February 21, 2013
Supreme Court Action: Retroactivity, Double Jeopardy, Habeas Corpus, And Jurisdiction
Here are the five opinions released by the Court yesterday. The first case is Chaidez v. United States (11-820). The case concerns retroactive applicability of a “new” rule defining the standard of competence for counsel. Chaidez was subject to deportation proceedings due to the fact that she pleaded guilty to mail fraud in 2004. She filed a writ of coram nobis seeking to overturn her conviction as a means to avoid deportation. At the time the petition was pending, the Court decided Padilla v. Kentucky. That case held that it is a violation of the Sixth Amendment if counsel did not inform a non-citizen of the deportation risks associated with guilty pleas. The District Court held that Padilla did not announce a new rule but simply applied a standard to a new context. The Seventh Circuit reversed holding that Padilla announced a new rule.
The Supreme Court affirmed the Seventh Circuit holding that Padilla was not retroactive. As such, its holding does not apply to Chaidez’s case. Many courts had held that advice about deportation was removed from the Sixth Amendment’s requirement for counsel because it was a “collateral consequence” of a conviction. Padilla changed that. Under this analysis, the law that applies to Chaidez is the law that was in effect at the time of her guilty plea. Justice Kagan delivered the opinion of the Court, Joined by Chief Justice Roberts and Justices Scalia, Kennedy, Breyer, and Alito. Justice Thomas filed an opinion concurring in the judgment. Justice Sotomayor filed a dissenting opinion joined by Justice Ginsburg.
The next case is Evans v. Michigan (11-1327). This is a double jeopardy case. I’ll take the elements of Arson for $300, Alex. Evans received a directed verdict acquitting him of arson due to a misunderstanding of the elements of the crime by the trial judge. The trial court assumed that the State had to prove that the burned building was not a dwelling. That is not part of the State’s burden. The Michigan Appellate Court reversed and the Michigan Supreme Court affirmed holding that a mistake of law which did not resolve a factual element of the offense was not an acquittal for double jeopardy to apply.
The Supreme Court reversed, holding that retrial is barred even if the acquittal is based on an egregiously erroneous foundation. The Court used several examples of its precedent to justify the result, including an erroneous decision to exclude evidence; a mistaken understanding of what evidence would suffice to sustain a conviction; or a misconstruction of a statute defining the requirements to convict. Double jeopardy attached in these circumstances which were distinct from procedural errors. Justice Sotomayor delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Kagan. Justice Alito filed a dissenting opinion.
The third case is Johnson v. Williams (11-465). It concerns how a federal court considering a habeas corpus petition determines the extent that a state court has considered the merits of issues on direct appeal. The fact that the case is out of the Ninth Circuit Court of Appeals kind of telegraphs the result (reversed!). Respondent Williams was convicted of murder in California. One of William’s issues on direct appeal was that her Sixth Amendment rights were violated when the trial court dismissed a juror during deliberations. The Appellate Court analyzed the circumstances and used Supreme Court precedent to uphold the conviction in light of the issue raised. The California Supreme Court returned the case to the Appellate Court for reconsideration in light of a very recent opinion it released on juror dismissal. The Appellate Court discussed that case and the Supreme Court precedent and again upheld the conviction, though in both instances it never explicitly acknowledged that the issue involved Sixth Amendment rights. The District Court denied habeas relief but the Ninth Circuit reversed, holding that the California Appellate Court had not considered William’s Sixth Amendment claims. That Court also found that William’s rights were violated.
The Supreme Court reversed. It held that there was a rebuttable presumption that the trial and appellate courts had addressed the constitutional issues on the merits. In this case, the Appellate Court had discussed the California Supreme Court precedent which in turn discussed federal precedent. Though not invoking the Sixth Amendment directly, the Appellate Court effectively considered the constitutional issues in its decision. Justice Alito delivered the opinion of the Court and was joined by Chief Justice Roberts, and Justices Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan. Justice Scalia filed an opinion concurring in the judgment.
The fourth case is Henderson v. United States (11-9703). The trial judge in Henderson’s criminal conviction lengthened his sentence so he could participate in a rehabilitation program. Henderson did not object to the sentence and raised it for the first time on appeal. The Supreme Court decided in another case that it was error for a judge to lengthen a sentence for treatment or rehabilitation purposes while the appeal was pending. The Fifth Circuit concluded that it did not have the authority to correct the “plain error” because the precedent was different at the time of the trial.
The Supreme Court held that the Fifth Circuit could correct the error as long as the error was plain while the appeal was still pending. The Court reviewed its precedent, which was not conclusive, in light of the language of Federal Rule of Criminal Procedure 52(b) to conclude that even though the law may be unsettled at the time of the error, it can be corrected when the law is settled at the time of appellate review. Justice Breyer delivered the opinion of the Court and was joined by Chief Justice Roberts, Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Scalia filed a dissenting opinion in which Justices Thomas and Alito joined.
The final case is Gunn v. Minton (11-1118). This is a patent case where a failed party challenges his counsel’s competence. The District Court invalidated Minton’s patent on an interactive securities system under the “on-sale” bar. Minton had leased his system to a brokerage more than one year before he filed for patent protection. Minton argued on a motion for reconsideration that the lease fell within the experiment exception to the on-sale bar. The District Court held that the argument was waived and the Federal Circuit affirmed. Minton filed a malpractice action in state court. His former attorneys argued that the argument would have failed even if raised timely. The trial court agreed. Minton then argued on appeal that his case should have been brought in federal court as the patent laws give exclusive jurisdiction to them for any patent related issue. The Texas Court of Appeals rejected that argument and held that he failed to establish experimental use. The Texas Supreme Court reversed, holding this was a matter for the federal courts.
The Supreme Court reversed. It held that the patent laws do not deprive the state courts from hearing the malpractice claim as it does not arise under the patent laws. The claim is too remote from the substance of the patent laws to trigger exclusive federal jurisdiction. Chief Justice Roberts delivered the opinion for a unanimous Court. [MG]
February 20, 2013
Supreme Court Action: Antitrust, Detention Incident To A Search, And Mootness
As I wrote in yesterday’s post, the Supreme Court issued four opinions yesterday. Five more were released today. Here is the remainder of the opinions issued yesterday. The first is FTC v. Phoebe Putney Health Systems, Inc. (11-1160). The case involves a grant of authority by the Georgia Legislature to local hospital authorities to lease or acquire hospitals as a means of providing indigent health care. One county in Georgia formed a non-profit corporation to manage its hospital which itself was a non-profit corporation. The hospital authority decided to buy the only other hospital in the county and add it to its health system. The FTC sued to block the purchase on antitrust ground, alleging that the purchase would reduce competition in the local market. The trial judge dismissed the complaint and the Eleventh Circuit affirmed, holding that the state action doctrine applies. That doctrine holds that states are allowed to manage their own economies and are entitled to immunity if the anticompetitive action was a foreseeable result of the legislation.
The Supreme Court reversed, holding that the grant of authority by the legislature was no different from general grants of power to corporations. That type of grant does not exempt the authority from the operation of the antitrust laws any more than it would for a corporation operating in the market. The Court stated the anticompetitive consequences of the law had to foreseeable. The legislature need not expressly articulate that purpose in the law. However, a general grant to participate in a competitive market without more is not one that exempts the application of the antitrust laws. Justice Sotomayor delivered the opinion for a unanimous Court.
The next case is Bailey v. United States (11-770). Police were about to execute a search warrant seeking an illegal handgun in a building when they saw two people leave the premises. They followed the car driven by the individuals and stopped and detained them about a mile away. The search team had found a gun and illegal drugs in an apartment. Defendant Bailey’s personal possessions included a key that opened the apartment. Baily moved to suppress the key and statements he made about it. The police defended the search under Michigan v. Summers, 452 U. S. 692, which allows officers to detain the occupants of a house while a search is conducted. They alternatively argued that the detention was valid under Terry v. Ohio, 392 U. S. 1. The District Court denied the motion and the Second Circuit affirmed using Summers as authority. Neither court considered the Terry argument.
The Supreme Court reversed, holding that Summers only applied to individuals in the immediate vicinity of the search. That was not the case with Bailey and his co-defendant. None of the factors normally favoring detention at the time of a search—that the defendants would disrupt the search, destroy evidence, or pose a risk to officers were present. Summers could apply if the defendants had returned to the scene. The question as to whether Terry applied would be determined on remand. Justice Kennedy delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Scalia, Ginsburg, Sotomayor, and Kagan. Justice Scalia filed a concurring opinion joined by Justices Ginsburg and Kagan. Justice Breyer filed a dissenting opinion joined by Justices Thomas and Alito.
The final case from yesterday is Chafin v. Chafin (11-1347). The case concerns the application of the mootness doctrine in the context of the Hague Convention on the Civil Aspects of International Child Abduction and the implementing act, International Child Abduction Remedies Act (ICARA). Mr. Chafin married Ms. Chafin, a citizen of the United Kingdom, in Germany when he was stationed there as a member of the armed forces. They had a daughter. Mr. Chafin returned to the United States and filed for divorce and child custody in Huntsville, Alabama. Ms. Chafin was deported and the daughter remained with Mr. Chafin. Ms. Chafin later filed a petition seeking return of the daughter under ICARA. The District Court held the child’s country of habitual residence was Scotland and granted the petition and entered a preliminary injunction prohibiting Mr. Chafin from removing the daughter from Scotland. Ms. Chafin immediately left for Scotland where she filed for and was granted custody. The Eleventh Circuit dismissed the appeal as moot.
The Supreme Court reversed holding that this was still a live case where a court could grant relief. The Court noted that the Chafins are vigorously contesting where their daughter will be raised and is not hypothetical. Mr. Chafin is seeking relief from the District Court’s judgment. The litigation may continue in the United States and Scotland depending on the outcome of the appeal. The merits of the case are quite different from mootness. Chief Justice Roberts delivered the opinion for a unanimous Court. Justice Ginsburg filed a concurring opinion joined by Justices Scalia and Breyer.
I’ll review the five decisions from today in tomorrow’s post. They are available at the Court’s website. [MG]
February 19, 2013
Supreme Court Action: Drug Sniffing Dogs And Probable Cause
The Supreme Court issued four opinions this morning. Two of them are criminal cases; one is related to competition as affected by the state action doctrine; and one concerns the Hague Convention on the Civil Aspects of International Child Abduction and its implementation in the U.S. through the International Child Abduction Remedies Act (ICARA). I will report on one of the two criminal cases today and the other three cases tomorrow.
The first case is Florida v. Harris (11-817). The case concerns the accuracy of a drug-sniffing dog as the basis for probable cause for a vehicle search. Officer Wheetley pulled over Harris on a routine traffic stop. Harris declined a search request which prompted Wheetly to use his dog, Aldo, to sniff for drugs. Aldo indicated he had found something and Wheetly searched the vehicle. He did not find any drugs that Aldo had been trained to detect but did find significant quantities of raw materials used to make methamphetamines. Harris was arrested for possession of those ingredients. Harris was out on bail when Wheetly stopped him again. Aldo again signaled something was there but Wheetly found nothing.
Harris’ attorney moved to suppress the search. The Court noted that the attorney did not contest Aldo’s training or certification. Rather, he focused on Aldo’s performance in the field. The trial judge denied the motion. The Florida Appellate Court affirmed but the Florida Supreme Court reversed, holding that a wide array of evidence is necessary to establish probable cause, including field performance records. The Supreme Court reversed, holding that finding probable cause is a kind of fair probability on which reasonable and prudent people act. The totality of the circumstances determines whether or not the standard for probable cause has been met.
The Court stated that field records are misleading since hits and especially false misses can’t be quantified. They may be considered as part of a total array of evidence, but are not specifically required as held by the Florida Supreme Court. A trial court should hear all the evidence and make a ruling based on the circumstances. Here the state produced records showing Aldo’s reliability in controlled circumstances and Harris failed to challenge that evidence.
Justice Kagan delivered the opinion for a unanimous Court. [MG]
January 22, 2013
Supreme Court Action: Time Limits in Administrative Appeals
The Supreme Court issued one opinion this morning concerning the time limit in which a medical care facility can request a review of its reimbursement amount for Supplemental Security Income (SSI) benefits provided under Medicare. The case is Sebelius v. Auburn Regional Medical Center ((11-1231).
Statute provides a 180 day window and Health and Human Services regulations give the Secretary the power to extend the deadline to three years. HHS uses contractors to calculate the reimbursement. One of these contractors, CMS, used flawed data to calculate SSI payments to Bay State Medical Center. Bay State timely appealed to the Provider Reimbursement Review Board (PRRB) and ultimately prevailed. In the process, the flaws were exposed, triggering appeals by other providers working with CMS. The appeals, however, were for payments that were ten years old. The District Court dismissed the other providers’ claims. The D.C. Court of Appeals reversed holding that equitable principles allowed tolling the limitations period to the administrative claims.
The Supreme Court had three choices:
Three positions have been briefed and argued regarding the time for providers’ appeals to the PRRB. First, a Court-appointed amicus curiae has urged that the 180-day limitation is “jurisdictional,” and therefore cannot be enlarged at all by agency or court. Second, the Government maintains that the Secretary has the prerogative to set an outer limit of three years for appeals to the Board. And third, the hospitals argue that the doctrine of equitable tolling applies, stopping the 180-day clock during the time the Secretary concealed the information that made the fiscal intermediary’s reimbursement determinations incorrect.
The Court rejected the first option stating that rules of statutory construction do not make the statutory time limit jurisdictional. This conclusion was based on Court precedent holding filing deadlines are not jurisdictional. If jurisdictional, the Secretary could not extend the time limit and there would be no allowance for equitable tolling. The Court of Appeals justified its reversal on Court precedent that allowed equitable tolling for suits against the United States. The Supreme Court rejected this position saying that it never applied equitable tolling rules to administrative proceedings.
The Court accepted the Government’s argument that the three year extension was a valid exercise of the Secretary’s rulemaking powers and under the Chevron case was entitled to deference. The Court of Appeals was reversed and remanded. Justice Ginsburg delivered the opinion for a unanimous Court. Justice Sotomayor filed a concurring opinion. She agreed that the result in this case is correct but would not foreclose applying equitable tolling principles from appropriate administrative cases.
Speaking of Justice Sotomayor, she appeared on the Daily Show with Jon Stewart last night:
|The Daily Show with Jon Stewart||Mon - Thurs 11p / 10c|
On the 40th Anniversary of Roe v. WadeToday is the 40th anniversary of the Supreme Court recognizing that women have the right to choose in Roe v. Wade. In 40 Years Post Roe v. Wade, Views on Abortion Remain Divided, Complex, WSJ Law Blog's Ashby Jones calls attention to The Pew Forum on Religion & Public Life's slideshow presentation titled Public Opinion on Abortion. Recommended. [JH]
January 16, 2013
ABA Section on Litigation to Commemorate 50th Anniversary of Gideon v. Wainwright with Live Webcast Friday, Jan. 18th
From the announcement:
The 50th Anniversary of Gideon v. Wainwright
Friday, January 18, 2013 / 10:30 am – 12:00 pm EST
A program commemorating the 50th anniversary of the landmark decision, Gideon v. Wainwright will be live streamed on January 18, 2013. This decision recognized a constitutional right to the appointment of counsel for indigent criminal defendants charged with felonies. Mr. Gideon was in prison when he submitted his handwritten petition to the U.S. Supreme Court requesting counsel.
Professor Bruce Jacobs, Dean Emeritus and Professor of Criminal Law at Stetson Law School and Anthony Graves, an exonerated death row prisoner from Texas. Moderating will be Joanne A. Epps, Dean of Temple Beasley School of Law.
To view the live event on Jan. 18th, go here.
Hat tip to Cocky Law Blawg. [JH]
Supreme Court Action: Admiralty Jurisdiction and Justice Thomas "Speaks"
The Supreme Court issued one opinion yesterday. It concerned an interpretation of a section of the Rules of Construction Act (1 U.S.C §3) that defines a vessel. The case is Lozman v. Riviera Beach (11-626). Lozman owned a floating home that was docked at a marina in Riviera Beach, FL. It had been towed between locations on several occasions with one tow running a distance of two hundred miles. The Court observed that the home had no ability to self-propel or generate electricity.
Lozman and the City did not get along very well. Riviera Beach tried evicting Lozman from the marina and ultimately filed an in rem action against Lozman under the Federal Maritime Lien Act, invoking admiralty jurisdiction in federal court. The District Court determined Lozman’s floating home was a vessel under the Rules of Construction Act and found for the city. The Eleventh Circuit affirmed. The Supreme Court took up the question of jurisdiction and focused on the statutory language defining a vessel, “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”
The Court looked to past precedents and took the position that the floating home was not designed to any practical degree to transport persons or things over water. The fact that it was towable did not change any of this:
Though our criterion is general, the facts of this case illustrate more specifically what we have in mind. But for the fact that it floats, nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water. It had no rudder or other steering mechanism. 649 F. 3d, at 1269. Its hull was unraked, ibid., and it had a rectangular bottom 10 inches below the water. Brief for Petitioner 27; App. 37. It had no special capacity to generate or store electricity but could obtain that utility only through ongoing connections with the land. Id., at 40. Its small rooms looked like ordinary nonmaritime living quarters. And those inside those rooms looked out upon the world, not through watertight portholes, but through French doors or ordinary windows. Id., at 44–66.
The Court ultimately held that nothing about the home could lead a reasonable observer to consider it designed to a practical degree for transportation on water. As a side note Riviera Beach had taken possession of Lozman’s home via the prior litigation and had it destroyed. The City had posted a $25,000 bond in case Lozman prevailed. Whoops. Justice Breyer delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Scalia, Thomas, Ginsburg, Alito, and Kagan. Justice Sotomayor wrote a dissent joined by Justice Kennedy. She stated that the test of a reasonable observer changes the application of past precedent and would have remanded the case for more fact finding on the qualities of the floating home. A picture of the home is included on page 16 of the slip opinion.
In other startling Court news, Justice Thomas actually said something at a Supreme Court oral argument on Monday. He was moved to make an unintelligible joke that is reputed to be a dig at Yale (his alma mater) or Harvard. His last comment from the bench otherwise was February 22, 2006. Here is the section of the argument transcript from the case of Boyer v. Louisiana:
MS. SIGLER: Well, there was a provision - there is a provision in Louisiana law that allows someone to move for the admission and the certification of somebody as capital counsel, which was the procedure employed in this case. That is perfectly permissible. But Miss Lehman at that time was a very experienced attorney, and we lay out her qualifications in the brief. So while she may not have been perfectly qualified under Rule 31 to serve as lead counsel, she was certainly more than qualified -
JUSTICE SCALIA: She was a graduate of Yale law school, wasn't she?
MS. SIGLER: She's a very impressive attorney.
JUSTICE SCALIA: And another of his counsel,
Mr. Singer -- of the three that he had -- he was a graduate of Harvard law school, wasn't he?
MS. SIGLER: Yes, Your Honor.
JUSTICE SCALIA: Son of a gun.
JUSTICE THOMAS: Well -- he did not -
MS. SIGLER: I would refute that, Justice Thomas.
JUSTICE SOTOMAYOR: Counsel, do you want to define constitutionally adequate counsel? Is it anybody who's graduated from Harvard and Yale?
JUSTICE SOTOMAYOR: Or even just passed the Bar?
MS. SIGLER: Or LSU law.
JUSTICE SOTOMAYOR: I would think -- no, no, no. This is a very serious question, which is, I don't know that we have ever defined what the minimum qualification is for qualified counsel. But it is - some of it has to be that counsel themselves feel adequate to represent a capital defendant.
The question presented in the case is:
I’m going to wager a guess and bet that Justice Thomas will answer the question with a “no.” I’ll revisit this when the opinion is announced. [MG]
- Whether a state's failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution's choice to seek the death penalty, should be weighed against the state for speedy trial purposes?
January 09, 2013
Supreme Court Action: Affirmative Defense Burdens And Case And Controversy Issues
The Supreme Court is really feeling the love as the two opinions it released this morning are both from a unanimous court, just as the two from yesterday. The first of these is Smith v. United States (11-8976). Smith was convicted in federal court of conspiracy related to the sale of drugs. He claimed to have withdrawn from the conspiracy before the statute of limitations had run. The trial judge instructed the jury that once the government had proven its case the burden for proving withdrawal before the statute of limitations had passed was up to Smith. Justice Scalia writing for the Court stated that the burden does not belong to the government to prove Smith hadn’t withdrawn unless the affirmative defense disproves an element of the crime. Withdrawal presupposes that the defendant was part of the conspiracy and only relieves the defendant of responsibility for post-withdrawal activities of the conspirators. There is no constitutional requirement to shift the burden to the government. Congress could have done so via statute but chose not to do so.
The second case is Already, LLC v. Nike, Inc. (11-982). Its procedural history is a bit complicated. Nike sued Already for trademark violation due to similarities in Already’s athletic shoe line to those of Nike’s trademarked Air Force 1 line. Already countersued to invalidate Nike’s mark. Nike issued a broad covenant not to sue Already based on any existing or future designs that constituted “colorable imitations” of Already’s current products. It dismissed its claims against Already with prejudice and moved to dismiss the counterclaim without prejudice. Already resisted that motion. The District Court found that the case was moot and dismissed the claim and the Second Circuit upheld the dismissal.The Supreme Court upheld the result based on the fact there was no case or controversy for the court to decide at that point. It noted that a party cannot shield itself via covenant by voluntary dismissing a case and picking up the same conduct again later. The covenant that Nike issued, however, was so broad that it basically covered all possibilities. Already did not offer any evidence at trial or on appeal that it planned to develop a shoe line that fell outside the covenant but could conceivably violate Nike’s trademark triggering a lawsuit. Already’s alternative theory, backed by affidavits, was that investors were unwilling to invest in the company as long as there was a possibility of suit, thus keeping the controversy alive in the counterclaim. The Court said conjectural claims does not invoke jurisdiction of the federal courts. Chief Justice Roberts issued the opinion for a unanimous court. Justice Kennedy filed a concurring opinion joined by Justices Thomas, Alito, and Sotomayor. [MG]
January 08, 2013
Supreme Court Action: The Clean Water Act And Competency In Habeas Proceedings
The Supreme Court issued its first opinions of 2013 this morning. The first of two cases is Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc. (11-460). The case involves an interpretation of the Clean Water Act. The NRCD along with Santa Monica Baykeeper filed a citizen’s suit against the District claiming that the water quality measurements from monitors within the Los Angeles and San Gabriel Rivers showed that the level of pollutants exceeded that allowed by its permit to discharge. The District Court held that the record was insufficient to hold the L.A. District liable. Other entities besides the L.A. District also discharge via permit into the rivers. The Ninth Circuit reversed holding that the pollution levels were detected at monitoring stations in concrete lined portions of the rivers to lower, unlined portions of the rivers. That Court concluded that the concrete lined portions of the rivers were under control of the L.A. District.
The Supreme Court reversed, holding that the flow of water from an improved portion of a navigable waterway to an unimproved portion of the same waterway does not qualify as a discharge of a pollutant under the Clean Water Act. This, essentially, was an answer to the question presented. This was based on precedent which the Court said all parties agreed covered the issue. The Court rejected attempts by the NRDC to argue that the L.A District exceeded its permitted levels as shown by its monitoring system. That argument, the Court said, failed below and will not be addressed here. Justice Ginsburg wrote for an essentially unanimous Court with Justice Alito concurring in the judgment rather than joining in the opinion. The NRDC issued a press release on the opinion here.
The second case is a bit more complex and involves review of two cases that present, more or less, the same issue on mental competency and habeas corpus. Ryan v. Valencia Gonzalez (10-930) asks the question whether a state defendant on death row can suspend his habeas proceedings due to mental competency issues that may deny him the ability to effectively communicate with his counsel. Both the Ninth and Sixth Circuits said yes. Justice Thomas, writing for a unanimous Court said no.Justice Thomas made a distinction to the right of competence at trial does not flow from the Sixth Amendment right to counsel but rather from due process. Further, the right to competence does not flow from a right to counsel. Habeas proceedings essentially rely on the record below. Attorneys for habeas petitioners should have ample time and ability to research claims utilizing the materials developed at trial and on direct appeal. The Ninth and Sixth Circuits relied on different portions of Title 18 of the U.S. Code to provide a statutory right to competence. These were rejected by the Court as these sections either did not apply to habeas cases as the Courts of Appeal suggested or were limited to federal, not state defendants. [MG]
December 27, 2012
Justice Sotomayor Denies Injunction in Health Care Religious Conflict Case
Justice Sonia Sotomayor issued an in-Chambers opinion yesterday in the case of Hobby Lobby Stores, Inc. v. Sebelius (12A644). Hobby Lobby sought an injunction pending appeal to keep regulations under the Affordable Care Act from going into effect. These require insurance plans to cover contraception and other drugs and devices that could cause abortions. Hobby Lobby filed the original action in the Western District of Oklahoma on the grounds that providing such insurance coverage to its employees violated the religious beliefs of the owners of the closely held for-profit company. The injunction was denied at that level and the Tenth Circuit denied an application for an injunction pending appeal.
Justice Sotomayor reviewed the Court’s precedents and rules for granting such an application. She noted that the Court’s authority to issue such an injunction is derived from the All Writs Act, 28 U.S.C. §1651(a), and that the Court’s own Rules require that the power to issue the writ be used sparingly. Issuing the writ, she says, is not a matter of preserving the status quo but grants the relief the lower courts have denied up to now. The standard she cites in granting such relief is that which is necessary or appropriate to aid in the Court’s jurisdiction. Hobby Lobby does not satisfy the standard under previous litigation under the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §2000bb et seq.:
Moreover, the applicants correctly recognize that lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims, Application for Injunction Pending Appellate Review 25–26, and no court has issued a final decision granting permanent relief with respect to such claims. Second, while the applicants allege they will face irreparable harm if they are forced to choose between complying with the contraception-coverage requirement and paying significant fines, they cannot show that an injunction is necessary or appropriate to aid our jurisdiction. Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court.
December 21, 2012
NY Court Affirms Law School Job Statistics Fraud Case Dismissal
The New York Law School received an early Christmas present yesterday. New York’s Appellate Division, First Department affirmed the dismissal of the job statistics fraud case brought by 9 graduates. The case is Gomez-Jimenez v. New York Law School (8110). The opinion is contained in this document at the very end.
Plaintiffs filed suit under New York’s General Business Law and for common law fraud and negligence. The trial court dismissed all claims. The Appellate Division said that the job information posted by the school may have been incomplete, but despite the omission of context it was not false:
Nevertheless, although there is no question that the type of employment information published by defendant (and other law schools) during the relevant period likely left some consumers with an incomplete, if not false, impression of the schools’ job placement success, Supreme Court correctly held that this statistical gamesmanship, which the ABA has since repudiated in its revised disclosure guidelines, does not give rise to a cognizable claim under GBL 349. First, with respect to the employment data, defendant made no express representations as to whether the work was full-time or part-time. Second, with respect to the salary data, defendant disclosed that the representations were based on small samples of self-reporting graduates. While we are troubled by the unquestionably less than candid and incomplete nature of defendant’s disclosures, a party does not violate GBL 349 by simply publishing truthful information and allowing consumers to make their own assumptions about the nature of the information (see Andre Strishak & Assoc. v Hewlett Packard Co. 300 AD2d 608, 609-610 [2 Dept 2002]; St. Patrick’s Home for Aged & Infirm v Laticrete Intl., 264 AD2d 652, 655-656 [1 Dept 1999]; see also Corcino v Filstein, 32 AD3d 201, 202 [1 Dept 2006]). Accordingly, we find that defendant’s disclosures were not materially deceptive or misleading (id.). Because plaintiffs have not adequately pleaded that defendant’s practice was misleading, we need not consider whether plaintiffs’ have alleged cognizable injuries. We also decline to consider defendants’ argument that GBL 349(d) provides a complete defense.
The Court built on this analysis for the common law claims. It found that the lack of a fiduciary relationship between the parties along with the truthfulness of the statistics, albeit with omissions, nonetheless defeated that part of the suit. The Court expressed a bit of sympathy to the plaintiffs:
We are not unsympathetic to plaintiffs’ concerns. We recognize that students may be susceptible to misrepresentations by law school. As such, “[t]his Court does not necessarily agree [with Supreme Court] that [all] college graduates are particularly sophisticated in making career or business decisions” (MacDonald, 2012 WL 2994107, at *10). As a result, they sometimes make decisions to yoke themselves and their spouses and/or their children to a crushing burden because the schools have made misleading representations that give the impression that a full time job is easily obtainable when in fact it is not.
Given this reality, it is important to remember that the practice of law is a noble profession that takes pride in its high ethical standards. Indeed, in order to join and continue to enjoy the privilege of being an active member of the legal profession, every prospective and active member of the profession is called upon to demonstrate candor and honesty. This requirement is not a trivial one. For the profession to continue to ensure that its members remain candid and honest public servants, all segments of the profession must work in concert to instill the importance of those values. “In the last analysis, the law is what the lawyers are. And the law and the lawyers are what the law schools make them.” Defendant and its peers owe prospective students more than just barebones compliance with their legal obligations. Defendant and its peers are educational not-for-profit institutions. They should be dedicated to advancing the public welfare. In that vein, defendant and its peers have at least an ethical obligation of absolute candor to their prospective students.
It seems the Court is making a distinction between an ethical obligation and a legal one. The former doesn’t make the latter valid. I think I learned that noble sentiment in contracts class. It’s on to the New York Court of Appeals, I guess. [MG]
December 18, 2012
Because One Can Never Get Enough Cat Videos (particularly when Interstate Commerce is involved in litigation)
As a quick video footnote to Mark Giangrande's Commercially Exhibiting Cats Affects Interstate Commerce post, here is a clip titled "The Cats at Key West's Ernest Hemingway Home & Museum."
Quoting the YouTube text:
Uploaded on Oct 1, 2008
In 1935, famed author Ernest Hemingway received a cat named "Snowball" while living and writing in Key West. With paws featuring six toes, "Snowball" was the first of a long line of felines that has helped make the Hemingway Home and Museum one of the most popular visitor attractions in the Florida Keys.
December 17, 2012
Commercially Exhibiting Cats Affects Interstate Commerce
Here’s a story out of the ABA Journal that will get some heads scratching. It’s about a recent ruling from the Eleventh Circuit Court of Appeals over whether the descendants of Ernest Hemingway’s six-toed cat Snowball are subject to federal regulation by operation of the Commerce Clause. There are some 40 to 60 cats roaming the grounds of the Hemingway Museum in Key West. They don’t leave the grounds and they are not for sale, though occasionally one may be given away. The Museum cares for them and charges admission for entrance. It also uses the cats in promotional materials and sells cat related items in its gift shop. It’s safe to say that the cats are one of the attractions at the Museum.
The Department of Agriculture contends that the Museum, as an exhibitor of animals, is subject to regulation under the Animal Welfare Act (AWA). The USDA made some pretty heavy-handed demands to the Museum about the cats. From the opinion:
The Museum protests the USDA officials’ alleged demands that the Museum: obtain an exhibitor’s license; contain and cage the cats in individual shelters at night, or alternatively, construct a higher fence or an electric wire atop the existing brick wall, or alternatively, hire a night watchman to monitor the cats; tag each cat for identification purposes; construct additional elevated resting surfaces for the cats within their existing enclosures; and pay fines for the Museum’s non-compliance with the AWA. At one point, the USDA allegedly refused to issue an exhibitor’s license to the Museum and threatened to confiscate the cats from the property.
The language of the AWA at issue is the definition of an exhibitor:
as “any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary.” 7 U.S.C. § 2132(h).
The Secretary of Agriculture defined exhibition and distribution broadly in a way that included the Museum’s promotion of the cats. The trial court justified the regulation because cats were given away from time to time and the Museum’s use of a web cam to monitor the cats. The web cam seems to be gone. The static promotional materials are still there.
So how did the Court resolve this? They said the Secretary’s interpretation of the regulations is entitled is entitled to deference and thus the Museum is subject to the AWA:
So let me get this straight. The promotional use of the cats by the Museum qualifies as substantially affecting interstate commerce while the Supreme Court held that the operation of Affordable Care Act does not? Well, meow. The full Eleventh Circuit opinion is here. [MG]
We conclude that the Museum’s exhibition of the cats substantially affects interstate commerce. The Museum argues that its activities are of a purely local nature because the Hemingway cats spend their entire lives at the Museum—the cats are never purchased, never sold, and never travel beyond 907 Whitehead Street. See Reply Brief at 3 (citing United States v. Lopez, 514 U.S. 549, 567–68, 115 S. Ct. 1624, 1634 (1995)). But the local character of an activity does not necessarily exempt it from federal regulation. “[W]hen a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” Gonzales v. Raich, 545 U.S. 1, 17, 125 S. Ct. 2195, 2206 (2005) (internal quotation marks omitted); see also Wickard v. Filburn, 317 U.S. 111, 125, 63 S. Ct. 82, 89 (1942) (reasoning that even if “activity be local[,] and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce”). And it is well-settled that, when local businesses solicit out-of-state tourists, they engage in activity affecting interstate commerce. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 573, 117 S. Ct. 1590, 1596–97 (1997). The Museum invites and receives thousands of admission-paying visitors from beyond Florida, many of whom are drawn by the Museum’s reputation for and purposeful marketing of the Hemingway cats. The exhibition of the Hemingway cats is integral to the Museum’s commercial purpose, and thus, their exhibition affects interstate commerce. For these reasons, Congress has the power to regulate the Museum and the exhibition of the Hemingway cats via the AWA.
December 10, 2012
Supreme Court Action: Administrative Appeal Path In Discrimination Cases Under The CSRA
The Supreme Court decided one case this morning, and it’s one with an issue that only a bureaucrat or an administrative law faculty member could love. The case is Kloeckner v. Solis (11-184). The Civil Service Reform Act of 1978 (CSRA) provides an administrative path of review for aggrieved federal employees on the adverse side of a decision. That path leads to review by the Department or directly to the Merit Systems Protection Board (MSPB) unless there are claims of discrimination. That alternative path via discrimination can lead through agencies charged with hearing administrative discrimination claims such as the Equal Employment Opportunity Commission (EEOC), as in this case. These are called “mixed cases.” Judicial review is available to decisions of the MSPB and directed by statute to the Court of Appeals for the Federal Circuit under §7703(b)(1) of the CSRA. However, adverse discrimination decisions are reviewable in the District Court under the statutory regime that prohibits the alleged discrimination under CSRA §7702.
Carol Kloeckner alleged that the Department of Labor (DOL) discriminated against her on grounds of sex and age by creating a hostile work environment. She filed a complaint with the EEOC which caused the DOL to investigate her claim. Her claim was pending before the MSPB as well. Kloeckner was fired as the EEOC case was pending. She moved to dismiss the MSPB action without prejudice and that motion was granted. She had a right to refile by January 18, 2007. She also moved for a hearing before the EEOC which was granted. The administrative law judge in that hearing dismissed Kloeckner’s case in April of 2007 due to bad-faith discovery conduct. The DOL ruled against Kloeckner in October of 2007. She appealed that ruling to the MSPB in November and it was denied as untimely due to the January deadline. Kloeckner sought review in the District Court. That action was dismissed for lack of jurisdiction with the Eight Circuit affirming.
The Supreme Court reversed, holding that the language of the CSRA allows the adverse administrative decision, in this “mixed” case to go to the District Court. §7703 provides for an explicit exception to the Federal Circuit’s jurisdiction through the language of §7702. The government argued that procedural dismissals (such as that of the MSPB) should go to the Federal Circuit, and substantive dismissals to the District Court. The Court rejected this as unsupported in the CSRA language. Justice Kagan delivered the opinion for a unanimous Court. [MG]
December 07, 2012
The Supreme Court Finally, Maybe, Takes Up Gay Marriage
Well, well, well. The Supreme Court announced today that it will take up two major cases affecting the rights of homosexuals to marry. One case concerns the invalidation of California’s Prop. 8 which amended the California constitution to prohibit marriage between two men or two women. The other concerns the Defense of Marriage Act which more than one lower courts has declared unconstitutional. The Court is expected to hear arguments and decide the case in the current term. There is, however, a procedural wrinkle in both cases that gives the Court an out on the substantive issues if it so desires. The Court wants the parties to brief jurisdictional issues as well. Here is the statement in today’s orders list:
12-144 HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.
12-307 UNITED STATES V. WINDSOR, EDITH S., ET AL.
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.
December 04, 2012
Supreme Court Action: Temporary Flooding Of Land Is A Taking Under the Fifth Amendment
The Supreme Court issued one opinion this morning. The case is Arkansas Game And Fish Commission v. United States (11-597). It concerns an application of the Takings Clause of the Fifth Amendment to state owned and managed property. The Arkansas Game and Fish Commission owns land that it used to grow timber and as a wildlife and hunting preserve. The Army Corps of Engineers controls a damn on the Black River which runs through the Commission’s land. The Corps periodically releases water via the dam that flooded the Commission’s property. These releases were based on a manual developed by the Corps and included options for temporary deviations from the manual. The floods sometimes caused minimal damage to the land, and sometimes significant damage that required extensive restoration.
The Commission filed suit claiming that the temporary deviations caused sustained flooding of its land during tree-growing season necessitating costly reclamation measures. The Court of Federal Claims found for the Commission but was overruled by the Court of Appeals for the Federal Circuit. The Appellate Court held that the flooding had to be permanent or inevitably recurring to qualify as a taking. This holding was based on two Supreme Court cases from 1924 (Sanguinetti v. United States, 264 U. S. 146, 150 (1924)), and 1917 (United States v. Cress, 243 U. S. 316, 328 (1917)).
The Supreme Court reversed. The Court said each case has to be considered within its own circumstances and reviewed its past cases concerning flooding or temporary taking and concluded that there was significant past precedent that supported the view that even temporary flooding constituted a taking. The Government argued that language in Sanguinetti required that the flooding be a “permanent invasion of the land.” The Court said subsequent cases undermined the effect of that language.
The heart of the opinion is Part IV:
We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. See Loretto, 458 U. S., at 435, n. 12 (temporary physical invasions should be assessed by case-specific factual inquiry); Tahoe-Sierra, 535 U. S., at 342 (duration of regulatory restriction is a factor for court to consider); National Bd. of YMCA v. United States, 395 U. S. 85, 93 (1969) (“temporary, unplanned occupation” of building by troops under exigent circumstances is not a taking).
The Court returned the case to the lower courts for more factfinding on issues relating to causation, foreseeability, substantiality, and the amount of damages. Justice Ginsburg delivered the opinion in which all other members joined. Justice Kagan did not participate in the case. [MG]
The Coming Second Citation War
Thomson Reuters "has not given permission to LexisNexis for the use of Westlaw citations to unpublished decisions on the Lexis Advance research service." -- Bruce Knudson, VP Large Law Business, Thomson Reuters.
The above quote is from a letter republished on 3 Geeks in Mark Gediman's post Citation Wars...or Mine! Mine! The post also publishes a response by LexisNexis. Quoting from Mark's highly recommended post:
Although I am sure that Westlaw feels that this response [to a LexisNexis advertising campaign] is justified, I think that to respond to what is really a common industry practice indicates a surprising degree of desperation.
Indeed it is for the moment. However my hunch is Thomson Reuters is preparing the stage for an anticipated new normal when West is not the official publisher of federal and state court opinions. Then all decisions may be "unpublished" as defined by the outcome of the First Citation War and vendor database file citations (i.e., WEXIS file number cites) may require permission to be used by a competitor.
Clearly the coming new normal will be court opinions which are officially published in electronic format at the court level that will be vendor neutral. Vendor specific database file citations may very well be proprietary. Just imagine the consequences for citation indexing and the practice of parallel citations provided in commercial research platforms.
We are in the very early stage of official electronic distribution of primary legal materials like court opinions. UELMA is just the start. If a uniform system of official neutral citation format is not adopted by federal and state courts, will commercial vendors just provide their own and arguably proprietary database file cites? Could you blame our commercial vendors if they do? [JH]
November 28, 2012
Supreme Court Action: The Federal Arbitration Act Applies To The States
The Supreme Court issued one per curiam opinion on Monday. The case is Nitro-Lift Technologies, L.L.C. v. Howard (11-1377). The opinion reinforces the application of the Federal Arbitration Act (FAA) in state courts as controlling over state statutes and court decisions to the contrary. The dispute arose over the interpretation of a contract containing both a non-compete clause and an arbitration clause. Two former employees of Nitro-Lift left the company to work for a competitor. Nitro-Lift served them with a demand to arbitrate. They filed suit in Oklahoma state court asking that the noncompetition agreements to be held null and void. The district court found the arbitration clause to be valid and said the dispute over the non-compete clauses should be settled by the arbitrator.
The Oklahoma Supreme Court issued a contrary decision. It held that a state statute limits the enforcement of non-compete clauses. That court analyzed U.S. Supreme Court decisions and declared that it could review the underlying contract despite the arbitration clause. The Oklahoma Supreme Court further indicated that its decision was made under adequate and independent state grounds which would deprive the U.S. Supreme Court of jurisdiction.
The Court cited earlier opinions holding that the FAA applied to the states and that there were no exceptions under the Supremacy Clause when state and federal law conflict. Neither the trial court nor the Oklahoma Supreme Court found the arbitration clause invalid. The arbitrator under these circumstances is the one to determine whether the clause survives Oklahoma statutory law.
The opinion is notable in its language criticizing the Oklahoma Supreme Court for ignoring U.S. Supreme Court precedent and writing its opinion in a way to evade review. I guess this is an example of what they call judicial tough love. [MG]
November 19, 2012
Sixth Circuit Strikes Down Constitutional Amendment On Race In Education
The Sixth Circuit Court of Appeals issued a controversial decision last Thursday which struck down a voter-enacted amendment to the Michigan Constitution that banned consideration of race in school admission, employment, and public contracting. The challenge to the Amendment, known as Proposal 2, was strictly on the basis of education policies. The Court explicitly did not address the impact of the amendment to the employment and public contracting components.
The Sixth Circuit’s opinion comes in the form on an en banc decision that polled the Court’s roster of Judges in an 8 to 7 split for striking down the Amendment. The Court used the “political process” doctrine which basically holds that a law which burdens a minority from seeking favorable legislation—in this case favorable admission policies from university governing boards—is unconstitutional. The Court used two Supreme Court cases, Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, (1982) and Hunter v. Erickson, 393 U.S. 385, (1969) as the basis for its decision. Those cases struck down referendum-based legislation as impermissibly burdening the political process for minorities.
The dissents skewered the majority for reasoning they believed turned the Equal Protection Clause on its head. Even though race may be taken into limited consideration under Grutter v. Bollinger, 539 U.S. 306 (2003), doing so is permissive rather than mandated by the decision. The dissents reason that under these circumstances the majority has moved considering racial preferences as beyond the political process. They find Hunter and Seattle as an “extreme” application of the political process doctrine.
The decision may not matter in the long run as the Supreme Court is essentially considering the issue of how far race can be used in the admissions process in Fisher v. University of Texas at Austin. The question presented in that case is:
Whether this Court's decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin's use of race in undergraduate admissions decisions.
The prediction of many commentators based on the oral argument transcript is that the Court will strike down the use of race in admissions. The Court has been pretty divided on this issue since the Bakke decision in 1978. One factor in the Fisher case is that Justice Kagan is not participating in the decision. The Michigan Attorney General’s Office has said it will appeal the Sixth Circuit decision to the Supreme Court.
The case is Coal. to Defend Affirmative Action, et al. v. Regents of the Univ. of Mich., et al., (Nos. 08-1387/1389/1534; 09-1111). [MG]
November 13, 2012
Supreme Court Action: Jurisdiction Under The Little Tucker Act
The United States Supreme Court issued one opinion this morning. The case is United States v. Bormes (11-192) and it concerns whether jurisdiction for violations of the Fair Credit Reporting Act (FCRA) by the United States are founded under the FCRA or the Little Tucker Act. The latter is a generalized waiver of sovereign immunity for suit when a statute offers a remedy but not a mechanism to receive that remedy.
The facts in the case are pretty straightforward. Bormes, an attorney, paid for a client’s filing with a credit card at pay.gov. He received a receipt that included the last four digits of his credit card and the expiration date of that card. The terms of the FCRA state that it should be one or the other, not both. Bormes sued the government for the violation in the Northern District of Illinois claiming jurisdiction under both the FCRA and the Little Tucker Act. The Trial Court dismissed the action holding that the FCRA did not explicitly waive immunity. The Court of Appeals for the Federal Circuit reversed, holding that the Little Tucker Act provided consent to suit.
The Supreme Court reversed. It held that when a statute such as the FCRA provides a detailed scheme for judicial remedies under an act, it displaces the generalized jurisdictional grant under the Little Tucker Act. The Court analyzed the structure of the FCRA and laid out the detailed elements of the Act that justified its interpretation under past precedent that similarly analyzed other statutes.
The Court remanded the case to the Federal Circuit with orders to transfer the case to the Seventh Circuit to consider whether there are jurisdictional elements in the FCRA to allow (or not) the suit. Justice Scalia delivered the opinion for a unanimous Court. [MG]