Supreme Court Action Today: Criminal Fines, Union Dues, Drug Sentencing, and TV Obscenity

The Court issued four opinions this morning.  At least two of them are making headlines in the various news sources.    I’ll point out a detail about the cases not in the opinion.  When the Court issues slip opinions online, the name of the PDF file is the docket number.  The file name in all four of these cases contains extra letters and numbers, such as 11-94a1b2.pdf.  This is a change from opinions issued on Monday of this week and for the last several terms.  I wonder what that means. 

The first case is Southern Union Co. v. United States (11-94).  It concerns whether the Apprendi rule applies to criminal fines.  That case held the Sixth Amendment’s jury-trial guarantee requiring any fact that increases the maximum authorized for a particular crime be proved to the jury beyond a reasonable doubt.  Southern Union was convicted by a jury of violating the Resource Conservation and Recovery Act of 1976 (RCRA) for knowingly having stored liquid mercury without a permit for approximately 762 days.  The penalty assessed was calculated at $38.1 million based on a $50,000 fine for each day.  Southern Union argued that the jury instructions and verdict showed a violation of one day.  The District Court held that the content and context of the verdict supported a finding of a 762 day violation.  The First Circuit affirmed, disagreeing with the contextual basis but stating that Apprendi did not apply to criminal fines. 

The Supreme Court reversed, holding that Apprendi does apply to criminal fines.  The Court has applied Apprendi to a number of sentencing cases and Apprendi will apply to any fine great enough to trigger the Sixth Amendment’s jury trial guarantee.  The Court analyzes the historical role of the jury in criminal cases and principles of common law to conclude that each fact that determines a fine amount has to be proved to the jury.  The rest of the opinion dismisses the Government’s arguments to the contrary, mostly drawn from dissents to prior holdings.  The Court basically told the Government that Apprendi is more than ten years old at this point and to get over it.   Justice Sotomayor delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Scalia, Thomas, Ginsburg, and Kagan.  Justice Breyer filed a dissenting opinion and was joined by Justices Kennedy and Alito. 

The second case is Knox v. Service Employees (10-1121).  It concerns a union’s ability to collect mandatory dues that are later used for political purposes and whether the circumstances of that collection in this case violate the First Amendment.  The Court’s earlier precedent in Teachers v. Hudson, 475 U.S. 292, held that unions can bill non-members in an agency shop for chargeable expenses but not for political or ideological projects under the First Amendment. 

SEIU sent out its notices to California employees in June, 2005 capping its chargeable expenses at 56.35% of its total expenditures in the coming year but stating that the charges were subject to increase without further notice.   The Governor called a special election at the same time on two ballot measures that the SEIU opposed.  The Union then sent a letter after the employee objection period ended which announced a temporary 25% increase in dues and temporary elimination of the dues cap for what it called an “Emergency Temporary Assessment to Build a Political Fight-Back Fund.”  The letter described the fund to be used for a broad range of political expenses. 

Non-union employees brought a class action suit alleging a violation of First Amendment rights.  The District Court granted summary judgment to the employees.  It ordered the Union to send notice to the class members allowing 45 days to object and to provide full refunds to those who objected.  The Ninth Circuit reversed, holding that Hudson prescribed a balancing test that inquired whether the union’s procedures accommodated everyone’s interests.  The Supreme Court reversed. 

The Court first dealt with the mootness issue.  The SEIU had offered full refunds to all class members after certiorari was granted.  The Court stated that the case was not moot as the conduct could happen again once the case was dismissed.  It went on to say that the First Amendment requires a union to send fresh notice when it imposes a special assessment and may not assess funds from nonmembers without their consent.  California created agency shops where non-union members have no choice in paying union fees as a condition for work.  The Court called this an anomaly and said Hudson did not call for a balancing test but made clear that the procedure for collecting fees from unwilling contributors had to be tailored to minimize the infringement of free speech rights.  The special assessment did not meet that standard.  Justice Alito delivered the opinion and was joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. Justice Sotomayor filed an opinion concurring in the judgment which was joined by Justice Ginsburg.  Justice Breyer dissented, joined by Justice Kagan. 

The third case is Dorsey v. United States (11-5683).  The Fair Sentencing Act reduced the disparity in the amounts of crack cocaine and powdered cocaine to trigger mandatory minimums from 100 – 1 to 18 – 1.  The Act took effect on August 3, 2010.  The question in this case is whether the change in sentence triggers applied to defendants who had committed drug crimes prior to the Act but had not been sentenced.  The Court combined multiple appeals on this issue and said the Act applies in this circumstance. 

The statutory construction rules normally require defendants to be subject to penalties in effect when the crime is committed unless Congress expressly provide otherwise.  The Court notes that the language of the Sentencing Reform Act applies the sentencing guidelines in effect on the date the sentence is given to the defendant.  The Court said the savings act passed in 1971 allows Congress to make that change;  the reduction in sentence triggers is not an ex post facto law; applying old sentencing guidelines in these circumstances would create sentencing disparities that the legislation meant to prevent; and the Court finds no compelling principle to rule otherwise.  Moreover, as sentencing guidelines are advisory, the courts can implement the changes before the Sentencing Commission makes changes to its sentencing standards. 

The opinion is the “classic” 5-4 split with Justice Breyer writing for the majority, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  Justice Scalia filed a dissenting opinion joined by Chief Justice Roberts and Justices Thomas and Alito. 

The final case is FCC v. Fox Television Stations, Inc. (10-1293).  This is the second time this case has been before the Court.  It concerns fines assessed against Fox and ABC for violation of rules on indecent broadcasts.  Obscene words were uttered on two live shows broadcast by Fox and there was brief nudity in a scripted show on ABC.  The three incidents were subject to FCC policies on broadcasts containing obscene, indecent, or profane language in effect since the 1970s.  There was another policy statement issued in 2001 that amplified the considerations for enforcement included “whether the material dwells on or repeats at length” the offending description or depiction.  Subsequent to the incidents but before taking action against Fox and ABC, the FCC issued another policy statement stating that fleeting expletives could be sanctioned.  The Commission then found that Fox and ABC violated the new standard. 

Fox and ABC appealed the FCC’s finding to the Second Circuit, which reversed on the grounds that the timing and notice of the policy made it vague as to what conduct for which the broadcasters could be sanctioned.  The Supreme Court reversed that case asking the Court of Appeals to consider the First Amendment Claims made by the broadcasters.  The Second Circuit found the FCC policy unconstitutional on remand.  The Supreme Court in the instant case vacates that opinion.  It holds here that the FCC orders fail because the broadcasters did not have enough notice of compliance standards, essentially disregarding the First Amendment aspects of the case.  The Government tried making its case against the broadcasters using obscure rulings by the FCC on expletives and nudity.  The Court rejected these as insubstantial in providing guidance. 

The rules are more or less kept in place and broadcasters generally would know what is and is not allowable.  The Commission is free to adjust its rules further for clarity.  The Court, obviously, was not prepared to strike down the FCC obscenity policy on blanket First Amendment grounds despite the earlier remand to the Court of Appeals.  This was a case of be careful what you ask for. 

Justice Kennedy delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Scalia, Thomas, Breyer, Alito, and Kagan.  Justice Sotomayor did not participate in the case.  [MG]