more likely to be able to pay the interest.

Counsel’s Failure to Investigate Mitigating Evidence Caused No Prejudice

2007-08-29T23:30:00.000-04:00

Schriro v. Landrigan

Landrigan was convicted of second-degree murder in 1982 and sentenced to death. At sentencing Landrigan requested that his mother and ex-wife not testify. His lawyer explained that he advised very strongly that it was in his client’s interests to have these two women testify, but that his client had refused. The court verified this with Landrigan, and Landrigan actively prevented the information from coming to light by interrupting the judge’s attempt to bring it out. He later filed a petition for postconviction relief on the basis that he had ineffective assistance of counsel because his lawyer failed to investigate other possible mitigating circumstances. The ninth circuit held that Landrigan was entitled to an evidentiary hearing on his ineffective assistance of counsel claim because he raised a colorable claim that his counsel’s assistance fell below the Strickland standard since he did little to prepare for the sentencing phase, and because investigation would have revealed a wealth of opportunity. It also held that it was unreasonable for the lower court to conclude that Landrigan would have objected to the admission of any mitigating evidence, as opposed to the testimony of his ex-wife and mother. Finally, none of Landigran’s actions excuse counsel’s failure to properly investigate the matter.

Under AEDPA habeas relief is available only when the state court’s adjudication of a claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, or an unreasonable determination of the facts. Before granting an evidentiary hearing the court must determine that such a hearing could enable the applicant to prove the allegations which, if true, would entitle him to federal habeas relief. This comports with AEDPA’s purpose – “[i]f district courts were required to allow federal habeas applicants to develop event he most insubstantial factual allegations in evidentiary hearings, district courts would be forced to reopen factual disputes that were conclusively resolved in the state courts.”

If Landrigan instructed his counsel not to offer any mitigating evidence, the failure to admit such evidence could not be prejudicial under Strickland. It was not unreasonable for the court to conclude that when Landrigan answered the question as to whether there was any mitigating evidence by saying “Not as far as I’m concerned” he was objecting to the admission of any mitigating evidence. Moreover, counsel’s investigation (or lack thereof) notwithstanding, Landrigan was aware of the mitigating evidence at issue.

Nor was it unreasonable for the court to hold that, assuming Landrigan did not want any mitigating evidence presented, his claim was “frivolous, and meritless.” In Wiggins the Court addressed the sufficiency of the investigation to support counsel’s decision not to enter any mitigating evidence. In Rompilla v. Beard the defendant refused to cooperate in the investigation, but did not affirmatively hinder it.

Even assuming that Landrigan’s waiver must have been informed and knowing (a standard the Court has never applied to these cases), (1) this issue was not raised below, and (2) counsel indicated that he carefully explained the matter, and (3) Landrigan’s statements (e.g. “I think if you want to give me the death penalty, just bring it right on”), taken as a whole, indicate that he understood the consequences.

Finaly, the court had most of the evidence that Landrigan now wants investigated before it, and the court could reasonably conclude that what evidence it didn’t (that Landrigan might have been genetically predisposed to violence) would not have made a difference in sentencing.

Justices Stevens, Souter, Ginsburg, and Bryer, dissenting, argue that (a) no one seriously contends that counsel’s investigation of possible mitigating circumstances was adequate (for example, counsel failed to perform a psychological evaluation that would have shown a serious organic brain disorder); (b) it is well established that a citizen’s waiver of a constitutional right must be knowing, intelligent, and voluntary (Zerbst), specifically in the context of the waiver of trial rights; and (c) a capital defendant has the right to have his sentence reflect a reasoned moral judgment as to all possible mitigating evidence. Therefore, if Landrigan can show that his waiver was not knowing intelligent and voluntary he has a valid claim, and since it would be possible for him to do so, it was unreasonable to conclude that he was not entitled to an evidentiary hearing to explore this claim. Also, the only claim he is making here is ineffective assistance of counsel, so any waiver of the right to present additional evidence is irrelevant. Landrigan could not have known about his organic brain disorder because counsel did not adequately investigate the mater.

The record, also, does not support the contention that Landrigan waived his right to present mitigating evidence – only that he did not want his family to testify. Landrigan also consented to a continuance for counsel to investigate mitigating circumstances, which does not square with the understanding that he wanted no such thing admitted.

Finally, the evidence of Landrigan’s organic brain disorder is sufficiently strong evidence to draw the sentence into doubt and create prejudice, and the aggravating evidence was no stronger than in similar cases where an attorney’s failure to investigate mitigating circumstances was held to constitute a cognizable claim of ineffective assistance of counsel.

Habeas cases requiring evidentiary hearings have been few in number and there is no clear evidence that this particular class has burdened the dockets of the federal courts. Even before AEDPA evidentiary hearings only occurred in 1.17% of all federal habeas cases. “We ought not take steps which diminish the likelihood that [federal] courts will base their legal decision on an accurate assessment of the facts.”

Must a “Component” be Physical?

2007-08-29T23:28:00.000-04:00

Microsoft Corp. v. AT&T Corp.

Generally, there is no patent violation when a patented product is made and sold in another country except when one supplies from the United States, for combination abroad, a patented invention’s components. AT&T claims that Windows contains potentially infringing components (software to process voice). The issue is whether Microsoft’s liability extends to computers made in another country when they are loaded with Windows software copied from a master disk or electronic transmission dispatched by Microsoft from the United States, which is then copied onto the potentially offending computers (this was the compiled version, also known as “object code,” as opposed to the human-readable set of instructions known as “source code”).

In DeepSouth, a case about a patented shrimp deveiner, the Court held that patent law stopped a the water’s edge, and that it was not a violation to sell the component parts of a patented item for assembly abroad. Congress specifically overturned the second portion of that ruling by enactment of the statute at issue here. Essentially, whoever supplies all or a substantial portion of the components of a patented item, in such a manner as to actively induce their later combination outside the United States in a manner that would infringe the patent if it occurred in the United States; or sells abroad a component of a patented item that is specially made for that device, which is not suitable for substantial non-infringing use, and which would violate the patent if sold in the United States, is liable as an infringer.

Neither Windows itself, nor a computer, standing alone, violate AT&T’s patent. The infringement does not occur until they are combined. Microsoft stipulated that it was liable in the United States but argued that because its software was intangible it could not be considered a component of the item at issue, and that foreign-generated copies of Windows (from the master shipped or copied from Redmond) were not supplied from the United States. The case comes down to the moment at which Windows becomes something that can constitute as component of AT&T’s patent.

“until it is expressed as a computer-readable ‘copy’ e.g., on a CD-ROM, Windows software – indeed any software detached from an activating medium – remains uncombinable. It cannot be inserted into a CD-ROM drive or downloaded from the Internet; it cannot be installed or executed on a computer.” AT&T’s argument that once you compile the object code the source code is useless and irrelevant “[does] not persuade [the Court] to characterize software, uncoupled from a medium, as a combinable component.” “[B]efore software can be contained in and continuously performed by a computer, before it can be updated and deleted, an actual physical copy of the software must be delivered by CD-ROM or some other means capable of interfacing with the computer.” “Abstracted from a usable copy, Windows code is … more like notes of music in the head of a composer than ‘a roller that causes a player piano to produce sound.’” Just because the step required to make the object code machine readable (putting it on a CD, etc) is trivial does not mean it has no metaphysical significance.

Of importance, I think, is footnote 13 – “If an intangible method or process, for instance, qualifies as a ‘patented invention’ … the combinable components of that invention might be intangible as well. The invention [in this case], however, AT&T’s speech-processing computer, is a tangible thing.”

The lower court held that the act of copying is subsumed in the act of supplying. The law at issue prohibits the supply of components “from the United States … in such manner as to actively induce the combination of such components.” The components supplied, and not copies thereof, are what trigger liability. This opinion does not express an opinion on whether Microsoft would be liable for copies of Windows shipped on a disc from the U.S. and installed on machine where the disc was then removed from that machine. “The absence of anything addressing copying in the statute weighs against a judicial determination that replication abroad of a master dispatched from the United States ‘supplies’ the foreign-made copies fro the United States.”

To the extent that this is a close case it is controlled by the presumption against extraterritorial effect of American patent law, and the fact that the statute was designed to expand its reach does not make that presumption inapplicable. If this in fact leaves a “loophole,” that can be addressed by Congress; the Court is not persuaded that “dynamic judicial interpretation” of the statute is in order.

Justices Alito, Thomas and Bryer agree that a component of a machine must be a physical thing, and that a computer loaded with the right software would be an infringing item even after the component CD-ROM is taken out. “There is nothing in the record to suggest that any physical part of the [master] disk became a physical part of the foreign-made computer.”

Justice Stevens, dissenting, argues that the relevant component in this case is not a physical item and therefore the manner in which it is transmitted abroad from the United States is irrelevant. Moreover, Justice Stevens does not agree that because software is analogous to an abstract set of instructions like a blueprint that it cannot be considered a “component” within the meaning of the law because it is a constituent part, and not merely passively like blueprints. It is, Justice Stevens argues, more like a roller that causes a player piano to produce sound.

The More Specific Statute Controls the More General

2007-08-29T23:27:00.000-04:00

EC Term of Years Trust v. United States

The IRS code provides that if someone fails to pay a demand made by the IRS, the IRS may impose a lien on their property. Where, as here, that lien is asserted against property in which a third party has an interest (in this case a trust), that party may bring a civil action against the IRS under §7426, but must do so within 90 days. The question in this case is whether, after that 90 day period, that third party can bring a different action under §1346. The lower court held that §7426is the exclusive remedy for third party challenges.

“A precisely drawn, detailed statute pre-empts more general remedies.” “Resisting the force of the better-fitted statute requires a good countervailing reason.” Here, Congress specifically tailored §7426 the third party claims for wrongful levy, and if third parties could avail themselves of the general tax refund jurisdiction of §1346 they could effortlessly evade the levy statute’s 9-month limitations. Cases holding that §1346 was expansive enough to cover third party claims were premised on the notion that no other remedy was available. The proposed distinction between classes of claims under the respective statues directly contravenes the express terms of the statute. Congress had a good reason for passing the 9 month limitation – to speedily settle tax levies and put the government in the position to act unhindered by concern that a third party claim would later arise.

Patent Obviousness

2007-08-29T23:25:00.000-04:00

KSR Int'l Co. v. Teleflex Inc.

Teleflex sued KSR for patent infringement on a patent it held for an assembly whereby the position of a pedal would be measured electronically and transmitted to the portion of a vehicle that controls the throttle. As a defense KSR argued the patent was invalid under the Patent Act which forbids issuance of a patent when “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” The Court of Appeals applies a test whereby if there had been some academic suggestion (“teaching, suggestion, or motivation”) (TSM test) to combine the prior art and teachings the subject matter is held obvious.

The previous state-of-the-art for car pedals (a very complicated and technical mechanical-relay-and-feedback system -- a wire and a spring) did not allow for adjustment to fit the stature of the driver. In 1989 Asano filed a patent for an adjustable pedal, which required that at least one pivot point remain the same so that the pressure required to make speed adjustments was always the same. Patents testing electronic control methods showed that it was best to put the sensor near the pedal, but not on the footpad. Redding filed a patent application for an electronic pedal which was rejected, then Engelgau filed another one which was accepted. The latter was more specific in that it required that the sensor be contained in a fixed pivot point.

An issued patent is presumed to be valid. The District court found that the patent simply combined two existing patents and teachings, but was required by precedent to applyteh TSM test which the District court held was satisfied. Suffice it to say, the more technical you get, the more innovations you can see in Engelgau patent, which the Court of Appeals held was valid.

The Court of Appeals was wrong in applying such a strict approach. Graham set forth a broad inquiry and invited courts, where appropriate, to look at any secondary considerations that would prove instructive. “A patent for a combination which only united old elements with no change in their respective functions … obviously withdraws what is already known into the field of its monopoly and diminishes the resources available to skillful men.” Under Adams, when a patent uses a structure that is already known but substitutes that structure’s elements (changing chemicals in a battery) that combination must do more than yield a predictable result, but when the prior art teaches away from combining certain known elements, discovery of a successful means of combining them is more likely to be non-obvious. In Anderson’s-Black Rock the Court held that where the combination of two pre-existing mechanisms (a radiant heat burner and a paving machine) did no more together than the mechanisms would do separately, though the combination performed a useful function in tandem, it was obvious. Finally, in Sakraida the Court concluded that when a patent “simply arranges old elements with each performing the same function it had been known to perform” and yields no more than one would expect from such an arrangement, the combination is obvious.

For such combinations to be held obvious, however, there must have been some teaching on the subject, or some reason to believe that a person of ordinary skill in the relevant field would have combined the elements in the way the claimed new invention does. The error here was a narrow reading of the teaching requirement, and overemphasis on published materials. The court of appeals restricted its inquiry to the precise problem that the patentee was trying to solve, rather than the obviousness to a person of ordinary skill in the field trying to solve any given problem. The court of appeals also assumed that such an ordinary person would have been restricted to the previous knowledge, despite common sense or abstraction of the previous knowledge. Finally, while courts should be cognizant of hindsight bias, factfinders should not be prevented from employing common sense by rules prohibiting ex post evaluations per se.
Teleflex has defaulted on the issue of whether the patent actually covered the device in question because their argument was not specific, and given the importance of the argument, it would have been if they had tried to seriously challenge it.

The patent was obvious because it merely combined prior knowledge and teachings in a way that a person of ordinary skill in the profession would.

Finally, the court of appeals erred in finding a genuine issue of material fact where that fact did not draw into question any of the issues presented to the court.

Justice Scalia And the Whole Court Break Rule #1 of Appellate Review

2007-08-29T23:22:00.000-04:00

Scott v. Harris

When Deputy Scott tried to pull someone over for going 77 in a 55 the driver sped off and initiated a high-speed chase. Lower courts ruled that the case for excessive force could go forward partly because Scott’s actions could constitute “deadly force.” This case addresses whether it is ever reasonable for officers to put a fleeing driver in serious risk of injury or death in order to bring such a chase to an end.

The initial question in a case such as this, where the officer asserts “qualified immunity” – essentially ‘I was just doing my job’ - is whether the facts, taken in the light most favorable to the party asserting the injury, show a violation of a constitutional right. Next is whether that right was clearly established at the time. While the facts must be those as alleged by the person asserting a violation, and all inferences taken in their benefit, and while there has been no factual finding yet (the case is still in summary judgment) there is a recording of the chase that clearly contradicts Respondant’s assertions that there was little or no danger to bystanders. Since there is no “genuine” dispute over the facts gleaned from the video tape. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgement.” “The Court of Appeals should not have relied on [the facts as recounted by the party asserting a violation]; it should have viewed the facts in the light depicted in the videotape.”

A Fourth Amendment seizure occurs when there is a governmental termination of freedom of movement through means intentionally applied. Respondent argues that before “deadly force” can be used certain preconditions must be met: (1) the suspect must have posed an immediate threat of serious physical harm to the officers or others; (2) deadly force must have been necessary to prevent escape; and (3) where feasible, the officer must have given the suspect some warning (Garner). Justice Scalia notes that the second prong was not about necessity, but rather about the need to prevent serious harm, and the need to prevent escape was just an example. A police car ramming a fleeing car is less deadly than shooting a fleeing suspect with a gun, and a fleeing suspect in a car poses a substantially greater risk than one on foot, as in Garner.

Now it is a straightforward balancing test. The officer’s actions posed a risk, but not a “certainty” of death (as in Garner). “So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability.” The police were not required to take the risk of ceasing the chase in the interests of safety – “Respondent might have been just as likely to respond by continuing to drive recklessly as by slowing down and wiping his brow.” Anyway, such a requirement would be, most decidedly, bad policy.

Justice Ginsburg, concurring, joins the opinion but notes that this is not a per-se rule, and that Justice Bryer apparently agrees that the constitutional question here warrants an answer.
Justice Bryer, concurring, joins the opinion but wants the world to know that after having watched the video his mind was made up that no reasonable juror could afind that Officer Timothy Scott acted in violation of the Constitution. Justice Bryer also highlights the “fact-specific” nature of the case, and that this suggests that courts should not be required to address “constitutional questions” before the “qualified immunity question. It is relatively new, subject to much criticism, a waste of resources, and makes bad law. Finally, Justice Bryer disagrees with the per-se rule that “[a] police officer attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”

Justice Stevens, dissenting, alone, takes issue with the majority’s “de novo” review of the video tape. “[T]he tape actually confirms, rather than contradicts, the lower courts’ appraisal of the factual questions at issue. More importantly, it surely does not provide a principled basis for depriving the respondent of his right to have a jury evaluate the question whether the officers’ decision to use deadly force to bring the chase to an end was reasonable.” Justice Stevens then recounts what the video portrays in a way that a reasonable juror could conclude that Respondent’s version of the facts was right. Moreover, it might have been more reasonable to discontinue the chase and pick up the driver after running the license plate – another question the jury should have addressed – especially since many police departments have adopted just such a rule. “If two groups of judges” (ie: the judges on the court of appeals) “can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with the Court’s characterization of events.”

The Court today, Justice Stevens argues, sets forth a per se rule that presumes its own version of the facts: “[A] police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”

State Governments May Favor Public Business Over Private Business

2007-08-29T23:20:00.000-04:00

United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority

“Flow control” ordinances require trash haulers to deliver solid waste to particular facilities. When Oneida county found itself in a solid-waste crisis, the state legislature created the Onedia-Herkimer Solid Waste Management Authority, a public benefit corporation. As of 1989 private haulers could pick up the garbage, but had to deliver it to the Authority, which would collect “tipping fees,” making disposal more expensive than on the open market, but which allowed the Authority to provide additional services (hazardous waste disposal, recycling, etc). United Haulers sued, alleging that the flow control ordinance violated the Commerce Clause.

Under the Dormant Commerce Clause doctrine, the power granted to Congress to control interstate commerce implicitly prohibits states from doing so on their own. In Carbone a town granted a monopoly on garbage handling to a company for 5 years, after which time the town would buy the facility for one dollar. This law was held unconstitutional, over a dissent that argued that the private company was essentially a government facility. The majority implied that the business granted a monopoly was a private entity by stating that the only difference between that case and previous cases was that the business was a local one.
The majority is of the opinion that it is permissible for local government to favor local government over private enterprise, while it would be unconstitutional economic discrimination to favor local businesses over non-local businesses. The concept of discrimination presumes that one is comparing two entities of the same kind, but public and private businesses are not. Besides the obvious, one significant difference is that any burden arising from the law will fall on the very people with the political power to change it – “there is no reason to step in and hand local businesses a victory they could not obtain through the political process.”

Since the law does not discriminate on its face, it will be upheld unless “the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Simply removing the waste from the national market does not satisfy this standard, so there is no reason to look to incidental burdens. While revenue generation is not a local interest that can justify discrimination against interstate commerce, this is not discrimination (because private and public is a genuine distinction) so that is a legitimate purpose.

Justice Scalia, concurring, argues that the dormant Commerce Clause doctrine “is an unjustified judicial invention, not to be expanded beyond its existing domain.” It should be limited to preventing state laws that facially discriminate against interstate commerce, and state laws indistinguishable from the type previously held unconstitutional.

Justice Thomas, concurring, argues that the dormant Commerce Clause “has no basis in the Constitution and has proved unworkable in practice.” The “application of the negative Commerce Clause turns solely on policy consideration, not the Constitution.” Justice Thomas points to the shifting rationale for the dormant Commerce Clause (economic protectionism, slippery slope, national unity, political power, etc).

Justice Alito, with Justices Stevens and Kennedy, dissenting, argues that “the public-private distinction drawn by the Court is both illusory and without precedent.” The private facility in Carbone was not actually private, and the facility here is distinguishable only as the Carbone facility after the town had purchased it. Indeed, the majority in Carborne referred to the facility as if it were owned by the town. Laws discriminating against the sale of liquor from out of state vendors were held unconstitutional until the 21st Amendment (giving States direct control of alcohol), and there is no similar power granted to the states to control trash.

Under the market-participant doctrine, a State is permitted to exercise ‘independent discretion as to parties with whom it will deal’ so long as it acts as a participant and not a regulator. Here, the local government is acting as a regulator, and the fact that the government does not raise the market participant doctrine as a defense does not detract from the policy implications. Justice Alito then responds to the majority’s three principle arguments.

1) That laws favoring local government may be directed to legitimate means, while laws favoring local business are often the product of simple economic protectionism: favoring local government is often a vehicle for economic protectionism, and laws favoring private businesses can have legitimate purposes. If a state favors public business over private business with public shares, that is economic protectionism because it reserves benefits to those who benefit from the local government. The problem here is a focus on means rather than goals.

2) That waste disposal is a traditional government function, and therefore deference to legislation is particularly appropriate: First, any analysis that turns on what functions are integral or traditional is unsound in principle, and where the Court has tried to do so, such attempts have been abandoned. Second, it is not the case that most garbage is handled publicly.

3) That the law in question here simply treats in-state private businesses the same as out-of-state ones: This is a rhetorical trick to avoid the issue of whether there is discrimination against interstate commerce – the real question at issue. “a burden imposed by a State upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to the people of all the States, including the people of the State enacting such a statute.” Brimmer v. Rebman.

Again: A Jury Must Be Able to FULLY Consider ALL Mitigating Evidence in Death Cases

2007-08-29T23:18:00.000-04:00

Smith v. Texas

Penry I held that Texas special issue questions presented to juries in the sentencing phase were unconstitutional because they did not allow for proper consideration of all mitigating evidence. Penry II held that an instruction to the jury to nullify those special issues in the case that mitigating evidence convinced the jury that the accused did not deserve the death penalty was insufficient because it presented the jury with the ethical dilemma of following the judges instructions to return a false answer on the special question. Smith was sentenced in the interim between Penry I and Penry II. When Smith’s case was remanded by the Supreme Court under Penry II the lower court denied relief, holding that Smith had not preserved the issue for appeal, and had not demonstrated “egregious harm.”

Smith filed motions before voir dire (1) alleging that the jury instructions violated Penry I because the trial court was not authorized to give any instruction on mitigation; (2) alleging that the jury instructions violated Jurek because the Supreme Court had upheld the instructions on the assumption that the Texas courts would give the terms of those instructions a broader interpretation than those courts actually had; and (3) asking to be notified of the wording of the instructions so he could exercise his jury challenges intelligently. The first two were denied and to the third the trial court presented an instruction that the jury would receive, directing it to answer “no” to one of the special questions if it thought that the answer to both was “yes” but also believed, from the mitigating evidence, that the accused did not deserve the death penalty. While Smith was appealing his sentence Penry II was decided. While Smith continued to press his Penry I challenge, he added his Penry II challenge. The lower court found no Penry I error because the special issues were broad enough to include mitigating evidence and any excluded evidence was not constitutionally significant. The lower court, in the alternative, held that Smith’s case was distinguishable from Penry II because the nullification charge was sufficient to cure any Penry I error. The Supreme Court overruled the lower court’s “constitutionally significant” test, held that there was a Penry I violation because the jury’s decision was tied to findings that had nothing to do with the mitigating evidence, and that Smith’s case was not distinguishable from Penry II.

On remand the lower court assumed some issues were kept from the jury, and decided the case under Almanza, requiring a showing of actual harm in the case that Smith had preserved the issue of instructional error, and requiring a showing of egregious harm if he had not. The lower court was of the mistaken view that the Penry II decision rested on an error arising from the nullification charge, when it was actually just an extension of the violation in Penry I. Therefore, Smith did not abandon the Penry I issue by appealing on the basis of Penry II – the substance was the same. It follows under Almanza that all Smith was required to show was “some” [actual] harm. Finally, the lower court is obliged to defer to the Supreme Court’s finding of Penry error – “that there was a reasonable likelihood that the jury interpreted the special issues to foreclose adequate consideration of his mitigating evidence” – and therefore the state’s harmless error analysis should not bar relief.

Justice Souter, concurring, suggests that harmless error analysis may be per se unwarranted in Penry violations.

Justice Alito, with the Chief Justice and Justices Scalia and Thomas, dissenting, argue that while Smith did object that the jury instructions violated Penry I, he did not object that the trial court’s nullification instruction was insufficient to cure that problem. It is not the case that no instruction can cure the Penry I problem. Additionally, a court is not obligated to address state procedural bars before ruling on the merits where they are not briefed, and because Almana is a state-law procedural bar, the lower court’s decision rests on independent and adequate state grounds.

In order for Almanza to be an “adequate and independent state ground sufficient to support a state judgment” it must be “a firmly established and regularly followed state practice” furthering a “legitimate state interest.” Smith argues that the Almanza rule is arbitrary and discretionary because (1) it was meant to be applied on direct review, not habeas review; (2) it was intended to control non-constitutional claims; and (3) has never been applied to Penry claims. The Court cites cases to counter the first and last arguments, and since Penry claims are constitutional in nature, those cases also counter the factual basis of Smith’s second argument. Moreover, it has been regularly applied, if not universally, and furthers the legitimate sate interest of avoiding flawed trials and minimizing costly retrials.

Finally, while a penalty phase instruction violates the Eighth Amendment if there is a reasonable likelihood that the jury applied the instruction in a way that prevents consideration of constitutionally relevant evidence, that is not always sufficient to constitute “egregious harm.” Whether there was “egregious harm” in this case or not was a question that was properly decided by the lower court.

A Jury Must Be Able to FULLY Consider ALL Mitigating Evidence in Death Cases

2007-08-29T23:14:00.000-04:00

Brewer v. Quarterman

In this case Brewer was convicted of murder committed during a robbery. He offered evidence that he was depressed, manipulated, had been abused, and had a drug problem. Brewer’s proffered jury instructions giving effect to this evidence were denied and the jury was instructed only to answer whether Brewer had committed the crime and whether he would constitute a continuing threat to society. As in Penry, Brewer’s evidence was a double edged sword – however mitigating it was, it was equally inculpating as a demonstration of future dangerousness
A Penry violation occurs whenever a statute or judicial gloss on a statute prevents the jury from fully considering (in the sense that it may give effect to a considered moral judgment) all evidence that may justify the imposition of a life sentence rather than a death sentence. Neither quantity nor quality (ie: transitory nature of a mental condition) qualify this rule. The lower court erred when it equated “full effect” with “sufficient effect.”

The Chief Justice, with Justices Scalia, Thomas, and Alito, dissenting, argue that Jurek v. Texas, Franklin v. Lynaugh, Penry v. Lynaugh, Graham v. Collins, and Johnson v. Texas make up the Supreme Court’s guidance on this issue (until now) and that that guidance has amounted to – ‘it depends on the particular characteristics of the evidence.’ Under AEDPA the standard is that a state-court decision can only be set aside if it is “contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court. Either this standard, whether right or wrong, was not misapplied, or the majority is cherry picking the one case that stands for the proposition it endorses today. In either case, the law was not “clearly established.” The dissent then rehashes its points from the previous case, particularly that the “limited view” of Penry, adopted in Graham, at the very least justified the lower courts in their application of the law; that even if it was wrong as a constitutional matter, it was reasonable under the AEDPA.

Justice Scalia, with Justices Thomas and Alito, dissenting, while they agree with the above dissent, maintain that “limiting a jury’s discretion to consider all mitigating evidence does not violate the eighth Amendment.

Jury Must Be Able to Give Full Effect to All Mitigating Evidence in Death Penalty Sentencing

2007-08-29T23:09:00.000-04:00

Abdul-Kabir v. Quarterman

Cole and his stepbrother robbed and killed a relative in 1987. After trial, the jury was asked to decide whether Cole’s conduct was deliberate, and whether there was a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. The trail judge did not instruct the jury to consider mitigating evidence, including evidence of childhood neglect and abandonment and neurological impairment reducing his capacity for self control. To support Cole’s continuing threat to society his prior convictions for murder and sexual assault as well as his diary which, according to an expert, revealed a compulsive attraction to young boys and an obsession with criminal activity. The lower court denied Cole’s assignment of error that mitigating evidence was not able to be evaluated, but agreed that his appellate counsel had been ineffective for failing to challenge the absence of an instruction that the jury could consider mitigating evidence, and denied the argument that failure to so instruct the jury was error.

Under Pendry I when the defendant presents mitigating evidence the court must instruct the jury that it may give effect to that evidence in deciding whether to impose the death penalty. The fifth circuit interpreted that case to require that the evidence show (1) a uniquely severe permanent handicap with which the defendant is burdened, by no fault of his own, and (2) that the criminal act was attributable to this severe permanent condition. This interpretation was overturned in Dretke. On remand the Texas court decided that the questions presented to the jury allowed it to give full consideration and effect to the mitigating evidence. Under the AEDPA the question is whether this decision “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.”

In Woodson v. North Carolina a blanket imposition of the death penalty for all first degree murders was overturned for its failure to allow particularized consideration of the character and record of each defendant. In Proffit v. Florida, and Jurek v. Texas, death penalty statutes were upheld on the assumption that they allowed unrestricted admissibility of mitigating evidence. Then in Lockett v. Ohio the Court held that the Constitution requires that in all but the rarest kind of capital case the jury must be allowed to consider, as a mitigating factor, any aspect of the defendant’s character, record, or circumstances of the offense, when determining whether to impose the death penalty. This rule was later reaffirmed in Hitchcock v. Dugger, finding that restriction of mitigating evidence to statutorily defined types was unconstitutional. The result of these cases is that the imposition of the death penalty must be a moral judgment, and that a jury must not only be allowed to hear mitigating evidence, but must have the opportunity to give it effect.

“The right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration.” To that end, special questions must invite the jury to consider all mitigating evidence in its answer. Neither the question of deliberateness nor of future dangerousness necessarily does so. The judge in this case decided that the issue of “whether the mitigating evidence can be sufficiently considered” was one that “must be determined on a case by case basis, depending on the nature of the mitigating evidence offered and whether there exists other testimony in the record that would allow consideration to be given.” The Texas courts misunderstood the weight of precedents when they arrived at a different standard.

The lower court ruling violated Penry itself because first, even though the mitigating evidence was not persuasive on the special question issues, it was relevant to moral culpability. Second, the assumption that it would be appropriate to look to other testimony to determine whether the jury could give mitigating effect to the mitigating evidence is not supported by that decision. Third, that the jury could clearly weigh some mitigating evidence is not sufficient to satisfy the rule that it be able to give effect to all mitigating evidence. For example, in Johnson v. Texas, youth was a factor that is universally understood as applicable, and was specifically applicable in the special questions presented. Prosecutors’ arguments to the jury that they must put mitigating evidence out of their mind and go ‘just by the facts’ contravenes these cases and the rules they stand for.

The Upshot: The majority asserts that it does not endorse what Graham foreclosed, but only requires a special instruction, where mitigating evidence that does not fall within one of the special questions, that all mitigating evidence may be considered.

The Chief Justice, for the dissent, argues first that Penry I does not create “clearly established Federal law,” in the light of its surrounding and somewhat conflicting cases. Jurek, for example, upheld as facially constitutional Texas’ use of special questions, leaving open the possibility that some mitigating evidence would not be relevant to those issues. Franklin explained that this foreclosed the rule that the jury must be able to give independent effect to mitigating evidence, outside the special questions. The majority relies on Justice O’Connor’s observation that all mitigating evidence in that case fell within those questions. Penry I was an as applied challenge which found unconstitutional the jury’s inability to consider the defendant’s mental retardation, a fact that was relevant to moral culpability. Grahm foreclosed the requirement that there always be an additional special question, opening up the issue of additional mitigating evidence. Johnson then reaffirmed Graham’s limited view of Penry, relying on the Franklin plurality, and not the concurrence. The dissent in that case made the same point about how to read the Franklin concurrence and dissent as the majority does here, but that argument did not carry.

A reviewing state court “would see four dissenters in Graham and Johnson—including every remaining Member of the Penry I majority—arguing that the Court was failing to follow or sharply limiting Penry I in those cases. On the flip side, the state court would see four dissenters in Penry I—every one later joining the majorities in Graham and Johnson—suggesting that the Penry I majority departed from Jurek.” This does not create clearly established law in the context of AEDPA. Also, in Penry, the evidence had no mitigating effect, so whatever rule the majority attributes to that decision is questionable.
The majority holds that the jury instructions did not permit Cole’s evidence to have mitigating effect beyond the scope of the special issues, but that requirement was foreclosed in Graham and Johnson. Also, under the AEDPA, it is improper for the majority to draw support from cases that post-date the state court ruling.

Finally, the lower court’s decision as to the mitigating evidence’s effect on future dangerousness was a consideration of its character, not its weight. The Chief Justice concludes that “there is hope yet for the views expressed in this dissent, not simply down the road, but tun pro nuc. Encouraged by the majority’s determination that the future can change the past, I respectfully dissent.”

Justices Scalia, Thomas, and Alito, dissenting, “remain of the view that limiting a jury’s discretion to consider all mitigating evidence does not violate the Eighth Amendment.” That notwithstanding, the lower court rulings were not objectively unreasonable, as the Chief Justice notes. Worse yet, the majority overrules Johnson sub silentio and reinstates the Penry rule that juries must be able to give all mitigating evidence must full effect. Johnson is not distinguishable on the basis that the mitigating evidence was relevant to the special questions presented because constitutional rights do not turn on the beneficence of the prosecutor. Nor does prosecutorial style (apparently referring to the arguments made about the jury setting aside in their mind the mitigating evidence) have any bearing on whether the Eighth Amendment test is ‘some effect’ or ‘full effect.’ Moreover, youth in Johnson, did not require jurors to alter their answer to the special questions, just as the mitigating factors here do not have any bearing on the answers to the special questions in this case.

“[T]he meaning of the Eighth Amendment is to be determined not by the moral perceptions of the Justices du jour, but by the understanding of the American people who adopted it… this Court’s vacillating pronouncements have produced grossly inequitable treatment of those on death row.”

Is Entering with Intent To Commit an Offense a Violent Felony?

2007-08-29T23:06:00.000-04:00

James v. United States

Under the Armed Career Criminal Act (ACCA) possession of a firearm by a convicted felon carries a 15 year prison sentence if the defendant has three prior convictions ‘for a violent felony or a serious drug offense.” The question here is whether attempted burglary, defined by Florida law as entering or remaining in a structure or conveyance with the intent to commit an offense therein (unless the premises are at the time open to the public or the defendant is licensed or invited to remain therein), is a “violent felony.” This is not a violent felony under ACCA because it does not have, as an element, the use, attempted use, or threatened use of physical force against the person of another.

James (Appellant) argues that because Congress included offenses that have as an element the attempted use of physical force (clause (i)), and its failure to include attempted burglary in its enumeration of specifically covered crimes (clause (ii)) categorically excludes attempt offenses. The Court is not convinced because clause (i) is couched in narrow language while clause (ii) is couched in broad language – “…or otherwise involve[e] conduct that presents a serious potential risk of physical injury to another.” Nor is the fact that all enumerated crimes in clause (ii) (burglary, arson, extortion, and use of explosives) are completed crimes convincing. First of all, crimes involving the use of explosives are not necessarily completed crimes. Second, the common feature of those crimes is not their completion, but their risk of bodily injury.

Next, James argues that Congress rejection of a version of clause (ii) that included conspiracy to commit those completed crimes suggests that Congress intended to exclude attempt offenses. However, the expansive language cited in clause (ii) was added by a later Congress, which might have had different motivations.

The elements of the crime of which James was convicted must still independently qualify as a crime involving “conduct that presents a serious potential risk of physical injury to another.” Finding that attempted burglary poses the same threat of confrontation, and thereby, the same threat of physical harm, as its closest enumerated analogue (completed burglary), the Court finds that it fits into the category of clause (ii). Indeed, all courts of appeal, and the federal sentencing commission, have agreed.

James also challenges the law’s application as applied to his case. However, due to the Taylor precedent, and the fact that the nature of the inquiry is already probabilistic, the Court declines to consider the statute as applied. The dissent interprets the law to require at least as much probability as the completed crime, but the text does not support this requirement, and the dissent’s approach does not achieve its stated objective – providing guidance to the lower courts.

Nor does Florida’s inclusion of the cartilage (area around the house) in its definition reduce the danger presented by the elements of the offense. Finally, since the inquiry here is a matter of statutory interpretation, and not impermissible judicial fact-finding, the law does not violate the Sixth Amendment under Aprendi (in short, that the jury must find the facts of all the elements of a crime, not the judge).

Justice Scalia, dissenting, argues for a bright line rule that will give guidance to lower courts. Is driving under the influence more analogous to burglary, arson, extortion, or a crime involving the use of explosives? Nor is Justice Scalia of the opinion that an unenumerated offense that presents less risk than its closest analogue, but more than another enumerated offense, should be excluded for that reason alone. One approach would be to limit ACCA to its enumerated crimes. Another would be to categorically consider attempted crimes to be the same as completed crimes for the purposes of ACCA. Justice Scalia would determine whether the crime in question poses less of a risk of bodily injury than the least risky enumerated crime, which he determines to be burglary. At this point, instead of following the majority, Justice Scalia concludes that attempted burglary categorically poses a less serious risk of potential physical injury to others than completed burglary, and therefore must be excluded from clause (ii).

How “Per-Pupil Expenditures” Actually Means Student Population

2007-08-29T23:04:00.001-04:00

Federal law requires a State’s Secretary of Education to calculate the disparity of expenditures per-pupil when determining whether the State’s public school funding program “equalizes expenditures” (for purposes of certain federal grants). However, when doing so, the Secretary is directed to “disregard” school districts “with per-pupil expenditures above the 95^th percentile or below the 5^th percentile of such expenditures,” and shall also take into account special additional costs, such as those borne by geographically isolated districts. Where the greatest measured district per pupil expenditures exceed the least measured district per-pupil expenditures by more than 25%, that state is not eligible for federal grants. The question here is whether the Secretary may identify these disregarded districts by looking to the number of the district’s pupils as well as the expenditure per pupil.

If Congress’ language is ambiguous then there is a gap for the agency to fill and the Secretary’s interpretation must be upheld under Chevron. “The matter here is the kind of highly technical, specialized interstitial matter that Congress often does not decide itself, but delegates to specialized agencies.” Also, the original method was left entirely to the Secretary, and never seems to have been challenged. The Court also finds the Secretary’s method objectively reasonable while it questions the reasonableness of the method based on number of districts alone since the secretary’s method actually excludes outliers while excluding based on the number of districts could exclude a larger or smaller portion of the population depending on the geographic characteristics of the school district lines.

And, finally, the text of the statute: How does “per-pupil expenditures” translate into student population? “A customs statute that imposes a tariff on ‘clothing’ does not impose a tariff on automobiles, no matter how strong the policy arguments for treating the two kinds of goods alike.” N-percentile is defined as a “the value Xn/100 such that n per cent of the population is less than or equal to Xn/100.” Congress did not delineate the relevant population to be divided for the purposes of evaluating “per-pupil expenditures.” Since the population is not defined the Secretary could define it – here he did so on the basis of students, not districts – and any reasonable definition passes Chevron. Where Congress wanted to be more specific, it has been, and the population should be defined based on Congressional intent (apparently, intent to allow ambiguity that can be filled in by the Secretary).

Justice Stevens, concurring, cites then Chief Justice Rehnquist for the proposition that “in rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling.” “Justice Scalia’s argument today,” he continues, “rests on the incorrect premise that every policy-driven interpretation implements a judge’s personal view of sound policy, rather than a faithful attempt to carry out the will of the legislature.” He further cites Chevron for the proposition that “if a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” This case is one “in which the legislative history is pellucidly clear and the statutory text is difficult to fathom” (the paucity of comments is a sign of faith in the statute’s sponsors who introduced it on behalf of the administration who implemented this method both before and after the statute was passed, and as for what is left of the law – “any competent counsel challenging the validity of a presumptively valid federal regulation would examine the legislative history of its authorizing before filing suit”)

Justices Kennedy and Alito, concurring, argue that “only if Congress has not directly addressed the precise question at issue should a court consider whether the agency’s answer is based on a permissible construction of the statute.” The plain language is ambiguous, so Chevron deference applies.

Justice Scalia (joined by the Chief Justice, Justice Thomas, and Justice Souter) goes back to his Church of the Holy Trinity lecture: in that case the court said that sometimes “a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers,” a proposition with which Justice Scalia humbly differs. Justice Scalia observes the “suspicious order of proceeding” that the majority takes by discussing what the statute does not say before commenting on what it does. Percentile, as used in the statute, refers to a division of some population, and concerns the percentile of “per-pupil expenditures or revenues.” The population at issue here is clear – the local education agency – and it does not suggest that the state may use each student’s individual per-pupil revenue. The only population mentioned in the statute is that of the LEA: “local education agencies with per-pupil expenditures or revenues …”

As for Justice Stevens’ concurrence, “once one departs from [the actual meaning of the text] … fidelity to the intent of Congress is a chancy thing. The only thing we know for certain both Houses of Congress … agreed upon is the text. Legislative history can never produce a ‘pellucidly clear’ picture.” “What judges believe Congress ‘meand’ (apart from the text) has a disturbing but entirely unsurprising tendency to be whatever judges think Congress must have meant, ie., should have meant.” Finally, Justice Scalia argues that the cases that Justice Stevens cites for the proposition that congressional intent is prior to statutory interpretation do not support that proposition at all.

By using this convoluted interpretation the Secretary managed to exclude approximately 26% of New Mexico’s LEAs. “To be governed by legislated text rather than legislators’ intentions is what it means to be ‘a Government of laws, not of men.’”

How “Per-Pupil Expenditures” Actually Means Student Population

2007-08-29T23:04:00.000-04:00

Zuni Public School Dist. No. 89 v. Department of Education

What Can the FCC Declare to be Unreasonable?

2007-08-29T23:03:00.001-04:00

Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc.

The FCC requires telecommunication carriers to compensate payphone operators for free calls (eg. 1-800 calls), and has declared failure to do so “unjust and unreasonable” as it has the power to do under language substantially copied from the Interstate Commerce Act of 1887. “Unjust and unreasonable” practices are statutorily defined as “unlawful” and allow injured person to recover “damages” for “unlawful” charges or practices. Until 1887 reasonableness was a question for the courts, not a commission. Payphone operators are authorized to recover damages in court when they are “damaged.” The question here is whether payphone operators may bring suit when a carrier refuses to pay compensation for free calls.

Where “Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law,” a court “is obliged to accept the agency’s position if Congress has not previously spoken to the point at issue and the agency’s interpretation” is “reasonable.” Chevron. Appellants argue that the law authorizes actions seeking damages only for statutory violations, not for regulations designed to promote the objectives of that statute. Previous cases holding that an agency cannot determine accessibility of courts were based on the text of the enabling statute. Nor does the text suggest that only violations of “interpretive” regulations can amount to unjust or unreasonable practices since this legislation was passed before the interpretive/substantive-regulatory distinction came into existence.

The definition of a “practice” as one that only harms carrier customers, and not carrier suppliers is not supported by the text or history of the legislation. “The long-distance carrier ordered by the FCC to compensate the payphone operator is so ordered in its role as a provider of communications services, not as a consumer of office supplies or the like.” Next, while the FCC has not provided reasons for its determination, those reasons are obvious (and have been elucidated elsewhere). Nor does this determination violate another statutory section (§276), but it rather serves the same purpose. Finally, even if this regulation goes beyond the mandate of §276, it still furthers the same purpose and, therefore, is reasonable under Chevron.

Justice Scalia, dissenting, argues that the Court’s outcome must either be premised on (1) the idea that such practices are independently unreasonable, or (2) that these practices are unreasonable simply because they violate FCC regulations. As for (1), it would be “neither unjust nor unreasonable for a carrier to decline to act as collection agent for payphone companies.” And under (2), the enabling Act only provides a private cause of action for violations of the Act (interpretive regulations) and not mere FCC regulatory actions. Justice Scalia also believes that both the text of the statute explicitly refers to the interpretive/substantive distinction in another section and that this distinction should carry over to the section at issue lest the careful delineations marked in the rest of the law be abolished by a “backdoor” in the section at issue.

Jutice Thomas, dissenting, does not believe that the word “practice,” as used in this statute, extends to business practices, as opposed to activities of telecommunication firms as providers of services. Basically, he says that section (a) sets out the duties and powers of a common carrier, and section (b) requires them to be reasonable (describing them jointly as “practices”). Since section (a) only applies does not set out duties related to the receipt of services from suppliers, whether those are reasonable or not is no matter for section (b). At the same time, since “unjust and unreasonable” is a statutory term, a court cannot abdicate its responsibility to construe that term independently in the name of Chevron deference. Finally, the FCC’s determination is overbroad, he argues, because it regulates both interstate and intrastate calls where the “unreasonable[ness]” portion of the statute only applies to interstate calls.

Is a National Bank’s Subsidiary Regulated as a National Bank?

2007-08-29T23:00:00.000-04:00

Watters v. Wachovia Bank, N. A.

The business of national banks is controlled by the National Bank Act (NBA) and the Office of the Comptroller of Currency (OCC) which has the largely exclusive power to audit the banks’ records, to the exclusion of local or state regulation. National banks retain incidental banking powers including opening subsidiaries. This case presents the question of whether Wachovia’s wholly owned state subsidiary is governed by the OCC’s exclusive audit power – really, whether a subsidiary is still a national bank.

National banks are still governed by state laws of general application where they do not interfere with the letter or purpose of federal law but remain free from “any visitorial powers,” defined as “a superior or superintending officer, who visits a corporation to examine into its manner of conducting business , and enforce an observance of its laws and regulations,” except as provided by Federal law. Subsidiaries are distinguished in Federal law from mere affiliates (over which states may exert control) as those entities that can only do business subject to the same terms and conditions as the national bank.

The Court has focused on the operations, rather than the corporate structure, of national banks in defining the scope of the NBA. Waters, the state regulator for Michigan who wishes to assert oversight powers over Wachovia’s subsidiary there, argues that if Congress intended to exempt subsidiaries it would have extended the ban on state inspection to affiliates. However, operating subsidiaries were not authorized until after that law was passed, and operating subsidiaries are a special subset of affiliates (termed “financial subsidiaries”) and retain a more limited set of powers.

Justice Stevens, dissenting, argues that only where laws of general application “forbid” or “impair significantly” the activities of the national bank are they unconstitutional. Stevens recounts an expanding national banking system alongside a shrinking and more heavily regulated state system. The legislation explicitly allowing national banks to own subsidiaries that can engage in activities that the national banks may not, while subjecting them to heightened regulation implied that operating subsidiaries could not. Basically, Justice Stevens points out that whereas the majority draws the line at significant impairment, he and the dissent would draw the line at explicit Federal preemption. Additionally, the Michigan acts, by their terms, exempt “depository financial institutions.” Since operating subsidiaries are created as the negative of what the statute defines (financial subsidiaries) Congress has not demonstrated a “clear and manifest purpose” to preempt state laws, except as it did so explicitly and meticulously.

That being the case, Stevens then addresses whether the OCC can assume the power to displace state law. Congress can do so explicitly, and has not. Even so, OCC has not exerted such control, and even if it did, that interpretation of the law granting it the power to do so is not due Chevron deference, without which it fails on analysis. First it fails statutory construction (above), and second it fails the purpose of the statute, because the value of a subsidiary has nothing to do with federal preemption – it is about operating liabilities.

EPA Rulemaking May Be Inconsistent

2007-08-29T22:59:00.000-04:00

Environmental Defense v. Duke Energy Corp.

In the 1970s Congress passed the New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD) amendments to the Clean Air Act, governing modified, as well as new, stationary sources of air pollution. The term “modification” is defined in NSPS as “any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.” This definition is included in the PSD’s definition of “construction” of a new facility, to which that act applies. To put the problem simply, under NSPS the EPA defines “modification” by reference to kilograms of carbon per hour, and under PSD by reference to kilograms per year. The consequence of this disparity is that an increase in hours of production would trigger NSPS requirements but not PSD requirements.[1] Duke Energy fell into this very trap, and the lower court held that PSD must be read with the assumption that pre-modification production hours be maintained. This case concerns whether the EPA must conform its PSD regulations on “modification” to their NSPS counterparts, in light of the Act’s restrictions on judicial review of EPA regulations in the Clean Air Act – that is, whether the EPA’s construction of a statutory term must be uniform.

In Rown Cos v. United States the Court held against various definitions of the term “wages” in tax law. However, “[m]ost words have different shades of meaning and consequently may be variously construed, not only when they occur in different statutes, but when used more than once in in the same statute or even in the same section.” For example, in Robinson v. Shell Oil, the term “employee” was held to have different meanings depending on the section of Title VII in which it is found. The Court synthesizes these two opinions into the principle that a court should rely on “a manifest ‘congressional concern for the interest of simplicity and ease of administration.’” In fact, it suggests that if Congress intended that the terms be defined identically it should have explicitly so required. Incidentally, the regulatory scheme that Congress intended to codify included at least three different definitions of this term.

The statute itself suggests this interpretation in its requirement that there be both a modification and a resulting increase in emissions, and in its preamble where it notes that requiring companies to obtain a permit merely when changing hours of operation would “severely and unduly hamper the ability of any company to take advantage of favorable market conditions.” This purpose indicates that where hours are increased as part of a construction program (a “modification”) this increase does not fall into the exception mentioned above. Since the appeals court “interpreted” these provisions out of conformity with the legislative scheme that court was engaged in judicial review (reaching the validity of the enactments) prohibited when such review “could have been obtained” in the Court of Appeals for the District of Columbia within 60 days of EPA rulemaking.

Thomas, concurring (?), believes that a word, when repeated, and especially when cross-referenced, should be presumed to mean the same thing each time, and that those who would hold otherwise have “the burden of stating why our general presumption does not control the outcome here.”

[1] In 1980 EPA regulations limited PSD to “any physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any pollutant…” A mere increase in hours of operation or in production rate does not trigger the Clean Air Act requirements under NSPS because emissions are measured in kilograms per hour. Under PSD a permit for modification is only required if that modification is a major one, measured in annual output

Consistency? I Think Not

2007-08-29T22:58:00.000-04:00

Time to dump all the write-ups I've been holding onto.

No Taxpayer Standing to Challenge Unconstitutional Executive Expenditures

2007-06-29T15:22:00.000-04:00

Hein v. Freedom From Religion Foundation, Inc.

Plaintiffs claim that the President’s Faith-Based and Community Initiatives program violated the Establishment Clause of the First Amendment because they supported religion with money paid by the executive branch general appropriation. Plaintiffs contend that they meet Article III standing requirements because they pay federal taxes. Payment of taxes is generally not enough to meet the requirement that one must have a particularized harm before going to court to have it redressed since “in light of the size of the federal budget, it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm.” Flast v. Cohen recognized a narrow exception whereby a plaintiff had standing to challenge a law authorizing the use of federal funds in a way that violated the Establishment Clause. The question here is whether money paid by the executive branch falls under the same exception to the general rule against taxpayer standing.

The President created the Office of Faith-Based and Community Initiatives to ensure that “private and charitable community groups, including religious ones … have the fullest opportunity permitted by law to compete on a level playing field, so long as they achieve valid public purposes” and adhere to “the bedrock principles of pluralism, nondiscrimination, evenhandedness, and neutrality.” No congressional legislation specifically authorized this action or expenditure.

Under Article III a plaintiff “must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” In cases of taxpayer/citizen standing the individual taxpayer’s injury “is not distinct from that suffered in general by other taxpayers or citizens” (known as the Frothingham principle). This rule preserves the principle that U.S. courts do not pass on the constitutionality of an act unless required to do so when the question is raised by an interested party, and the general interest in seeing that tax money is spent constitutionally is not a “personal injury” for Article III purpose unless it causes a real and immediate economic injury to the taxpayer. Flast carved out an exception to this general rule where distribution of federal funds to religious schools under a two part test: (1) the taxpayer must establish a logical link between that status and the type of legislative enactment attacked (expenditures under Article I Section 8 ‘Spending Clause’ and not incidental regulatory expenditures), and (2) the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement (that it infringes a specific constitutional limitation and is not merely outside the powers delegated to Congress). This rule was limited to challenged directed at congressional power.

Here, the expenditures were made out of Executive Branch appropriations for day-to-day activities ($53.8 million). In Valley Forge similar standing was denied, even though the donation of property to a religious institution was arguably authorized by the Federal Property and Administrative Services Act of 1949 (also because it was an exercise under the Property Clause, and not the Spending Clause). In Schlesinger v. Reservists Commission the Court denied standing to prevent members of Congress from unconstitutionally receiving reservist pay, presumably funded through general appropriations for the support of the Armed Services. Also, in United States v. Richardson the Court denied standing to compel the CIA to publish more of its budget (as required by the Constitution) because there was no logical nexus between taxpayer status and failure of Congress to pass a law requiring the CIA to do so. In Bowen v. Kendrick the Court allowed standing where the Adolescent Family Life Act (AFLA) authorized federal grants to private community service groups, including religious organizations because this was a Congressional enactment.

Plaintiffs argue the line between congressional expenditures and Executive expenditures of congressional appropriations is arbitrary and in any case the injury is the same. But Flast drew that line and the Court “must decline this invitation to extend its holding to encompass discretionary Executive Branch expenditures.” “The Flast exception has largely been confined to its facts.” The extension plaintiffs seek would “effectively subject every federal action – be it a conference, proclamation, or speech – to Establishment Clause challenge by any taxpayer in federal court.” Flast itself gave too little weight to separation of powers concerns embodied in Article III standing “lowering the taxpayer standing bar to permit challenges of purely executive actions would significantly alter the allocation of power at the national level, with a shift away from democratic form of government.” “It would deputize federal courts as virtually continuing monitors of the wisdom and soundness of Executive action, and that is, most emphatically, not the role of the judiciary.

The lower court suggested drawing the line at actual harm, that is, spending as opposed to mere verbal support of religion, but this neglects the incidental costs of even giving a speech. Plaintiffs offer a test designed to “screen out challenges to the content of one particular speech” (I’m sorry, are you kidding me? We are interpreting the First Amendment, are we not?) by focusing on whether the injury is fairly traceable to the actions challenged.

Justice Kennedy, concurring, says that if Flast were extended as plaintiffs ask “the courts would soon assume the role of speech editors for communications issued by executive officials and event planners for meetings they hold.” “Government officials must make a conscious decision to obey the Constitution whether or not their actions can be challenged in a court of law and then must conform their actions to these principled determinations.”

Justice Scalia, dissenting, argues that the consistency in this case is purchased at the price of “utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently.” “If this Court is to decide cases by rule of law rather than show of hands, we must surrender to the logic and choose sides:” either Flast should apply to all challenges to government expenditures of tax revenues in violation of the Constitution, or Flast should be repudiated. Justice Scalia describes two ‘alternative’ standards that he believes are employed by the Court in place of the particularized injury standard: “wallet injury” and “psychic injury’ (both of which are pretty self explanatory). Cases under the former fail for lack of traceability and redressability while cases under the second violate the rule that redressable injury must be concrete and particularized. He compares the Frothingham rule that wallet-injury is insufficient to the Doremus rule that psychic injury was insufficient (in that case standing was denied plaintiffs who wished to sue to enjoin a state law that required reading the bible at the opening of school sessions). The Flast rule was designed to disqualify one of these two groups. “Did the Court proffer any reason why a taxpayer’s psychic injury is less concrete and particularized, traceable, or redressable when the challenged expenditures are incidental to an essentially regulatory statute (whatever that means)? Not at all.

As for Frothingham, “it is impossible to maintain that the Establishment Clause is a more direct limitation on the taxing and spending power than the constitutional limitation invoked in Frothingham, which is contained within the very provision creating the power to tax and spend” (apparently referring to the limitation that Congress may spend only for the common defense and general welfare). Then in Bowen v. Kendrick the Court allowed a challenge to the Secretary of Health’s disbursement of congressional funds based on their psychic injury. Then in DaimlerChrystler Corp. v. Cuno the Court recognized that by the nature of expenditures in violation of the Establishment Clause the harm would be redressed even if the funds were still spent for a different purpose – expressly recognizing psychic injury. Therefore, Justice Scalia argues, at the first step the Court must decide whether psychic injury comports with Article III. If it does the branch of government which causes that injury is completely irrelevant. If not, Flast should be overruled. Nor can the majority fall back to just applying the law as it is, for better or worse, because the whole point of the as applied challenge in Kendrick was that the Secretary, not Congress, had chosen inappropriate grant recipients. Finally, the argument that the limiting principle in Flast was traceability is vacuous, as they argue that a taxpayer would have standing to challenge the hiring of a single secret service operative, but not a generalized duty on the part of the Secret Service. “If respondents are to prevail, they must endorse a future in which ideologically motivated taxpayers could Ïroam the country in search of governmental wrongdoing and . . . reveal their discoveries in federal court.” The horror!

In an attempt to demonstrate the absurdity of this conclusion, Justice Scalia suggests that Congress could insulate the President from all Flast-based suits by codifying the truism that no appropriation can be spent by the Executive Branch in a manner that violates the Establishment Clause.”

The problem with psychic injury standing, for Scalia, is that the result does not benefit petitioner any more or less than it does the public at large. He also objects to the idea that only the issues being presented, not standing per se, can raise a separation of powers issue, arguing that an expanded role for the courts creates the potential for abuse, distorts the balance of power, and paves the way for government by injunction. Generalized grievances have their remedy in the political process.

Justices Souter, Stevens, Ginsburg, and Breyer, dissenting, agree with Scalia that there is no principled distinction between this case and Flast. Citing Madison, and the historical importance of the Establishment Clause, that the government in a free society may not force a citizen to contribute three pence only of his property for the support of any one establishment of religion. As for separation of powers, there is no difference between judicial oversight of Exeutive and congressional actions. Justice Souter then packs into a single footnote my entire perspective on this case: “The plurality warns that a parade of horribles would result if there were standing to challenge executive action, because all federal actions are ‘ultimately funded by some congressional appropriation. But even if there is Article III standing in all of the cases posited by the plurality … that does not mean taxpayers will prevail in such suits. If these claims are frivolous on the merits, I fail to see the harm in dismissing them for failure to state a claim instead of for lack of jurisdiction. To the degree the claims are meritorious, fear that there will be many of them does not provide a compelling reason, much less a reason grounded in Article III, to keep them from being heard.”

“Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future.” – Justice Scalia, dissenting

What is a Violent Felony - Pure Statutory Construction

2007-06-25T17:00:00.002-04:00

James v. United States

Under the Armed Career Criminal Act (ACCA) possession of a firearm by a convicted felon carries a 15 year prison sentence if the defendant has three prior convictions ‘for a violent felony or a serious drug offense.” The question here is whether attempted burglary, defined by Florida law as entering or remaining in a structure or conveyance with the intent to commit an offense therein (unless the premises are at the time open to the public or the defendant is licensed or invited to remain therein), is a “violent felony.” This definition is not a violent felony under ACCA because it does not have, as an element, the use, attempted use, or threatened use of physical force against the person of another.

James also challenges the law’s application as applied to his case. However, due to the Taylor precedent, and the fact that the nature of the inquiry is already probabilistic, the Court declines to consider the statute as applied. The dissent interprets the law to require at least as much probability as the completed crime, but the text does not support this requirement, and the dissent’s approach does not achieve its stated objective – providing guidance to the lower courts.

Nor does Florida’s inclusion of the cartilage (area around the house) in its definition reduce the danger presented by the elements of the offense. Finally, since the inquiry here is a matter of statutory interpretation, and not impermissible judicial fact-finding, the law does not violate the Sixth Amendment under Aprendi (in short, that the jury must find the facts of all the elements of a crime, not the judge).

Justice Scalia, dissenting, argues for a bright line rule that will give guidance to lower courts. Is driving under the influence more analogous to burglary, arson, extortion, or a crime involving the use of explosives? Nor is Justice Scalia of the opinion that an unenumerated offense that presents less risk than its closest analogue, but more than another enumerated offense, should be excluded for that reason alone. One approach would be to limit ACCA to its enumerated crimes. Another would be to categorically consider attempted crimes to be the same as completed crimes for the purposes of ACCA. Justice Scalia would determine whether the crime in question poses less of a risk of bodily injury than the least risky enumerated crime, which he determines to be burglary. At this point, instead of following the majority, Justice Scalia concludes that attempted burglary categorically poses a less serious risk of potential physical injury to others than completed burglary, and therefore must be excluded from clause (ii).

How “Per-Pupil Expenditures” Actually Means Student Population

2007-06-25T17:00:00.001-04:00

Zuni Public School Dist. No. 89 v. Department of Education

If Congress’ language is ambiguous then there is a gap for the agency to fill and the Secretary’s interpretation must be upheld under Chevron. “The matter here is the kind of highly technical, specialized interstitial matter that Congress often does not decide itself, but delegates to specialized agencies.” Also, the original method was left entirely to the Secretary, and never seems to have been challenged. The Court also finds the Secretary’s method objectively reasonable while it questions the reasonableness of the method based on number of districts alone since the secretary’s method actually excludes outliers while excluding based on the number of districts could exclude a larger or smaller portion of the population depending on the geographic characteristics of the school district lines.

And, finally, the text of the statute: How does “per-pupil expenditures” translate into student population? “A customs statute that imposes a tariff on ‘clothing’ does not impose a tariff on automobiles, no matter how strong the policy arguments for treating the two kinds of goods alike.” N-percentile is defined as a “the value Xn/100 such that n per cent of the population is less than or equal to Xn/100.” Congress did not delineate the relevant population to be divided for the purposes of evaluating “per-pupil expenditures.” Since the population is not defined the Secretary could define it – here he did so on the basis of students, not districts – and any reasonable definition passes Chevron. Where Congress wanted to be more specific, it has been, and the population should be defined based on Congressional intent (apparently, intent to allow ambiguity that can be filled in by the Secretary).

Justice Stevens, concurring, cites then Chief Justice Rehnquist for the proposition that “in rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling.” “Justice Scalia’s argument today,” he continues, “rests on the incorrect premise that every policy-driven interpretation implements a judge’s personal view of sound policy, rather than a faithful attempt to carry out the will of the legislature.” He further cites Chevron for the proposition that “if a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” This case is one “in which the legislative history is pellucidly clear and the statutory text is difficult to fathom” (the paucity of comments is a sign of faith in the statute’s sponsors who introduced it on behalf of the administration who implemented this method both before and after the statute was passed, and as for what is left of the law – “any competent counsel challenging the validity of a presumptively valid federal regulation would examine the legislative history of its authorizing before filing suit”)

Justices Kennedy and Alito, concurring, argue that “only if Congress has not directly addressed the precise question at issue should a court consider whether the agency’s answer is based on a permissible construction of the statute.” The plain language is ambiguous, so Chevron deference applies.

Justice Scalia (joined by the Chief Justice, Justice Thomas, and Justice Souter) goes back to his Church of the Holy Trinity lecture: in that case the court said that sometimes “a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers,” a proposition with which Justice Scalia humbly differs. Justice Scalia observes the “suspicious order of proceeding” that the majority takes by discussing what the statute does not say before commenting on what it does. Percentile, as used in the statute, refers to a division of some population, and concerns the percentile of “per-pupil expenditures or revenues.” The population at issue here is clear – the local education agency – and it does not suggest that the state may use each student’s individual per-pupil revenue. The only population mentioned in the statute is that of the LEA: “local education agencies with per-pupil expenditures or revenues …”

As for Justice Stevens’ concurrence, “once one departs from [the actual meaning of the text] … fidelity to the intent of Congress is a chancy thing. The only thing we know for certain both Houses of Congress … agreed upon is the text. Legislative history can never produce a ‘pellucidly clear’ picture.” “What judges believe Congress ‘meand’ (apart from the text) has a disturbing but entirely unsurprising tendency to be whatever judges think Congress must have meant, ie., should have meant.” Finally, Justice Scalia argues that the cases that Justice Stevens cites for the proposition that congressional intent is prior to statutory interpretation do not support that proposition at all.

By using this convoluted interpretation the Secretary managed to exclude approximately 26% of New Mexico’s LEAs. “To be governed by legislated text rather than legislators’ intentions is what it means to be ‘a Government of laws, not of men.’”

What Can the FCC Declare to be Unreasonable?

2007-06-25T16:59:00.001-04:00

Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc.

Is a National Bank’s Subsidiary Regulated as a National Bank?

2007-06-25T16:58:00.000-04:00

Watters v. Wachovia Bank, N. A.

EPA Rulemaking May Be Inconsistent

2007-06-25T16:56:00.000-04:00

Environmental Defense v. Duke Energy Corp.

In the 1970s Congress passed the New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD) amendments to the Clean Air Act, governing modified, as well as new, stationary sources of air pollution. The term “modification” is defined in NSPS as “any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.” This definition is included in the PSD’s definition of “construction” of a new facility, to which that act applies. To put the problem simply, under NSPS the EPA defines “modification” by reference to kilograms of carbon per hour, and under PSD by reference to kilograms per year. The consequence of this disparity is that an increase in hours of production would trigger NSPS requirements but not PSD requirements. Duke Energy fell into this very trap, and the lower court held that PSD must be read with the assumption that pre-modification production hours be maintained. This case concerns whether the EPA must conform its PSD regulations on “modification” to their NSPS counterparts, in light of the Act’s restrictions on judicial review of EPA regulations in the Clean Air Act – that is, whether the EPA’s construction of a statutory term must be uniform.

Original Source: Who Knew What, And When

2007-04-03T00:26:00.000-04:00

Rockwell Int'l Corp. v. United States

From 1975 to 1989 Rockwell Int. Corp. was under a management contract with the Department of Energy to run the Rocky Flats nuclear weapons plant. Rockwell planned to dispose of its waste by mixing it with concrete thereby creating blocks that could be easily disposed. Stone, an employee, wrote an evaluation arguing the plan would not work. Rockwell proceeded anyway, and the plan failed, but not for the reasons that Stone cited. Stone went to the FBI and alleged wrongdoing at the plant; allegations which provided the basis for a federal search warrant. The charges were widely publicized. Stone brought an action for civil remedies provide under the False Claims Act which eliminates federal-court jurisdiction over actions under the Act that are based upon the public disclosure of allegations or transactions “unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.” Rockwell argues that Stone’s information was based on publicly disclosed allegations. The amended complaint did not allege the defects in the concrete plan. Stone acknowledged that his claims were based on publicly disclosed allegations but asserted original-source status. This case addresses whether respondent, Stone, was an original source.

An “original source” is “an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action.” Whether Rockwell conceded Stone’s original-source status or not is irrelevant because the statute is jurisdictional (governs jurisdiction per se, not merely jurisdiction over the statute and therefore rightly construed as a limit on damages).

“Information on which the allegations are based” refers to information upon which the relators’ allegations are based, and not the information on which the publicly disclosed allegations that triggered the public disclosure are based. The words “allegations or transactions” differentiates the information that an original-source must have from information underlying public disclosure, referred to simply as “allegations.” Anyway, it would not make any sense to bar actions based on the information underlying a public disclosure when the relator had independent knowledge of that information, especially since this would require comparing the relator’s knowledge to the often unknowable information that was relayed to newspapers.

Rockwell argues that Stone must have satisfied the original-source exception at all stages of the action, and not, as Stone argues, simply in his original complaint. Absent some limitation to the initial complaint the Court interprets the word “allegations” to include Stone’s allegations at all stages of litigation. Even if this would discourage relators to submit to the Government’s litigation tactics of narrowing complaints this policy concern will not compel a different interpretation.

The only allegations that were supported in a jury verdict arose from wrongdoing that occurred after Stone had been fired, and Stone did not know that the concrete plan had failed – he predicted it. Even if prediction can qualify as direct and independent knowledge, it does not when its premise of cause and effect is wrong.

While the Government’s intervention might have provided an independent source of jurisdiction the statute draws a sharp distinction between actions brought by the Attorney General and those brought by private persons. An action brought by a person, taken over by the Attorney General becomes an action brought by the Attorney General and courts may dismiss a dispensable nondiverse party.

Justice Stevens, dissenting, argues that the information underlying a claim and the information underlying public disclosure of the allegations are distinct, and the Act’s use of the term “an original source” rather than “the original source” indicates that the relator need not be the sole source of the information. Jurisdiction is to be evaluated at the outset, not every time the complaint is amended.

This is a complicated opinion, wide swaths of which I do not fully comprehend.

"Tax Valuation" Means Assessment Valuation, Not Appraised Valuation

2007-04-02T23:34:00.000-04:00

Limtiaco v. Camacho

Guam’s governor issued $400m in bonds to meet its obligations, but the Attorney General declined to sign the contracts because he calculated that they would put Guam over 10% indebtedness of its “aggregate tax valuation,” in violation of another statute. This evaluation, turns on whether that calculation should be made based on “assessed evaluation” or “appraised evaluation” because Guam assesses property at 35% of its appraised evaluation price. While the case was pending in the Ninth Circuit, Congress removed language vesting jurisdiction over appeals from Guam with that court. When applying for certiorari to review the Appeals court’s decision that the divestment applied both prospectively and to pending cases, Guam’s Attorney General filed his appeal after the 90 day window.

A timely filing of a petition for rehearing or a lower court’s appropriate decision to rehear an appeal may suspend the finality of a judgment and thereby reset the 90 day period by raising the question whether a court will modify the judgment and alter the parties’ rights. While the jurisdiction stripping statute and the case deciding that it applied to pending cases signaled the outcome in this case, it did not render final judgment, preventing the 90 day period from running.

Appraised value is the market value of a property; an assessed value is the value at which that property is taxed. The term “tax valuation” naturally means the value at which something is taxed. The Guam Supreme Court improperly used the word “taxed” to modify the property to be included, rather than to modify the term “valuation.” The Guam legislature could not modify the definition because the statute at issue is a federal statute, and if Congress had intended to apply the appraised value it could simply have used the term. While Guam could set its assessment valuation at 100% of appraised value there is a strong political check against it doing so by the voters whose property is to be taxed. Because the statute protects Guamamians as well as the United States this is not a case where deference is due the Guam Supreme Court in its construction of its Organic Act.

The EPA has the Authority to Regulate Carbon Emissions and the Duty to Decide

2007-04-02T23:08:00.000-04:00

Massachusetts v. EPA

This case addresses whether the EPA has the authority, and additionally, whether it has the responsibility, under the Clean Air Act (CAA) to regulate carbon dioxide. The CAA provides that “The EPA Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicle or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare …” The term “Air pollutant” is defined as “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive … substance or matter which is emitted into or otherwise enters the ambient air.” “Welfare” is defined to include “effects on … weather … and climate.”

Justice Stevens, for the Court, begins by surveying the history of pollution research and regulation, noting that the wording of the statute was changed to address pollutants that were reasonably foreseeable to cause harm, rather than just those determined to do so. In 2003 the EPA determined that it did not have the authority to regulate carbon emissions and that even if it did it would be unwise to do so at that time. The former conclusion was largely based on Congress’ decision not to enact an amendment specifically granting the EPA that power, and the conclusion that the CAA was directed at local, not worldwide, pollutants. Additionally, the EPA concluded that if carbon dioxide were a pollutant the only way to address it would be to regulate fuel economy, which Congress had already done on its own. The latter conclusion was based on a report declaring that a causal link between carbon emissions and global warming “[could not] be unequivocally established” and that its regulation might interfere with Congressional policy-making in the area.

The lower court found that petitioners, who alleged that global warming was “harmful to humanity at large,” had failed to allege the “particularized injuries” required for standing. Standing requires actual or imminent injury fairly traceable to the defendant and which a favorable decision by the court is likely to redress. However, Congress may accord a procedural right to protect concrete interests without meeting all the normal standards for redressability and immediacy. States, as opposed to normal litigants, may procede as parens patriae to protect quasi-sovereign interests. The State of Massachusetts, therefore, has satisfied “the most demanding standards of the adversarial process.”

That the harms of global warming are widely shared does not diminish Massachusetts’ interest in the outcome of this case, especially due to the Commonwealth’s ownership of a great deal of coastal property. While the EPA does not dispute the causal connection between greenhouse gas emissions and global warming, it argues that the emissions from new motor vehicles contributes so insignificantly to Massachusetts’ injuries that the EPA cannot be held to answer for them. The Court rejects the argument that incremental steps fail to redress greater harms. “That a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to the law.” Anyway, those emissions count for 6% of the United States’ carbon emissions, constituting a “meaningful contribution.”

A plaintiff need not show that the remedy will relieve his every injury, and the EPA’s voluntary emissions reduction program suggests that the EPA at least thinks the issue is worth its time and attention. An agency’s discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities is at its height when the agency decides not to bring an enforcement action, but a refusal to undertake a rulemaking operation is different in that it is more apt to involve legal as opposed to factual analysis; such refusals are subject to “extremely limited” and “highly deferential” review.

On its face the CCA authorizes the EPA to regulate any air pollutant and any physical, chemical, substance or matter emitted. The EPA should look to the statute and not to congressional history to determine its mandate, and in any case that congressional history is ambiguous. As opposed to Brown v. Williamson Tobacco Corp. where the Court determined that tobacco was not meant to be included in the FDA’s mandate to control drugs or devices, this legislation would not lead to a ban on carbon emissions, but only regulation. Also, there is no direct conflict with congressional legislation in this case, and Congress could not have acted against a regulatory backdrop of disclaimers of regulatory authority because prior to the action that instigated this case the EPA never disavowed the authority to regulate carbon emissions. The EPA’s obligations may overlap with Congress’ authority, but may still be exercised without inconsistency.

The EPA must make an independent determination as to whether carbon emissions present a reasonable danger to the public welfare. That other acts or legislation may also address the matter is a different issue, and has no bearing on whether carbon emissions present such a danger. If the EPA wishes to decide that carbon emissions do not present such a danger, because of a tenuous causal relationship or otherwise, it must say so, but it may not shirk the duty to make the determination itself.

Chief Justice Roberts, for the dissent, would declare the matter nonjusticiable. Relaxing standing requirements because the action is brought on behalf of a State has o basis in the Court’s jurisprudence. Congress could provide public litigants expanded power to pursue such claims, and knows how when it wants to, but has not done so here. The case that forms the basis for the distinction between public and private litigants on which the majority relies did so only for the purposes of remedies, not standing. Parens patriae standing actually raises an additional bar – articulating a semi-sovereign interest, and a state must still show that some of its citizens have standing to sue. The majority turns a necessary condition into a sufficient condition. Those citizens lack standing because global warning is the very essence of a generalized harm, and because any harm by rising sea levels (on which they base their argument about harm) is by definition conjectural and indirect insofar as the cause of any sea level change is due not only to new U.S. auto emissions, but to all emissions all over the world. On the redressability front these considerations make it impossible to show that regulation would be likely to redress Massachusetts’ grievances.

Justice Scalia argues that the statute conditions regulation on the EPA administrator’s judgment as to whether certain pollutants may be reasonably anticipated to endanger public health or welfare. The majority would require the administrator to either conclude that carbon emissions do pose a threat, do not pose a threat, or give a reason for not doing so. Meanwhile, given that choice, the majority limits the EPA Administrator to deciding that the causal link is not proven, rejecting other valid arguments such as inefficiency and a desire to leave the policy in the hands of the President and Congress, both of which have shown a desire to address the problem. True, the Administrator’s judgment is limited to the danger (or lack thereof) presented by carbon emissions, but he is not limited in his method of reasoning. In any case, the EPA has stated that it does not believe the causal link has been sufficiently proven.

While one possible reading of the statue is to include each term following the word “including” in the class of terms the EPA may regulate, but another possible reading is that where those terms are broader than the general category they must be considered to be limited to that category. For example, the class “any American automobile, including any truck or minivan” would not include foreign trucks or minivans. In this case, the EPA is justified in deciding that carbon emissions must be an “air pollutant agent,” and because the statute is ambiguous the EPA is entitled to Chevron deference. Such deference is also due the EPA’s decision that “air pollution” is limited to discrete geographical air pollution, and not global atmospheric pollution.

Forum Convenience May Brush the Merits

2007-03-28T10:06:00.000-04:00

Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp.

Sincohem Int. Co. Ltd., a Chinesse state-owned importer brought suit in a Chinese Admiralty Court, arguing that a Malaysian shipping company caused it to make payments on the basis a falsified a bill of lading. The Malaysian company was shipping U.S. goods, and brought charges in U.S. District Court against Sincohem for negligently misrepresenting their ship’s fitness and causing delay due to the ship’s subsequent arrest. That court found subject matter jurisdiction (admiralty) and believed that limited discovery might give the Malaysian company an opportunity to show personal jurisdiction. Before allowing such discovery, however, the court transferred it under the forum non conveniens doctrine. The Third Circuit overturned this decision.

A federal court can dismiss for forum non conveniens when another forum has jurisdiction and a trial in the former would “establish … oppressiveness and vexation to a defendant … out of all proportion to plaintiff’s convenience,”or for administrative and legal reasons. When the forum selected is the home forum the party moving to change bears a heavy burden. Courts cannot assume jurisdiction for the purposes of ruling on the merits, but there is no mandatory sequencing of judicial matters and a court may dismiss for lack of personal jurisdiction without first reaching the question of subject matter jurisdiction. Because forum non conveniens denies a merits evaluation, a court may dispose of a case under this doctrine without reaching subject-matter or personal jurisdiction. That being the case, such orders do not fall within the collateral order exception to the firm final judgment rule (a party may not appeal until the district court has rendered a final judgment). There will be some overlap between the merits and the forum non conveniens evaluation, but “threshold issues [may] involve a brush with ‘factual and legal issues of the underlying dispute.’” “Resolving a forum non conveniens motion does not entail any assumption by the court of substantive ‘law-declaring power,’” rendering it a threshold, nonmerits issue.

Gulf Oil v. Gilbert, which largely caused the confusion in this case stated that the doctrine “can never apply if there is absence of jurisdiction” and that “in all cases in which forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process.” The Court disposes with the first statement by characterizing it as a tautological statement that once a court determines that there is no jurisdiction the case must be dismissed. The second one is read to mean only that a court’s statutory power to entertain a suit does not settle the question of whether it must do so. Since proceedings are already underway elsewhere, this is no occasion to consider whether a court conditioning forum non conveniens dismissal on waiver of jurisdictional objections. In sum, courts may take the less burdensome route

File Your 1983 Actions With Reckless Abandon

2007-03-21T20:44:00.000-04:00

Wallace v. Kato

Handy was picked up for a shooting death and signed a confession which he later attempted to suppress as the product of an unlawful arrest. He successfully argued on appeal that (1) his voluntary accompaniment to the police station escalated to an arrest before there was probable cause, and (2) that the unlawful arrest was not sufficiently attenuated to allow the evidence to be admitted. Handy then filed a §1983 (civil rights violation) suit for damages for his unlawful arrest which was held to be time barred on the theory that his cause of action accrued at the time of his arrest and not at the time that his conviction was set aside.

Federal law looks to state law to determine the statute of limitations for personal-injury torts which, under Illinois law, is two years. The date from which that period begins to run in a §1983 action, however, is a matter of federal law, conforming in general to common-law tort principles. Therefore, the standard rule applies that accrual occurs “when the plaintiff has ‘a complete and present cause of action,’” that is, “when the plaintiff can file suit and obtain relief.”

Common law treats false arrest and false imprisonment differently, perhaps on the basis that the victim may not be able to sue while he is imprisoned. Limitations begin to run when the false imprisonment ends. False imprisonment ends once the victim begins to be held legally (ie. issuance of process). Handy argues that his illegal detention tainted his later, lawful, detention. To whatever extent the Court is willing to entertain this argument (not much) it argues that this could only apply to damage calculation and not useful to determine the beginning of accrual.

Once Handy was processed his detention was no longer unlawful and the previous unlawful detention becomes part of the damages in malicious prosecution, which remedies only the wrongful institution of legal process. Handy could have sued for false arrest on the first day of his incarceration, and the statute of limitation s began to run when he appeared before a magistrate.

Under Heck v. Humphrey, malicious prosecution requires “favorable termination of criminal proceedings” in order to prevent civil tort actions from becoming a vehicle for challenging outstanding criminal judgments. The Court assumes that this would apply to the commencement of the statute of limitations. In this case, however, there was only “an anticipated future conviction.” Courts will stay a preemptive civil action until the criminal case or the likelihood of such a case has ended. §1983 actions, however, sometimes accrue before a conviction is set aside, leaving the time between conviction and “favorable termination of criminal proceedings” during which Heck bars the action, but the statute of limitations has already begun to run. Worse yet, no state law provides for tolling that period in any similar circumstance, and (as mentioned above) federal law looks to state law to determine the statute of limitations.

The Court would not adopt a federal tolling rule because no one would know whether it would apply until a §1983 action was filed, leaving it to the defendant’s discretion to create the circumstances that result in tolling, and to spring a §1983 action on the unwitting State. Nor does the Court accept the idea that equitable tolling should be employed to prevent a criminal defendant from having to split his attention between his criminal and civil cases. In any case, some defendants will surely file §1983 actions before being convicted, so whatever prudential problems there may be with the majority’s rule will exist even if another rule is adopted. The Court also argues against Justice Stevens, saying that any rule based on the petitioner’s opportunity to file a habeas action is unduly prospective and indeterminate. In pure unabashed dicta the Court asserts if the petitioner’s §1983 action were dismissed, and Heck later prevented him from refilling then Heck would directly violate the intent of §1983, implying that courts should not allow this to happen.

Justices Stevens and Souter would hold that whereas Heck disabled civil actions in favor of habeas corpus actions, since because, under Stone v. Powell, no habeas action was available to Handy, the Heck principle does not apply. Stevens accuses the majority of pointing to aberrant examples when suggesting that federal habeas petitioners sometimes succeed in arguing that Stone does not apply.

Justices Breyer and Ginsburg would employ “equitable tolling” to toll the statute of limitations while a petitioner is fighting the criminal charges against him. The majority’s method, he argues, would require criminal defendants to file all §1983 actions early, even if they would ostensibly be barred by the Heck rule, and those actions would have to consider matters being litigated elsewhere for a court to determine whether to issue a stay. Res Judicata could give these premature decisions long lasting effect, a fact that might entice courts to let the matters linger. The rule would be fair, support the purpose of §1983, and provide all of the benefits of a federal rule on the matter. Finally, there is no notice problem because the rule would only apply where the basis for the later §1983 actions were being litigated in state court, providing the state with notice of the petitioner’s claims.

It’s long, but the first part of the opinion is metaphysics and the second is advanced criminal procedure. I hope this makes sense when I come back to read it.

Sirens' Song

2007-03-19T21:13:00.000-04:00

"Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevlauating its meaning in an appropriate case." – Justice Thomas, dissenting (Saenz v. Roe, 526 U.S. 489)

We are probably better off as things are, I don't want Justice Thomas rewriting the Fourteenth Amendment, and this could upset too much of our law to ever happen...

...but...

When is a New Rule Applicable on Collateral Review?

2007-03-19T02:50:00.000-04:00

Whorton v. Bockting

Bockting’s stepdaughter, Autumn, who was 6 years old, told her mother that Bockting sexually assaulted her. Autumn spoke to a rape counselor and recreated the acts with anatomically correct dolls. When Autumn was too distressed to be sworn at trial the State moved to allow her mother and a detective to recount her statements. Nevada allows out-of-court statements by a child under 10 to be admitted if the court finds that the child is unavailable or unable to testify and that “the time, content and circumstances of the statement provide sufficient circumstantial guarantees of trustowrithiness.”

When this case last reached the Supreme Court the controlling precedent on the constitutionality of these sorts of laws, in light of the Confrontation Clause, was Ohio v. Roberts, which held that the constitution allowed such evidence if the statement bore sufficient indicia of reliability, either because the statement fell within a firmly rooted hearsay exception, or because there were particularized guarantees of trustworthiness.” After Bockting’s case was decided on these grounds, and as his habeas case was pending, the Court overruled Roberts, in Crawford, deciding that “[t]estimonial statements of witnesses absent from trial” are admissible “only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine [the witness].” Specifically, in that case, the Court found that the Confrontation Clause did not make a judgment on the desirability of reliable evidence, but on how the reliability of that evidence would be tested; cross-examination.

The Crawford rule would not have admitted Autumn’s statements. Under Teague v. Lane if the Crawford rule was in existence at the time of his conviction, or a “watershed” rule that implicated fundamental fairness, it should be applied to cases on collateral review. New rules only apply to cases on direct review. The Crawford rule was clearly a “new rule,” one that was not “dictated” by precedent existing at the time; though the Crawford Court noted that its decision was consistent with the outcome of all prior cases, “the explicit overruling of an earlier holding no doubt creates a new rule.”

For a rule to meet the “watershed” it must (1) be necessary to prevent “an ‘impermissibly large risk’” of inaccurate conviction, and (2) alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Only the right to counsel for indigents charged with a felony has been held necessary to prevent an “impermissibly large risk” of inaccurate conviction, and is not comparable to the rule announced in Crawford. As for the second factor, the question is whether the Crawford rule is “one without which the likelihood of an accurate conviction” is not just diminished, but “seriously diminished.” Additionally, the rule must not only be “based on” a bedrock procedural rule, or be “fundamental,” but must “must itself constitute a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding.” While the Crawford decision was important, it is not of the same category as the right to counsel and lacks “primacy” and “centrality” of a watershed rule.

No Generalized Standing to Sue Under Elections Clause

2007-03-19T02:48:00.000-04:00

Lance v. Coffman

In 2000 the state of Colorado was unable to pass a redistricting plan, so the courts of that state crafted one. The Elections Clause of the Constitution provides that the “Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” When the Colorado State Assembly managed to pass a redistricting plan in 2003 the Colorado Attorney General argued, and the Colorado Supreme Court agreed, that its implementation would violate the clause of the Colorado Constitution providing that redistricting should only take place once every 10 years, and that the State Supreme Court’s plan was as binding as if it had originated in the State Legislature.

The Court already found last February (in another per curium opinion) that federal courts were not barred from hearing the case under the “Rooker-Feldman” doctrine, which reserves final state court judgments for the Supreme Court unless “(1) ‘the party against whom the doctrine is invoked must have actually been a party to the prior state-court judgment or have been in privity with such a party’; (2) ‘the claim raised in the federal suit must have actually been raised or inextricably intertwined with the state-court judgment’; and (3) ‘the federal claim must not be parallel to the state-court claim.’” The decision was based on reversing the lower court’s decision that the plaintiffs satisfied the first criteria through their associative interest in the case, arguably conflating the first criteria with general preclusion issues. This time, on remand, the lower court held that the suit was barred by issue preclusion because the plaintiffs “stand in privity with the Secretary of State and the General Assembly,” who lost before the Colorado Supreme Court.

The Court skips right over any discussion of general preclusion, and goes straight to standing, an issue addressed in a concurring opinion. Courts must first address jurisdiction, including standing, which in turn requires injury in fact, causation, and redressability. To have standing a plaintiff must have more than “a general interest common to all members of the public.” “Refusing to entertain generalized grievances ensures that ‘there is a real need to exercise the power of judicial review’ in a particular case, and it helps guarantee that courts fashion remedies ‘no broader than required by the precise facts to which the court’s ruling would be applied.’”

In this case “the only injury plaintiffs allege is that the law—specifically the Elections Clause—has not been followed. This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” The Court points out that its previous cases construing the term “Legislature” were brought by a “relator” on behalf of the State, so standing was not an issue.

Equitable Powers of a Bankruptcy Court

2007-03-19T02:46:00.001-04:00

Marrama v. Citizens Bank of Mass.

Chapter 7 bankruptcy allows a debtor to retain possession of his property while Chapter 13 does not. Chapter 13 bankruptcies can be converted into chapter 7 bankruptcies and vice versa. A debtor who proceeds in bad faith had been held bared from converting a Chapter 13 bankruptcy into a Chapter 7 bankruptcy, but the rule does not always apply the other way around. Marrama created a trust consisting of all of his property and made misleading statements about his principal asset, a house in Maine, and was denied an absolute right to convert his Chapter 13 bankruptcy into a Chapter 7. The Court of Appeals noted that the statute provides that a debtor “may” convert a case under Chapter 7 to a Chapter 13 banrkuptcy. Marrama argues that the conditional grant (“may”) gives him the discretion to chose the course of his bankruptcy proceedings, not the courts

§109(e) imposes a limit on the amount of indebtedness that an individual may have in order to qualify for Chapter 13, and §1307(c) provides that a Chapter 13 proceeding may be dismissed or converted to a Chapter 7 proceeding “for cause,” including 10 such causes. The 10 causes do not list bad faith, but the words “for cause” have been interpreted to include it and that those who proceed on bad faith are not a member of the class of “honest but unfortunate debtor[s]” for whose benefit the statute was passed. Without defining “bad faith” the Court argues that no provision limits the court’s discretion and inherent power to take appropriate responsive action – implicitly holding that the 10 listed justifications are not exclusive. §105(a) seems to support this by disclaiming any attempt to “preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules or to prevent an abuse of process.”

Justices Alito, Scalia, Thomas, and the Chief Justice argue that the code limits a debtor’s right to convert his case in only two ways: (1) it may only be converted once; and (2) a debtor must meet the conditions for a debtor under whichever chapter to which he wishes to convert his case. Chapter 11, for example provides not that a debtor “may convert” but that “the court may convert,” suggesting that, in the first case, the debtor retains the discretion to convert. In those cases the court’s discretion is limited to the 10 listed justifications. The dissent also characterizes the majority as holding that if a debtor’s case may be dismissed “for cause” (whatever cause that may be) he is not a debtor in that class. The dissent argues that the conditions to be a debtor in that class are clearly specified, and whatever the future of such a claim may be, if the debtor satisfies those conditions he may at least proceed to a foreseeable dismissal. Meanwhile, the dissent does not agree that this would be “an empty exercise,” especially where the case would be dismissed on the basis of judicial discretion, as opposed to a compulsory dismissal. In any case “a bankruptcy court … is guided by equitable doctrines and principles except insofar as they are inconsistent with the Act,” Norwest Bank Worthington v. Ahlers.

Is Statute of Limitations Tolled While Awaiting Certiorari?

2007-03-19T02:46:00.000-04:00

Lawrence v. Florida

28 U.S.C. §2244 imposes a one year statute of limitations on federal habeas corpus petitions, tolled while an “application for State post conviction or other collateral review” “is pending.” Lawrence was convicted of killing Finken and sentenced to death. 364 days after his sentence became final, he filed an appeal, which was upheld, and he then appealed to the Supreme Court. That appeal was denied by the Florida Supreme Court, and Lawrence waited 113 days to file a habeas petition. Therefore his habeas petition can only be timely if his application was “pending,” and therefore the statute of limitations tolled, during the Court’s consideration of his petition for certiorari.

State post-conviction applications remain pending until the application has achieved final resolution through the State’s post-conviction procedures. This makes sense in light of the fact that state prisoners need not petition the Supreme Court in order to exhaust state remedies for the AEDPA. Other sections refer to “direct review” which has been held to include certiorari petitions to the Supreme Court and the difference in language suggests a deliberate effort to convey particularized meaning. The Court notes providing tolling for the time awaiting a petition for certiorari would encourage those petitions as a delay tactic, and that this reading of the law does not create any more duplicative work than the alternate reading would.

Assuming, as both parties agree, that equitable tolling is available under §2244, Lawrence must show (1) that he has been pursuing his rights diligently , and (2) that some extraordinary circumstance stood in his way.” The Court does not accept either that the legal confusion over the AEDPA’s tolling periods, nor his lawyer’s mistake about the deadline (even though the lawyer was state-appointed), justifies equitable tolling. Lawrence also argues that his mental capacity justified his reliance on his lawyer, but he has made no showing of such an incapacity.

The one year limitation for habeas petitions does not include the time an application for State post-conviction review spends pending before the Court. The tolling period begins after an application for certiorari is refused or the case is decided by the Court. The law refers to “application[s]” for State post-conviction review, so the majority’s textual reading does not go uncontested. If judgments of conviction are not final until the Court decides or denies certiorari, the limitation period should not begin before those cases are concluded. Anyway, the text of the statute should be contrasted with another statute that expressly intended to exclude these cases. The dissent also distinguishes exhaustion as based on claims which may be raised, from tolling which concerns procedures which may be invoked The dissent also argues that duplicative filing would not occur under its own reading of the clause, as it would (concededly) occur under the majority’s reading. Finally the dissent points out that while the majority suggests that equitable tolling may provide a solution, it emphasizes that it declines to hold that equitable tolling is available under §2244.

Testing Predatory Buying vs. Predatory Pricing

2007-03-19T02:44:00.000-04:00

Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co.

Ross-Simmons, a sawmill, alleges that Wayerhaueuser violated the Sherman Act by attempting monopolistic practices by using its dominant position to drive up the prices. Here, Wayerhauser argues that the standard for predatory pricing in Brooke Group Ltd. V. Brown & Williamson Tobacco Corp also applies to claims of predatory bidding. Recognizing a two stage method of predatory pricing the Brooke Court held that to recover for predatory pricing a plaintiff must show (1) the prices were below costs, and (2) the competitor had a dangerous probability of recouping it investments ostensibly by engaging in supra-competitive pricing once it drove out competition.

The first factor is necessary because anything else would either be genuine competition or beyond the “practical ability of a judicial tribunal to control without

courting intolerable risks of chilling legitimate procompetitive conduct.” The second is meant to show an intent to engage in predatory pricing (since it would be highly unlikely that it would do so unless it could recover its losses). These two factors are necessary components of a market injury. Monopsony is a monopoly on the buy-side of the market, exercised by bidding up the prices to drive out marginal bidding. Neither predatory pricing or predatory buying is commonly a viable strategy, and the methods of both employ actions that are the essence of competition. Additionally, failed attempts at predatory pricing and predatory bidding can benefit consumers, justifying a narrow rule. Predatory bidding presents less of a threat of consumer harm. In short, monopolistic and monopsonistic practices are similar enough, both methodically and practically, that the Court deems is appropriate to apply the same test to both.

Penalties Based on Facts Not Found by a Jury

2007-03-19T02:43:00.000-04:00

Cunningham v. California

California’s Determinate Sentancing Law (DSL) allows the trial judge, not the jury, and by a preponderance of the evidence, to find the facts that expose a defendant to an elevated sentence. Cunningham was convicted of continuous sexual abuse of a child under 14, which carries a 6 to 12 year sentence, with an elevated sentence of 16 years if accompanied by aggravating factors. Interestingly, the Appellate Court upheld the determination after striking one aggravation element, on the basis that with only one mitigating element, only two aggravating elements were required for an elevated sentence. This case challenges that law under the Sixth Amendment right to a jury trial.

California’s scheme provided three tiers of sentencing, the greatest of which could only be imposed after finding “aggravating circumstances,” guided by a non-exhaustive list, defined to mean “facts” justifying the greatest prison term. Facts which are elements of the crime are excluded. That statutory enhancements (as opposed to aggravating circumstances) must be pleaded does not change the matter because “a fact underlying an enhancement … cannot be used to impose an upper term sentence and, on top of that, an enhanced term.”

In Aprendi v. New Jersey the Court declared that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely v. Washington the Court held that such an extension, though outside the standard range, was within the maximum of that type of crime, because the “statutory maximum” means the maximum sentence a jury may impose “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” That is, not all the facts the jury could have found, but all the facts it did find. Additionally, Blakely allowed no refuge in the fact that the list of aggravating circumstances was non-exhaustive, because any additional factors were not authorized by the jury. United States v. Booker extended this rule to the federal government, while recognizing that if the federal guidelines were not binding the rule would not apply. In that case the court substituted a reasonableness requirement for the portion of the law making the federal sentencing guideline mandatory.

The California court upheld the law in the face of these precedents on the basis that, in effect, the law only allowed court to exercise the kind of discretion traditionally left to courts and judges, because it reduced penalties over the previous scheme, and because defendants had no right to believe they would not be subject to the maximum penalty. That the California court characterized the law as a reasonableness restraint, similar to that imposed on the federal law, does not save the California statute because “the reasonableness requirement Booker anticipated for the federal system operates withinthe Sixth amendment constraints … not as a substitute.” “Booker’s remedy … is not a recipe for rendering [the] Sixth Amendment case law toothless.” At this point California could simply allow judges to exercise “broad discretion,” and leave everything else in place.

Justices Kennedy and Breyer, dissenting, suggest distinguishing between those sentencing enhancements based on the crime and those based on the nature of the offender. Justice Kennedy also notes the irony that greater judicial discretion would violate the Sixth Amendment less. Judges are perfectly well positioned to take the long view on sentencing, and (as opposed to juries) are equipped to evaluate factors that do not bear on guilt.

Justices Alito, Kennedy, and Breyer argue, to a great extent, that the California law, by its terms and by construction, is essentially identical to the discretionary system in the federal courts; that nothing about a non-exhaustive list requires a judge to find “facts” before increasing a sentence; and that the reasonableness requirement permits the elevation of a minimum-offender to an intermediate sentence, on the basis of facts found by the judge.

Contradictory Pleadings in Westfall Actions

2007-03-19T02:40:00.000-04:00

Osborn v. Haley

The Wesfall Act provides that when a federal employee is sued for a common-law tort claim for actions undertaken within the scope of his employment, upon certification of that fact by the Attorney General, the employee is dismissed, the United States is substituted, and the action is removed to federal court. The Attorney General’s certification is “conclusive for purposes of removal.” In this case the U.S. Attorney certified that a federal employee “was acting within the scope of his employment … at the time of the conduct alleged” and then after removal, proceeded to deny that the alleged actions ever occurred. The federal court then dismissed the Westfall certification and remanded the case.

The District Court’s ruling denying substitution of the United States as defendant qualifies as a reviewable final decision because it decided a contested issue, which was important and separate from the merits of the action, and which would be effectively unreviewable later in the litigation. (Cohen v. Beneficial Industrial Loan Corp). Generally an order remanding to the state court where a case originated is not reviewable, but only if based on §1447 - improvidence and lack of jurisdiction.

Where the Attorney General certifies the scope of employment courts have no jurisdictional discretion, but where a court makes the determination they do, as jurisdiction is not “conclusively” established. The Attorney General’s determination can only be “conclusive” if courts are prohibited from remanding the case. Even in cases where the court later determines that the employee was acting outside the scope of their employment, and the case is left without federal jurisdiction, a federal court can exercise its discretion to retain jurisdiction.

To hold that the Attorney General may not contest the incident while certifying that it occurred during the course of employment would make the entire case, jurisdiction to merits, subject to the plaintiff’s imagination. Where this would lead to odd results, courts are already empowered to overrule the certification on the basis of factual findings. In cases where this would end the case on the merits without ever reaching a jury there is no Seventh Amendment violation because the right to jury trial does not extend to proceedings against the sovereign.

Substitution of the United States is not improper simply because the Attorney General’s certification rests on an understanding of the facts that differs from the plaintiff’s allegations, and the U.S. must remain the defendant until the court determines that the employee, in fact, was operating outside the scope of employment, and that the case may not ever be remanded.

Justice Souter argues that whereas decisions remanding a case to the state court from which it was removed is unreviewable, they should be unreviewable even on the basis of mistake as to jurisdiction. The order resubmitting Haley as defendant was not such an order, it was a substitution order, and allowing review of this sort of order effectuates congressional intent to codify the common law tort immunity available to Federal employees.

Justice Breyer believes that the Attorney General may only certify when he accepts, at least conditionally, the existence of “some kind of incident’” and may not do so where the incident, if it took place at all, fell outside the scope of employment (Justice Breyer later flips this to require the Attorney General to assert that if the incident took place it must necessarily have taken place within the scope of employment). The act allows certification where “at the time of the incident out of which the claim arose” the original defendant was acting within the scope of employment. The Westfall Act’s purpose was to overturn a Supreme Court decision requiring that an agent not only be acting in the scope of employment, but exercising discretion. Where the dispute is over facts as well as law, for the purpose of immunity disposition, the defendant must take the plaintiff’s facts as asserted, even if these facts prove determinative over a federal claim as well as a state claim, though “violation of a federal statute” is explicitly exempted. When Willingham v. Morgan said that federal defendants should have an opportunity to present their version of the facts to a federal, not a sate court,”

Justices Scalia and Thomas, dissenting, argue that 28 U.S.C. §1447 states that and order remanding a case to the State court from which it was removed is not reviewable, and it means just that. In Thermtron Products the Court exempted cases remanded in exercise of discretion, appending “under this subsection” to the end of the phrase. Then cases where the reason was mischaracterized as one requiring mandatory remand were exempted. The majority here holds that §1447 does not apply where the remand order is reviewable. Later, Justice Scalia concedes that these the remand to be “erroneous” but reminds that the Court has held that remand based on erroneous conclusion was unreviewable. Justice Scalia also questions whether the remand order could be reviewable even if the Attorney General’s determination were overturned.

What is particularly interesting here is how Justice Scalia’s argument demonstrates so well the virtues of his particular brand of originalism, and also that he accuses the majority of “uncompromising pursuit of technical perfection.”

Google Wants Me to Log In

2007-03-18T19:43:00.000-04:00

Google wants me to start using my google login to use blogger. I am not interested in doing this if this gets tied to my email and calendar. I just thought I would post this in case I decide it's not worth it. I doubt that would happen, but it may.

BTW, Google, your text editor still screws up the HTML text decoration and spacing on a regular basis, and your blog-search feature is so useless (you heard me, the search feature) I have to log in every time I want to find an old case I wrote about. Try fixing that before you start requiring me to link this with all the other intimate details you have about me in your database.

Third Party Damages in Punitive Damage Awards

2007-02-22T14:20:00.000-05:00

Philip Morris USA v. Williams

After his death Williams’ widow sued Philip Morris, makers of Williams’ favored brand of cigarettes, for negligence and deceit. A jury found that Williams smoked in significant part because he thought it was safe to do so, and awarded $821,000 n compensatory damages and $79.5 million in punitive damages for deceit. Philip Morris objects first because its jury instruction that the jury could not punish Philip-Morris for anyone not before the court was not accepted arguing that this lead to a significant likelihood that award represented punishment for Philip Morris having harmed others. Philip Morris also objects to the roughly 1:100 ratio of compensatory to punitive damage awards.

Punitive damages may be imposed to punish and deter but may violate the requirement that defendants be provided “fair notice … of the severity of the penalty that a State may impose” if the awards are arbitrary or capricious (BMW of North America, Inc. v. Gore) or run afoul of the dormant commerce clause by allowing one state to effectively impose its policy choice as to certain products merchantability in “neighboring States.” Whether an award is excessive is determined by (1) reprehensibility of defendant’s conduct; (2) whether the award bears a reasonable relationship to the actual and potential harm caused to the plaintiff; and (3) the difference between award and sanction in comparable cases.

Due Process prohibits punishment before a defendant may present all available defenses, which is impossible without notice of the scope of aggrieved parties. Punishment for nonparty victims also deprives the evaluation of any realistic standard. Finally, though the potential harm to the plaintiff is a proper consideration, it must be limited to the actual party before the court. This is not to say that harm, actual or potential, to nonparties cannot be considered under the heading of reprehensibility; but only that “a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties. States must take steps to ensure that this line is being observed by jurors.

Philip Morris’ instructions stated that “[the jury is] not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own,” but “may consider the extent of harm suffered by others in determining what [the] reasonable relationship is” between Philip Morris’ punishable misconduct and harm caused to Jesse Williams. Philip Morris’ position was that harm to nonparties could only be considered in determining the “reasonable relationship between the misconduct” and the harm to the party before the court. Oregon held that Philip Morris could be punished for harm to nonparties, and that the only limit was that a jury could not base its award on “dissimilar” acts of a defendant. The Court, here, decides that they were both wrong, and holds that harm to nonparties may be considered and may serve as part of the calculation for punitive damages under the reprehensibility factor (against Philip Morris) but may not serve as the direct basis for award (against the Oregon Court), and that courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring.

Justice Stevens, dissenting: No evidence was offered to establish the appropriate measure of compensatory damages to nonparties, and no one argued that punitive damages would serve such a purpose. He argues that assessing third party harm to evaluate reprehensibility is indistinguishable from doing so to “directly” calculate punitive damages.

Justice Thomas, dissenting, does not believe in substantive Due Process limits on punitive damage awards.

Justices Ginsburg, Scalia, and Thomas, dissenting, argue that punitive damages are meant not to punish harm to third parties but to punish reprehensibility and that the Oregon Court followed this rule because it was punitive damages, not compensatory damages, that were at issue. The right question is the harm that Philip Morris was prepared to inflict on the public. Since the only objection preserved was the denial of Philip Morris’ jury instructions, Justice Ginsburg would hold only that Philip Morris instructions were ambiguous and the Oregon Court rightfully excluded them, and not “reach outside of the bounds of the case as postured.”

Exhaustion Limits in Prisoners' Habeas Petitions

2007-02-22T14:18:00.000-05:00

Jones v. Bock

A Roberts opinion:

Jones suffered an injury while in custody and was forced to do work that aggravated that injury. He sued for deliberate indifference but failed to attach the record of his grievance proceedings. Williams objected to denial of a medical procedure on the basis that it was not worth the risk. During the grievance process Williams failed to name any of the people in his later suit in his grievance proceedings. Walton was subjected to the sanction of only receiving food and paperwork via the upper slot of his cell (?) and alleges racial discrimination based on the disparity of his punishment with that of other inmates. Walton failed to name any of the people in his later suit in his grievance proceedings.

The Prison Litigation Reform Act (PLRA) mandates early judicial screening of prisoner complaints and requires prisoners to exhaust grievance procedures before filing suit. The Sixth Circuit held that this requires allegation and demonstration of exhaustion, permits suit only against defendants identified in the grievance procedures, and requires that an entire action be dismissed if exhaustion is incomplete as to any claim.

Federal Rule of Civil Procedure FRCP 8(a) requires only a “short and plain statement of the claim,” and courts have traditionally treated exhaustion requirements as an affirmative defense. The Court has been hostile to “heightened pleading requirements.” The rejects the argument that the early judicial screening requirement evidenced a divergence from traditional rules based on the fact that the various increasingly rigorous screening requirements in the PLRA was put in place before that act, and before any suggestion of an exhaustion requirement. Other theories fail to effectively demonstrate Congress’ intent to make exhaustion a pleading requirement instead of an affirmative defense. “’Whatever temptations the statesmanship of policy-making might wisely suggest,’ the judge’s job is to construe the statute—not make it better.” (Frankfurter).

As to the “name all defendants rule,” nothing of the sort appears in the PLRA and the precedent holding that the PLRA requires proper exhaustion (compliance with both PLRA and grievance process rules themselves) did not cut the pleading off at stage I of the grievance process. There is no discussion of a limiting principle on the grievance process, but the opinion obliquely suggests that it must further the purpose of the PLRA – effectively addressing problems before they reach the courts (ie. not surreptitiously quashing them).

Finally, the rule that dismissal is proper if even one claim is not properly exhausted is based on the use of the word “action” instead of “claim” in the PLRA formulation that “no action shall be brought.” This argument, though valid textually, is dismissed as against common usage in law (citing, among others, Exxon v. Allapath) and traditional practice of taking the good and leaving the bad. The allusion to the total exhaustion requirement in habeas cases is misplaced, as that requirement is based on “comity and federalism,” not statutory construction. Policies are rejected and anomalous results of construction in one direction are countered with equally anomalous results of construction in the other direction (eg. inmates might not be deterred by the requirement but rather file many suits to avoid tainting).

Deviations from, and Meaning of a "Theft Offense"

2007-02-22T14:16:00.000-05:00

Gonzales v. Duenas-Alvarez

An alien convicted of “a theft offense … for which the term of imprisonment [is] at least one year” is subject to deportation. In California aiding and abetting someone in ‘taking a vehicle not his own without consent … is guilty of a public offense.” The question here is whether “theft offense” includes aiding and abetting a theft offense.

Taylor v. U.S. defined a “burglary” under the Armed Career Criminal Act as “burglary in the generic sense in which the term is now used in the criminal codes of most States” but suggested that a sentencing court could go beyond the mere fact of conviction where the State’s law deviated from generic burglary. The issue then is whether the elements of generic burglary were proved.

A Ninth Circuit case, Penuliar v. Ashcroft, held that California’s law swept more broadly than generic theft for its lack of an element of taking control of the property. Theft is broadly defined, and the Ninth Circuit defined it, as “taking of property or an exercise of control over property without consent with the criminal intent to deprive an owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.” Under common law participants are either (1) first degree principals, (2) second degree principals, (3) accessories before the fact, or (4) accessories after the fact (1,2, and 3 have been collapsed).

Under California law an aider and abetter is guilty of the crime he intends, and those that “naturally and probably” result from his intended crime. This is not a deviation from the norm, and to prove such deviation a defendant must present a concrete case, not just hypothetical possibilities, demonstrating that the law would be applied against the generic definition of the crime.

Justice Stevens, concurring in part and dissenting in part is uneasy about interpreting state law before the appellate court.

Does FELA Mandate Equal Causation Standards?

2007-02-22T14:15:00.000-05:00

Norfolk Southern R. Co. v. Sorrell

Sorrell was injured when his truck veered of the road (whether by his fault or otherwise) and filed suit under the Federal Employee’s Liability Act (FELA), which provides a cause of action for negligence for failure to provide a “reasonably safe place to work.” The standard for employer negligence, applied to through model jury instructions, was different than that for the employee. FELA claims are controlled by common law, but FELA provides that contributory negligence should not be a defense, but rather should reduce recovery. The standard for negligence and contributory negligence in common law was the same, but FELA overturned a number of common law principles. The question here is whether the equality of standards for negligence and contributory negligence applies after FELA.

Since the statute employs comparative negligence it would at least be odd to compare the negligence of employer and employee as determined by different standards, and the application of a different rule “unduly muddies what may, to a jury, be already murky waters.” Employers are responsible if their actions are responsible “in whole or in part” for the injury, while employees’ liability is defined differently. The Court notes that if an employee were responsible “in whole” no action at all would be proper, and in any case, the difference in language does not indicate a congressional intent because it made sense in one section and not in another. Meanwhile, though the statute was enacted for the benefit of the railroad “it frustrates rather than effectuates legislative inetent simplistically to assume that whatever furthers the statues’s primary objective must be the law. Finally, even if harmless-error analysis is applicable here, that is a question for lower courts.

Justices Souter, Scalia, and Alito, concurring, argue that when Congress abrogated common law rules through FELA, it did so expressly, and that there is nothing about FELA that necessarily mandates a comparative negligence regime as opposed to a proximate cause regime. Why this is a concurrence, and not a dissent is a mystery to me.

Justice Ginsburg does not see, in this opinion, a divergence from any prior rule; that “the causation standard in FELA actions is more ‘relaxed’ than in tort litigation generally.’” Ginsubrg sees the proximate cause standard in Rogers as whether “employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. Citing Palsgraf v. Long Island R.R., Ginsburg states that whether a defendants’ actions are a proximate cause depends, at leas in part, on “how far down the chain of consequences a defendant should be held responsible for its wrongdoing,” and characterizes the purpose as “remedial” as against the railroads. Justice Ginsburg concludes that the Federal jury instructions, which require “the same rule of causation” should control, if only for the sake of jurors’ comprehension and meanwhile would apply harmless-error-analysis.

I readily admit that I do not understand this decision.

Jurisdictional Limits on Mixed Habes Petitions

2007-02-22T14:11:00.000-05:00

Burton v. Stewart

After being convicted of rape, robbery, and burglary Burton was sentenced to within-guidelines sentences for each count, totaling 562. The total was calculated at various times either as an independent 562 month sentence for rape (to run concurrently), or by ordering that all three guideline-based sentences run consecutively (determined to be “exceptional” under Washington law).

Burton’s case worked its way up to a denial of review by the Washington Supreme Court on the issue of sentencing. He filed a petition for habeas corpus in the District court challenging the constitutionality of his convictions, omitting his sentencing claims because they were on direct review. Three years later Burton filed a second habeas petition, this time attacking the constitutionality of his sentencing. Under the AEDPA, before a court can have jurisdiction over a “second or successive” habeas application, the applicant must receive an authorizing order from the court of appeals, and as Burton’s second application challenged the same basis for his custody, this second application counted as a “second or successive” petition. The Ninth Circuit allowed the second petition without the authorization of the appeals court because, it held, Burton had a “legitimate excuse” for not including the sentencing issues in his original petition – those issues were on direct appeal and would have been dismissed for ripeness.

Rose v. Lundy held that for “mixed” petitions, which present both exhausted and unexhausted claims, a petitioner may (1) withdraw the petition, exhaust his remedies, and then refile; or (2) continue with the mixed petition, have the unexhausted claims ruled on, and face substantial procedural obstacles to their reconsideration, obstacles of which Burton’s habeas petition form explicitly warned. The Court had held in Martinez-Villareal) that when a habeas petition is dismissed as unripe, then becomes ripe, and is resubmitted, it is not “second or successive,” but here the claim was not raised in Burton’s first petition. Another case (Slack) held that when a habeas petition is dismissed as unripe before any claim is adjudicated on the merits, its resubmission is not to be considered “second or successive,” but here the court had reached the merits of Burton’s first petition. Finally, the Court finds that both of Burton’s habeas petitions challenged the same judgment because, although he only referred to the first judgment in his first petition, the second judgment was entered before he filed his first petition.

Finally, Burton argues that he had to file his first petition when he did to avoid the AEDPA’s one year limitation. The one year limitation, however, begins when judgment becomes final, defining judgment to include the sentence, and therefore would only have begun upon conclusion of direct review or expiration of the time to seek direct review, which occurred after he filed his first petition. This did not divest the court of jurisdiction over Burton’s first petition, which jurisdiction is allowed where “a person [is] in custody pursuant to the judgment of a State court” because Burton was in custody pursuant to such a judgment, even though that judgment was not final.

Are Declaratory Judgments in Private Actions Cases or Controversies?

2007-02-14T00:16:00.000-05:00

MedImmune, Inc. v. Genentech, Inc.

Petitioner entered into a patent license agreement with Genentec to pay royalties on production and sale of a specified antibody, the agreement expressly limited to production or sale that would be covered by Genetec’s patent. Petitioner could terminate with 6 months notice. Genentec notified petitioner of its belief that the patent covered another product, petitioner believing that patent to be valid or enforceable. Does the Constitution’s jurisdictional limitation to Cases and Controversies (as a parallel to the “actual controversy” requirement of the Declaratory Judgment Act) require a patent licensee to terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed?

Despite contentions to the contrary, the Court finds that Petitioners’ briefs do seek a declaration of their contractual duties, and that the reduction of its contract arguments to a few pages in the court below “[did] not suggest a waiver; it merely reflects counsel’s sound assessment that the argument would be futile.” In Lear, Inc v. Adkins the Court rejected the argument that a contract providing for royalties “until such time as the patent … is held invalid” obligated payment of royalties until a court ruled on the matter. The same court, however, required that the licensee 1) actually cease payments and 2) provide notice of the reason to the licensor.

Any doubt that the Court could comply with its Case or Controversy jurisdictional requirement and at the same time issue declaratory judgments was dispelled in Nashville, C& St. L. R. Co. v. Wallace (1933). The dispute must be “definite and concrete, touching the legal relations of parties having adverse legal interests,” and must be real and substantial” and “admit of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. “The justiciability problem that arises, when the party seeking declaratory relief is himself preventing the complained-of injury from occurring, can be described in terms of standing (whether plaintiff is or in terms of ripeness” both of which “boil down to the same question in this case.”

Where threatened action by government is concerned, the Court does not require a plaintiff to expose himself to liability before bringing suit because the threat-eliminating behavior is effectively coerced. In a previous private-action case (Atvater v. Freeman (1943)) where a Court had already issued an injunction, threatening treble damages, the Court held “that the involuntary or coercive nature of the exaction preserves the right to recover the sums paid or to challenge the legality of the claim.” The court suggests the test is about coercion itself, not who does the coercing; “Article III does not favor litigants challenging threatened government enforcement over litigants challenging threatened private action.”

Respondents argue a patent lease is really an insurance policy against litigation, so that permitting the challenge without actual damages alters the terms of their agreement (the implication being that the restriction is voluntary as a bargained term, and therefore not coercive). The Court responds that “promising to pay royalties on patents that have not been held invalid does not amount to a promise not to seek a holding of their invalidity. The other side of this theory is that petitioners should therefore not be allowed, under common law, to challenge the validity of an instrument while at the same time reaping its benefit, to which the court points out that the validity of the instrument is no in question, but only its breadth. Finally, the Court declines discretionary relief.

Justice Thomas, dissenting, notes that the Declaratory Judgment Act could not expand the Court’s jurisdiction, that advisory, moot, or unripe decisions are not “cases” or “controversies” in the meaning of the Constitution, and that the party seeking declaratory judgment has the burden of establishing a case or controversy. Because Petitioner’s contract claim relies on a determination of the validity of its patent, Justice Thomas would not treat this as a contract claim, and since “patent invalidity is an affirmative defense to patent infringement, not a freestanding cause of action” there is no case or controversy here.

Justice Thomas then argues that Altvater is not applicable because (1) it arose as a counterclaim to a bona fide suit; (2) it proceeds on the assumption that no license exists; and (3) the continuing compliance with license terms was under compulsion of an injunction. The dissent also distinguishes previous cases as being based on the particularly coercive nature of governmental power.

Is it Structural Error to Charge Elements by Implication?

2007-01-21T23:12:00.000-05:00

United States v. Resendiz-Ponce

Juan Resendiz-Pince, a Mexican citizen, had previously been deported, and tried to re-enter the United States by displaying photo ID and saying that he was a legal resident. When he was charged with the attempt to reenter as a removed alien the indictment failed to allege any specific overt act that he undertook. The question here is whether that failure is subject to harmless-error analysis, but the one resolved is the limits of the requirement that each element of a crime must be alleged.

At common law an attempt to commit a crime must have been accompanied by some “open deed tending to the execution of his intent,” today referred to as an “overt act” constituting a “substantial step” toward the completion of the crime. The Government argues that the allegation that Resendiz-Pince “attempted to enter the United States” implicitly alleged an overt act. The Court notes that the term “attempt” implies action, both in contemporary parlance, and specifically as a term of art in the law. In Hamling v. United States the Court declared that an indictment must contain the elements of the offense such that it (1) fairly inform a defendant of the charge against which he must defend, and (2) enable him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Here, the allegations in the indictment that included the time and date of the offense fulfilled the requirements. Similarly, there are many cases, the Court argues, where simply parroting the language of a federal statue would be insufficient, but where it would be sufficient when coupled only with description of the circumstances (e.g. lying to congress). This ruling, the Court argues, is bolstered by the concept of a rule in 1872, and today embodied in the Federal Rules of Civil Procedure, that an indictment should not be dismissed for formalistic or procedural reasons unless it prejudices the defendant.

Justice Scalia, dissenting, argues that attempt means both an intent and an action, and that the Government must, therefore, “fully, directly, and expressly, without any uncertainty or ambiguity” (U.S. v. Carll) allege both. In any case, he argues, a reasonable grand juror has no more reason to believe that “attempt” connotes a “substantial step” than some more minor, and legally insufficient, act. Scalia also contests the definiteness that the Court attributes to the word “attempt” as a legal term of art. By the logic of the Court, he argues, the words “knowingly and intentionally” are superfluous here, as would be “malice aforethought” in a trial for murder.

As the only Justice to find the indictment insufficient, Justice Scalia is the only Justice to reach the question of harmless-error analysis. Justice Scalia would find the error to be structural and therefore not amenable to harmless-error analysis.

Do Administrative Proceedings Count?

2007-01-21T21:00:00.000-05:00

BP America Production Co. v. Burton

The US Government can lease out public land for energy development, for a fee of course, through Minerals Management Service (MMS). The companies to which the land is leased is required to calculate the royalties and pay them, but may be audited. If MMS determines that the companies have underpaiad it will issue an order for payment (which carries a $10,000 per day fine), which can be appealed to the head of the MMS. In 1982 Congress enacted a law revising the accounting processes and directing the Secretary of the Interior to “audit and reconcile, to the extent practicable, all current and past lease accounts…” Then, in 1996, Congress enacted a prospective statute of limitations for any “judicial proceeding or demand” for royalties arising under a federal oil or gas lease and covering “every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or in fact” and barring it unle4ss “the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings…” The question here is whether this statute of limitations governs MMS administrative payment orders concerning pre-1996 production.

For years Amoco calculated royalties based on the value of the gas when it was pumped, but in 1996 MMS directed Amoco to calculate royalties based on the value of the gas after it was treated, and to pay additional royalties for the period of 1989 to 1996. On appeal the Assistant Secretary of the Interior held that the statue of limitations was inapplicable.

The statute of limitations applies to any “action for money damages,” commenced by filing a “complaint,” and the statute runs from the point when a “right of action accrues.” These terms by definition apply in the context of a judicial proceeding, and not necessarily in the context of an administrative proceeding. A “right of action” is defined as “the right to being suit; a legal right…” where “suit” means “any proceeding … in a court of justice.” “Complaint[s]” are filed in judicial, not administrative, proceedings (these laws were, after all, written by lawyers). Petitioners cite many cases where they argue the word “action” encompasses administrative proceedings, but the Court dismisses these because in each instance the word is somehow qualified either directly or implicitly. Similarly, the few cases where the term “complaint” is applied to administrative proceedings is discarded because, in any case, a complaint in that context imposes no legal obligation and because statutes of limitations are generally construed narrowly.

Also, to the argument that a section explicitly providing for “administrative offset[s]” (which is, as far as I can tell, a mechanism whereby the Government withholds payment of a debt to recoup payment that another party owes) the Court points out that the section at issue here was added 16 years later, and in response to a concern that the Government could not use such a mechanism to recover a debt which a Court was no longer empowered to adjudicate.

As to suggested inconsistencies that this interpretation would result in, such as the requirement that oil companies maintain records for 7 years (the length of the statute of limitations) where those records could be necessary for an indefinite period of time, the Court proffers other suggested inconsistencies that would result from petitioner’s interpretation. General policy questions are then given brief consideration; guess how much they affected the decision.

Clearly Established Federal Law on Buttons in a Courtroom

2007-01-20T21:28:00.000-05:00

Carey v. Musladin

In this case family members of the victim wore buttons with the victim’s picture during the trial while they occupied the first few rows of the spectators’ gallery. The question here is whether the lower court “unreasonably applied clearly established Federal law, as determined by the Supreme Court of the United States” in its ruling that, the Supreme Court having set out the test to determine whether a given courtroom practice creates “inherent prejudice” and thereby denies the defendant a fair trial, the court below was not at liberty to apply a different test.

In Williams the state forced the defendant to stand trial in prison garb. In Flynn the state positioned state troopers in the row immediately behind the defendant. The former was held to present “an unacceptable risk [of] impermissible factors coming into play” (Flynn) without furthering an “essential state” policy or interest; the latter was not.

This state-interest prong suggests that the test is not applicable to private action, and therefore using an alternative test is not an unreasonable application of clearly established federal law.

Justice Stevens writes separately to object to a comment that he has seen repeated, arguing that “the statutory phrase ‘clearly established Federal law, as determined by the Supreme Court of the United States’ refers to ‘the holdings, as opposed to the dicta, of [the] Court’s decisions as of the time of the relevant state-court decision.” He also states that, in his opinion, “there is no merit whatsoever to the suggestion that the First Amendment may provide some measure of protection to the spectators in a courtroom who engage in actual or symbolic speech to express a point of view about an ongoing proceeding.”

Justice Kennedy argues that there would be relief under the Antiterrorism and Effective Death Penalty Act even in the absence of a ruling by the Supreme Court, and calls for a rule on this particular subject.

Justice Souter sees no serious question that the Flynn standard reaches the behavior of spectators, nor that the buttons in question here raise a risk of improper considerations. He concludes that the risk is not unacceptable because (a) most courts considering the issue have upheld the convictions (which seems to go to reasonableness as an objective-relativistic concept), and (b) to avoid the question of the spectators’ possible First Amendment interest in expression.

Any Felony Punishable [As a Felony] Under the CSA

2007-01-18T02:47:00.000-05:00

Lopez v. Gonzales

The Immigration and Nationality Act (INA) enjoins discretionary relief from deportation for those convicted of “illicit trafficking,” defined to include “aggravated felonies,” itself encompassing a crime punishable under the Controlled Substances Act (CSA), and which is a felony under either Federal or State law. Jose Lopez was convicted of a State-Law felony for helping another posses cocaine, and was deported, a federal misdemeanor. The question here is whether a federal misdemeanor can constitute an aggravated felony via State law for the purposes of the INA

The Government argues that since it is only necessary that the “illicit trafficking” be punishable under the CSA, it need not be a felony. “Trafficking” as a term generally implies commerce, not simple possession which a handful of states classify as a felony. Congress did, however, classify some simple possession cases (possession of ingredients, recidivism, etc) as federal felonies. The dissent suggests that these are merely instances of the inclusion of every drug-offense in the “illicit trafficking” definition. On the other hand, when defining a crime punishable by the CSA, Congress neglected to include references to State law, as it added elsewhere. The Court is not persuaded by suggestions that “punishable under the CSA” does not read “punishable as a felony,” in order to allow inclusion of State law felonies, since it is equally likely that the wording is meant to include crimes which constitute federal felonies, though not prosecuted as a such, or as crimes with a federal-felony counterpart.

Why is the best stuff always in the footnotes (oh, right). The phrase “felony punishable under the [CSA]” is taken from Title 18 and incorporated into “aggravated felony,” which would allow it to be prosecuted in a court of the United States, albeit, at a misdemeanor level – something never attempted while the phrase was in Title 18.

Finally, the Court points to disuniformity, and the ability of States to supplant the judgment of Congress in this area by providing a anomalous definition of felony, or punishment of possession. The dissent argues that the determination is for the convicting jurisdiction, as per the language “conviction” for an “aggravated felony,” suggesting that “conviction” is meant in the past rather than passive tense.

JusticeThomas, dissenting: To be deportable Lopez’ offense must 1) be a felony, and 2) be punishable under the CSA. South Dakota punishes Lopez’ crime as a felony, and it could have been punished under the CSA. Interpreting the law to include the limitation that the crime must be a federal felony would make such designations elsewhere superfluous.

“In Raich, the court fell into the very trap it purports to identify today by ‘turn[ing] simple possession into [commerce], just what the English language tell us not to expect” (for those with short memories). And just to be even-handed, I hope Justice Thomas remembers this line: “we must interpret what Congress actually wrote, not what it could have written.”

Finally, Justice Thomas argues that Congress would equally subject its judgment to be second-guessed by state laws that classify drug crimes more lightly, and in cases where a defendant is deported for conviction of a crime that could have been, but in fact was not tried as, a federal felony.

What A Jury Would Infer

2006-11-13T17:15:00.000-05:00

Ayers v. Belmontes

Belmontes (respondent) was found guilty of murder and sentenced to death. He appeals from the instruction that the jury should consider (“factor (k)”) “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime,” on the basis that this instruction barred the jury from considering his forward-looking mitigation that he would lead a constructive life if merely incarcerated (based on his participation with prison ministries while incarcerated).

The court has upheld factor (k) against challenges that its focus on extenuating the gravity of the crime denies consideration of factors unrelated to the crime, holding that the proper inquiry is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents consideration of constitutionally relevant evidence,” because for the jury to conclude that factor (k) barred consideration of that evidence it would have to draw the unlikely inference that “the court’s instructions transformed all of this ‘favorable testimony into a virtual charade.’” (Boyde). In another case (Payton) factor (k) was upheld when a prosecutor incorrectly told the jury that is barred consideration of post-crime rehabilitation, since this statement was corrected, and because that case was a habeas case with a higher burden on respondent than this one (this case is not governed by AEDPA).

Payton held that this factor (k) does not carry a reasonable likelihood that a jury will incorrectly apply it to bar consideration of post-crime evidence, and Boyde held the same for good-character evidence. Given the full discussion, the jury would have believed that the prosecutor’s statements that this evidence didn’t belong in any category were based on the persuasiveness of the evidence, not its admissibility. Other questionable statements (such as arguments that the law does not mitigate punishment simply for having religion) are better understood as a recognition of the dichotomy between a legal excuse and extenuating evidence; or distinctions between respondent’s religion per se (not what he was trying to introduce) and his potential future contributions (which he was trying to introduce. The judge also instructed that while the aggravating factors must be limited to those read to the jury, there was no such limit on mitigating factors. Some questions from a juror could be read to indicate that she thought only those factors listed could be considered, but a) there are other logical readings of the exchange, and b) even if that had been the case, factor (k) is on that sheet.

Justices Scalia and Thomas, concurring: A jury need only be able to consider in some manner all of a defendant’s relevant mitigating evidence,” and need not “be able to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant.” (Johnson v. Texas)

Justices Stevens, Souter, Ginsburg, and Breyer, dissenting: Factor (k)’s restrictive language, and its presence on a list of very specific factors that directly relate to the crime sent the unmistakable message that juries could not consider evidence that did not extenuate the severity of the crime. Both sides made it clear that they were not addressing evidence directly relating to the crime, and the judge denied the request for an instruction that the jury could consider “any other circumstances,” and the judge passed up multiple opportunities to make this concept clear

Boyde held that factor (k) did not prevent the defendant from having evidence that demonstrated his ability to live a productive life in prison, as evidence that the defendant was less culpable generally as a person, from being given effect, not on its own terms. Payton was explicitly premised on a different standard of review. The dichotomy between a legal excuse and an extenuating circumstance will not be apparent to a jury, nor would a jury understand that “remorse” is a species of post-crime evidence that reduces the crime itself. There is a reasonable likelihood that the jury in this case did infer what it later took litigation in California courts to settle.

tap... tap... tap...

2006-11-09T19:05:00.000-05:00

Ok, so there haven't been any decisions yet, and we are reaching the point where I will have to put them off if they do start coming out. That's probably why I am so susceptible to the latest from the rumor mill about another justice announcing a retirement at the end of this year. Ponder, for a moment, who it could be and how that could change the outlook on the law for (oh, say, 15 years).

Also, the National Review Online has an article about the partial birth abortion ban that the Court heard a few days ago. The discussion is pretty trite, but the end brings up a topic that I have been thinking about a lot lately. Apparently, the partial birth abortion ban is justified on the grounds that Congress can regulate interstate commerce. But wait, you say, how does a law about abortions apply to interstate commerce? Well, I don't know, but we have the assurance of the law itself, by way of an explicit provision that it shall only apply to cases where interstate commerce is implicated.

So here is my take on that. It is irresponsible, improper, and (I believe) an unconstitutional delegation of authority to write a law so broadly that its meaning is essentially left up to the courts. The Court has already declared that it has no interest in receiving laws that are deliberately overbroad, and taking responsibility for narrowing them down so that they are constitutional, and it shouldn't. So, my suggestion, when the Court comes across a law that is fundamentally and egregiously overbroad, such as the lately failed South Carolina ballot initiative to ban abortion, the Court should not honor severability clauses where by doing so it essentially takes the job of the legislature (seveability clauses being those parts of the law declaring that the remainder of a law will continue in force and effect if one provision is found unconstitutional).

Of course, I am not saying the partial birth abortion ban is one of those laws (I actually doubt it is, but I haven't read it), but the article seems to just assume that the Court will take it upon itself to clean up Congress' mess.

Edit: ok, so apparently adding "if it affects interstate commerce" is a more common phenomenon than I thought. I still find it objectionable because it forces those subject to the law to evaluate the Commerce Clause just to figure out when their actions are controlled by the law, an evaluation that few people (lawyers included) are qualified to make.

Also, it occurs to me that what I said above implicitly suggests that courts should not allow as applied challenges to the law. I think, however, that the two solutions are more similar than they sound. Not honoring severability clauses would prevent courts from choosing the precise extent to which the law violates the Constitution, which extent would change depending on the circumstances of the challenge. Prohibiting as-applied challenges would effectively do the same thing, but only to the extend that the offending clause was severable per se from the rest of the law. So, I guess the no-as-applied challenges rule would be marginally better in theory; I have no basis to evaluate what the difference would be in practice.

Overturning a Decision Which Made No Findings Without Explanation

2006-10-23T17:21:00.000-04:00

Purcell v. Gonzalez

PER CURIUM: In 2004 Arizona voters approved Proposition 200 requiring voters to present proof of citizenship when they register and before they vote, but would allow voters without proof of citizenship to cast provisional ballots and present such identification within 5 business days or to vote before election day without presenting such identification (early voting provides adequate time to verify the voter’s status). Arizona is governed by Section 5 of the Voting Rights Act which requires that changes to the election law be precleared by the Justice Department to ensure that new provisions do not “have the purpose [or] effect of denying or abridging the right to vote on account of race or color.” Challengers of the law were denied a preliminary injunction but the court did not issue findings of fact or conclusions of law. The motion was granted on appeal without any explanation or justification. One week later the court issued its finding that plaintiffs demonstrated a possibility of success on the merits but not a strong likelihood.

A state has a compelling interest in preserving the integrity of its election process. The fundamental right of suffrage can be denied by a mere dilution of the weight of a citizen’s vote. The court of appeals was required to take into account certain considerations peculiar to election law cases, particularly the importance of speedily clarifying legal questions in a case such as this where an election is only weeks away. However, because the district court did not issue any findings of fact or conclusions of law, and because the appeals court gave no basis for overturning that court’s decision to deny the injunction, the order of the court of appeals should be vacated.

Justice Stevens, concurring: Allowing the election to proceed under the new rules will provide a better factual basis for determining the scope of the disenfranchisement and the prevalence of the fraudulent practices which supposedly justify this new rule.

Welcome to the new Supreme Court term.

Lets get ready to RUMBLE!

2006-10-03T00:31:00.000-04:00

The new Supreme Court term begins tomorrow!

That's it

2006-08-23T23:54:00.000-04:00

There it is. I have finnished reading the opinions for the last term, just as I begin law school. A couple thoughts. First, it seems more and more apparent that Justice Stevens' internal consistency baraometer is tweaked. He seems to be less concerned about following a consistent method of jurisprudence thanis to be expected. The conservative side of the Court (and lets see if I can do this in order, Thomas, Scalia, Alito, and Roberts) seem to be very interested to chip away at the exclusionary rule, and Kennedy is no real barrier, though there are indications that he will only go along with so much of that sort of thing. Kennedy certainly has taken O'Connor's swing vote position and is pretty unconcerned about the Court presnting one clear opinion. Of course, that was my big gripe about O'Connor, and her *$#& "balancing" tests, so I guess it's a wash. Oh, and I guess Roberts was being totally straightforward when he testified that he believed in a right to privacy. Of everything that can be said for his theories of the law, that doesn't seem to be a place where the left will have much copmlaining to do.

So long as I am on the soapbox, check out this article.

The Legal Status of the Guantanamo Bay Tribunals

2006-08-23T23:49:00.000-04:00

Hamdan v. Rumsfeld

Hamdan is in U.S custody at Guantanamo Bay. After two years of detention, and after having been deemed eligible for trial by military commission, Hamdan was charged with conspiracy “to commit … offenses triable by military commission.” Hamdan filed for a writ of habeas corpus and conceded that a trial under the Uniform Code of Military Justice (UCMJ) would have been legitimate. He argues that the military commission at issue lacks the authority to try the case because (1) neither congressional Act nor the common law of war supports such trial by commission for the crime of conspiracy, which Hamdan argues is not a violation of the laws of war; and (2) because the procedures that the President adopted “violate the most basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear evidence against him.”

Justice Stevens

The President directed that anyone found to have engaged in terrorist activities harmful to the United States “shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law.” After Hamdan was declared eligible for the military tribunals he was appointed counsel, who filed demands for charges and for a speedy trial under Article 10 of the UCMJ (10 U.S.C. §810). The legal advisor to the tribunals ruled that Hamdan was not entitled to any of the protections of the UCMJ. On appeal the Government did produce charges, alleging only that Hamdan “willfully and knowingly joined an enterprise of persons who shared a common criminal purpose and conspired and agreed” to commit a list of charges, including terrorism. The document also specifically alleges that Hamdan (1) acted as Osama Bin Laden’s bodyguard and personal driver; (2) arranged transportation of and actually transported weapons for al Qaeda; (3) drove or accompanied Bin Laden to training events promoting terrorism; and (4) received weapons training at an al Qaeda camp.

The District court decided that the President’s authority to establish military tribunals only extends to “offenders or offenses triable by military [commission] under the law of war,” which includes the Geneva Convention, unless Hamdan is adjudged, in compliance with that treaty, not to be a prisoner of war. Under the Geneva Convention Hamdan is entitled to see the charges against him; therefore the commissions are wanting of authority. The Court of Appeals reversed, holding that the Geneva Conventions are not judicially enforceable.

The Government argues that the Detainee Treatment Act (DTA) expressly limited jurisdiction over detainee matters to the D.C. District court; detainee appeal matters to the D.C Circuit Court of Appeals; and generally denied jurisdiction over habeas applications. Hamdan suggests that if the Government is correct then Congress has unconstitutionally suspended the writ of habeas corpus (notice, Congress may do so when time of rebellion or public safety may demand). The Government first argues that the lack of an express provision excepting pending appeals from the denial of jurisdiction over granted and denied appeals implies a presumption, supported in case law, against jurisdiction. The Court reads the case law to imply no application of the ordinary presumption that the Act is retroactive. This is especially the case since most jurisdiction granting/stripping statutes simply change jurisdiction, so do not impair rights, and therefore do not raise a retroactivity problem. The Court also points to evidence of deliberate omission. Meanwhile the Government argues for negative inference based on the fact that the case in precedent (Lindh) grants jurisdiction while this statute strips it, which the Court rejects as unfounded. Secondly, the Government argues that this produces absurd results, granting dual jurisdiction while discussing “exclusive jurisdiction,” but the court points out that one is an appellate jurisdiction and one is not. Finally, the majority calls the dissent’s argument that this result runs contrary to the plain meaning counterfactual (citing legislative history) and a misreading of precedent.

Next, the reasons of comity that the Court accepted the idea of a courts-martial (respecting the division drawn by Congress and the benefit to military preparedness) were based on the idea, inapplicable here, that these courts-martial will vindicate constitutional rights, especially because Hamdan cannot appeal to civilian judges. This leaves the Court with Quirin as precedent, where the Court entertained habeas applications, in time of war, from German saboteurs.

Citing Ex parte Milligan the Court notes that without a basis elsewhere in the Constitution “no part of the judicial power of the country was conferred on [military commissions].” Following a discussion of the separation of powers, the Court assumes that the Authorization to Use Military Force activated the President’s wartime powers, but did not alter the status quo in the UCMJ. Military commissions have been used (1) in the context of martial law; (2) on foreign soil; and (3) in the context of the necessity to punish violations of the laws of war. From this and precedent the Court decides that for Hamdan’s charge to be legitimate the offense must have been committed during the theater of ware and “during,” not before” the conflict. Worse yet, the charge is not triable by law-of-war military commissions. The military may not define “Laws of Nations” as that would give it the power to define its own jurisdiction, and the crime of “conspiracy” is not included in that definition since intent is insufficient. First, in Quirin the Court “declined to address” whether conspiracy was triable by commission, and actually considered the completion of the act. Second, the citations for the inclusion of conspiracy in Howland do not support its inclusion. Third, where the Court ostensibly accepted the idea, it was in the context of martial law, not the laws of war. Finally, the charge of conspiracy proper was not accepted at Nuremburg. Here ends this opinions claim on majority status.

The opinion notes a divergence from the UCMJ in the admissibility of unsworn hearsay and the fact that defendant and his counsel may be barred from proceedings presenting evidence against him if that evidence is classifiable. The imposition of any penalty less than death requires only a two thirds majority. The Government objects that case law (Councilman) precluded pre-enforcement review of procedural rules; (2) Hamdan may raise any such challenge following a “final decision”; and (3) there is no basis to presume that the trial will be conducted unfairly. The Court reminds that whereas Hamdan is not subject to the death penalty he does not necessarily have the right to appeal. Second, Hamdan argues that he already has been excluded from his own trial.

Article 36 of the UCMJ requires that (a) the rules of (among others) military commissions “may not be contrary or inconsistent with this chapter”; and (b) that all rules and regulations made under it “shall be uniform insofar as practicable.” The Court reads this to require some tailoring of any departure from the UCMJ. The UCMJ requires that “all proceedings shall be made a part of the record and shall be in the presence of the accused.” Subsection (a) (above) allows deviations from the UCMJ where the President considers it practicable. Subsection (b), however does not defer to the President in the same way and thus requires an objective evaluation of practicality. This is premised on the logical move, based on the burden of objectivity, from requiring practicality to allowing deviation only for impracticality. The only reason that the President has offered is the danger of terrorism. Underlying this decision is the jettisoning of the basic right to be present at trial “whether or not that departure technically is ‘contrary or inconsistent with’ the terms of the UCMJ.”

Here begins, again, the opinion’s claim to majority status. The Court of Appeals dismissed the argument that the tribunals violate the Geneva Convention because (a) the Geneva Convention is not judicially enforceable; (b) even if it were, Hamdan would not be entitled to its protections; and (c) even if it were enforceable, and Hamdan were entitled to its protections, Councilman councils judicial abstention. As to the first argument, Johnson v. Eistrager denied Geneva protections to German nationals during WWII in China because they had failed to identify any prejudicial disparity between the Commission that tried them and that afforded American soldiers and because they could claim no protection for acts committed before their P.O.W status. Additionally, the Court (in a footnote) suggested that enforcement of the Conventions was the province of the political and military branch of government. Here, the Court overrules the Appeals Court’s decision that that footnote makes the Geneva Conventions unenforceable by the judiciary because those Conventions constitute the statutorily enforceable law of war. The Executive argued that the war with al Qaeda was distinct from the war with Afghanistan, and not covered by the Conventions as a “declared war [or] any other armed conflict which may arise between two or more of the High Contracting Parties.” In any case, the Court notes, in conflicts of an “international character,” persons taking no active role in combat (including those who have laid down their arms, or placed under detention) are provided the protections of Article Three. Here, “international in character” is used in contradistinction to conflicts between nations. Therefore, under Article Three, Hamdan is entitled to a trial by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” “Regularly constituted” courts include military tribunals. Here again ends this opinion’s claim on majority status.

My note: “guarantees which are recognized as indispensable by civilized peoples” is almost precisely the test for incorporation of a protection in the Bill of Rights into the Due Process Clause of the Fourteenth Amendment.

The opinion states that the Government does have a compelling interest in denying Hamdan access to certain sensitive information, but that it has not offered a valid reason for deviating from the UCMJ, making the military tribunals illegal, and that in any case “information used to convict a person of a crime must be disclosed to him.”

Again commences the opinion’s claim to majority status. “The commission that the President has convened to try Hamdan does not meet [the requirements of Article 3].” Note: Chief Justice Roberts had to abstain because he had previously ruled on this case.

Justice Breyer

Justices Breyer, Kennedy, Souter, and Ginsburg state that “where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger.”

Justice Kennedy

Justices Kennedy, Souter, Ginsburg and Breyer point out that military tribunals are a matter in which Congress has historically been engaged. The opinion points first to three requirements for military tribunals that Congress has set out: (1) Tribunals must conform to district-court rules insofar as the President “considers practicable”; (2) those rules may not be contrary or inconsistent with the UCMJ; and (3) those rule must be uniform “insofar as practicable.” The opinion also agrees with the majority about objective vs. presidential concepts of practicability and the fact that Article Three of the Geneva Conventions apply. The opinion replies to the dissent’s argument that the Convention’s protections are not judicially enforceable by reiterating that even if that is the case under Johnson v. Eisentrager the Conventions do make up the law of war that Congress has directed the President to follow. Meanwhile, the regularly constituted military courts are courts-martials. Military tribunals must look to the courts-martial as a benchmark and can only be regularly constituted if some practical need explains derivations from that process. The opinion then surveys the differences between a courts martial and the military tribunals, noting that power is concentrated in a single executive official who appoints judges and oversees appeals, that only three judges are required and only one must have legal training, and the creation of a review process outside that provided by Congress. Without a justification for these deviations the tribunals are not considered “regularly constituted.” The further deviation in allowing admission of all evidence that is reasonably probative and allowing the judges to see all evidence whatsoever.

Justice Scalia

Justices Scalia, Thomas, and Alito argue that the statute unambiguously revokes jurisdiction over all habeas petitions from Guantanamo Bay detainees, and that an unbroken line of cases have held that jurisdiction stripping statutes apply to pending cases. While the majority would not read the rule as “an inflexible trump,” Justice Scalia strongly believes that it was set out as a rule. The majority actually relied on this general rule that jurisdiction stripping statutes apply to pending cases in Langraf where it held that as one section of the AEDPA explicitly applied to pending cases, and another did not, since Congress had no reason to believe such a provision was necessary, a negative inference was appropriate. Scalia argues otherwise; that Congress did have reason to doubt the implied application to pending cases. The difference upon which this opinion distinguishes the case is that the Court has generally treated jurisdiction conferring statutes differently than jurisdiction stripping statutes. In any case, the Lindh reasoning should not be employed to completely circumvent the purpose of the law, which was to grant “exclusive” jurisdiction in the D.C. court.

Turning to the appeal to legislative intent, the fact that statements roundly denying the Court’s interpretation were made after the law was passed is of no consequence because such statements are not made in the context of riveting debate, but are “delivered … alone into a vast emptiness.” Scalia also points out that “floor statements made on both sides were undoubtedly opportunistic and crafted solely for use in the briefs in this very litigation” and reminding that Justice Stevens once looked to the legislative history for “general agreement,” which is undoubtedly missing here. Scalia argues that there is no reason to believe that the removal of the wording applying the law to pending cases was what motivated the rejection of an earlier bill, considering some other more fundamental differences.

Justice Scalia must then address the argument that the denial of habeas corpus violates the Suspension Clause of the Constitution (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”). He cites Johnson v. Eisntrager for the conclusion that and enemy alien outside of the sovereign territorial jurisdiction of the United States is protected under the clause. Even if they were protected “the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention does not constitute a suspension of the writ of habeas corpus” and Hamdan has not shown that the D.C. Circuit is inadequate or ineffective. A particularly striking footnote suggests that Hamdan would not be harmed by being subject to indefinite detention since he is already, under Hamdi v. Rumsfeld.

Scalia argues that Councilman’s reasoning, that the efficient operation of the Armed Forces and structural insulation from the Executive is benefited by abstaining from habeas review is furthered here. The D.C. Circuit now reviews the decisions at issue, and the fact that the review is discretionary goes to the effectiveness, not the structural insulation, of the process. To this he adds that considerations of “interbranch comity” council the Court to exercise its “equitable jurisdiction” so as to avoid direct conflict with the Executive in an area where the Executive’s competence is “maximal.”

Justice Thomas

Justice Thomas agrees with the majority that military commissions are executed in one of three ways, and that the relevant considerations are the (1) time and (2) place of the offense, (3) the status of the offender, and (4) the nature of the offense charged. For Justice Thomas the theatre of war, as defined by the President and under the Prize Cases, extends from 1996 and to all places where al Qaeda has established training camps rather than the date of the Authorization to Use Military Force. This conclusion addresses (1) and (2). As to (3), organized forces of a belligerent are not within the protection of the laws of war. Finally, the “clear-statement” rule is contrary to the historically flexible common law of war, which defined what was not to be done, but does not define what may be done. Hamdan was charged with an offense triable by a commission because the war crime was joining such a group. In the opinion of the Attorney General, “the atrocities committed by such a band do not constitute the offense, but make the reasons … why such [groups] are denounced by the laws of war.” There is then a lengthy review of such charges in history suggesting that conspiracy is an overt act.

Justice Thomas argues that the Court reads too much into the requirement that the UCMJ be “uniform insofar as practicable,” and diverges too far from the common law and text of the statute. Meanwhile, according to precedent, the Court should not set aside Hamdan’s commission “without the clear conviction” that it is in conflict with the laws of Congress. History and the text of the UCMJ have recognized differences between tribunals and the courts-martial procedures. Thre requirement for objective uniformity should be understood as a requirement that the rules of Army tribunals be uniform with the rules of Navy tribunals, as the UCMJ is generally set up to create uniformity within the branches of the armed services.

Justice Thomas finds the Presidential justification for diverging from standard procedures in speeches made by the President. He also argues that the text of the UCMJ’s requirement that the accused be present plainly only applies to courts-martial, which for my money completely misses the point of the majority’s argument, whether it is right or wrong. Thomas takes issue with the idea that Article 21 of the UCMJ sets out the laws of war, and includes the Geneva Conventions under that heading, because “Article 21 authorizes the use of military commissions; it does not purport to render judicially enforceable aspects of the law of war that are not so enforceable of their own accord.” Also, that section of the UCMJ refers to the laws of war only in the context of jurisdiction, whereas Article Three of the Geneva Conventions deals with particular procedures. Especially where the provisions of a treaty are ambiguous “the meaning attributed to treaty provisions by the Government agencies charged with their negation and enforcement is entitled to great weight.” Even granting all other points, Justice Thomas argues that the issue is not “ripe” in that the only acts that the Convention prohibits are the ‘passing of sentences…,’ ‘carrying out of executions…,’ etc. There has been no conclusion to Hamdan’s trial, and therefore no violation of the Convetion.

Granting everything else, Justice Thomas argues, the commission does “afford all judicial guarantees which are recognized as indispensable by civilized peoples,” which include right to representation, presumption of innocence, proof beyond a reasonable doubt, right to remain silent, confront witnesses, subpoena his own witnesses, generally be present at trial, and to review of conviction (by Secretary of Defense. (Some of this is incomplete, considering that I heard an interview with Hamdan’s lawyer where he said his client was entirely unaware that he had a lawyer, or that this case even existed). Justice Thomas calls these “nebulous standards,” (but consider an equally nebulous standard, the legal standard for the inclusion of rights into the Due Process Clause, incorporating rights which are “in their nature, fundamental; which belong of right to citizens of all free governments.”) Justice Thomas then implies a compelling-interest-test exception to this provision.

Justice Alito

Justice Alito agrees with a large part of the majority, up to the question of what is a “regularly constituted” court. He says this must depend on U.S. law. Justice Alito believes that this language does not, in itself, bar special tribunals, distinguishing the law by pointing out that it is meant to govern an occupying power’s trials of civilians. Nor does he believe that noncompliance with the uniformity requirement means that the tribunals are not regularly constituted, but simply invalidates that particular deviation. He also generally agrees with Justice Thomas’ evaluation of the Geneva criteria, particularly with Justice Thomas’ argument about the ripeness of Hamdan’s claim.

Revisit: If the case turns on the extent of congressional approval, and if that approval is to be measured in the AUMF, UCMJ, and various treaties, then the case turns on whether the specific and explicit limitations in the UCMJ override the (extremely) broad and ambiguous grants of authority in the AUMF, read in conjunction with the background law of treaties. Then the case is actually about whether Congress more sincerely delegated/recognized authority in meticulously calculated provisions of the UCMJ, or the blank-check of the AUMF.

How Much Latitude do States Retain in Defining the Insanity Defense?

2006-08-23T23:48:00.000-04:00

Clark v. Arizona

Eric Clark shot an officer when he was pulled over for suspicious activity and fled on foot. He was found mentally incompetent to stand trial, but after two years in a state hospital he was deemed competent. Clark relied on his undisputed paranoid schizophrenia to deny that he had specific intent to shoot a law enforcement officer, or knowledge that he was doing so, as the statue requires. The prosecution pointed out that in pulling over Clark had recognized the symbol of police authority and that he had made statements in the weeks prior that he wanted to kill police officers. This case considers whether due process prohibits Arizona from using an inanity test solely based on the capacity to tell right from wrong (leaving out mental disease or defect) or by prohibiting defense evidence of mental disease, short of insanity, bearing on the defendant’s mens rea.

Clark argues that the elimination of the reference to the nature and quality of the act from the M’Nauthten test (generally, ‘if by reason of a diseased condition of the mind the defendant is unable to (a) understand the nature and quality of his act (cognitive incapacity); or (b) lacked the capacity to distinguish right from wrong(moral incapacity)) “offends [a] principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” (test for incorporating protection into the Due Process Clause). A third test, volitional incapacity (“irresistible-impule”), comes from English common law and a fourth (“product-of-mental-illness”) is employed in one form or another in fourteen jurisdictions along with moral incpacity (following the ALI Model Penal Code). Seventeen States and the Federal Government use a “recognizable version” of the M’Naughen test (both cognitive and moral incapacity); one state uses only the cognitive capacity portion, ten have adopted moral incapacity alone, and three combing the full M’Naughen test with the volitional capacity test. Only New Hampsire uses the product-of-metal-illness alone. Additionally, some states use the Not Guilty by Reason of Mental Insanity verdict or Guilty but Mentally Ill, and four States have no insanity defense, but allow considerations of mental illness to bear on the ability to form the requisite mens rea. These observations, along with the Court’s argument that it is generally accepted that cognitive incapacity is sufficient (but not necessary) to show moral incapacity bring the Court to the conclusion that the abridgment of the M’Naughten rule was constitutional.

The second issue derives from the Arizona court’s rule, at the time on the issue of battered women’s syndrome, that evidence of mental incapacity owing to mental disease or defect is admissible, but cannot be considered on the element of mens rea. As a background the Court overviews types of evidence. “Observational evidence” might come from those who were familiar with Clark, or professionals who observed him. “Mental-disease evidence” is generally opinion evidence from experts. Then there is “capacity evidence,” from experts regarding the specific nature of Clark’s mental state. These classifications are very broad and general. The Court reads the Arizona rule, from Mott, to pertain only to the second two types of evidence. The majority does not believe that Clark objected to the application of Mott, or at least did not frame such an objection to the Arizona court, and thus only considers the objections to the law based on its exclusion of professional evidence.

All defendants are presumed innocent until the government proves otherwise beyond a reasonable doubt. Similarly, all defendants are presumed mentally competent until the defendant proves otherwise, though the standard of proof is flexible. Where a State allows mental disease to be considered on par with other evidence when deciding whether the prosecution has proven mens rea “the strength of the presumption of sanity is no greater than the strength of the evidence of abnormal mental state required to raise reasonable doubt.” This would effectively do away with the requirement that the defense prove insanity (by whatever standard), by granting a victory to the defense if it could make a showing that need only be reasonable.

A problem arises. “If the same evidence that affirmatively shows that he was not guilty by reason of insanity (or “guilty-but-mentally-insane” under Arizona law …) also shows it was at least doubtful that he could form mens rea, then he should not have been found guilty in the first place. There must be a reason for limiting such evidence to the insanity issue. The Court cites the evolving nature of scientific knowledge and understanding, the potential of such evidence to mislead juries, and the effect that theoretical disagreement between experts can have on juries.

The dissent attacks the Court’s division of evidence into three categories. As an example of the way this formula is unworkable the dissent considers the fact that the defendant was charged with luring the police officer to the scene by playing the radio very loud and driving in circles. The dissent points out that paranoid schizophrenics often have auditory hallucinations, and play music very loud in order to drown them out. If this is the case, and if it were entered with only the observational evidence, excluding the expert evidence portion, the evidence would be quite distorted. Ultimately, the dissent argues, “knowledge requires cognition, and cognition can be affected by schizophrenia.” The three categories substantially overlap.

Additionally, the dissent argues that the ambiguities in the defense’s argument should not be construed to deny review of the fundamental question, and the ambiguities cited by the majority are illusory. Clark’s counsel had no reason to believe that greater specificity was needed since the tripartite formula was devised in the Court itself. Also since Clark raised the claim in a broad sense he is entitled to support it with whatever arguments he pleases. “A State’s legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case.” The dissent mainly objects to what it perceives as an arbitrary or disproportionate limitation on the defense’s ability to counter a necessary component of the charge. As far as the jury is concerned, “the difficulty of resolving a factual issue, [does] not present a sufficient reason to take evidence away from the jury even when it is crucial for the defense.” Additionally, the shift in burden may be appropriate in terms of an insanity defense, but not in terms of a defense to an element of the charge.

The rule, the dissent says, is also irrational. If Clark had testified that he lacked the requisite mens rea because he believed the officer to be an alien the State could not disallow the defense, and if it were allowed the rule would deny Clark the ability to support the assertion.

The Constitutionality of Denying Certain Prisoners Access to Newspapers, Magazines, and Photographs

2006-08-23T20:38:00.000-04:00

Beard v. Banks

The Pennsylvania Long Term Segregation Unit, the third of a three tiered disciplinary system over and above that of normal prison administration, houses about 40 prisoners who have committed at least one of a number of serious violations. In all three units inmates are typically held in their cells for 23 hours a day, have their visitations limited, and may not watch television or listen to radio. These conditions have a lighter and a stricter version within each level. There is a program in place to graduate from a more restrictive level to a less restrictive level within the housing unit, but most do not. This case concerns only the most restricted level (level 2) of the highest tier (LTSU). This case considers whether the denial of access to newspapers, magazines, and photographs to a special group of inmates violates the First Amendment. Legal and personal correspondence, legal and religious materials, two library books, and writing paper are still allowed.

Ronald Banks, an LTSU level 2 inmate, argues that the restrictions bear no reasonable relation to a legitimate penological objective. Turner v. Safley held that “restrictive prison regulations are permissible if they are ‘reasonably related’ to legitimate penological interests” and recognized that inmates are not necessarily deprived of important constitutional protections, including their First Amendment rights. Under Turner, the four relevant factors are (1) valid rational connection; (2) alternative means of exercising the right that are still open to inmates; (3) the impact that accommodation of that right will have on guards, inmates, and allocation of prison resources; and (4) are “ready alternatives” to fulfill governmental purpose available? Under Overton v. Bazzetta Banks bears the burden of proof, and the facts are as stipulated and set forth by Pennsylvania, with all justifiable inferences drawn in Banks’ favor (Anderson v. Liberty Lobby, Inc.).

The purposes proposed include the need to motivate better behavior, to provide an incentive to move to level 1 or out of the LTSU, and to discourage backsliding on the part of level 1 inmates. That the privileges provide a significant incentive to improve behavior is logical, therefore the “reasonableness” requirement is met. The fact that there is no alternative ways for the inmates to exercise those rights is “limited” by the ability to graduate to level 1 status, but not eliminated provides “some evidence that the regulations [a]re unreasonable” but is not conclusive under Overton. The evidence at hand indicates that the attempt to accommodate the right at issue would have a negative impact. Finally, no alternative scheme is suggested with a lesser impact on individual rights. However, since the last three factors are logically related, the fact that two of them militate in favor of the State is not sufficient, there needs to be a “reasonable,” not just logical connection.

Banks argues, and points to evidence in previous cases that suggest, that inmates at the level of the LTSU level 2 will not be influenced by such measures, and will actually benefit from contact with the outside world. This does not, in the Court’s opinion, fulfill the “specific facts” requirement under the burden of proof rules for summary judgment.

Justices Thomas and Scalia join, citing Johnson v. California (one of the cases I cut my Equal Protection teeth on), noting that “California subsequently experienced severeral instances of severe race-based prison violence … between newly arrived inmates.” Justice Scalia believes that since the Constitution contains no implicit definition of incarceration the States are free to redefine it with only the Eighth Amendment as a restriction. (Apparently prisons only became standard in 1780-1865). Policies that pass the first test, Scalia argues, necessarily fail the second, for such policies cannot provide an alternative means for inmates to exercise the rights at issue. Also, “when the ‘valid penological objective[e]’ of a prison policy is encouraging compliance with prison rules, it makes little sense to inquire into the third and fourth tests.

Justices Stevens and Ginsburg, dissenting, argue that the Fourteenth Amendment requires that even the “worst of the worst” retain their constitutional protections. This policy, without question, infringes upon the core of the First Amendment. (Because I have just waded through one of Stevens’ drawn out opinions I will spare the digestion of issues outside those discussed by the majority.) I will, however, mention that Justice Stevens takes issue with the “deprivation theory of rehabilitation,” by which any deprivation provides an incentive to rehabilitate, and without a limiting principle would provide a “rational basis” to deprive the prisoner of anything.” Additionally, since prisoners do not regain access to photographs, this cannot, according to the opinion, justify the practice in terms of LTSU-1 and LTSU-2. Stevens concludes that the record is incomplete to rule, as a matter of law, that the practice is constitutional.

Justice Ginsburg, dissenting, argues that unless the State can prove that it is entitled to summary judgment, that judgment must be withheld.

Per Curium Roundup:

2006-08-23T19:48:00.000-04:00

Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc.

Diamond v. Diehr prohibits patents on “laws of nature, natural phenomena, and abstract ideas,” a rule which “reflects a basic judgment that protection in such cases, despite its potentially positive incentive effects, would too often severely interfere with, or discourage, development and the further spread of useful knowledge itself.” In this case the patent holding company brought suit when a licensee switched to a “far superior” method for measuring certain amino acids, arguing its patent on any method of testing those amino acids was enforceable. The Court had granted certiorari to address whether a patent on a scientific relationship was valid. This Per Curium dismisses the writ as improvidently granted since the argument was not raised in the lower court. Justices Breyer, Stevens, and Souter dissent from that dismissal, arguing that no matter how narrowly you construe the ‘laws-of-nature’ rule, this patent is unenforceable even as a process (which the patent holder argues is what the patent covers). Even if it were a patentable process, that process is a natural one and therefore excepted

Youngblood v. West Virginia

Youngblood was found guilty of abducting three women and forcing oral sex with one at gunpoint. He later moved to have his conviction set aside because one of the investigators had found a note supporting his argument that the sex was consensual. The note, written by the other two women, said he had been played for a fool, mockingly thanked him for the oral sex, and mentioned vandalizing the house where he had taken them. A trooper told the investigator to forget it and destroy the note. Youngblood contends that the note was exculpatory and that the state did not live up to its constitutional obligation to provide him with evidence favorable to the defense. The state argues that since the note was never in the possession of the prosecution it cannot be faulted for that failure. The trial court found the note a basis for impeachment but not exculpatory. The dissenting opinion of the Appeals court called the trooper’s instruction a Brady violation (where the state fails to disclose evidence favorable to the defense) and argued that it was material.

In United States v. Bagely the Court held that Brady extended to impeachment evidence as well as exculpatory evidence. According to Kyles, Brady applies even where police, but not the prosecutor, are aware of the evidence. Evidence is material if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would be different.”

Justices Scalia and Thomas dissent from the Per Curium, arguing that the Court should not be remanding the case as it does without finding clear error, or without an intervening circumstance. Scalia argues that the Court remands on the basis that it would benefit from the input of the lower court, though without presenting the Court with anything new to consider in a decision it has already rendered. Justice Kennedy agrees.

Whitman v. Department of Transportation

Lower courts held that because the Civil Service Reform Act does not grant “federal jurisdiction over employment-related claims by the negotiated grievance procedures of federal employees” that jurisdiction was lacking. The Court here notes that 28 U.S.C §1331 grants federal jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States” and argues that federal courts would only lack that jurisdiction if an act expressly divested it.

Redistricting under §§2 and 5 of the Voting Rights Act, and the First and Fourteenth Amendments

2006-08-23T19:46:00.000-04:00

League of United Latin American Citizens v. Perry

This case addresses appellant’s arguments that the Texas redistricting statute engages in unconstitutional gerrymandering in Districts 23 and 24; specifically that its basis in race and politics violates the First Amendment and Equal Protection Clause of the Fourteenth Amendment, as well as §2 of the Voting Rights Act.

First, the majority (take that with a grain of salt, the opinions are jumbled) surveys the history, recounting the Democratic attempt to stave off a Republican majority in 1990 by employing newly emerging computer technology to create districts favorable to Democrats. Legal attacks failed. When Republicans took the Governorship and the State House judicial redistricting became necessary to circumvent a legislative impasse. Two of the three judges involved later sat on the three judge panel that heard this case, providing direct insight. The judicial plan set out guidelines but left great leeway to the legislature and completely failed to reflect the 59% majority which Republicans held by awarding 17 districts to Democrats and 13 to Republicans. Republicans addressed this disparity with a special redistricting in 2003, just before the 2004 elections, and won a 21:11 district margin for their 58% majority.

The Court does not revisit, but assumes an affirmative answer to, the question, barely settled in Vieth v. Jubelirer, as to whether an Equal Protection challenge to a political gerrymander is within the Court’s jurisdiction. The Constitution leaves the “Times, Places and Manner” of apportionment to the states (though Congress may override it), and has no explicit provisions for changing districts outside of a decennial census.

Appellants argue that a politically motivated mid-decennial redistricting per se violates the Equal Protection clause (because it serves no legitimate purpose), and the First Amendment (by burdening one group because of its political opinions and affiliations). The Court is unwilling to make presumptions about the motives behind a redistricting plan, but even if it was, it is unwilling to invalidate a redistricting plan without a showing of actual burden. Asymmetry is not a reliable test, and the Court does not want to furnish a disgruntled minority with a free shot at achieving in the courts what it could not in the legislature. In an argument that the Court reads as redundant with the previous one, appellants also argue that a voluntary redistricting plan violates the one-person-one-vote constitutional rule in that it unnecessarily creates population variance. Furthermore, appellants fail to establish an equal-population requirement violation. The per se challenge thus fails.

In 2003 Republicans changed district lines around District 23 in order to reduce the Latino population and increase the Anglo/Republican population to protect Henry Bonilla’s incumbency amidst floundering Latino support. To accomplish this a 300 mile snaking district was created that wound from the Mexican Boarder to Austin.

States violate §2 of the Voting Rights Act if, “based on the totality of the circumstances, it is shown that … [a racial group’s] members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Under Gingles, three threshold conditions exist: (1) the racial group is sufficiently large and compact to constitute a majority in a single-member district; (2) the racial group is “politically cohesive;’ and (3) the majority usually votes as a block sufficient to defeat the minority’s preferred candidate. Where these conditions exist the court must consider the totality of the circumstances. The Court accepts the lower court’s affirmative findings as to (2) and (3). The Court discusses an “opportunity district” (the first condition), and the parties concede that District 23 fits all three criteria, though the State argues that the new District constitutes an “offsetting opportunity district.” Precedent only allows an offsetting district to fulfill §2 requirements where the racial group in each area had a §2 right and the State could not accommodate both. Also, since a §2 right entitles a compact minority group to be districted together (from what I can tell) it is no answer to create a non-compact majority-minority group somewhere else.

The opinion chides the District court for failing to consider compactness in addition to bare minority voting strength. The District court only evaluated the compactness of the districts for Equal Protection purposes, where the only issue is whether race is the predominant factor in drawing those lines. Under §2 the issue is vote dilution, including factors like traditional boundaries. When, taking all the issues into account, “the only common index is race and the result will be to cause internal friction. The State cannot make this a remedy for a §2 violation elsewhere.” The “enormous geographical distance” between Austin and the Mexican-boarder communities, along with their “disparate needs,” together render District 25 noncompact under §2. District 23, however, is closer geographically and was split up precisely because it had become so cohesive. Therefore, the Gingles conditions are met in District 23, and District 25 does not remedy the problem.

Next, the Court comes to the totality of the circumstances test. First among those circumstances is the “always relevant but never dispositive” question of the proportion of “Latino opportunity districts” to the Latino share of the voting-age population. The first question here (see why this opinion is 132 pages long?) is whether to consider proportionality statewide or at the District or County level as the previous Supreme Court case did. The Court decides to look statewide because the right belongs not to the minority group but to its individual members and because a smaller area would be arbitrarily singled out. What the Court finds to be most egregious is the attempt to divide a politically cohesive minority community at the moment that its political will might become a majority, furthering the “well documented” history of official discrimination;” something which could raise an equal protection issue. “The State not only made fruitless the Latino’s mobilization efforts but also acted against those Latinos who were becoming most politically active, dividing them with a district line through the middle of Loredo.” The State argues it was motivated by politics, not race. Incumbency protection can be a legitimate purpose, but not to its own end and must be balanced against the effect on voters. The plan violates §2. The opinion does not reach the First Amendment or Equal Protection issues. The Court also has no interest in ruling on other Districts that must now be changed, especially District 25.

Apellants also argue that African Americans, as 64% of the Democratic party, had effective control of District 24, though they made up 25.7% of the voting population of a “racially diverse district.” The Court assumes that a 50% majority is not a prerequisite, but agreed with the District court (in lieu of clear error) that the most rational conclusion is that Anglo Americans controlled the district. “The opportunity ‘to elect representatives of their choice’ requires more than the ability to influence the outcome.”

There was no statewide unconstitutional gerrymander, or a violation of §2 in Dallas, but Districts 23 and 25 violate §2.

Justice Stevens, concurring, argues that a mid term redistricting must further a legitimate government purpose, which purely partisan or racial reasons do not, since the status quo benefits voters and incumbents. Since political motivation to reduce Democratic strength was the sole motivation for the redistricting, it fails judicial scrutiny. After a history of gerrymandering by Democrats, the 2001 census redistrict the protracted argument over redistricting which fell to the judiciary was, in Justice Stevens’ opinion decidedly and fundamentally fair as a status quo. (The story is actually very interesting, the Democratic contingent left Texas so as to deprive the Republicans of a quorum, when a single Democrat returned the Lieutenant Governor called the third special session. That one senator was king for a day. There is also a real truth-to-power quote from the Balderas Court: “we see gerrymandering [as] an abuse of power that, at its core, evinces a fundamental distrust o f voters, serving the self interest of the political parties at the expense of the public good.”) Stevens addresses whether it is legitimate for Texas to redistrict in the middle of a decade for purely partisan purpose.”

Stevens suggests that courts can, and in readily may, conclude that partisan purposes were the sole motivating factor in a decision to redistrict without the legal obligation to do so. He also argues that Upham only held that “a state legislature is authorized to redraw a court-drawn congressional districting when a district court has exceeded its remedial authority,” and not, as the majority believes, at its own whim. The Equal Protection Clause requires a legitimate interest and bars actions motivated by a bare desire to harm a politically disfavored group. The First Amendment protects citizens from being penalized for the expression (in any form) of their political views. Therefore, the decision to redistrict itself was unconstitutional. Justice Stevens also rejects Justice Kennedy’s requirement of a showing of actual burden, and argues that even if that is a constitutional requirement it has been met in this case. Meanwhile, the proportional effect is irrelevant to the underlying unconstitutional motivations.

These same considerations inform the constitutionality of dividing District 24. Under the “intent prong” of the Equal Protection clause, a plaintiff must prove that she is a voter or candidate to have standing, and prove that an impermissible factors subordinated appropriate factors. If they have, strict scrutiny applies. Under the “effects prong” she must prove (1) her candidate won under the old plan (test harm); (2) she is now in a safe district for the opposing party (test harm); and (3) her district is now less compact (test shape of gerrymander).

Justice Souter and Ginsburg, concurring in part, decide that it is time to answer whether “a statutory dilution claim can prevail without the possibility of 50%+ minority voter population.” The opinion adopts a pragmatic rule that the minority constitution of a majority of voters in the primary elections of the dominant party is sufficient because “unless minority voters posses the potential to elect representatives in the absence of the challenged [system] they cannot claim to have been injured by [that system].” It also (finally) notes that, as opposed to some of the plurality’s reasoning, what matters is a given candidate’s status as favored, not the candidate’s race, an observation that undermines the conclusion that white voters controlled District 24. Rather, Justices Souter and Ginsburg would remand for the lower court to consider the question, free of the 50% requirement imposed by the Fifth Circuit.

Justice Breyer, concurring in part and dissenting in part, concludes that partisan advantage was the sole motivating factor, and that this cannot be justified by trying to right the wrong done by Democratic gerrymandering. Justice Breyer believes that the plan as a whole violates the Equal Protection Clause.

Chief Justice Roberts and Justice Alito, concurring in part, in judgment, and dissenting in part, argues that the new District 25 satisfies §2 because, while it might not be compact, it consists of 55% majority Latinos, and that compactness should be subordinated to the District Court’s findings that by the totality of the circumstances District 25 is a Latino opportunity district. The opinion also accuses the majority of ignoring the requirement that plaintiffs show that a better solution exists, in favor of attacking the district on new grounds, compactness, even though that issue was essentially conceded by plaintiffs. ‘Geographical compactness has, until now, been only an element of the plaintiff’s case.’ The opinion also takes issue with the majority’s accusation that the District Court simply aggregated minority voters to measure effectiveness and points out that Latino communities in old District 23 were twice as distant as those in new District 25, giving Latinos a better opportunity statewide than they had in the old plan.

“Even if plaintiffs satisfy the Gingles factors, a finding of vote dilution under §2 does not automatically follow,” but there must be some proportionality consideration. The opinion argues that the proportionality exists, and that the majority sidesteps the issue by looking at proportionality statewide instead, and counts all Latino voters for the purposes of evaluating a single district.

Finally, Justices Scalia and Thomas, concurring in judgment in part and dissenting in part, first argue that claims of unconstitutional gerrymandering do not present a justiciable case or controversy. Similarly, Justice Scalia would dismiss the claims under §2 for failure to state a claim for the reasons in another case and those given by the Chief Justice. Scalia then considers the Equal Protection issue. Whether the plaintiffs must show that race was the predominant factor, or just a factor at all, is irrelevant because the District Court found that it was not. According to the opinion, race, as a correlation to political affiliation, does not constitute a contributing factor.

In the case of District 25 the State had to use race as the predominant factor in order to fulfill its compelling interest (as the opinion would hold) in complying with §5, the dependence on a suspect class must then be narrowly tailored. The State must then show that compliance was its “actual purpose” and that it had a “strong basis in evidence” for the belief that this was required by a constitutional reading of the law. Additionally, it may not go beyond what is required. The opinion takes a concession on the appellants part that the effort was necessary to be conclusive.

Does a Violation of a Right Provided by the Vienna Conventions Implicate the Exclusionary Rule?

2006-08-23T19:26:00.000-04:00

Sanchez-Llamas v. Oregon

The Vienna Conventions require that if someone is detained in a foreign country, upon their request, the consulate of their own country will be informed without delay, and the detainee will be informed (without delay) of his rights under the Convention. The Convention also provides that the rights contained within it shall be exercised “in conformity with the laws and regulations of the receiving state, subject to the proviso, however, that the said law and regulations must enable full effect to be given to the purposes for which the rights accorded under [the] Article are intended.” On March 7, 2005 the United States withdrew from the Optional Protocol, giving the ICJ authority over disputes of interpretation of the Convention. Sanchez-Llamas, who was arrested after a shootout with the police, moved to suppress his incriminating statements made during interrogation because, though he was read his Miranda rights, he claims that his statements were made involuntarily and because the authorities failed to comply with the Convention. The Oregon Supreme Court concluded that the Convention does not grant rights to consular access or notification that are enforceable by detained individuals in a judicial proceeding.” Meanwhile, Bustillo argues that his right to consular notification was violated, but does so by writ of habeas corpus. Under Sanchez-Llamas the Court considers (1) whether the Convention creates judicially enforceable rights; and (2) whether suppression of evidence is the proper remedy for the violation of those rights. As to Bustillo, the Court considers whether a claim under Article 36 of the Convention may be deemed procedurally barred for failure to raise it at trial.

The United States argues that “there is a presumption that a treaty will be enforced through political and diplomatic channels, rather than through the courts.” The Court assumes an affirmative answer to the first question, because the second two fail.

The Vienna Convention does not set out specific remedies, and it would be implausible to assume that its signatories endorsed the exclusionary rule as a remedy since the rule is entirely unique to American jurisprudence. The Court rejects the idea that it maintains supervisory authority over state courts, and looks for authority in the Treaty itself. “Where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States.” Sanchez-Llamas argues that the words “full effect” imply a judicial remedy. The Court reads the provision that Article 36 rights “shall be exercised in conformity with the laws and regulations of the receiving state” to mean that the domestic law governs the remedy, and …wait for it… “Under our domestic law, the exclusionary rule is not a remedy we apply lightly.” The only statutory violations that implicate the exclusionary rule do so by implicating important constitutional protections. The justification for some applications of the exclusionary rule are given: coerced confessions tend to be unreliable, excluding the fruits of unreasonable searches provides a strong deterrent. In the majority’s opinion the interests protected by the rights under the Convention are simultaneously protected by the Bill of Rights.

Regarding Bustillo; claims not raised on direct appeal are barred from collateral appeal unless the defendant can show “cause” and “prejudice.” Bustillo argues that the procedural default violates the “full effect” requirement of the Convention. Precedent dictates that, absent a clear and express statement to the contrary, procedural rules govern the implementation of the treaty. The Court dismisses Bustillo’s attempt to distinguish precedents on the basis that the ruling was unnecessary to the result, because “it is no answer to argue … that the holding in Breard was ‘unnecessary’ simply because the petitioner in that case had several ways to loose.”

Bustillo also claims that since Breard the ICJ has interpreted the Convention to bar the procedural default rule under the theory that such a rule violates the “full effect” requirement. The Court holds that those decisions are not binding because it is the supreme judicial body. Besides, the ICJ decisions have “no binding force except between the parties and in respect of that particular case,” meaning that the decisions are not even binding precedent as to the ICJ. The ICJ’s reasoning also fails to recognize that an adversarial system relies on the parties to advance facts and arguments, and to encourage parties to raise their claims promptly, as well as bring finality to judgments. The Court also rejects the idea that the failure to disclose Article 36 rights is tantamount to a Brady violation (failure to disclose exculpatory evidence) because in a Brady violation the defendant cannot know, as a factual matter that a violation has occurred, whereas in an Article 36 violation, what escapes the defendant is the legal significance.

Justice Ginsburg, concurring, distinguishes Miranda warnings and the rights at issue here. She also argues that a defendant could gain the full effect of Article 36 by using it to argue against the voluntariness of his statements to the police, and warns against the a ruling recognizing that the Convention’s bar on the procedural default rule only applies to the states because a later federal statute overrode that command.

Justice Breyer, dissenting, cites an ICJ decision noting that “as a matter of international law, breach of a treaty ordinarily ‘involves an obligation to make reparations in an adequate form” which should consist in an obligation to permit review and reconsideration by the United States courts in order to ascertain whether the violation “caused actual predjudice.” The means by which the United States my provide this remedy, which the ICJ believe to be implied in the treaty, were left to the United States. The ICJ also decided that the Convention only barred a procedural default rule in cases where “the authorities’ failure to inform the foreign national of his rights prevented him from timely raising his claim.”

Under Article VI cl. 2 “all Treaties made … under the Authority of the United States, shall be the supreme Law of the Land and the Judges in every State shall be bound thereby.” When a treaty is self executing it bears the force of a congressional act, and under the Head Money Cases, the question becomes whether the treaty obligations provide rights to individuals which are “of a nature to be enforced in a court of justice” (eg: not a matter for the military). The dissent is of the opinion that the rights set forth in the Convention do not differ in kind from those enforced by the judiciary on a regular basis, and that the rights are clearly those of individuals as opposed to those of the “member nations,” consular officers, contracting parties, etc. This conclusion, Justice Breyer argues, is consistent with the case law and the way that the United States treats other provisions in the Convention. The United States argues that Article 36 is concerned with the rights of states, based on a presumption that international treaties do not create judicially enforceable rights (a presumption the dissent does not find in the case law) and that the Executive interpretation of the treaty is entitled to great weight (which the dissent acknowledges, but finds insufficient).

Justice Breyer agrees with the ICJ as to the prohibition on the procedural default rule when the fault rests with the United States, and bolsters his reading with the observation that previous drafts only prohibited noncompliance (“not nullify”), rather than requiring that the treaty be given its “full effect.” The change was made, in part, on the basis of the observation that “rights could become seriously impaired without becoming inoperative.” Justice Breyer also articulates the reasons for respecting the ICJ’s decision in this case, and in general, despite the recognition that its decisions are not binding precedent.

The dissent also notes that the procedural default rule, as a federal statute, may have overridden incompatible rules in the Convention, but what is at issue here is a state practice. Justice Breyer also rejects the idea that Breard requires a clear statement rule.

As for suppression, where suppression would prove to be the only effective remedy Justice Breyer is willing to accept that it is required by the Convention. He takes issue with the suggestion that suppression is an entirely American creature, and points to the fundamental differences in legal systems to explain why suppression would be necessary here but not somewhere else.

Does the Term “Attorneys’ Fees as Part of the Costs” Include Experts’ Fees?

2006-08-23T19:04:00.000-04:00

Arlington Central School Dist. Bd. of Ed. v. Murphy

The Individuals with Disabilities Education Act provides that a court “may award reasonable attorneys’ fees as part of the costs” to prevailing parents. The question here is whether that extends to compensation of experts. The Court argues that since the Act was passed under Congress’ spending power, it must be construed much like a contract (Pennhurst State School and Hospital v. Halderman). Therefore, there can be no binding provision within it unless the States were on clear notice that it existed in the terms of the legislation. The Court reads the word “costs” as a term of art, more narrowly than “expenses,” and points out that the law does not allow a court to award “costs,” but rather allows a court to award reasonable attorney’s fees “as part of the costs,” adding attorney’s fees to a list of otherwise recoverable costs. The Court states that this is “obviously the list set out in 28 U.S.C. §1920, the general statute governing the taxation of costs in federal court, and which is itself limited by another statute (28 U.S.C. §1821). However obvious that may be to the Court, it suffices that the Court concludes that the law fails to provide the clear notice required by the Spending Clause.

The Court also finds the costs/expenses distinction in the paragraph of a GAO study that respondents use to argue that their reading was intended by Congress. The Court then moves on to the case law basis for its decision.

In Crawford Fitting the Court ruled that the term “costs” in 28 U.S.C. §1821 was defined by the list set out in 28 U.S.C. §1920 because to decide otherwise would be to decide that a portion of the law had been overruled. It also warned that it would not “lightly infer that Congress has repealed §§1920 and 1821.” In Casey the Court ruled that the term “reasonable attorney’s fees as part of the costs” in 42 U.S.C. §1988 did not include expert fees. Deciding that the same language has two different meanings goes against the idea that the states must be put on notice of the requirements of the law. The lower court noted a conference committee report that said “the conferees inted[ed] that the term ‘attorneys’ fees as part of the costs’ include reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the … case.” While this may be a genuine expression of a legislative intent to coin a term of art, the Court rejects the argument because (a) it does not make the requirements of the law on the states unequivocal, and (b) it implicitly recognizes that the ordinary meaning of the terms does not include expert fees.

Respondents argue that their interpretation comports with the overarching goals of the law, but the Court finds these goals to be too general to clearly convey a legal obligation on the states. “In a spending clause case, the key is not what a majority of Members of both houses intended but what the States are clearly told regarding the conditions that go along with the acceptance of those funds.”

Justice Ginsburg objects to the extraction of a ‘clear notice’ requirement from Pennhurst because this case does not concern the Spending Clause framework, but remedies available against a noncomplying district.

Justices Breyer, Stevens, and Souter emphasize the Conference Committee report as an expression of legislative intent and argue that this interpretation furthers the IDEA’s statutorily defined purposes. When passing the IDEA several senators introduced a bill that would have put a cap on the fees, but would have explicitly authorized the award of witness fees and other reasonable expenses, in addition to attorney fees. Its replacement also allowed a parent to recover attorney’s fees “in addition to the costs,” language which was described as “enable[ing] courts to compensate parents for whatever reasonable costs they had to incur to fully sercure what was guaranteed to them by the EHA.” Meanwhile, the House version provided for “attorneys’ fees, expenses and costs.” These phrases were changed to what they are today, according to the conference report, in order to “ incorporate the Supreme Court[‘s] Marek v. Chesny decision. The conferees intended… (see above).”

The dissent warns that today’s ruling will restrict the primary purpose of the Act by reinstituting obstacles to the vindication that the Act provides. IDEA has been interpreted in the past without any reference to clear-statement rules or to the Spending Clause. Also, “neither Pennhurst nor any other case suggests that every spending detail of a Spending Clause statute must be spelled out with unusual clarity.” Besides, judicial filling-in is to be expected, and the States would have accepted the funds anyway. The states could have anticipated some requirement, and the dissent believes that its interpretation is not so far out of line that it would pose an unfair burden on the states. The dissent suggests that the law should be read as implying a general power to award costs, while specifying reasonable attorneys’ fees among them.

Additionally, the cost list that the majority uses applies only in federal court, which makes no sense here as the actions must begin in state court. Addressing the argument that the traditional scope of the term of art “costs” does not include expert fees, the dissent believes that the congressional intent is sufficient to demonstrate that the term was not meant as a term of art.

How Much can a State Limit Campaign Fundraising?

2006-08-23T18:45:00.000-04:00

Randall v. Sorrell

Here the Court considers the constitutionality of a Vermont statute limiting expenditures and contributions to political campaigns. The terms expenditure and contribution are defined broadly. Contributions from family, and volunteer work are not counted, but assistance from outside affiliated groups is. The District court found the expenditure limits and the limits on donations from a political party to be unconstitutional, but found the rest of the Act to be constitutional. The Circuit court found all of the contribution limits to be constitutional, and suggested that some of the expenditure limits might be constitutional, based on certain compelling interests (preventing corruption and limiting the time state officials spend raising money) on the part of the legislature and remanded the case for the District court to determine whether the Act was narrowly tailored to those interests.

Buckley v. Valeo held that a similar federal statute implicated “fundamental First Amendment issues.” The interest in preventing corruption or the appearance of corruption justified, for the Court, the limits on contributions but not on expenditures. The Court argued that expenditure limits, unlike contribution limits, necessarily reduce “the quantity of expression by restricting the number of issue discussed, the depth of their exploration, and the size of the audience reached.” Buckley has been a sound precedent that expenditure limitations are unconstitutional.

Respondents argue that experience has disproved assumptions made in Buckley, namely that contribution limits are a sufficient protection against corruption. They also suggest that Buckley did not consider the interest in limiting time spent on fund raising, though the Court finds sections of the Buckley opinion, and those of the lower courts, that do. Neither history nor case law has made Buckley a legal anomaly and stare decisis compels the rejection of respondents’ arguments to distinguish or overrule it. Nor have respondents shown that expenditure limits are the only way to prevent corruption (narrow tailoring).

The Court then considers the contribution limits in light of Buckley’s general support for such limits. The Buckley Court found that since the contribution limits before it were “closely drawn” and in support of a “sufficiently important” government interest, they were constitutional. The Court must consider here whether such limits “prevent candidates from ‘amassing the resources necessary for effective [campaign] advocacy,’” or significantly disadvantage incumbent challengers, and protect those interests by requiring that the statute be “closely drawn.” The Court begins by noting that the limits are essentially one twentieth of those in Buckley for the same sized district and constitute the lowest in the Nation (though it is pretty close in some areas). The limits are also (arguably) substantially lower than those upheld in Nixon v. Shink.

There are five reasons cited in support of the conclusion that the contribution limits are too restrictive. First, the limits would reduce the money available to incumbent challengers by between 18% to 53%. The limits would negatively impact the ability to target funding to competitive races. Petitioners focus on the average funding, which neglects the true force of the objection. This raises a reasonable inference that the limits are so low as to “pose a significant obstacle to candidates in competitive elections.”

Second, the application of these rules to political parties as well as individuals threatens the First Amendment freedom of association and thwarts the aims of those who donate money to a political party by prohibiting that party from donating more than $200 to a given candidate. Limits in Colorado that were similar in structure (but not in substance) reflected an effort to “balance (1) the need to allow individuals to participate in the political process by contributing to political parties that help elect candidates with (2) the need to prevent the use of political parties to ‘circumvent contribution limits that apply to individuals.’” The limits here give the “former consideration no weight at all.” (Emphasis in original). Third, the act counts volunteer expenses (travel, etc) in those limits, which discourages volunteers, thereby impeding free association. Fourth, the failure to adjust the limits for inflation only exacerbates the problems. Fifth, there is no evidence that corruption is any more serious in Vermont than anywhere else, and no special justification in this particular case. The Court is unwilling to sever provisions to make the statue constitutional because of the belief that more than a simple severance would be necessary.

Justice Alito writes separately to argue that the Court need not reach the question of reexamining Buckley because the respondents do not make any such suggestion.

Justice Kennedy writes separately to indicate his distaste for this aspect of developing law in general, and to point out that the problem at issue is as much a creature of law as it is a creature of social circumstances.

Justices Thomas and Scalia believe that Buckley provides insufficient protection to political speech. They believe that the erratic application of the Buckley framework justifies its replacement. They reject the distinction between expenditure limits and contribution limits, arguing that the two equally infringe on the First Amendment. Justice Thomas would employ strict scrutiny, which the law fails. “Buckley’s limited scrutiny of contribution limits is ‘insusceptible of principled application’ and accordingly is not entitled to stare decisis effect.” The opinion reads the plurality to set out a two step test: (1) look for “danger signs” and (2) use “independent judicial judgment” to “review the record independently and carefully with a view to the statute’s ‘tailoring,’ that is, toward assessing the proportionality of the restrictions.”

The “danger signs” here are (1) the limits are set per cycle, not per election; (2) the limits apply to contributions from parties as well as individuals; (3) the limits are the lowest in the Nation; and (4) the limits are below those previously upheld. The first advantages incumbents, and the second bears no relation to the compelling interests at stake. The issue of inflation and the inclusion of volunteer expenditures merely exacerbate whatever constitutional violation there may be. So, the basis on which the Act moves from suspicious to unconstitutional is that the restrictions affect a substantial portion of the money given to challengers, and because the limits are lower than anywhere else in the country. As to the first issue, Justice Thomas argues that there is a violation whether speech is infringed 5% or 95%, and as for the second, Justice Thomas simply rejects this as an appropriate way to evaluate the First Amendment. Therefore, since this is an unworkable rule and because it provides too little protection for the First Amendment, Justice Thomas would overrule Buckley and prohibit all such limitations.

Justice Stevens would overrule Buckley. First of all, Buckley upset the previous concept that such laws were limitations on actions, not on speech. Second, Buckley has not created the kind of reliance that stare decisis aims to protect. Stevens explains that he has been convinced by Justice White’s argument that you cannot equate money and speech. While Stevens accepts that some money is required he believes that these restrictions are more of the time, place and manner variety, and would require only a rational basis. He then explains how speech can be had without money, and endorses the importance of “freeing candidates from the fundraising straightjacket.” “Additionally, there is no convincing evidence that these important interests favoring expenditure limits are fronts for incumbency protection.”

Stevens continues, citing Georgia v. Randolph (one of my favorites), “the historical context is ‘usually relevant but not necessarily dispositive’” he argues that the Frames would be appalled by the impact of funding practices on legislative efficiency.

Justices Souter and Gisburg are of the opinion that the Buckley Court did not squarely consider the argument regarding the interest in freeing legislators of massive amounts of fundraising and that Vermont does not ask that Buckley be overruled, but rather that its rule be applied. Justice Souter also points out that the limits set out in the law are the product of public sentiment for the point at which funding becomes suspiciously large and that Vermont ranks 49^th in funding, largely because of low cost methods of campaigning.

The volunteer issue, Souter argues, will be a colossal nuisance, but it need not substantially limit volunteering. The fact that the law does not take account of inflation is rejected as an attack on the law, not as it is, but as it might some day be. As far as contributions from political parties are concerned, Souter argues that this cannot rationally invalidate the law, and that whether this is a matter for the courts is questionable. Finally, the unconstitutionality of the presumption that funds spent to the same end are coordinated is rejected because it requires only a minimal showing to rebut, and places no onerous burden on the party.

Is Failure to Submit a Sentencing Factor to the Jury a Structural Error?

2006-08-23T18:35:00.000-04:00

Washington v. Recuenco

Recuneco fought with and assaulted his wife and then threatened her with a gun. The jury found him guilty on the charge of assault “with a deadly weapon.” The State did not seek the standard 1 year enhancement for the use of a deadly weapon, but rather sought a 3 year enhancement for the use of a gun specifically. A gun is a deadly weapon under Washington law. The trial judge granted the firearm enhancement, contrary to Apprendi which requires any fact that increases the punishment for a crime beyond the statutory maximum must be submitted to a jury and Blakeley which defined that “statutory maximum” as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Emphasis in original). The Supreme Court of Washington declared Blakeley errors to be structural errors and not subject to harmless-error analysis. The question is the propriety of that decision.

First, respondent argues that the Court may not overturn the Washington Supreme Court’s decision because it rested on independent state grounds. No procedure existed, nor was the Washington Supreme Court willing to create (according to him) one, for a jury to decide that he used a firearm, as opposed to a deadly weapon. Therefore, harmless-error analysis is impossible. The Court accepts that this might be an argument for why the violation in this particular case was harmless, but points out that this does not necessarily imply that Blakely error can never be harmless.

Then comes that line I pointed out a few weeks ago: “We have repeatedly recognized that the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal.” Quoting Needer v. United States Justice Thomas implies that the rule is based on “fundamental fairness” and that the only errors that are structural are those that violate that protection. Citing the lack of a distinction between sentencing factors and elements of a crime at the time of the founding, Thomas notes that the Court has treated sentencing factors as elements by requiring that they be tried to the jury and proved beyond a reasonable doubt.

Respondent argues that because the jury delivered a guilty verdict on assault in the second degree, and an affirmative answer to the sentencing question, to combine the two would be tantamount to a directed verdict for assault in the second degree while armed with a firearm, and would “hypothesize a guilty verdict that [was] never in fact rendered.” The Court, arguing that Needer rejected the lower court’s idea that the jury had rendered a complete verdict, but still allowed harmless-error analysis, does not accept the distinction.

Justice Kennedy, again, hedges his support for the majority by stating Apprendi and Blakeley “were accompanied by dissents. The Court does not revisit those cases today, and it describes their holdings accurately. On these premises, the Court’s analysis is correct.” I think this is evidence for Kennedy’s (the new swing voter) lukewarm support for this area of the Court’s development.

Justice Stevens suggests that the Supreme Court of Washington can reinstate its prior ruling on the basis of state law, and that this case did not address the question of whether “Blakely errors are structural because they deprive criminal defendants of sufficient notice regarding the charges they must defend against.” He even mentions Brigham City and Marsh.

Justice Ginsburg argues that the Jury ruled, without error, and completely, and that the harmless-error rule was not created to dislodge proper (though ill conceived) convictions. As opposed to Needer, where the trial judge made a determination to fill a gap in the jury’s determination, the verdict here, according to Justice Ginsburg, “contained no omissions; they set out completely all ingredients of the crime of second degree assault with a deadly weapon.” She calls this a “greater excluded offense notion.”

The Constitutionality of Mandating the Death Sentence with Mitigating Evidence in Equipoise

2006-08-23T18:30:00.000-04:00

Kansas v. Marsh

Michael Lee Marsh laid in wait, brutally murdered Mary Ane Pusch, and burned her house down with her child inside. He was found guilty of murder, aggravated arson, and aggravated burglary. This case addresses the constitutionality of a law requiring the death penalty when the jury finds at least one aggravating circumstance and when aggravating and mitigating circumstances are in equipoise. Prior to this question, however, the Court addresses whether it has jurisdiction, and whether the lower court’s decision is supported on independent state grounds.

28 U.S.C. §1257 grants the Court jurisdiction over the final judgment of the highest court in a state where the federal claim, on which the state law is challenged, is “finally decided, with further proceedings on the merits in the state courts to come,” but where the federal issue cannot be readdressed. The Court decides that what avenues remain theoretically available to the defendant are effectively closed, and that the lower court overruled a portion of a previous Kansas Supreme Court ruling which was itself based on the Eighth and Fourteenth Amendments. It is therefore not supported on independent state grounds.

In Walton v. Arizona the Court held that so long as a law does not diminish the State’s burden of proving every aspect of a charge a defendant’s constitutional rights are not violated by placing the burden of proving mitigating factors on him. In Walton the defendant was required to prove mitigating circumstances in response to the prosecution’s showing of aggravating circumstances, whereas the statute at issue here requires the State to prove that its aggravating factors are not outweighed by whatever mitigating factors may exist, a greater burden on the State. Therefore, since Walton controls this case, the Court is compelled to find the statute constitutional.

Alternatively, Furman v. Georgia and Gregg v. Georgia require a state capital punishment system to “(1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime.” The Court has also held that a state is effectively precluded from limiting the range of mitigating factors. That mitigating factors must be considered is part of the individuality requirement from Furman and has not been held to necessarily imply any given method of balancing.

The Court then considers the Kansas statute in light of the Furman requirements. The statute rationally limits death sentence eligibility to those found guilty of capital murder; allows jurors to consider any mitigating evidence relevant to moral culpability or blame; and does not create a general presumption in favor of death (the defendant bears the burden of production while the State bears the burden of proving that aggravating factors outweigh mitigating factors). Marsh argues that a jury determination that aggravating and mitigating factors are in equipoise cannot result in a valid sentence of death because jurors that determination either shows juror confusion or allows a jury to shrink its constitutional duty to render a moral decision. The Court rejects the first argument, and argues that the balancing is a means, not an end. Therefore, the duty to render a moral decision can be found in the determination of the sentence itself. The majority accuses the dissent of raising an incendiary debate over DNA evidence that is entirely outside the scope of the question at hand.

Justice Scalia, concurring, presents responses to Justice Stevens’ arguments about why the Court should not have granted certiorari. Scalia also accuses Stevens of endorsing a misguided view of federalism where the Supreme Court cannot interfere with state court determinations of federal law. According to Scalia, when a state Supreme court mistakenly reads federal law the people of the State are stripped of any power to overturn the decision. Therefore, the Supreme Court returns power to the people of the State by correcting the mistake. He also points out that the capital punishment system of those countries bemoaning the one in the US were abolished in spite of public sentiment and attacks the dissent’s decision to address the broader question of the death penalty per se. Scalia sees the exoneration of death row inmates as the badge of a functioning legal system, since it is that very system that let them go, and emphasizes the number of “exonerations” that have come on the basis of technical matters of law, rather than pure evidence.

Justice Stevens argues that Justice Blackmun, dissenting in Walton, denied that the plurality in that case addressed the issue of the death sentence with evidence in equipoise. Stevens therefore does not believe that stare decisis binds the Court in this case. Stevens points out that in this case it was Kansas, not Marsh, that applied for certiorari, and accuses Scalia of overlooking the absence of an interest in protecting against unconstitutional conviction when the petitioner is a State.

Justice Souter states that the constitutional duty to make a reasoned moral response requires that a jury’s sentence be informed by the actual circumstances and uniqueness of the crime and the defendant, as well as requiring that the death penalty be reserved for the worst of the worst. The Kansas statute fails on both counts: the dispositive factor is nothing unique or individual about the circumstances and it does not single out the worst of the worst. Souter calls this rule “morally absurd” and accuses the majority of defying “decades of precedent aimed at eliminating freakish capital sentencing.” He then presents the contested evidence regarding exonerations in order to illustrate the “reality that must be addressed.”

What Does the Right to Counsel Protect, and What Remedies Exist for Its Violation?

2006-08-11T02:27:00.001-04:00

United States v. Gonzalez-Lopez

In this case there was a great confusion about lawyers, and the defendant ended up in a situation where he was not allowed to communicate with the lawyer of his choice. He argues that his Sixth Amendment right to counsel was violated. The majority rejects arguments that ‘abstract from the right to its purposes, and then eliminate the right.’ While the right to effective assistance of counsel requires the defendant to show prejudice the Court argues that the right to effective assistance is derived from the Due Process clause and that this is inherent in that particular right (not effective necessarily implies ineffective). “The right to select counsel of one’s choice, by contrast, has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial. It has been regarded as the root meaning of the constitutional guarantee.” The Court then considers whether the error was harmless and explains that while the right to effective assistance of counsel is subject to such exceptions, the Sixth Amendment is violated “whenever the defendant’s choice is wrongfully denied.” The effect is not quantifiable but pervasive.

The dissent argues that what the Sixth Amendment protects is the assistance of counsel, and that defendants should therefore be required to make some showing of prejudice. The identity of the counsel present is less protected, and has been so since the creation of the Bill of Rights. The right to actual identity and presence is limited by practicality, admission to practice, confliction-of-rules and these limits are tolerable because the purpose of the right is the quality, not identity.

Then, even if the Sixth Amendment is violated “whenever” the defendant’s choice is wrongfully denied, the Amendment does not provide a specific remedy, and the fundamental fairness does not necessarily require the invalidation of the conviction. Meanwhile, the burden would be on the prosecution to show that the error was harmless. “Automatic reversal is strong medicine that should be reserved for constitutional errors that ‘always’ or ‘necessarily’ … produce such unfairness.” (Expect to see a lot more of this statement, if this term’s opinions are any indication of the future direction of the Court.) The dissent then shows some anomalous outcomes: a defendant with a second-choice brilliant counsel will get a new trial whereas one with a first-choice lousy counsel will have to show prejudice.

What Does the Right to Counsel Protect, and What Remedies Exist for Its Violation?

2006-08-11T02:27:00.000-04:00

United States v. Gonzalez-Lopez

Does “Exhaustion” Imply Exhaustion Proper, or Exhaustion Simpliciter?

2006-08-11T02:25:00.000-04:00

Woodford v. Ngo

The Prison Litigation Reform Act prohibits prisoners from challenging the conditions of confinement “until such administrative remedies as are available are exhausted,” even where the relief sought cannot be granted by those processes. In California an inmate may follow a process staged from discussions with prison guards, to a written and reviewed request, to review by the Warden, and finally review by the State. Additional restrictions were placed on Respondent after being released from administrative segregation, and his subsequent grievance was denied as untimely, filed more than 15 days after the action being challenged. The question here is what is required by “exhaustion.”

Exhaustion, in jurisprudence, serves to protect administrative authority as well as efficiency. Exhaustion law is therefore directed at those who would rather not do so on their own. The Court describes this issue in terms of Habeas Corpus, where if a prisoner does not “properly” exhaust her remedies (eg. she fails to comply with timeliness requirements) she defaults and those particular claims are no longer available for argument. This type of exhaustion scheme, the Court argues, fits with the PLRA generally and that the contrary would create a toothless scheme where prisoners could thwart process by deliberately violating procedural rules.

Respondent advances three theories for exhaustion. First, that of a period of habeas review where procedural default only occurred upon deliberate attempts to bypass remedies. The Court rejects this because the PLRA bears no indication that it should be read in that time period, especially since it was passed with the AEDPA which itself altered the habeas scheme. Second, Respondent argues that this exhaustion scheme should mirror that of Title VII, though neither require exhaustion, but rather require commencement of proceedings.

The Court goes on to reject the argument that the word “until,” and the Boolean nature of the exhaustion of administrative remedies, imply a question of “when,” not “if;” and that the tolling provisions of the AEDPA should be carried over. Neither is the Court moved by the lack of the word “properly” in the PLRA, as it appears in the AEDPA. Also, although the PLRA provides for circumstances under which a District court could dismiss claims without requiring exhaustion Congress may have meant to provide an escape from extremely long processes, or to indicate that the exhaustion issue is not jurisdictional. Finally, the Court does not accept that the PLRA should incorporate the technical sense of exhaustion found in the AEDPA because the suggestion does not make any sense structurally.

Justice Breyer writes separately to emphasize that just as habeas exhaustion requirements are not absolute, the lower courts on remand should consider implicit exceptions to this one.

The dissent argues that the absence of the requirement that exhaustion be “proper” exhaustion, along with the absence of any provision for procedural default indicates Congress’ intent to leave those requirements out. According to the dissent, procedural default was a judge-made rule deriving from considerations of comity specific to habeas issues, and this contemporary analogy is rejected by the majority for the common law description, though without the recognition that the common law description itself embodies the same procedural scheme.

Justice Stevens argues that it is equally wrong to draw the conclusion that the majority does as it would be to infer the “waiver requirement” that courts should not overturn “topple over administrative decisions unless the administrative body has not only erred, but has erred against objection made at the appropriate time under its practice.”, as that requirement has always been a creature of statute.

The dissent also points to an exception which allows individuals to raise constitutional issues even if they were not raised earlier and accuses the majority of relying largely on policy arguments. I have to admit, the footnote that the dissent points to here, where the majority reassures that what is at issue is what the law is, not what it should be, was well placed to relieve growing concerns as I read the opinion. As I try to give policy arguments a relatively short shrift in these write-ups I will be sure to do so on both sides. The dissent suggests that whatever rule is instated the agency’s prior jurisdiction remains unquestioned. Next, it suggest that the interest in reducing litigation has been demonstrably effected without this limitation, thought the majority calls this reasoning correlative rather than causal. In any case, the dissent continues, “no legislation pursues its purposes at all costs. While arguing that prisoners (who are without access to assistance on administrative matters) lack the incentive and capacity to purposefully evade process, the dissent suggests that it would be equally effective to simply require good faith on their behalf. Finally, the dissent argues that the question of whether a “prisoner’s failure to comply with procedural requirements that do not provide a meaningful for prisoners to raise meritorious grievances” would bar a later federal suit and suggest that an affirmative answer could raise constitutional right-of-access-to-court issues.

The Extent of the Civil Rights Act to Workpace Related Actions

2006-08-11T02:24:00.000-04:00

Burlington, N. & S. F. R. Co. v. White

The Civil Rights Act forbids discrimination against any individual based on “race, color, religion, sex, or national origin” and forbids an employer from “discriminate[ing] against” an employee or job applicant because the individual “opposed any practice” made unlawful by Title VII or “made a charge, testified, assisted, or participated in” a Title VII proceeding.

White was given a job with Burlington Northern & Santa Fe Railway Co s in the “Maintenance of Way” department as a “track laborer” where she operated a forklift. White later successfully complained that her superior (Joiner) had made insulting and inappropriate remarks to her. At the same time that White was informed of Joiner’s discipline she was informed that she would be transferred to less desirous work because her coworkers felt a “more senior man” should have the forklift job. White complained that the reassignment amounted to gender-based discrimination and retaliation for her earlier complaint. She filed a second retaliation charge, claiming that she was placed under surveillance. She later filed another retaliation charge after she won a grievance over her suspension her role in a dispute. The question here is whether the Civil Rights Act only covers workplace related actions, and how harmful that action must be.

The Sixth Circuit applies the same test to retaliation actions as it does to bare discrimination actions: there must have been “a materially adverse change in the terms or conditions [or benefits]” of employment. Other circuits have relied on “ultimate employment” decisions (hiring, firing, granting leave, promoting, and compensating). Other circuits have required only that the action taken would have dissuaded a reasonable employee or a broader rule requiring “adverse treatment … reasonably likely to deter [someone from] engaging in protected activity.”

The Court does not accept the Solicitor General’s argument that the anti-retaliation portion should be read to embody the same perimeter as the anti-discrimination portion of Title VII. Title VII’s substantive anti-discrimination portion uses limiting words like “hire,” “discharge,” “compensation, terms, conditions, or privileges of employment” (etc.) when referring to prohibitions on employers, whereas its anti-retaliation portion simply prohibits an employer from “discriminat[ing] against” its employees. Therefore, assuming Congress acts deliberately where it differs in wording, the scope of the two sections are different as per congressional intent. Additionally, the nature of the harm to be addressed by the anti-retaliation portion requires a greater scope than that of the anti-discrimination portion.

The Court distinguishes a previous case raised by the Government by explaining that the more stringent standard in Burlington Industries Inc. v. Ellerth was used to determine where an employer should be vicariously liable, without an affirmative defense, for the actions of his supervisor. There is also some discussion of the EEOC guidelines and a rehashing of the argument from broad purpose.

Title VII does not reach “trivial” matters, but requires material adversity to a reasonable employee. The Court notes that “the significance of any given act of retaliation will often depend on the particular circumstances” while implying that the significance at issue is the “social impact.” Responding to Justice Alito’s concurring opinion, the Court argues that this standard does not require an evaluation of the nature of the discrimination but rather is focused on the retaliatory act itself.

The Court then addresses this case in particular. It argues that there is no protection from the consideration of material adversity for Burlington in the fact that the reassigned position was within the original job description, since by common sense reassignment within the job description would be an effective method of retaliation, especially considering the objective evidence that a real distinction within the duties in White’s job description existed. Burlington, in what seems to be based on the “ultimate employment” theory, also argues that the suspension was not severe enough to trigger Title VII; an argument the Court does not find persuasive. Nor does the Court see a lack of evidence.

Justice Alito, concurring in judgment, argues that the majority’s opinion is flawed because on that reading “victims of discrimination based on race, color, sex, national origin, or religion—receive less protection than victims of retaliation. In addition, respondent’s interpretation “makes a federal case” out of any small difference in the way an employee who has engaged in protected conduct is treated.” Alito would read the objective standard, invoked by the majority, into the law by appealing to the substantive portion and by reading the retaliation portion to cover precisely the same violations. Retaliation would only be protected as a “tangible employment action,” similar to “ultimate employment.” Alito argues that employers are more likely to retaliation “on the job” but that at the same time this test is not limited to “on the job” retaliation. Justice Alito also attacks the majority’s “reasonable person” standard, arguing that the reasonable person described requires some subjective aspects. In any case, the reassignment was, according to Alito, tantamount to a demotion, and thus passes the “tangible employment”/”ultimate employment” test.

Retoactivity and Citizenship

2006-08-11T02:21:00.000-04:00

Fernandez-Vargas v. Gonzales

Humberto Fernandez-Vargas, a Mexican citizen, repeatedly entered the United States and was deported. In 1997 the IIRIRA went into effect, which transformed a previous rule that allowed the reinstatement of deportation orders as to specific classes of illegal immigrants to apply to all illegal immigrants. Fernandez-Vargas married a U.S citizen and bore a child. On this basis he applied to alter is citizenship status. Fernandez-Vargas argues that because he illegally reentered the United States before the IIRIRA went into effect the controlling law was its predecessor (under which he would be eligible for citizenship), and that if the IIRIRA does control it is unconstitutionally retroactive.

Court explains that in the absence of clearly expressed congressional intent, and when it is unable to make the determination of “temporal reach specifically intended” entirely based on “normal rules of statutory construction” it considers whether the Act’s retroactivity in the case at hand would “impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.” If it would, the Court instates a “presumption against retroactivity,” as applied, for lack of Congressional intent.

Fernandez-Vargas begins by arguing by the “generally available rule of negative implication” that the absence of a phrase, present in the prior law, that extended its reach retroactively implies that Congress did not intend such an extension. To this, the Court argues that because the previous clause referred to deportation, not re-entry, and that its absence can only bear on that issue. Additionally, the conclusion would run contrary to the general purpose of the revision to expand its scope. Vargas then argues that according to INS v. Cardoza-Fonseca the ambiguity should be construed in his favor. First of all, the Court argues, this would put the cart before the horse by making the last two parts of the previously described test mute, and that this ignores any contrary arguments that could be raised from the newly added provisions. These provisions remain ambiguous though, because of the inconsistency in their express methods of application. The Court then decides that standard methods of statutory construction insist that the law is applicable to any reentrant, regardless of the date of reentry.

The Court goes on to argue that the law is not retroactive since (1) it would apply to Fernandez-Vargas because he chose to remain in the country after its passage, not his reentry (on whatever date); and (2) the law’s effective date gave Fernandez-Vargas ample warning. The first argument is bolstered by distinguishing this case from one where the application of the IRA was held unconstitutionally retroactive because it interfered with the quid pro quo of a plea agreement.

In short, the law is not applied retroactively because Vargas could have avoided the application of the law by suffering its consequences by his own volition before it went into effect. This argument is addressed in a footnote. The majority points out that on the one had, this argument concedes the illegality of the prior condition and the government’s authority to rectify it and on the other hand retroactivity is different than the right to proceedings that are as favorable as the law was when it was violated. No, really, read: “[Justice Stevens, dissenting] says, however, that Congress should not be understood to provide that if the violation continues into the future it may be ended on terms less favorable than those at the beginning. But this is not the position that retroactivity doctrine imputes to an inexplicit Congress.

Justice Stevens bolsters this argument with the history of the law indicating that Congress added the clause that was found missing in the new statute to its predecessor in order to correct the INS on its interpretation of the law and so as to make it applicable to preenactment deportations but not preenactment reentries.

Which Side Bears the Burden in a Defense of Duress?

2006-08-11T02:18:00.000-04:00

Youngblood v. West Virginia

When Keshia Dixon was charged with procuring a firearm while under indictment, and making false statements in connection with the acquisition of a firearm, she argued a defense of duress, saying that her boyfriend threatened to kill her or hurt her daughters if she did not buy the guns. This case addresses the question of which side bears the burden of proof when a defense of duress is stated. Dixon argued that she should have the burden of production and that the Government should then have the burden of disproving her assertion because (1) her assertion “controverted the mens rea requirement;” and (2) that placing the burden on the defense is “contrary to modern common law.”

The crimes with which Dixon is charged require that she have acted “knowingly” or “willfully,” the first requirement of which was essentially conceded. The Court rejects the Dixon’s first claim, arguing that a defense of duress, like a defense of necessity (and as an affirmative defense) does not negate the criminal character of the act, but rather precludes criminal liability (think guilty but mentally insane). Therefore the Government is only required to prove that she acted “knowingly” or “willfully,” and not necessarily with a mens rea.

Dixon relies on the Modern Penal Code, and the decision in Davis v. United States which places the burden on the government of proving a defendant’s sanity, to argue against the natural common law rule that “the proponent of an issue bears the burden of persuasion on the factual premises for applying the rule.” In Davis the trial judge instructed the jury that the law “presumes every man is sane, and the burden of showing it is not true is upon the party who asserts it.” In Davis the Court noted that “sound memory and discretion” and “malice aforethought” were essential aspects of the charge of murder, and that if there were reasonable doubt (as in that case where the evidence as to sanity was in equilibrium) the jury was not compelled to convict. The Court cites its reliance on the heightened requirement for a murder charge, and the fact that Congress later codified the insanity defense, requiring that it be proven by the defendant by clear and convincing evidence, as the indication that the Davis rule does not extend as far as Dixon argues. The Court also argues that to overturn the longstanding rule it would have to find consensus within the various federal courts, though it does not say why, except that its absence reflects the absence of “well established” federal law in Dixion’s favor.

Justice Kennedy, concurring, reminds of the presumption that when Congress legislates, it does so with an understanding of the background law, and that if Congress had meant to change or foreclose the defense of duress it would have done so when it passed the law at issue. However, Kennedy admits that “the analysis may come to a different result … for other defenses.”

Justices Alito and Scalia, concurring, disagree with Justice Kennedy’s final assertion. Nor does this opinion agree that Congress implicitly adopts the prevailing rule in the courts. Nor does this opinion accept that Congress delegates this question to the courts themselves.

Justices Breyer and Souter argue that in the absence of any indication of conflicting congressional intent the burden rests on the prosecution. Where the law is silent this opinion would not look to contemporary rulings by the courts, especially where that would lead to different burden allocatins for different statutes. Rather, Breyer argues, silence in the law indicates that Congress intended the courts to develop burden allocations for affirmative defenses in accordance with developing common law. In courts where the burden is placed on the defendant, the dissent notes, it id only done so where the statue requires that the defendant act with “knowledge” but not willfully, intentionally, or voluntarily.

The Constitutionality of Suspicionless Searches Based on Parole Status.

2006-07-25T23:20:00.000-04:00

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.