Supreme Court: The Term in Review (2011-2012)
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Supreme Court: The Term in Review (2011-2012)


– “SUPREME COURT:
THE TERM IN REVIEW,” AN FJTN PROGRAM FOR JUDGES,
STAFF ATTORNEYS, AND LAW CLERKS. NOW FROM THE TELEVISION STUDIOS
OF THE FEDERAL JUDICIAL CENTER IN WASHINGTON, DC,
YOUR HOST–JOHN COOKE. – HELLO,
I AM JOHN COOKE, DEPUTY DIRECTOR OF THE FEDERAL JUDICIAL CENTER. WELCOME TO THIS YEAR’S “SUPREME
COURT: THE TERM IN REVIEW,” OUR ANNUAL LOOK AT THE DECISIONS
REACHED BY THE SUPREME COURT THAT ARE MOST LIKELY TO AFFECT
THE WORK OF FEDERAL JUDGES. THE COURT HANDED DOWN 64 SIGNED
OPINIONS AFTER ARGUMENT THIS TERM AND ISSUED 11 PER CURIAM
DECISIONS. THE DECISIONS THAT ATTRACTED THE
MOST ATTENTION WERE THOSE INVOLVING THE
CONSTITUTIONALITY OF THE FEDERAL HEALTH CARE LAW AND THE
ARIZONA IMMIGRATION STATUTE. WE’LL DISCUSS THOSE, BUT WE WILL
FOCUS MOST ON DECISIONS INVOLVING MORE COMMON ISSUES
LIKE SEARCH AND SEIZURE, THE CONFRONTATION
CLAUSE, AND SENTENCING. WE ARE FORTUNATE TO HAVE OUR
EXPERT FACULTY WITH US AGAIN TO EXPLORE AND EXPLAIN
THIS TERM’S DECISIONS. THEY ARE ERWIN CHEMERINSKY,
DEAN OF THE UNIVERSITY OF CALIFORNIA AT IRVINE LAW
SCHOOL; PROFESSOR EVAN LEE OF THE HASTINGS COLLEGE OF
LAW IN SAN FRANCISCO; PROFESSOR LAURIE LEVENSON OF LOYOLA
LAW SCHOOL IN LOS ANGELES; AND PROFESSOR SUZANNA SHERRY
OF THE VANDERBILT UNIVERSITY LAW SCHOOL. OUR OWN BETH WIGGINS AND JIM
CHANCE WILL BE MODERATING OUR DISCUSSIONS. IN OUR FIRST SEGMENT, BETH
WIGGINS, ERWIN CHEMERINSKY, AND SUZANNA SHERRY WILL DISCUSS
SOME FIRST AMENDMENT DECISIONS. – HELLO,
I AM BETH WIGGINS FROM THE FEDERAL JUDICIAL CENTER. WITH ME TO DISCUSS 3 FIRST
AMENDMENT DECISIONS REACHED BY THE COURT THIS TERM ARE SUZANNA
SHERRY AND ERWIN CHEMERINSKY. LET’S START WITH THE DECISION
REGARDING THE FREE EXERCISE AND ESTABLISHMENT CLAUSES
OF THE FIRST AMENDMENT. THIS WAS HOSANNA-TABOR
EVANGELICAL LUTHERAN CHURCH AND SCHOOL VERSUS
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. HOSANNA-TABOR IS A RELIGIOUS
SCHOOL IN MICHIGAN THAT HAS TWO KINDS OF TEACHERS–LAY TEACHERS
AND THOSE WHO ARE CALLED. CALLED TEACHERS ARE
CONSIDERED TO BE MINISTERS. CHERYL PERICH BEGAN AS A LAY
TEACHER AND THEN BECAME A CALLED TEACHER AFTER TAKING
THE REQUIRED COURSES. AFTER TEACHING AT THE SCHOOL FOR
5 YEARS, SHE BECAME ILL AND HAD TO TAKE LEAVE. WHEN HER DOCTOR TOLD HER SHE WAS
WELL ENOUGH TO RETURN TO WORK, PERICH INFORMED THE SCHOOL BUT
WAS TOLD THAT THEY HAD FILLED HER POSITION WITH A LAY TEACHER. THE SCHOOL OFFERED TO PAY PART
OF HER HEALTH INSURANCE IF PERICH RESIGNED BUT SHE REFUSED,
THREATENED TO FILE A COMPLAINT WITH THE EEOC,
AND THEN WAS FIRED. THE EEOC COMPLAINT SAID THE
SCHOOL HAD VIOLATED PERICH’S RIGHTS UNDER THE AMERICANS
WITH DISABILITIES ACT BOTH FOR DENYING HER A JOB AFTER
HER ILLNESS AND FOR FIRING HER IN RETALIATION FOR ASSERTING
HER RIGHTS UNDER THE ADA. THE SCHOOL RAISED THE FIRST
AMENDMENT RELIGION CLAUSES AS A DEFENSE. ERWIN, WHAT DID THE COURT
DECIDE? – THE SUPEME COURT UNANIMOUSLY
HELD THAT IT WOULD VIOLATE BOTH THE ESTABLISHMENT CLAUSE
AND THE FREE ACCESS CLAUSE TO HOLD THE SCHOOL LIABLE FOR
THE CHOICES THAT IT MAKES AS TO WHO WILL BE ITS
MINISTERS. CHIEF JUSTICE ROBERTS WROTE FOR
THE COURT– HE SAID IT’S NOT JUST ABOUT
EMPLOYMENT DECISIONS. THIS WOULD INTRUDE ON THE
INTERNAL DECISION MAKING OF A RELIGIOUS INSTITUTION AS TO
WHO’LL BE ITS MINISTERS. SO THE COURT SAID IT WOULD
VIOLATE THE FREE EXERCISE CLAUSE TO INTERFERE WITH WHO WILL BE
THE CHOICE AS TO MINISTERS, IT WILL INTERFERE WITH
THE ESTABLISHMENT CLAUSE, ONCE THE SCHOOL IS BEING
INTERFERED WITH, WITH THEIR FUNDAMENTAL
RELIGIOUS CHOICES. – WELL, SUZANNA, THAT SOUNDS
PRETTY STRAIGHTFORWARD. WAS IT? – WELL, THAT PART WAS
STRAIGHFORWARD, BUT THERE WERE SOME COMPLICATING ISSUES. FIRST, THERE WAS THE QUESTION
OF WHETHER PERICH REALLY WAS A MINISTER. THE COURT SAID THAT SHE WAS A
MINISTER, BUT IT DECLINED TO ADOPT ANY PARTICULAR TEST,
NO RIGID TESTS. PERICH, FOR EXAMPLE, HAD ARGUED
THAT SHE WASN’T A MINISTER BECAUSE LAY TEACHERS PERFORMED
MANY OF THE SAME DUTIES THAT SHE DID AND ALSO BECAUSE THE
STRICTLY RELIGIOUS PART OF HER JOB DID NOT TAKE UP VERY MUCH OF
HER TIME. THE COURT SAID THAT, NO, THOSE
FACTS DON’T CHANGE THEIR CONCLUSION THAT SHE IS A
MINISTER, AND JUSTICES ALITO AND KAGAN
WROTE A CONCURRENCE ON THIS POINT HIGHLIGHTING THE FACT THAT
THE COURT HAD ADOPTED A FUNCTIONAL TEST,
NOT A MECHANICAL TEST. THE TITLE OF MINISTER, FOR
EXAMPLE, WAS NOT SUFFICIENT OR NECESSARY TO DETERMINE THAT
SOMEBODY WAS A MINISTER. THE SECOND IMPORTANT ISSUE WAS
WHETHER RECOGNIZING THE MINISTERIAL EXCEPTION WAS
INCONSISTENT WITH THE COURT’S PREVIOUS DECISION IN EMPLOYMENT
DIVISION VERSUS SMITH. YOU MIGHT REMEMBER, THAT
DECISION HELD THAT THE RELIGION CLAUSES DO NOT RELIEVE
INDIVIDUALS OF THE OBLIGATION TO COMPLY WITH GENERALLY
APPLICABLE LAWS, WHICH, OF COURSE, THE ADA IS, AND THE COURT SAID THERE’S NO
CONFLICT. IT DISTINGUISHED THE CASE FROM
SMITH BY SAYING THAT SMITH INVOLVED REGULATION OF OUTWARD
PHYSICAL ACTS, WHEREAS PERICH’S CASE WAS ABOUT REGULATION OF
WHAT THEY SAID WAS AN INTERNAL CHURCH DECISION THAT AFFECTS THE
FAITH AND THE MISSION OF THE CHURCH ITSELF. – SO, ERWIN, WHAT ARE THE
IMPLICATIONS OF THIS DECISION? – CHIEF JUSTICE ROBERTS’
MAJORITY OPINION IS VERY BROADLY WRITTEN. WHAT IF A RELIGIOUS SCHOOL– K-THROUGH-12, COLLEGE,
UNIVERSITY– DECIDES THAT IT’S GONNA MAKE
ALL OF ITS EMPLOYEES MINISTERS? IN FACT,
WHAT IF ANY RELIGIOUS INSTITUTION DECIDES TO
DESIGNATE ALL OF ITS EMPLOYEES AS MINISTERS? IS IT THEN COMPLETELY
EXEMPT FROM EMPLOYMENT DISCRIMINATION LAW? THIS WAS SOMETHING THAT I THINK
JUSTICE ALITO AND JUSTICE THOMAS WERE ALSO TRYING TO ADDRESS
IN THEIR CONCURRING OPINIONS. WE OBVIOUSLY DON’T KNOW,
BUT IT’S CERTAINLY IMPORTANT TO REMEMBER, THIS IS THE FIRST TIME
THE SUPREME COURT HAS EVER SAID THAT THE FREE ACCESS CLAUSE AND
THE ESTABLISHMENT CLAUSE GIVE RELIGIOUS INSTITUTIONS AN
EXEMPTION FROM FEDERAL CIVIL RIGHTS LAWS. – ONE FINAL IMPORTANT NOTE,
THE COURT MADE VERY CLEAR THAT THE MINISTERIAL EXCEPTION
IS AN AFFIRMATIVE DEFENSE. IT’S NOT A JURISDICTIONAL BAR. – THANK YOU. LET’S MOVE ON TO TWO DECISIONS
DEALING WITH FREEDOM OF SPEECH. THE FIRST ONE OF THESE IS
KNOX V. SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL
1000, OR KNOX V. SEIU. CALIFORNIA LAW ALLOWS PUBLIC
EMPLOYEES’ UNIONS TO COLLECT DUES FROM NON-MEMBERS FOR
COLLECTIVE BARGAINING ACTIVITIES THAT ARE DIRECTLY RELATED TO
REPRESENTING THE EMPLOYEES’ INTERESTS, BUT THE SUPREME COURT
SAID IN AN EARLIER DECISION, ABOOD V. DETROIT BOARD OF
EDUCATION, THAT INDIVIDUALS HAVE A RIGHT NOT TO PAY FOR
POLITICAL ACTIVITIES OF A UNION, AND SINCE THE COURT’S DECISION
IN TEACHERS V. HUDSON, PUBLIC EMPLOYEE UNIONS MUST ANNUALLY
CALCULATE WHAT PERCENTAGE OF THEIR DUES GO TO COLLECTIVE
BARGAINING AND WHAT PERCENTAGE GO TO POLITICAL ACTIVITY. THEN THEY HAVE TO SEND A
SO-CALLED HUDSON LETTER TO ALL NON-MEMBERS GIVING THEM THE
OPPORTUNITY TO OPT OUT OF PAYING THE PERCENTAGE OF THE DUES
GOING TO POLITICAL ACTIVITIES. SUZANNA, WHAT HAPPENED THAT
BROUGHT THIS CASE FORWARD? – WELL,
IN THIS CASE, THE UNION LOCAL, THE SEIU, WAS FIGHTING THEN-
GOVERNOR SCHWARZENEGGER OVER SOME PROPOSALS OF HIS THAT WOULD
HAVE REDUCED THE INFLUENCE OF PUBLIC EMPLOYEE UNIONS. SO FIRST,
THEY SENT OUT A HUDSON LETTER, AND THEY STATED IN THAT HUDSON
LETTER THAT THE DUES MIGHT INCREASE AT ANY TIME. SO THEY RESERVED THAT RIGHT,
AND THEN AFTER THE OPT-OUT PERIOD HAD EXPIRED, THEY IMPOSED
A NEW SPECIAL ASSESSMENT, ADDITIONAL DUES, AND THEY SAID
THAT THAT SPECIAL ASSESSMENT, ALL OF IT, WOULD GO TO FIGHTING
THE GOVERNOR’S PROPOSAL. SO IT WOULD ALL BE POLITICAL,
AND SOME OF THE NON-MEMBERS OBJECTED BECAUSE THEY DIDN’T
THINK THAT THEY SHOULD HAVE TO PAY THE SPECIAL ASSESSMENT
THAT WAS ALL GOING TO BE USED FOR POLITICAL PURPOSES. THEY SAID THAT WOULD VIOLATE
THEIR FIRST AMENDMENT SPEECH RIGHTS BY FORCING THEM TO
SUBSIDIZE SPEECH THAT THEY DIDN’T NECESSARILY AGREE WITH. – SO HOW DID THE CASE COME OUT? – WELL, IT WAS MIXED. 7 JUSTICES AGREED THAT THE SEIU
SHOULD HAVE SENT OUT A HUDSON LETTER WHEN IT IMPOSED THE
SPECIAL ASSESSMENT AND THAT THEY SHOULD HAVE ALLOWED ALL NON-
MEMBERS TO AVOID ALL OF THE DUES BECAUSE OF THE SPECIAL
ASSESSMENT BECAUSE THE ENTIRE SPECIAL ASSESSMENT WAS GONNA
BE USED FOR POLITICAL PURPOSES, BUT 5 OF THE JUSTICES IN THE
MAJORITY WENT EVEN FURTHER, AND THEY SAID THAT WHEN IT COMES
TO A SPECIAL ASSESSMENT, INSTEAD OF GIVING THE NON-MEMBERS
AN OPPORTUNITY TO OPT OUT OF THE SPECIAL ASSESSMENT,
THEY HAD TO GIVE THEM AN OPPORTUNITY TO OPT IN SO THAT
UNLESS THEY OPTED IN, THEY WOULD NOT BE CHARGED ANY OF THE
SPECIAL ASSESSMENT, AND THIS IS WHERE THE MAJORITY LOST
JUSTICES GINSBERG AND SOTOMAYOR. THEY STRONGLY OBJECTED THAT THE
QUESTION OF OPT OUT VERSUS OPT IN HAD NOT BEEN
BRIEFED OR ARGUED. – JUSTICE ALITO QUESTIONED THE
PRECEDENTS THAT SAID THAT IT’S SUFFICIENT TO HAVE THE
NON-MEMBERS OPT OUT. HE SAID AS A MATTER OF FIRST
AMENDMENT LAW, AT LEAST WITH REGARD TO THE SPECIAL
ASSESSMENT, THEY HAVE TO MAKE THE CHOICE TO OPT
INTO SUPPORTING THE POLITICAL ACTIVITIES. JUSTICE BREYER, IN A DISSENT
THAT WAS JOINED BY JUSTICE KAGAN, SAID IT’D BE ENOUGH
TO JUST GIVE THEM NOTICE IN THE FOLLOWING YEAR AS TO THE
PERCENTAGE OF THE DUES THAT WENT TO COLLECTIVE BARGAINING,
AS OPPOSED TO POLITICAL ACTIVITIES, INSTEAD OF OPT IN, BUT JUSTICE BREYER’S REAL ANGER
–AND I THINK IT WAS THAT– IN THE DISSENT WAS–THIS WAS JUSTICE SOTOMAYOR–THAT THIS
WAS REALLY A CHANGE IN THE LAW THAT WAS NOT BRIEFED AND ARGUED,
THAT THE SUPREME COURT HAD LONG SAID THAT OPT OUT IS SUFFICIENT
AND TO GO TO OPT IN WOULD REALLY MEAN A GREAT DEAL WITH REGARD
TO THE POLITICAL INFLUENCE OF PUBLIC EMPLOYEE UNIONS IN
THE UNITED STATES, AND SO IT’S A VERY SHARP DIVISION,
5-4, ON THAT, AND I THINK WE GET A VERY
SIGNIFICANT EFFECT IF WHAT THE SUPREME COURT IS SAYING IS THAT
NON-MEMBERS ALWAYS MUST MAKE THE CHOICE TO OPT IN
BUT OPT OUT IS NEVER CONSTITUTIONALLY SUFFICIENT. – OUR SECOND FREEDOM OF SPEECH
DECISION CAME DOWN ON THE LAST DAY OF THE TERM. THIS WAS THIS
UNITED STATES V. ALVAREZ. XAVIER ALVAREZ LIED ABOUT
WINNING THE CONGRESSIONAL MEDAL OF HONOR. IN DOING THAT, HE VIOLATED THE
STOLEN VALOR ACT, WHICH MADE IT A FEDERAL CRIME TO FALSELY
CLAIM RECEIVING MILITARY HONORS OR DECORATIONS. ALVAREZ WAS CONVICTED UNDER
THE LAW BUT CHALLENGED IT AS A VIOLATION OF HIS FIRST
AMENDMENT FREE SPEECH RIGHTS. ERWIN, HOW DID THE
COURT COME DOWN ON THIS? – THE SUPREME COURT, IN A 6-3
DECISION WITHOUT A MAJORITY OPINION, DECLARED THE STOLEN
VALOR ACT UNCONSTITUTIONAL. JUSTICE KENNEDY WROTE
FOR THE PLURALITY. HIS OPINION WAS JOINED BY CHIEF
JUSTICE ROBERTS AND ALSO JUSTICE GINSBERG AND SOTOMAYOR. HE SAID THE LAW IS A CONTENT-
BASED RESTRICTION OF SPEECH. HE SAID IT DOESN’T FIT INTO ANY
OF THE CATEGORIES OF UNPROTECTED SPEECH, SAID, THEREFORE,
THE COURT HAS TO USE THE MOST EXACTING SCRUTINY, AND IT SEEMS
THAT THIS WAS JUST A SYNONYM FOR STRICT SCRUTINY. HE SAID THAT THE GOVERNMENT
COULD NOT PROVE A CAUSAL CONNECTION TO THESE FALSE CLAIMS
BRINGING HARM TO THE MILITARY. HE ALSO SAID THERE’S LESS
RESTRICTIVE ALTERNATIVES, SUCH AS THE POSSIBILITY THAT
THE GOVERNMENT JUST PUBLISH A DATABASE OF ALL THAT RECEIVED
THE HONORS TO QUICKLY BE ABLE TO SPOT THE LIARS. – SO, SUZANNA, WHAT DID
THE OTHER JUSTICES WRITE? – WELL,
JUSTICES BREYER AND KAGAN CONCURRED IN THE JUDGMENT ONLY,
NOT JOINING THE PLURALITY, BECAUSE THEY EXPLICITLY REJECTED
THE PLURALITIES STRICT CATEGORICAL ANALYSIS. THEY WANTED THE COURT TO USE
INTERMEDIATE SCRUTINY OR WHAT THEY CALLED A PROPORTIONALITY
TEST TO BALANCE THE HARM TO SPEECH AGAINST THE GOVERNMENT’S
OBJECTIVES, AND THEY THOUGHT THE HARM DONE TO SPEECH BY THE
STOLEN VALOR ACT WAS SOMEWHAT LESS THAN THE PLURALITY THOUGHT
IT WAS BECAUSE THEY SAID THAT THE DANGER OF SUPPRESSING
VALUABLE IDEAS IS MUCH LOWER WHEN THE GOVERNMENT IS ONLY
PROHIBITING FALSE FACTUAL STATEMENTS, BUT EVEN UNDER THEIR
TEST, THEY FELT THE STATUTE FAILED BECAUSE IT WAS POSSIBLE
TO ACHIEVE THE GOVERNMENT’S INTERESTS IN A LESS
BURDENSOME WAY. SO THEY SUGGESTED, FOR EXAMPLE,
THAT CONGRESS MIGHT REWRITE THE STATUTE TO LIMIT IT TO ONLY SOME
MILITARY HONORS OR TO REQUIRE A SHOWING OF SOME SPECIFIC HARM
OR MAYBE TO LIMIT THE CONTEXT OR THE TYPE OF LIE WHICH WOULD
BE SUBJECT TO PROSECUTION. – OK. WHAT ABOUT THE DISSENTS? – WELL,
JUSTICES ALITO, SCALIA, AND THOMAS THOUGHT THAT FALSE
FACTUAL STATEMENTS HAVE NO VALUE AND, THEREFORE, ARE
NOT PROTECTED UNDER THE FIRST AMENDMENT AT ALL. – REALLY IS IMPORTANT TO NOTE
IN THAT REGARD THAT THOUGH THERE WAS NO MAJORITY OPINION,
6 OF THE JUSTICES REJECTED THE GOVERNMENT’S ARGUMENT THAT FALSE
SPEECH IS INHERENTLY OUTSIDE THE SCOPE OF THE FIRST AMENDMENT. – THANKS, ERWIN.
THANKS, SUZANNA. BEFORE WE END THIS PANEL,
THERE ARE TWO OTHER DECISIONS IN THIS AREA. IN FCC VERSUS FOX, THE COURT WAS
EXPECTED TO RULE ON WHETHER THE FEDERAL COMMUNICATIONS
COMMISSION’S STANDARDS THAT BAN FLEETING EXPLETIVES OR
BRIEF NUDITY VIOLATED THE FIRST AMENDMENT. INSTEAD, THE COURT HELD THAT THE
FCC DID NOT GIVE BROADCASTERS FAIR NOTICE THAT IT WOULD APPLY
THE STANDARDS THE WAY IT DID AND, THEREFORE, VIOLATED THE
BROADCASTERS’ DUE PROCESS RIGHTS, AND FINALLY, IN AMERICAN
TRADITION PARTNERSHIP V. BULLOCK, THE COURT SUMMARILY
REVERSED A MONTANA SUPREME COURT DECISION UPHOLDING THAT STATE’S
CAMPAIGN FINANCE REGULATIONS. THE MONTANA HIGH COURT HAD
DISTINGUISHED ITS DECISION FROM THE U.S. SUPREME COURT’S RECENT
RULING IN CITIZENS UNITED V. FEC ON GROUNDS THAT MONTANA’S
UNIQUE HISTORY ALLOWED THE STATE LEGISLATURE TO ENACT A
CAMPAIGN FINANCE LAW TO SERVE A COMPELLING INTEREST IN
PREVENTING CORRUPTION. THE U.S. SUPREME COURT 5-JUSTICE
MAJORITY MADE IT CLEAR THAT IT WASN’T INTERESTED IN
RECONSIDERING CITIZENS UNITED AND THAT IT’S RULING IN THAT
CASE IMPOSES A BLANKET BAR ON LIMITING CORPORATE CAMPAIGN
EXPENDITURES WHICH CANNOT BE OVERCOME BY FACTUAL FINDINGS. – HELLO,
I AM JIM CHANCE FROM THE FJC, AND HERE WITH ME TO DISCUSS
FOURTH AMENDMENT DECISIONS BY THE COURT ARE LAURIE
LEVENSON AND EVAN LEE. THE 3 CASES WE ARE GOING TO
LOOK AT AROSE IN VERY DIFFERENT SITUATIONS AND DEAL WITH
DIFFERENT ASPECTS OF THE FOURTH AMENDMENT’S PROTECTIONS. WE’LL START WITH UNITED STATES
VERSUS JONES, A CASE THAT STARTED HERE IN THE
WASHINGTON AREA. ANTOINE JONES WAS BEING
INVESTIGATED BY THE FBI FOR DRUG TRAFFICKING. THE BUREAU GOT A 10-DAY WARRANT
TO ATTACH A GPS TRACKING DEVICE TO JONES’ WIFE’S CAR IN THE
DISTRICT OF COLUMBIA, A CAR THAT ANTOINE JONES USED ALMOST
EXCLUSIVELY, BUT AGENTS DID NOT ATTACH THE DEVICE TO THE CAR
UNTIL THE 11th DAY AND THEN NOT IN DC,
BUT IN MARYLAND. THEY THEN TRACKED THE
CAR FOR 28 DAYS. WELL, WHEN PROSECUTORS ATTEMPTED
TO USE THE EVIDENCE, JONES OBJECTED THAT IT HAD BEEN
GATHERED IN VIOLATION OF THE FOURTH AMENDMENT, FIRST,
BECAUSE THE WARRANT WAS FOR DC, NOT MARYLAND, AND SECOND,
BECAUSE IT HAD LAPSED BEFORE THE POLICE ATTACHED THE
TRACKING DEVICE. DID THE LOWER COURTS SEE
IT THAT WAY, EVAN? – PARTIALLY. THE DISTRICT COURT IN JONES’
FIRST TRIAL SUPPRESSED THE DATA THAT WAS COLLECTED WHILE THE
CAR WAS IN JONES’ GARAGE BECAUSE THAT’S PART OF HIS
HOUSE, BUT IT ADMITTED THE REST OF THE EVIDENCE
BECAUSE, IT SAID–QUOTING FROM A 1984 SUPREME COURT DECISION,
UNITED STATES VERSUS KNOTTS, AND HERE I QUOTE–“A PERSON
TRAVELING IN A VEHICLE “ON A PUBLIC THOROUGHFARE HAD
NO REASONABLE EXPECTATION “OF PRIVACY IN HIS MOVEMENTS
FROM ONE PLACE TO ANOTHER,” END QUOTE. THEREFORE, THE COURT REASONED,
NO WARRANT WAS NECESSARY FOR THE TRACKING EVIDENCE. THAT FIRST TRIAL RESULTED IN
A HUNG JURY ON THE CONSPIRACY COUNT. GOVERNMENT WENT AFTER HIM AGAIN,
AGAIN GOT THE GPS TRACKING EVIDENCE ADMITTED. THIS TIME, IT RESULTED IN
A CONVICTION, AND THE COURT SENTENCED HIM TO LIFE
IMPRISONMENT, BUT DC CIRCUIT REVERSED ON THE GROUND THAT THE
ADMISSION OF THE TRACKING DATA GATHERED WITHOUT A VALID WARRANT
VIOLATED THE FOURTH AMENDMENT. – LAURIE, WERE THERE ANY
SURPRISES IN THE SUPREME COURT’S DECISION? – WELL, NOT SO MUCH
IN THE RULING. THIS WAS A UNANIMOUS DECISION
BY THE COURT SAYING THAT IT WAS A FOURTH AMENDMENT VIOLATION,
BUT THERE WERE REAL DIVISIONS IN REASONING FOR THIS DECISION. SO YOU HAVE JUSTICE SCALIA
WHO WRITES THAT, IN FACT, HE’S MOVING FROM THE STANDARD IN
KATZ FROM 1967, WHICH FOUND THAT THERE WAS A SEARCH IF
THERE WAS BOTH A SUBJECTIVE AND A REASONABLE EXPECTATION
OF PRIVACY, TO A STANDARD THEY ACTUALLY WERE OVERRULING IN
KATZ, THE OLD OLMSTEAD PHYSICAL TRESPASS APPROACH, AND HE
RETURNED TO THAT PHYSICAL TRESPASS APPROACH
AND SAYS, “LOOK. “IN THIS CASE, THEY PHYSICALLY
PLANTED A BEEPER ON JONES’ CAR. “THAT WAS A TRESPASS. “IT WAS A TRESPASS AT THE TIME
OF THE ADOPTION “OF THE FOURTH AMENDMENT. “THAT VIOLATES THE
CONSTITUTION.” I THINK THAT WHAT THAT MEANS,
THOUGH, FOR JUDGES AND LAWYERS IS THAT THEY’RE REALLY GOING
TO HAVE TO STUDY UP ON WHAT TRESPASS LAW IS ABOUT,
ESPECIALLY WHEN YOU HAVE MULTIPLE OWNERS OF PROPERTY. – NOW,
AS WE SAID, THE HOLDING WAS UNANIMOUS, BUT THERE WERE OTHER
OPINIONS ON THE REASONING, RIGHT, EVAN? – THAT’S TRUE. JUSTICE SOTOMAYOR STRESSED
IN HER CONCURRENCE THAT THE TRESPASS TEST IS CUMULATIVE,
THAT IT’S NOT A SUBSTITUTE FOR THE REASONABLE EXPECTATION
OF PRIVACY TEST. ON THE OTHER HAND, YOU
HAD 4 JUSTICES– ALITO, BREYER, GINSBURG,
AND KAGAN–WHO ALL WOULD HAVE RELIED EXCLUSIVELY ON THE
REASONABLE EXPECTATION OF PRIVACY TEST. THEY DIDN’T THINK THAT THE
GOVERNMENT’S ACTIONS WOULD CLEARLY BE A SEARCH OR A SEIZURE
UNDER THE NEW TEST BECAUSE OF THE DIFFERENCES IN PROPERTY
LAW AMONG THE DIFFERENT STATES, BUT CLEARLY WHAT BOTHERED THE
CONCURRING JUSTICES THE MOST IN THIS CASE WAS THE LENGTH
OF THE SURVEILLANCE THAT WENT ON HERE, 28 DAYS, AND THAT WAS,
OF COURSE, MADE POSSIBLE BY THIS HIGH-TECH, LOW-COST GPS DEVICE. THEY THOUGHT THAT VIOLATED
HIS REASONABLE EXPECTATION OF PRIVACY ON THE
PUBLIC THOROUGHFARES. NOW, I THINK THAT AT LEAST SOME
OF THOSE CONCURRING JUSTICES MIGHT HAVE ACCEPTED THIS
EVIDENCE HAD THE DURATION OF THE TRACKING BEEN VERY BRIEF. – AND WHEREAS THIS MIGHT
HAVE WORKED OUT JUST FINE FOR MR.JONES, THE HARD CASES ARE THE ONES
COMING DOWN THE PIKE THAT INVOLVE SURVEILLANCE THAT DOES
NOT INVOLVE A PHYSICAL BEEPER. WE KNOW THAT LAW ENFORCEMENT
ARE STOPPING AND NOT USING THOSE ANYMORE. SO WHAT ABOUT THE CASES THAT
USE, FOR EXAMPLE, CELL PHONE TECHNOLOGY WHERE WIRELESSLY,
THEY CAN LOCATE INDIVIDUALS? HOW WILL THOSE BE ANALYZED
UNDER THE FOURTH AMENDMENT? WE DON’T HAVE AN
ANSWER TO THAT YET. – WELL,
THERE WAS NOTHING REMOTE ABOUT THE SEARCHES IN FLORENCE
VERSUS BOARD OF FREEHOLDERS. ALBERT FLORENCE WAS IMPROPERLY
ARRESTED ON AN EXPIRED WARRANT AND SENT FIRST TO THE COUNTY
JAIL AND THEN TO A LARGER FACILITY, AND BOTH TIMES,
HE WAS SUBJECTED TO A VISUAL STRIP SEARCH, IN THE SECOND
CASE, A VISUAL FULL-BODY CAVITY SEARCH. WHEN THE MISTAKE WITH THE
WARRANT WAS DISCOVERED, HE WAS RELEASED, AND ALL THE
CHARGES WERE DROPPED. WELL, FLORENCE SUED UNDER
SECTION 1983 FOR A FOURTH AMENDMENT VIOLATION, ARGUING
THAT THE STRIP SEARCHES FOR MINOR OFFENSES WERE
UNCONSTITUTIONAL, AND WHAT DID THE COURT SAY, LAURIE? – THE COURT UPHELD THE
CONSTITUTIONALITY OF THE SEARCH, AND IT DID SO UNDER THE
SPECIAL NEEDS DOCTRINE. GIVING DEFERENCE TO THE JAIL AND
PRISON OFFICIALS, THEY BASICALLY SAID THAT THE CORRECTIONAL
INSTITUTION’S NEEDS FOR SECURITY OUTWEIGHED THE INTRUSION AND,
THEREFORE, NO REASONABLE SUSPICION WAS REQUIRED
FOR THE SEARCH. – THAT’S EXACTLY RIGHT. JUSTICE KENNEDY WROTE FOR THE
MAJORITY AND CITED TWO DECISIONS–
BELL VERSUS WOLFISH, TURNER VERSUS SAFLEY–FOR THE PROPOSITION THAT COURTS HAVE
TO DEFER TO THE JUDGMENT OF CORRECTIONAL OFFICIALS UNLESS
THERE IS SUBSTANTIAL EVIDENCE THAT THEIR POLICIES ARE
UNNECESSARY OR UNJUSTIFIED AS A RESPONSE TO PROBLEMS
OF JAIL SECURITY. THE COURT SAID THAT VISUAL
SEARCHES OF PRISONERS ARE NECESSARY TO IDENTIFY PRISONERS
WITH CONTAGIOUS DISEASES, GANG TATTOOS, WEAPONS, DRUGS,
MONEY, AND JUSTICE KENNEDY WROTE THAT THERE HAVE TO BE READILY
ADMINISTRABLE RULES PURSUANT TO WHICH CORRECTIONAL OFFICERS ARE
NOT GONNA GET SECOND-GUESSED BY COURTS, ALTHOUGH HE DID LEAVE
OPEN THE DOOR FOR RULES TO BE DIFFERENT IF THE PEOPLE ARE
ADMITTED NOT TO THE GENERAL POPULATION OF A
JAIL OR A PRISON. – RIGHT,
BUT I THINK THAT YOU HAD 4 DISSENTERS IN THIS 5-4 CASE,
AND THE DISSENTERS–JUSTICES BREYER, KAGAN, SOTOMAYOR,
AND GINSBURG–THOUGHT THAT THE MAJORITY WAS REALLY
UNDERESTIMATING THE INTRUSION THAT WENT ON WITH THESE SEARCHES
AND WOULD HOLD THAT THESE WERE UNREASONABLE SEARCHES,
ESPECIALLY WHEN YOU’RE DEALING WITH SUSPECTS CHARGED WITH MINOR
CRIMES THAT ARE ALMOST LIKE CIVIL MATTERS. – FINALLY, WE ARE GOING TO
LOOK AT THE COURT’S DECISION IN MESSERSCHMIDT
VERSUS MILLENDER. DETECTIVE CURT MESSERSCHMIDT
SEARCHED THE HOME OF AUGUSTA MILLENDER PURSUANT TO A WARRANT
ALLOWING THE DETECTIVE TO SEARCH FOR GUNS, AMMUNITION,
AND EVIDENCE OF STREET GANG MEMBERSHIP OR AFFILIATION. MESSERSCHMIDT WAS LOOKING FOR
MILLENDER’S FORMER FOSTER SON JERRY RAY BOWEN, WHO HAD FIRED
A SAWED-OFF SHOTGUN AT HIS GIRLFRIEND SHELLY KELLY WHEN SHE
MOVED OUT OF THEIR APARTMENT. KELLY HAD TOLD THE POLICE ABOUT
THE INCIDENT AND THAT BOWEN BELONGED TO A COUPLE
OF LOCAL GANGS. THE POLICE ALSO HAD AN
ARREST WARRANT FOR BOWEN. WELL, THE SEARCH TURNED UP A
SHOTGUN, A BOX OF AMMUNITION BELONGING TO MILLENDER, AS WELL
AS A LETTER TO BOWEN, BUT NOT BOWEN HIMSELF AND NO
FIREARMS THAT COULD HAVE BELONGED TO BOWEN. MILLENDER SUED MESSERSCHMIDT
UNDER 1983 FOR A VIOLATION OF HER FOURTH AMENDMENT RIGHTS,
CONTENDING THAT THE WARRANT WAS UNCONSTITUTIONALLY OVERBROAD. WHAT DID THE COURTS
BELOW DECIDE, EVAN? – THE DISTRICT COURT HELD
THAT NO REASONABLE OFFICER IN MESSERSCHMIDT’S POSITION
WOULD THINK THAT A WARRANT THAT BROAD WOULD BE JUSTIFIED BY THE
MERE EVIDENCE THAT BOWEN HAD USED A SINGLE WEAPON DURING THE
INCIDENT WITH HIS GIRLFRIEND, AND THE NINTH CIRCUIT
EN BANC AGREED. – WHAT DID THE
JUSTICES DECIDE, LAURIE? – WELL,
7 OF THE JUSTICES DECIDED THAT, INDEED, THE OFFICERS WERE
ENTITLED TO QUALIFIED IMMUNITY, THAT A REASONABLE POLICE OFFICER
COULD PRESUME THAT THIS WARRANT THAT HAD BEEN ISSUED BY A
MAGISTRATE WAS, IN FACT, VALID AND THAT EVEN THE REQUEST
FOR THE GANG EVIDENCE WAS OK BECAUSE IT’S POSSIBLE THAT THIS
ASSAULT WAS BASED UPON A NEED TO KEEP THE VICTIM QUIET ABOUT THE
DEFENDANT’S GANG ACTIVITIES. THE MAJORITY THOUGHT THAT THE
OFFICERS HAD SHOWN GOOD FAITH, THAT IT’S NOT DETERMINATIVE,
BUT BY THE OFFICERS GOING TO GET A WARRANT, THAT’S SOME TYPE
OF INDICATION OF THEIR GOOD-FAITH BEHAVIOR. – AND,
EVAN, WHAT DID THE OTHER TWO JUSTICES BELIEVE? – WELL,
JUSTICES GINSBURG AND SOTOMAYOR FELT THAT THERE WAS NO PROBABLE
CAUSE FOR SUCH A BROAD WARRANT, ALSO THAT THE OFFICERS HAD NOT
ACTED IN GOOD FAITH AND THAT THE MAJORITY WAS BASICALLY ALLOWING
FISHING EXPEDITIONS WHICH LEFT OFFICERS WITH INSUFFICIENT
REASON TO REFLECT BEFORE THEY REQUEST WARRANTS IN
THESE KINDS OF CASES. – THANKS, EVAN.
THANK YOU, LAURIE. I WILL BE BACK WITH LAURIE
AND ERWIN CHEMERINSKY TO LOOK AT SOME FIFTH
AMENDMENT DECISIONS. LAURIE LEVENSON IS BACK WITH ME. WE’VE BEEN JOINED BY ERWIN
CHEMERINSKY FOR A DISCUSSION OF FIFTH AMENDMENT DECISIONS
BY THE COURT THIS TERM. THESE DECISIONS COVERED A NUMBER
OF FIFTH AMENDMENT PROTECTIONS. WE’LL START WITH THE PRIVILEGE
AGAINST SELF-INCRIMINATION. THIS WAS HOWES VERSUS FIELDS. RANDALL FIELDS WAS SERVING TIME
IN A MICHIGAN STATE PRISON WHEN HE WAS TAKEN FROM HIS CELL TO
A PRIVATE ROOM, WHERE TWO SHERIFF’S DEPUTIES QUESTIONED
HIM ABOUT ALLEGATIONS THAT BEFORE COMING TO PRISON, HE
HAD ENGAGED IN SEX WITH A 12-YEAR-OLD BOY. FIELDS WAS QUESTIONED FOR 5 TO 7
HOURS BUT WAS TOLD SEVERAL TIMES THAT HE COULD LEAVE
WHENEVER HE WANTED. HE WAS NEVER GIVEN
HIS MIRANDA RIGHTS. HE TOLD THE DEPUTIES MORE THAN
ONCE THAT HE WANTED TO LEAVE AND GO BACK TO HIS CELL, BUT HE
FAILED TO DO SO UNTIL AFTER HE HAD MADE SOME
INCRIMINATING STATEMENTS. THE SIXTH CIRCUIT COURT OF
APPEALS GRANTED FIELDS HABEAS RELIEF ON THE GROUND THAT A
PRISONER IS PER-SE “IN CUSTODY” FOR THE PURPOSES OF MIRANDA IF
HE IS TAKEN ASIDE AND QUESTIONED ABOUT PRIOR EVENTS THAT
HAPPENED OUTSIDE THE PRISON. LAURIE, WHAT DID
THE MAJORITY HOLD? – JUSTICE ALITO, WRITING FOR THE
MAJORITY, SAID THAT FIELDS WAS NOT IN CUSTODY FOR MIRANDA
PURPOSES AND THAT THERE IS NO CATEGORICAL RULE THAT SAYS JUST
BECAUSE A PRISONER IS WITHIN AN INSTITUTION THAT IF THEY’RE
QUESTIONED, THEY’RE IN CUSTODY AND GET THEIR MIRANDA RIGHTS. IT’S NOT THE SAME COERCIVENESS
THAT THE COURT HAD BEEN LOOKING FOR IN MIRANDA CASES, AND IT’S
NOT LIKE FIELDS WAS DENIED HIS SUPPORT SYSTEM BY BEING ASKED
A QUESTION. – SO, ERWIN, HOW ARE LOWER
COURTS TO DETERMINE IF A PRISONER IS IN CUSTODY FOR
PURPOSES OF MIRANDA WHEN THEY’RE INTERROGATED IN PRISON? – THE SUPREME COURT SAID THAT A
PRISONER IS IN CUSTODY IF THE REASONABLE PERSON IN
THOSE CIRCUMSTANCES WOULD NOT FEEL FREE TO LEAVE AND IF THE
SITUATION IS AS COERCIVE AS QUESTIONING IN
A STATION HOUSE. HERE THE COURT LOOKED TO THE
CIRCUMSTANCES AND EMPHASIZED, AS LAURIE JUST POINTED OUT, THAT
HE WAS REPEATEDLY TOLD THAT HE COULD LEAVE IF HE WANTED TO,
AND THAT’S WHY THE COURT SAID IN THIS CIRCUMSTANCE, THE
INDIVIDUAL IS NOT IN CUSTODY. – THERE WAS A COMBINATION
CONCURRENCE AND DISSENT HERE BY THE REMAINING JUSTICES. SO WHAT DID THEY THINK
THE ISSUE WAS? – WELL, WHAT JUSTICE GINSBURG
WROTE FOR HERSELF AND JUSTICES BREYER AND
SOTOMAYOR IS THAT THEY AGREED THAT THE LAW WAS NOT AS CLEARLY
ESTABLISHED AS THE SIXTH CIRCUIT HAS SAID IT WAS,
BUT THEY DISAGREED WITH THE OTHERS THAT FIELDS
WAS NOT IN CUSTODY. IN FACT, THEY THOUGHT
HE WAS IN CUSTODY AND THAT HE WAS BEING HELD A BIT
IN INCOMMUNICADO FOR THIS QUESTIONING. – I THINK IT’S IMPORTANT TO NOTE
THAT THIS IS THE SECOND TIME IN THE LAST 3 YEARS
THE SUPREME COURT HAS CONSIDERED THE ISSUE–WHEN IS
A PRISONER WHO’S QUESTIONED WHILE IN CUSTODY IN CUSTODY
FOR PURPOSE OF MIRANDA? AND IN BOTH INSTANCES,
THE SUPREME COURT SAID THE PRISONER WAS NOT
IN CUSTODY FOR PURPOSES OF THE FIFTH AMENDMENT. AND AS LAURIE SAID EARLIER, THE COURT’S BEEN CLEAR,
THERE’S NO CATEGORICAL RULE THAT SAYS THAT EVERY TIME
A PRISONER IS QUESTIONED, MIRANDA WARNINGS HAVE
TO BE GIVEN. – IN OUR NEXT DECISION,
“BLUEFORD V. ARKANSAS,” THE APPELLANT, ALEX BLUEFORD, WAS CHARGED WITH
THE CAPITAL MURDER OF A 1-YEAR-OLD CHILD. HE WAS ALSO CHARGED WITH
THE LESSER OFFENSES OF FIRST-DEGREE MURDER,
MANSLAUGHTER, AND NEGLIGENT HOMICIDE. THE JURY WAS INSTRUCTED
THAT IF IT HAD REASONABLE DOUBT ABOUT BLUEFORD’S GUILT ON
THE CHARGE OF CAPITAL MURDER– IT WOULD CONSIDER THE CHARGE
OF MURDER IN THE FIRST DEGREE. IF IT HAD REASONABLE DOUBT OF
HIS GUILT ON THAT CHARGE, IT WOULD THEN CONSIDER
THE CHARGE OF MANSLAUGHTER. AND IF IT HAD REASONABLE DOUBT ON BLUEFORD’S GUILT
ON THAT CHARGE, IT WOULD THEN CONSIDER THE
CHARGE OF NEGLIGENT HOMICIDE. THE JURY WAS GIVEN VERDICT FORMS
THAT ALLOWED IT TO CONVICT BLUEFORD ON ONE OF THE CHARGES
OR TO ACQUIT HIM ON ALL OF THEM. ACQUITTING ON SOME BUT NOT
OTHERS WAS NOT AN OPTION. AFTER DELIBERATING
FOR SOME TIME, THE JURY FOREPERSON DECLARED
IN OPEN COURT THAT THE JURY WAS UNANIMOUS AGAINST THE GUILT ON CAPITAL
OR FIRST DEGREE MURDER BUT IT WAS DEADLOCKED
ON MANSLAUGHTER AND HAD NOT
VOTED ON NEGLIGENT HOMICIDE. SO THE JUDGE SENT THEM BACK
TO DELIBERATE SOME MORE BUT FINALLY DECLARED A MISTRIAL. BLUEFORD WAS RETRIED
BY THE STATE, WHICH CHARGED HIM AGAIN WITH
CAPITAL AND FIRST-DEGREE MURDER. BLUEFORD CLAIMED IT VIOLATED HIS
RIGHTS AGAINST DOUBLE JEOPARDY TO BE TRIED FOR CAPITAL
AND FIRST-DEGREE MURDER WHEN HIS FIRST JURY HAD VOTED HE
WAS NOT GUILTY OF THOSE CRIMES. SO HOW DID THE COURT
SEE IT, ERWIN? – THE SUPREME COURT HELD THAT IT
WAS NOT A VIOLATION OF DOUBLE JEOPARDY. THE SUPREME COURT SAID THAT
THE JURY HAD NEVER COME TO A VERDICT, EITHER ACQUITTAL
OR GUILTY. THEN WHEN THE FOREPERSON
DECLARED WHERE THE JURY WAS, THE JURY
HADN’T COMPLETED ITS DELIBERATIONS. THE JURY COULD CHANGE ITS MIND
AT ANY POINT. AND SINCE THERE HAD NOT BEEN
A VERDICT BY THE JURY, THERE WASN’T A VIOLATION
OF DOUBLE JEOPARDY IN HAVING THE RETRIAL. – BUT AS THE DISSENTERS
POINT OUT, THIS WAS AN ACQUITTAL FIRST JURISDICTION. AND THEREFORE, THE JURORS MUST
HAVE FOUND THAT THEY HAD ACQUITTED ON THE FIRST
TWO CHARGES IN ORDER TO GET TO THAT CHARGE. AND THE DISSENTERS ARGUED THAT
THAT JURY DECISION SHOULD HAVE BEEN GIVEN EFFECT. – I THINK THIS IS THE COURT
TAKING A MUCH MORE FORMALISTIC APPROACH DECIDING WHEN THERE’S
A VIOLATION TO THE RIGHT AGAINST
DOUBLE JEOPARDY. – TWO DECISIONS NOW DEALING
WITH DIFFERENT ASPECTS OF THE FIFTH AMENDMENT’S
GUARANTEE OF DUE PROCESS. THE FIRST, “SMITH V. CAIN,” INVOLVING THE REQUIREMENT THAT PROSECUTORS TURN OVER
POTENTIALLY EXCULPATORY EVIDENCE TO CRIMINAL DEFENDANTS. THAT HAS BEEN THE LAW FOR NEARLY
50 YEARS SINCE THE COURT’S RULING IN “BRADY V. MARYLAND.” WHAT WERE THE FACTS
THERE, ERWIN? – JUAN SMITH WAS CONVICTED
OF 5 MURDERS. THE EVIDENCE AGAINST HIM AT
TRIAL WAS SOLELY THE TESTIMONY OF ONE WITNESS, LARRY BOATNER. AFTER SMITH WAS CONVICTED
AND AFTER HIS CONVICTION WAS AFFIRMED AND APPEALED, A POST-CONVICTION PROCEEDING
WAS FILED. AT THIS TIME, THERE WAS THE
ABILITY OF THE DEFENSE LAWYERS TO OBTAIN THE DETECTIVE’S NOTES. TURNS OUT THAT THE DETECTIVE
THAT INTERVIEWED BOATNER THE NIGHT OF THE MURDER,
IS THAT HE COULDN’T IDENTIFY WHO THE ASSAILANT WAS. FIVE DAYS LATER, THE SAME
DETECTIVE INTERVIEWED BOATNER. AND BOATNER SAID HE DIDN’T GET
A CLEAR ENOUGH VIEW TO BE ABLE TO DO
AN IDENTIFICATION OF THE PERSON WHO WAS
THE ASSAILANT. AND THEN, OF COURSE,
THE ARGUMENT WAS THAT THIS WAS EVIDENCE THAT
SHOULD HAVE BEEN TURNED OVER AND THE FAILURE TO DO
SO VIOLATED “BRADY V. MARYLAND.” – THAT SEEMS PRETTY
STRAIGHTFORWARD, LAURIE. DID THE COURT THINK SO? – WELL, THE MAJORITY DID.
AND IT WAS AN 8-1 DECISION WITH JUST JUSTICE THOMAS
DISSENTING. BUT THE MAJORITY SAID
THAT THIS WAS A CLEAR VIOLATION OF “BRADY.” AND THE KEY ISSUE IS WHETHER
THIS WITNESS STATEMENT WOULD HAVE BEEN MATERIAL. WHEN THIS IS THE KEY EYEWITNESS
IN THE CASE, THE COURT FOUND NO PROBLEM IN SAYING
THIS WOULD HAVE HELPED WITH IMPEACHMENT. AND, MOREOVER, I ACTUALLY THINK
THAT THIS MAY BE A SIGN THAT THE COURT IS BEGINNING
TO CRACK DOWN ON SOME OF THESE “BRADY” CASES. – OUR SECOND DUE PROCESS
DECISION INVOLVES EYEWITNESS IDENTIFICATION. THIS IS “PERRY
V. NEW HAMPSHIRE.” ON AUGUST 15, 2008, A MAN
IN NASHUA, NEW HAMPSHIRE, CALLED THE POLICE TO REPORT
THAT HE HAD SEEN SOMEONE BREAKING INTO CARS
IN THE PARKING LOT OF HIS APARTMENT HOUSE. AN OFFICER RESPONDED AND FOUND
BARION PERRY STANDING IN A PARKING LOT HOLDING
TWO CAR STEREO SPEAKERS NEAR THE CAR WITH
A SMASHED WINDOW AND A BASEBALL BAT AT HIS FEET. MEANWHILE, ANOTHER OFFICER WENT
TO THE APARTMENT OF THE PERSON WHO CALLED
IN THE ORIGINAL REPORT AND ASKED THAT WOMAN WHO LIVED
THERE IF SHE COULD IDENTIFY THE MAN WHO BROKE INTO THE CAR
IN THE PARKING LOT. SHE WALKED OVER TO THE WINDOW
AND SAID THE MAN SHE SAW STANDING NEXT TO
THE POLICE OFFICER IN THE LOT, AND POINTED AT PERRY. ABOUT A MONTH LATER, POLICE
SHOWED THE WOMAN A PHOTO ARRAY THAT INCLUDED A PICTURE OF PERRY
AND ASKED IF SHE COULD IDENTIFY THE MAN WHO HAD BROKEN INTO
THE CAR THAT FIRST NIGHT. SHE COULD NOT. PERRY MOVED TO SUPPRESS
THE IDENTIFICATION FROM THE NIGHT OF THE CRIME,
ARGUING THAT IT AMOUNTED TO A ONE-PERSON SHOW-UP
IN THE PARKING LOT BY POLICE AND THAT THAT SHOW-UP HAD ALL
BUT GUARANTEED THAT SHE WOULD I.D. HIM
AS THE CULPRIT. SO DID THE COURT SIDE
WITH MR. PERRY, ERWIN? – NO. IN AN 8-1 DECISION,
THE SUPREME COURT HELD THAT THERE WAS NOT
A CONSTITUTIONAL VIOLATION. JUSTICE GINSBURG WROTE
FOR THE COURT, AND SHE EXPLAINED THAT THE
POLICE HAD NOT IN ANY WAY BEEN INVOLVED IN CREATING
A SUGGESTIVE SITUATION FOR THE EYEWITNESS. THE COURT SAID THAT THERE
HAS TO BE A JUDICIAL INQUIRY WITH REGARD TO THE RELIABILITY
OF EYEWITNESS TESTIMONY IF THE POLICE ARE INVOLVED IN
CREATING A SUGGESTIVE SITUATION. THAT WASN’T PRESENT HERE. THE SUPREME COURT SAID THAT
THERE ARE OTHER WAYS OF ENSURING THE RELIABILITY OF
THE EYEWITNESS TESTIMONY. THERE CAN BE CROSS-EXAMINATION;
THERE CAN BE IMPEACHMENT; THERE CAN BE INVOCATION OF
THE RIGHT TO HAVE NO CONVICTION WITHOUT PROOF BEYOND
A REASONABLE DOUBT. – AND IN THIS CASE, YOU DID HAVE
A SOLE DISSENT BY JUSTICE SOTOMAYOR, WHO REALLY EMPHASIZED
THE TREMENDOUS PROBLEMS THERE ARE WITH EYEWITNESS
IDENTIFICATION THAT WE KNOW FROM
THE EXONERATION CASES THAT ABOUT 75%
OF THE 250 EXONERATION CASES HAVE BEEN BASED
UPON EYEWITNESS I.D. AND SO SHE EMPHASIZED
IN HER DISSENT THAT THERE SHOULD BE DUE PROCESS
PROTECTION AGAINST UNRELIABLE
IDENTIFICATIONS, EVEN IF THE POLICE DID NOT
MAKE THE IDENTIFICATION HAPPEN. – THANK YOU, LAURIE.
THANK YOU, ERWIN. BETH WIGGINS WILL BE TAKING
A LOOK AT THE COURT’S SIXTH AMENDMENT DECISIONS WITH
OUR NEXT PANEL. – THE SUPREME COURT DEALT WITH
3 SETS OF ISSUES CONCERNING THE SIXTH AMENDMENT
THIS TERM. THE COURT RETURNED TO
THE CONFRONTATION CLAUSE AND THE QUESTION OF HOW
LABORATORY REPORTS MIGHT BE INTRODUCED INTO
EVIDENCE. IT ALSO EXPANDED THE SCOPE OF
ITS RULING IN “APPRENDI V. NEW JERSEY”
REGARDING TRIAL BY JURY AND PROOF BEYOND
A REASONABLE DOUBT. AND IT DECIDED 4 CASES INVOLVING INEFFECTIVE ASSISTANCE OF
COUNSEL UNDER THE SIXTH AMENDMENT. WE’RE GOING TO START WITH THE CONFRONTATION CLAUSE
DECISION. BUT FIRST LET’S REVIEW
A LITTLE BACKGROUND. IN “CRAWFORD V. WASHINGTON,” THE COURT INTERPRETED THE CONFRONTATION CLAUSE OF
THE SIXTH AMENDMENT TO HOLD THAT PROSECUTORS MAY NOT USE
TESTIMONIAL STATEMENTS FROM UNAVAILABLE WITNESSES,
EVEN IF THOSE STATEMENTS ARE RELIABLE. FIVE YEARS LATER, IN “MELENDEZ-DIAZ
V. MASSACHUSETTS,” THE COURT RULED THAT THIS
APPLIES TO LABORATORY REPORTS AND THAT THE LABORATORY ANALYSTS WHO PREPARED THE LABORATORY
CERTIFICATE MUST TESTIFY. FINALLY, LAST TERM, THE COURT
REAFFIRMED THIS RULING IN “BULLCOMING V. NEW MEXICO,” WHERE IT HELD THAT
THE CONFRONTATION CLAUSE WAS VIOLATED WHEN ANOTHER
ANALYST FROM THE LAB TESTIFIED RATHER THAN THE ANALYSTS
WHO ACTUALLY PREPARED THE REPORT. ALL THAT LEADS US TO THIS TERM’S
DECISION ON THE CONFRONTATION CLAUSE, “WILLIAMS V. ILLINOIS.” AMONG OTHER THINGS, THIS MAY
BE THE MOST FRACTURED OPINION OF THE TERM. ERWIN, CAN YOU GIVE US
THE CENTRAL FACTS OF THIS CASE? – A RAPE OCCURRED IN ILLINOIS. BIOLOGICAL EVIDENCE WAS SENT TO
A LAB IN MARYLAND. IT DID A DNA PROFILE OF
THE RAPIST AND SENT IT BACK TO ILLINOIS. SANDY WILLIAMS WAS ARRESTED
ON ANOTHER CHARGE. BLOOD WAS TAKEN FROM HIM, AND A DNA PROFILE WAS
DONE OF HIM. THE ILLINOIS CRIME LAB DID
A MATCH BETWEEN SANDY WILLIAMS’ DNA
AND THE DNA THAT HAD COME BACK ON THE PROFILE
FROM THE MARYLAND LAB. AT WILLIAMS’ TRIAL, THE MARYLAND
LAB REPORT WAS NOT INTRODUCED AS EVIDENCE. INSTEAD, SOMEONE FROM
THE ILLINOIS CRIME LAB TESTIFIED AS AN EXPERT WITNESS
THAT THERE WAS A ONE IN QUADRILLION CHANCE THAT
IT WAS ANYBODY OTHER THAN SANDY WILLIAMS WHO COMMITTED
THE RAPE. WILLIAMS WAS CONVICTED. ON APPEAL, HE ARGUED THAT
IT VIOLATED THE CONFRONTATION CLAUSE
TO NOT HAVE AN ANALYST FROM THE MARYLAND LAB TESTIFY
AGAINST HIM. THE ILLINOIS SUPREME COURT
AFFIRMED THE CONVICTION. THEY SAID IT’S PERMISSIBLE
TO HAVE AN EXPERT TESTIFY WITHOUT THE LAB REPORT BEING
INTRODUCED. THE ILLINOIS SUPREME COURT SAID
THE DEFENSE LAWYER HAD AMPLE OPPORTUNITY
TO CROSS-EXAMINE THE ANALYST FROM THE ILLINOIS LAB, AND THAT WAS SUFFICIENT TO MEET
THE CONFRONTATION CLAUSE. – SO WHAT DID THE SUPREME COURT
DECIDE, AND WHAT WAS ITS REASONING? – WELL, THAT’S KIND OF
A COMPOUND, COMPLEX QUESTION. AND IT’S EASIER TO SAY WHAT THE
NARROW HOLDING OF THE CASE WAS THAN WHAT THE COURT’S
REASONING WAS. YOU HAD A 4-JUSTICE PLURALITY
THAT FOUND THAT THERE HAD BEEN NO VIOLATION
OF THE CONFRONTATION CLAUSE FOR TWO DIFFERENT REASONS. FIRST OF ALL, THE FINDINGS OF
THE MARYLAND LAB WERE NOT OFFERED FOR THE TRUTH
OF THE MATTER ASSERTED. THAT IS TO SAY, THE MARYLAND LAB
PROFILE WAS NOT OFFERED INTO EVIDENCE ITSELF. IT WAS SIMPLY USED AS THE BASIS
FOR THE ILLINOIS LAB’S EXPERT’S OPINION. SECOND, THE MARYLAND LAB REPORT
CITED BY THE EXPERT WITNESS WAS NOT CREATED
FOR AN ACCUSATORIAL PURPOSE BECAUSE THE POLICE
HADN’T YET ARRESTED WILLIAMS. AND SO HE WAS STILL AT-LARGE, AND THE REPORT WAS MADE
PRIMARILY TO CATCH AN UNKNOWN RAPIST WHO
WAS STILL A FUGITIVE. – SO HOW DID THIS PLURALITY
OF OPINION BECOME A MAJORITY? – JUSTICE THOMAS WAS THE FIFTH
VOTE TO AFFIRM THE ILLINOIS SUPREME COURT, THOUGH HE DISAGREED WITH
THE REASONING OF THE PLURALITY. FOR JUSTICE THOMAS, WHAT WAS KEY
WAS THAT THE MARYLAND DNA REPORT WAS NOT IN HIS VIEW TESTIMONIAL. THEREFORE, THE CONFRONTATION
CLAUSE WOULDN’T APPLY. HE SAID IN ORDER FOR
SOMETHING TO BE TESTIMONIAL, IT MUST BE “SOLEMN AND FORMAL.” HE SAID, HERE IT WASN’T SIGNED
OR ATTESTED TO UNDER OATH. IT WASN’T NOTARIZED. THAT MEANT
IT WASN’T TESTIMONIAL. – SO WHAT ARE THE IMPLICATIONS? – I THINK THE IMPLICATIONS ARE
BROAD. AT THE VERY LEAST, I THINK THIS
MEANS THAT A LAB ANALYST CAN TESTIFY AS AN EXPERT WITHOUT
THE REPORT COMING IN WHERE THE REPORT IS NOT
DEEMED TESTIMONIAL. I THINK THAT JUSTICE THOMAS’
OPINION, THEN, REALLY OPENS THE DOOR TO PROSECUTORS BEING
ABLE TO CIRCUMVENT “MELENDEZ-DIAZ”
AND “BULLCOMING.” THEY CAN HAVE AN ANALYST TESTIFY
AS AN EXPERT WITNESS WITHOUT THE LAB REPORT COMING IN
SO LONG AS THE LAB REPORT WAS NEVER SIGNED, ATTESTED
TO UNDER OATH, OR NOTARIZED. – YEAH. JUSTICE ALITO WAS NOT
DISMISSIVE OF THOSE KINDS OF CONCERNS, BUT HE SAID THAT THERE
WERE A NUMBER OF WAYS THAT TRIAL COURTS COULD PREVENT
ABUSES LIKE THE ONES THAT YOU’RE TALKING ABOUT. FIRST OF ALL, HE SAID THEY CAN
SCREEN OUT EXPERTS WHO WOULD ACT AS MERE CONDUITS
FOR HEARSAY BY STRICTLY ENFORCING
THE REQUIREMENT THAT EXPERTS HAVE TO DISPLAY
SOME KIND OF GENUINE SCIENTIFIC, TECHNICAL, OR OTHER SPECIALIZED
KNOWLEDGE THAT WILL HELP THE TRIER OF FACT
TO UNDERSTAND THE EVIDENCE OR TO DETERMINE A FACT THAT’S
AN ISSUE. SECONDLY, HE SAID EXPERTS
ARE GENERALLY PRECLUDED FROM EXPOSING INADMISSIBLE
EVIDENCE TO A JURY. THIRD, JUSTICE ALITO STRESSED
THAT IF SUCH EVIDENCE IS DISCLOSED, THEN TRIAL JUDGES
MAY–AND IN MOST CASES, ARE– REQUIRED TO ACTUALLY INSTRUCT
THE JURY THAT OUT-OF-COURT STATEMENTS CAN’T BE ACCEPTED FOR THEIR
TRUTH AND THAT AN EXPERT’S OPINION IS
REALLY ONLY AS GOOD AS THE INDEPENDENT EVIDENCE
THAT ESTABLISHES ITS UNDERLYING PREMISES. AND FINALLY, JUSTICE ALITO SAID,
IF THE PROSECUTION CANNOT PROVE, CANNOT MUSTER ANY INDEPENDENT
ADMISSIBLE EVIDENCE TO PROVE THE FOUNDATIONAL FACTS THAT
ARE ESSENTIAL TO THE RELEVANCE OF THE EXPERT’S TESTIMONY,
THEN THE EXPERT’S TESTIMONY CANNOT BE GIVEN ANY WEIGHT
BY THE TRIER OF FACT. – WHAT WERE THE OTHER OPINIONS
IN THIS CASE? – JUSTICE BREYER WROTE
A FASCINATING– I THINK POTENTIALLY VERY
IMPORTANT CONCURRING OPINION. HE SAID THERE WERE SO MANY
ANALYSTS INVOLVED WITH REGARD TO A DNA REPORT, THE QUESTION
HAS TO BE FACED, HOW MANY OF THEM WILL NEED TO
COME AND TESTIFY? HE HAD A CHART WHERE HE SHOWED
9 DIFFERENT ANALYSTS THAT WERE INVOLVED. AND WHERE ARE WE GOING TO DRAW
THAT LINE? HE SAID THE COURT DIDN’T
ADDRESS THAT. AND HE FELT THAT THE PLURALITY
OF OPINION WAS CLOSEST TO THE PRIOR DECISIONS AND HIS
POSITION ON THE PRIOR DECISIONS, AND THAT THEREFORE HE WAS GOING
TO ADHERE TO THAT. JUSTICE KAGAN WROTE A VERY
SHARP DISSENT. NOW, IT’S GOT TO BE REMEMBERED
THAT SHE WAS JOINED IN THAT BY 3 OTHER JUSTICES WHO WERE
IN THE MAJORITY IN “BULLCOMING” AND ALSO WERE IN THE MAJORITY
EARLIER IN “MELENDEZ-DIAZ.” AND SHE SAID THAT IT MAKES
NO SENSE TO SAY THAT AN EXPERT CAN TESTIFY WITHOUT
THE LAB REPORT BEING INTRODUCED AND THAT IT DOESN’T VIOLATE
THE CONFRONTATION CLAUSE. SHE ALSO DISAGREED WITH
JUSTICE THOMAS THAT SOMETHING BECOMES
NON-TESTIMONIAL JUST BECAUSE IT’S NOT NOTARIZED
OR JUST BECAUSE IT’S NOT ATTESTED TO UNDER OATH. – YEAH, IF I COULD JUST ADD,
I THINK THIS MOTLEY COLLECTION OF OPINIONS PUTS
ON PUBLIC DISPLAY AN INTERNAL STRUGGLE WITHIN
THE COURT WITH RESPECT TO WHAT TO DO WITH “CRAWFORD”
AND ITS PROGENY, THE PRACTICAL RAMIFICATIONS OF
THOSE DECISIONS IN THE FORENSIC EVIDENCE
CONTEXT. – IT SURE DOES. 12 YEARS AGO IN
“APPRENDI V. NEW JERSEY,” THE COURT HELD THAT THE SIXTH
AMENDMENT RIGHT TO TRIAL BY JURY AND PROOF BEYOND
A REASONABLE DOUBT REQUIRES THAT ANY FACTOR
OTHER THAN A PRIOR CONVICTION THAT LEADS TO A SENTENCE GREATER
THAN THE STATUTORY MAXIMUM MUST BE PROVEN TO THE JURY
BEYOND A REASONABLE DOUBT. THE COURT HAS REAFFIRMED
AND APPLIED “APPRENDI” IN A SERIES OF DECISIONS, ALL OF THEM INVOLVING A PRISON
SENTENCE. THE ISSUE THIS TERM IN “SOUTHERN
UNION COMPANY V. UNITED STATES” IS WHETHER “APPRENDI” APPLIES
TO A CRIMINAL FINE. DOES IT, EVAN? – IT DOES FOR A COUPLE OF
REASONS. FIRST OF ALL, AT LEAST
FOR “APPRENDI” PURPOSES, THE COURT SAID, THERE’S NO BASIS
FOR TREATING A CRIMINAL FINE ANY DIFFERENTLY THAN TREATING
IMPRISONMENT OR EVEN DEATH. SECOND, IF THE FINE IS REALLY
THAT INSUBSTANTIAL, THEN THE CRIME IS CONSIDERED
A PETTY ONE. AND THE SIXTH AMENDMENT–
RIGHT TO A JURY TRIAL– DOESN’T APPLY. BUT WHERE THE SIXTH AMENDMENT
DOES APPLY, THEN “APPRENDI” APPLIES AS WELL. – SO WAS THIS A SURPRISE
DECISION? – I DON’T THINK IT WAS
A SURPRISE FOR JUST THE REASONS THAT
EVAN SAID. WHAT THE SUPREME COURT SAID
IS WHERE THE SIXTH AMENDMENT APPLIES, THEN THE JURY HAS TO
FIND ANY FACTS OTHER THAN A PRIOR CONVICTION
TO LOOK AT A SENTENCE GREATER THAN THE STATUTORY
MAXIMUM. I THINK, THOUGH, IT’S WORTH
NOTING THAT IN BOTH “APPRENDI”
AND IN “BOOKER,” JUSTICES STEVENS AND SOUTER
WERE IN THE MAJORITY. IF EITHER OF THEIR
REPLACEMENTS– JUSTICES KAGAN OR SOTOMAYOR– HAD COME OUT DIFFERENTLY, THEN
THERE COULD HAVE BEEN A MAJOR RECONSIDERATION OF
“APPRENDI” AND OF “BOOKER.” BUT THE FACT THAT THEY’RE TAKING
THE SAME POSITION AS THE JUSTICES REPLACED MEANS
THAT “APPRENDI” AND “BOOKER” AND THE WHOLE PROGENY OF THOSE
CASES IS STILL INTACT. – NOW LET’S MOVE ON TO OUR
4 “INEFFECTIVE ASSISTANCE OF COUNSEL” DECISIONS. IN TWO OF THESE DECISIONS–
“LAFLER V. COOPER” AND “MISSOURI V. FRYE”– THE COURT HELD THAT THE RIGHT OF
EFFECTIVE ASSISTANCE OF COUNSEL APPLIES AT THE PLEA BARGAINING
STAGE. THE FACTS IN THESE TWO CASES
WERE VERY DIFFERENT, BUT THE COURT’S REASONING
WAS THE SAME IN BOTH. FRYE WAS CHARGED
WITH A MISDEMEANOR– DRIVING WITH A REVOKED LICENSE– AND WAS OFFERED A PLEA BARGAIN
THAT HIS DEFENSE ATTORNEY FAILED TO TELL HIM ABOUT. INSTEAD OF THE 90 DAYS
THE PROSECUTOR OFFERED, FRYE WAS CONVICTED OF A FELONY
AT TRIAL AND SENTENCED TO 3 YEARS. COOPER WAS CHARGED WITH ASSAULT
WITH INTENT TO KILL FOR SHOOTING A WOMAN 3 TIMES
WHILE SHE WAS FLEEING. HE INITIALLY ACCEPTED
A PLEA BARGAIN BUT LATER REJECTED IT WHEN HIS
LAWYER CONVINCED HIM THAT THE STATE COULD NOT PROVE
ASSAULT WITH INTENT TO KILL BECAUSE HE ONLY SHOT THE VICTIM
BELOW THE WAIST, WHICH WAS SERIOUSLY ERRONEOUS
ADVICE. EVAN, WHAT WAS THE COURT’S
REASONING IN THESE TWO CASES? – WELL, IN ESSENCE, THE COURT
APPLIED THE TWO-STEP APPROACH OF “STRICKLAND V. WASHINGTON” REGARDING INEFFECTIVE ASSISTANCE
OF COUNSEL. AND THAT’S FAMILIAR TO US NOW, BUT JUST TO REVIEW VERY,
VERY BRIEFLY, YOUR FIRST PRONG IS THAT
THE PERFORMANCE OF DEFENSE COUNSEL HAS TO BE
SO DEFICIENT AS TO NEGATE THE SIXTH AMENDMENT
RIGHT TO COUNSEL. AND, SECOND OF ALL,
THE DEFENDANT HAS TO HAVE BEEN PREJUDICED OR HAS TO SHOW THAT
HE’S BEEN PREJUDICED BY THE INADEQUATE
REPRESENTATION. SO AS IT APPLIES TO THE LAW OF
PLEA BARGAINING, THE SECOND PART OF THE TEST
REQUIRES THAT THE DEFENDANT SHOW A REASONABLE PROBABILITY
THAT HE WOULD HAVE ACCEPTED THE PLEA OFFER; THAT THE PROSECUTOR WOULDN’T
HAVE WITHDRAWN THAT OFFER; AND THAT THE COURT WOULD HAVE
ACCEPTED IT. – WHAT ABOUT THE DISSENTS? – THE MAJORITY REJECTED
JUSTICE SCALIA’S ARGUMENT THAT THE SIXTH AMENDMENT
IS CONCERNED SOLELY WITH THE RIGHT TO A FAIR TRIAL AND HIS OTHER CORRELATIVE
ARGUMENT THAT INEFFECTIVE ASSISTANCE
IS WHOLLY DERIVATIVE OF THE TRIAL RIGHT. JUSTICE SCALIA ALSO SAID
THAT THE MAJORITY WAS OPENING A WHOLE NEW FIELD OF CONSTITUTIONALIZED CRIMINAL
PROCEDURE AND THAT BEING
PLEA BARGAINING LAW. – MM-HMM. SO, ERWIN, HOW
IMPORTANT WERE THESE TWO CASES? – I THINK THESE CASES ARE
TREMENDOUSLY IMPORTANT. I THINK FROM THE PERSPECTIVE OF
FEDERAL DISTRICT COURT JUDGES, THESE ARE PROBABLY THE MOST
IMPORTANT DECISIONS OF THE TERM. 97% OF ALL THE CONVICTIONS
IN FEDERAL COURT AND 94% OF ALL THE CONVICTIONS
IN STATE COURT ARE GAINED VIA GUILTY PLEAS. AS EVAN POINTED OUT,
THE SUPREME COURT REJECTED JUSTICE SCALIA’S VIEW THAT
A FAIR TRIAL IS ALL THAT THE SIXTH AMENDMENT
REQUIRES. I THINK THAT THESE DECISIONS
FOLLOW FROM THE SUPREME COURT’S RULING A COUPLE YEARS AGO
IN “PADILLA V. KENTUCKY” WHERE THE SUPREME COURT SAID
THAT INACCURATE ADVICE WITH REGARD TO IMMIGRATION–
CONSEQUENCES OF A GUILTY PLEA– IS INEFFECTIVE ASSISTANCE OF
COUNSEL. BY THE WAY, IT’S WORTH NOTING
THAT THE SUPREME COURT HAS GRANTED REVIEW FOR NEXT TERM
IN “CHAIDEZ V. UNITED STATES” ON THE QUESTION OF WHETHER OR
NOT “PADILLA” APPLIES RETROACTIVELY. BUT I THINK THIS WILL ALSO
APPLY AND CHANGE THE PRACTICE OF LAW. I THINK YOU’LL SEE THAT PLEA
BARGAINING IN MANY JURISDICTIONS WILL BECOME MUCH MORE FORMAL
THAN IT’S TRADITIONALLY BEEN. – YEAH. AND I JUST WANT TO SAY
A WORD ABOUT PREJUDICE HERE. IT’S A COMPLICATED QUESTION. IN DEALING WITH PREJUDICE,
THE MAJORITY SUGGESTED THAT THE COURTS MIGHT HOLD
HEARINGS IN WHICH IT CAN
RESENTENCE PETITIONERS TO SOMETHING BETWEEN
THE PLEA BARGAIN ON THE ONE HAND AND THE TRIAL SENTENCE ON
THE OTHER HAND, OR WHERE THE DEFENDANT’S
CONVICTED OF A MORE SERIOUS CHARGE THAN THOSE TO WHICH HE WOULD
HAVE PLED, THE COURT MIGHT ORDER THE PROSECUTION TO REOFFER
A PLEA. AND THEN THE COURT COULD USE
ITS DISCRETION WHETHER TO VACATE THE CONVICTION
AND ACCEPT THE PLEA BARGAIN. – ONE OF THE MOST IMPORTANT
QUESTIONS THAT DISTRICT COURT JUDGES ARE
GOING TO FACE IS WHETHER THIS APPLIES RETROACTIVELY. I THINK IT’S IMPORTANT TO NOTE
THAT “LAFLER” CAME UP VIA HABEAS AND THE STANDARD UNDER 2254(d)
IS WHERE THE STATE COURT DECISION IS
CONTRARY TO AN UNREASONABLE APPLICATION OF
CLEARLY ESTABLISHED LAW AS ALREADY ARTICULATED
BY THE SUPREME COURT. AND JUSTICE KENNEDY FOUND
THAT THAT STANDARD WAS MET HERE. IN OTHER WORDS, THE COURT WAS
SAYING, IT’S NOT CREATING A NEW RULE. – THAT’S RIGHT. AND THAT’S
A REALLY IMPORTANT POINT, IS THAT WE SHOULDN’T BE WAITING
FOR A FOLLOW-ON DECISION TO SAY, “AND THIS IS RETROACTIVE.” IT WAS ON HABEAS CORPUS. – OUR FINAL TWO CASES DEALING
WITH INEFFECTIVE ASSISTANCE OF COUNSEL ASK WHEN SUCH CLAIMS
CAN EXCUSE A PROCEDURAL DEFAULT ON HABEAS CORPUS. IN MARTINEZ V. RYAN, THE SPECIFIC QUESTION WAS
WHETHER A PRISONER HAS A RIGHT TO EFFECTIVE COUNSEL IN
COLLATERAL PROCEEDINGS WHICH FIRST PROVIDE THE OCCASION TO
RAISE A CLAIM OF INEFFECTIVE ASSISTANCE AT TRIAL. ERWIN, HOW DID THIS PLAY OUT? – IT’S IMPORTANT TO NOTE
THAT IN ARIZONA, CLAIMS OF INEFFECTIVE
ASSISTANCE OF COUNSEL CANNOT BE RAISED
ON DIRECT APPEAL. IN THIS INSTANCE, A PERSON, AFTER BEING CONVICTED AND HAVING
THE CONVICTION AFFIRMED, FILED A PROCEEDING FOR
POST-CONVICTION RELIEF IN THE ARIZONA COURT. HE DIDN’T RAISE INEFFECTIVE
ASSISTANCE OF COUNSEL AT THAT TIME. HE THEN FILED A SUBSEQUENT
PETITION FOR POST-CONVICTION RELIEF IN THE ARIZONA COURTS, AND THIS TIME HE DID RAISE
INEFFECTIVE ASSISTANCE
OF COUNSEL, CLAIMING THAT IN HIS FIRST
PETITION FOR
POST-CONVICTION RELIEF, THERE WAS INEFFECTIVENESS
OF COUNSEL IN NOT CHALLENGING REPRESENTATION
AT TRIAL. THE ARIZONA COURT SAID
PROCEDURAL DEFAULT, THAT HE DIDN’T RAISE
INEFFECTIVENESS OF COUNSEL IN HIS FIRST PETITION, AND THEREFORE HE COULDN’T
RAISE IT IN THE SECOND. AND GENERALLY THERE IS NO RIGHT
TO COUNSEL IN POST-CONVICTION PROCEEDINGS. HOWEVER, THE SUPREME COURT,
IN A 7 TO 2 DECISION, WITH JUSTICE KENNEDY WRITING THE
OPINION FOR THE MAJORITY, SAID THAT THERE WAS
JUSTIFICATION FOR FINDING CAUSE TO EXCUSE THE PROCEDURAL
DEFAULT. JUSTICE KENNEDY SAID HERE THERE
WASN’T THE OPPORTUNITY TO RAISE INEFFECTIVE ASSISTANCE
OF COUNSEL ON DIRECT APPEAL. SO IN ESSENCE, THE PETITION FOR
POST-CONVICTION RELIEF TOOK THE FORM OF A DIRECT
APPEAL. AND IN THESE
CIRCUMSTANCES, THEN, THERE CAN BE A CLAIM
OF INEFFECTIVENESS OF COUNSEL WITH REGARD TO
POST-CONVICTION RELIEF. BUT I WANT TO EMPHASIZE I THINK
THE COURT’S HOLDING IS NARROW. I THINK IT APPLIES
ONLY IN STATES WHERE INEFFECTIVE ASSISTANCE OF
COUNSEL CANNOT BE RAISED ON DIRECT APPEAL. THEN, IT SEEMS, THERE’S A RIGHT TO EFFECTIVENESS OF COUNSEL IN
THE FIRST PETITION FOR POST-CONVICTION RELIEF TO BE ABLE TO RAISE INEFFECTIVE
ASSISTANCE COUNSEL CLAIMS. – THANKS, ERWIN. EVAN, COULD YOU TELL US ABOUT
OUR LAST CASE, MAPLES V. THOMAS? – YEAH. COREY MAPLES WAS SENTENCED
TO DEATH IN ALABAMA IN 1997. TWO YOUNG LAWYERS AT SULLIVAN
AND CROMWELL IN NEW YORK VOLUNTEERED TO
REPRESENT HIM PRO SE. THEY FOUND LOCAL COUNSEL, THEY
PETITIONED TO BE ALLOWED TO PRACTICE IN ALABAMA FOR THE
LIMITED PURPOSES OF THAT CASE, AND THEY FILED A PETITION FOR
POST-CONVICTION RELIEF ON MAPLES’ BEHALF, ALLEGING INEFFECTIVE ASSISTANCE
OF HIS COUNSEL AT TRIAL. LOCAL COUNSEL MADE IT CLEAR THAT
HE WAS ONLY INVOLVED IN THE CASE FOR THE LIMITED PURPOSE OF
GETTING THEM ADMITTED
PRO HAC VICE AND THAT HE DID NOT KNOW
ANYTHING ABOUT CRIMINAL LAW AND THAT HE WASN’T TAKING ANY
SUBSTANTIVE RESPONSIBILITY FOR THE CASE. NOW, WHILE THE PETITION FOR
POST-CONVICTION RELIEF
WAS PENDING, THOSE TWO ASSOCIATES LEFT THE
EMPLOY OF SULLIVAN AND CROMWELL FOR POSITIONS THAT, LET’S JUST
SAY, PRECLUDED THEM FROM ANY FURTHER REPRESENTATION
OF MR. MAPLES. THE PROBLEM WAS THEY FAILED TO
INFORM THE ALABAMA COURT, LOCAL COUNSEL, OR THEIR CLIENT
THAT THEY COULD NO LONGER
REPRESENT HIM. WHEN THE TRIAL COURT DENIED THE
PETITION FOR POST-CONVICTION RELIEF, IT SENT THE NOTICE TO
THE FIRM, WHERE THE MAILROOM RETURNED THAT NOTICE STAMPED,
QUOTE, UNQUOTE, “RECIPIENT UNKNOWN.” LOCAL COUNSEL FIGURED THAT
THE NEW YORK FIRM WAS HANDLING THE MATTER, AND SO HE DIDN’T PAY
ANY ATTENTION TO IT. BY THE TIME MAPLES LEARNED WHAT
HAD HAPPENED, HIS TIME FOR APPEAL HAD LAPSED, AND THE ALABAMA
COURTS DENIED HIM RELIEF ON THE GROUNDS THAT HIS
SUBSEQUENT APPEAL WAS UNTIMELY. A MAJORITY OF THE UNITED STATES
SUPREME COURT HELD THAT ALTHOUGH IT WAS TRUE THAT
NEGLIGENCE ON THE PART OF A LAWYER WOULD NOT COUNT AS
CAUSE TO EXCUSE A PROCEDURAL DEFAULT, THIS WAS MORE
THAN NEGLIGENCE. IT WAS A COMPLETE ABANDONMENT
BY HIS COUNSEL, AND THEREFORE, THAT WAS SUFFICIENT
TO CONSTITUTE CAUSE FOR PURPOSES OF
PROCEDURAL DEFAULT. – THANKS, EVAN.
THANKS AGAIN, ERWIN. – 4 DECISIONS NOW ON SENTENCING, WITH THE COURT ADDRESSING
IMPORTANT QUESTIONS ABOUT JUDGES’ DISCRETION AND
DEALING WITH ISSUES OF BOTH CONSTITUTIONAL LAW
AND STATUTORY INTERPRETATION. MILLER V. ALABAMA
AND JACKSON V. HOBBS BOTH INVOLVED 14 YEAR-OLD
DEFENDANTS CONVICTED OF HOMICIDE WHO WERE GIVEN MANDATORY LIFE
WITHOUT PAROLE SENTENCES. THE QUESTION BEFORE THE COURT
WAS WHETHER SUCH SENTENCES VIOLATED MILLER’S AND JACKSON’S
PROTECTION AGAINST CRUEL AND UNUSUAL PUNISHMENT
UNDER THE EIGHTH AMENDMENT. HOW DID THE COURT ANSWER
THAT QUESTION, LAURIE? – WELL, THE COURT ANSWERED IT BY
SAYING, YES, THERE WAS AN EIGHTH AMENDMENT VIOLATION, AND THE COURT DID SO BY REACHING
BACK TO A COUPLE OF DECISIONS THE COURT HAS MADE RECENTLY. ONE WAS ROPER V. SIMMONS, WHERE THE COURT HELD THAT THE
DEATH PENALTY FOR JUVENILES VIOLATED THE EIGHTH AMENDMENT, AND ALSO GRAHAM V. FLORIDA, WHERE THE COURT FOUND THAT LIFE
IN PRISON WITHOUT POSSIBILITY OF PAROLE FOR NON-HOMICIDE CRIMES
FOR JUVENILES WOULD VIOLATE THE EIGHTH AMENDMENT. THE COURT HAD MADE A POINT IN
BOTH OF THOSE DECISIONS OF SAYING JUVENILES ARE
DIFFERENT– THEY’RE MORE IMPULSIVE,
THEY’RE LESS ABLE TO JUDGE THE CONSEQUENCES
OF THEIR ACTS, THEY’RE MORE SUSCEPTIBLE TO PEER PRESSURE. AND THEREFORE, EVEN,
CONSTITUTIONALLY, THE COURT WOULD LOOK AT IT DIFFERENTLY. SO HERE, THE COURT USED
THE SAME LOGIC, AND IT SAID YOU COULD NOT HAVE
MANDATORY LIFE WITHOUT
THE POSSIBILITY OF PAROLE FOR JUVENILES, EVEN ON
HOMICIDE CRIMES. – BUT, TO BE CLEAR,
THE COURT DID NOT SAY
THAT JUVENILES COULD NOT BE GIVEN A SENTENCE OF LIFE
WITHOUT PAROLE, JUST THAT IT COULD NOT BE MANDATORY. – YES, THAT IS RIGHT. JUDGES CAN STILL SENTENCE
JUVENILES TO LIFE
WITHOUT PAROLE, BUT THEY HAVE TO BE ABLE TO
CONSIDER MITIGATING
CIRCUMSTANCES. THEY HAVE TO BE ABLE TO CONSIDER
THOSE FUNDAMENTAL DIFFERENCES BETWEEN CHILDREN AND ADULTS
THAT LAURIE TALKED ABOUT, TAKE INTO CONSIDERATION THINGS
LIKE FAMILY SITUATION, BEFORE THEY GET SENTENCED. THE MAJORITY DISTINGUISHED
A FAMOUS EIGHTH AMENDMENT
PRECEDENT, HARMELIN V. MICHIGAN,
WHERE THE DEFENDANT WAS GIVEN LIFE WITHOUT
POSSIBILITY OF PAROLE FOR SIMPLY POSSESSING A LARGE
AMOUNT OF COCAINE, AND THE MAJORITY SAID
THAT’S DIFFERENT, HARMELIN HAD NOTHING
TO DO WITH JUVENILES. – AND THE MAJORITY AND THE
DISSENTERS DIDN’T JUST DISAGREE ON THE DECISION IN THIS CASE,
BUT ON THE PROCESS THE MAJORITY USED TO REACH THAT
DECISION, DIDN’T THEY? – ABSOLUTELY.
IN FACT, CHIEF JUSTICE ROBERTS MADE A POINT OF SAYING THAT
THE STANDARD OF EVOLVING
STANDARDS OF DECENCY DOESN’T ALWAYS MEAN MORE
LENIENCY TOWARDS THE DEFENDANT. TO ANSWER THAT QUESTION OF
WHAT’S AN EVOLVING STANDARD, HE SAYS THAT THE COURTS SHOULD
BE LOOKING TO THE STATE
LEGISLATURES TO SEE WHAT WOULD BE
THE APPROPRIATE SENTENCE. – YEAH, AND THE MAJORITY ANSWERS
BY SAYING, WELL, THERE IS NO NATIONAL CONSENSUS FOR
MANDATORY LWOP SENTENCES FOR JUVENILE MURDERERS, DESPITE
THE FACT THAT 28 STATES AND THE DISTRICT OF COLUMBIA
HAVE SUCH LAWS ON THEIR BOOKS. AND JUSTICE SCALIA WRITES THAT
THE MAJORITY IS IGNORING THE EVIDENCE OF TRENDS IN THE STATES
IN DECIDING WHAT IS, QUOTE, UNQUOTE, “UNUSUAL” AND IS INSTEAD SUBSTITUTING
THEIR OWN VALUE JUDGMENT. – AND IN FACT, THE MAJORITY
GOES A STEP FURTHER AND SAYS NOT ONLY DO THEY THINK A
MANDATORY LIFE WITHOUT PAROLE
IS UNCONSTITUTIONAL, BUT THEY THINK EVEN WHEN
IT’S NOT MANDATORY, IT WILL BE UNCOMMON. – NOW A SECOND SET OF
COMPANION CASES, DORSEY V. UNITED STATES
AND HILL V. UNITED STATES. HERE THE QUESTION WAS, DID THE
FAIR SENTENCING ACT OF 2010, WHICH WENT INTO EFFECT ON AUGUST
3 OF THAT YEAR, AND WHICH READJUSTED THE MANDATORY
SENTENCING DISPARITIES FOR CRACK AND POWDER COCAINE,
APPLY TO OFFENDERS WHO WERE CONVICTED BEFORE AUGUST 3
BUT SENTENCED AFTERWARDS? A LITTLE BACKGROUND HERE. THE 1986 DRUG ACT ESTABLISHED A
100 TO 1 DISPARITY IN THE AMOUNT OF CRACK AND POWDER COCAINE
REQUIRED TO TRIGGER MANDATORY MINIMUM SENTENCES. SO 5 GRAMS OF CRACK GOT YOU
THE SAME SENTENCE AS 500 GRAMS OF POWDER COCAINE. WELL, THE FAIR SENTENCING ACT
REDUCED THOSE DISPARITIES TO 18 TO 1 BY INCREASING THE AMOUNT OF
CRACK COCAINE NEEDED TO TRIGGER THE 5- AND 10-YEAR MINIMUMS. THE CHANGE WAS ALSO MADE TO THE
FEDERAL SENTENCING GUIDELINES. THE COURT DECIDED IN THESE TWO
CASES THAT THE FAIR SENTENCING ACT’S NEW LOWER MANDATORY
MINIMUMS APPLY TO POST-ACT SENTENCING OF PRE-ACT OFFENDERS. SO WHAT WAS THE CORE DISPUTE
IN THIS CASE, EVAN? – WELL, YOUR PROBLEM IS YOU’VE
GOT TWO STATUTES THAT ARE POINTING IN OPPOSITE DIRECTIONS. ONE, AS YOU MENTIONED, IS
THE FAIR SENTENCING ACT, SUGGESTING BY ITS TERMS THAT
DEFENDANTS SENTENCED AFTER
THE ACT’S EFFECTIVE DATE SHOULD RECEIVE THE MORE
LENIENT PUNISHMENT THAT’S SET FORTH THERE. BUT THEN YOU HAVE
THIS OTHER STATUTE, THE GENERAL FEDERAL SAVINGS
STATUTE, WHICH SAYS THAT A STATUTE THAT REPEALS AN OLDER
STATUTE DOES NOT CHANGE THE PENALTIES,
QUOTE, UNQUOTE, “INCURRED” UNDER THE OLDER STATUTE UNLESS
THE REPEALING ACT SO PROVIDES. NOW, BOTH THE MAJORITY AND THE
DISSENTERS AGREED THAT THE SAVINGS STATUTE DID NOT REQUIRE
AN “EXPRESS” STATEMENT THAT THE NEW THRESHOLDS APPLY. IT WAS ENOUGH THAT THE PLAIN
IMPORT OF THE NEW STATUTE WAS THAT THE NEW STANDARDS
WOULD APPLY. – BUT I THINK THAT’S THE PROBLEM
THAT THE MAJORITY AND DISSENT HAVE WITH EACH OTHER AS TO WHETHER THIS STATUTE, THE
NEW THE FAIR SENTENCING ACT, ACTUALLY HAS THAT
PLAIN IMPORT STANDARD. – WHAT DO YOU THINK IS THE
IMPACT OF THIS DECISION? – WELL, CERTAINLY ONE IMPACT
IS THAT IT’S GOING TO HELP OFFENDERS WHO COMMITTED THEIR
CRIMES BEFORE THE FAIR SENTENCING ACT BECAME
EFFECTIVE BUT WERE SENTENCED AFTERWARDS, BUT I THINK THERE’S
ALSO AN INDICATION IN HOW THE COURT DID ITS
STATUTORY INTERPRETATION THAT IT’S GOING TO LOOK BEYOND
THE LANGUAGE OF THE STATUTE TO SEE IF IT ALSO IMPACTS
SENTENCING DISPARITIES. – FINALLY WE ARE GOING TO LOOK
AT SETSER V. UNITED STATES, WHICH ASKS WHETHER
A DISTRICT JUDGE IN SENTENCING A DEFENDANT FOR A FEDERAL
OFFENSE HAS THE AUTHORITY TO ORDER THAT THE FEDERAL SENTENCE
BE CONSECUTIVE TO AN ANTICIPATED STATE SENTENCE THAT HAS
NOT YET BEEN IMPOSED. SETSER WAS ARRESTED FOR
POSSESSING METHAMPHETAMINE WHILE SERVING A 5-YEAR TERM OF
PROBATION FOR A PREVIOUS STATE LEVEL DRUG CRIME. HE WAS INDICTED IN STATE COURT
FOR POSSESSION WITH INTENT TO DELIVER AND IN FEDERAL COURT
FOR WHAT WAS ESSENTIALLY THE SAME CRIME. THE STATE ALSO MOVED TO
REVOKE HIS PROBATION, AND THE FEDERAL JUDGE IMPOSED A
151-MONTH SENTENCE TO RUN CONSECUTIVELY TO ANY SENTENCE
THE STATE MIGHT YET IMPOSE FOR THE PROBATION VIOLATION BUT
CONCURRENT TO ANY NEW STATE DRUG SENTENCE. SO, EVAN,
IF THE DISTRICT JUDGE DID NOT HAVE THE DISCRETION TO DO
THAT, WHO SUPPOSEDLY DID? – WELL, SETSER AND THE FEDERAL
GOVERNMENT ARGUED THAT IT WAS THE BUREAU OF PRISONS
AND NOT THE DISTRICT COURT THAT SHOULD HAVE THE AUTHORITY TO
DECIDE WHETHER THE FEDERAL SENTENCE SHOULD RUN
CONCURRENTLY OR CONSECUTIVELY WITH ANY STATE SENTENCES
THAT WOULD BE IMPOSED. BUT THE UNITED STATES SUPREME
COURT SIDED WITH FEDERAL JUDGES, SAID THAT THEY SHOULD BE
DECIDING–MAJORITY SAID THAT THERE WAS A COMMON LAW TRADITION
IN FAVOR OF FEDERAL TRIAL JUDGES
EXERCISING BROAD DISCRETION ON THE CONCURRENT
VERSUS CONSECUTIVE QUESTION AND THAT THERE WAS NOTHING IN
THE STATUTES THAT TAKES
THAT DISCRETION AWAY. – I THINK THE MAJORITY SAID ALSO
YOU HAVE THE JUDGES APPLYING THE 35-53A STANDARD
AND THE FACTORS IN IT, AND SO THAT A TRIAL COURT, IF
THEY MAKE A MISTAKE ON THIS, THEY CAN RECONSIDER IT IF THE
BUREAU OF PRISONS COME BACK AND MAKES A MOTION TO REDUCE
OR CHANGE THE SENTENCE. – YEAH. YOU KNOW, THE DISSENTERS
FELT THAT IT MADE MORE SENSE FOR THE BOP TO MAKE THE DECISION BECAUSE OF AN INFORMATIONAL
PROBLEM, THAT THE DISTRICT COURT WOULD NOT YET HAVE ALL
THE FACTS, BECAUSE THE STATE SENTENCES
WOULDN’T HAVE BEEN
HANDED DOWN YET, BUT THAT THE BOP WOULD HAVE
THE BENEFIT OF THAT HINDSIGHT. – THANKS, EVAN.
THANK YOU, LAURIE. UP NEXT, A DISCUSSION OF THE
COURT’S LONG-AWAITED DECISION ON THE FEDERAL HEALTH CARE LAW. – NO DECISION THIS TERM WAS
MORE INTENTLY AWAITED THAN THE COURT’S OPINION ON THE
CONSTITUTIONALITY OF THE PATIENT PROTECTION AND AFFORDABLE CARE
ACT, THE 2009 LAW THAT EXPANDS HEALTH CARE COVERAGE
IN THIS COUNTRY FOR TENS OF MILLIONS OF PEOPLE. THERE WERE 3 CASES CHALLENGING
THE LAW THAT WORKED THEIR WAY UP THROUGH THE COURTS OF APPEALS
IN THE LAST 3 YEARS, AND THESE CASES PRESENTED THE COURT
WITH TWO MAJOR ISSUES. FIRST, WAS THE SO-CALLED
INDIVIDUAL MANDATE
CONSTITUTIONAL? THE INDIVIDUAL MANDATE
REQUIRES THAT BY 2014, EVERYONE IN THE UNITED STATES
WHO DOES NOT ALREADY HAVE
HEALTH INSURANCE MUST PURCHASE IT
OR PAY AN AMOUNT TO
THE FEDERAL GOVERNMENT. UNDOCUMENTED ALIENS DO NOT COME
UNDER THE MANDATE, AND ALSO, THERE IS FINANCIAL AID TO HELP
PAY FOR INSURANCE FOR PEOPLE WHO CAN’T AFFORD IT
BUT AREN’T POOR ENOUGH
TO QUALIFY FOR MEDICAID. SECOND, WAS THE FEDERAL
GOVERNMENT COERCING THE STATES TO DO ITS BIDDING, AND VIOLATING
THE PRINCIPLES OF FEDERALISM, BY THREATENING TO TAKE AWAY ALL
MEDICAID FUNDING FROM THE STATES IF THEY DID NOT EXPAND MEDICAID
COVERAGE UNDER THE NEW LAW? THERE WERE 4 OPINIONS IN
THIS CASE: A MAJORITY OPINION, A COMBINATION CONCURRENCE
AND DISSENT, AND TWO COMPLETE DISSENTS. SUZANNA, CAN YOU START PARSING
ALL OF THIS FOR US? – LET’S START BY TALKING ABOUT
THE GOVERNMENT’S ARGUMENTS TO UPHOLD THE INDIVIDUAL MANDATE. THE GOVERNMENT ARGUED THAT THE
MANDATE COULD BE UPHELD ON 3 SEPARATE CONSTITUTIONAL
GROUNDS: CONGRESS’ POWER
UNDER THE COMMERCE CLAUSE, ITS AUTHORITY UNDER THE
NECESSARY AND PROPER CLAUSE, AND FINALLY ITS TAXING POWER. NOW, BECAUSE 5 JUSTICES
REJECTED THE COMMERCE CLAUSE AND NECESSARY AND PROPER
ARGUMENTS, WHICH WE’LL TURN TO IN A MINUTE, THE COURT HAD TO
REACH THE QUESTION OF WHETHER THIS CAME WITHIN
CONGRESS’ POWER TO TAX. – AND THE SUPREME COURT HELD
5-4 THAT THE INDIVIDUAL MANDATE WAS CONSTITUTIONAL BECAUSE
IT DOES FIT WITHIN THE SCOPE OF CONGRESS’ TAXING
AND SPENDING POWER. CHIEF JUSTICE ROBERTS WROTE
FOR THE MAJORITY HERE. CHIEF JUSTICE ROBERTS
EXPLAINED THAT THE INDIVIDUAL MANDATE IS IN EVERY
WAY FUNCTIONALLY A TAX. IT’S CALCULATED AS A
PERCENTAGE OF INCOME, OR A SMALL FLAT RATE. FOR 2014, IT’S 1%
OF INCOME OR $95. IT’S COLLECTED BY THE
INTERNAL REVENUE SERVICE. IT GOES TO GENERAL
FEDERAL REVENUE. IT’LL BE ABOUT $4 BILLION FOR THE FEDERAL
GOVERNMENT IN 2014. CHIEF JUSTICE ROBERTS, RELYING
ON EARLIER CASES, SAID THE LABEL USED BY THE
PRESIDENT AND CONGRESS ISN’T DETERMINATIVE. BECAUSE THIS IS A TAX,
IT FALLS WITHIN THE SCOPE OF CONGRESS’ ARTICLE 1 SECTION
8 TAXING AND SPENDING POWER. CHIEF JUSTICE ROBERTS’ OPINION
HERE WAS JOINED BY JUSTICES GINSBURG, BREYER,
SOTOMAYOR, AND KAGAN. – SO THERE WERE
TWO QUESTIONS HERE. FIRST, IS IT A PENALTY,
OR IS IT A TAX? AND SECOND, IF IT IS A TAX,
IS IT A DIRECT TAX THAT NEEDS TO BE APPORTIONED TO
BE CONSTITUTIONAL? SUZANNA? – WELL,
THE COURT SAID THAT EVEN THOUGH IT COULD BE CONSTRUED
AS A TAX, IT WAS NOT A DIRECT TAX, SO IT DIDN’T HAVE
TO BE APPORTIONED. BUT I THINK A MORE INTERESTING
QUESTION IS, THE CHIEF JUSTICE’S VOTE TO UPHOLD THE
MANDATE AS A TAX HAS SOME OTHER IMPLICATIONS. HE WROTE THAT EVEN THOUGH
INTERPRETING IT AS A TAX IS NOT ITS MOST NATURAL READING,
THE COURT HAD TO USE EVERY REASONABLE CONSTRUCTION OF THE
STATUTE IN ORDER TO GIVE THE STATUTE THE FULL MEASURE
OF DEFERENCE THAT’S OWED TO CONGRESS AND TO SAVE A STATUTE
FROM UNCONSTITUTIONALITY. NOW, THIS IS CONSISTENT WITH
ESSENTIALLY A LOT OF PRECEDENT THAT SAYS IF CONGRESS CAN
ENACT A STATUTE UNDER ONE POWER, IT DOESN’T REALLY
MATTER WHAT POWER CONGRESS THINKS IT’S ACTING UNDER. BUT JUSTICE GINSBURG IN HER
OPINION ASKED WHY IF THE CHIEF JUSTICE WAS GOING TO VOTE TO
UPHOLD IT UNDER THE TAXING POWER, WHY DID HE NEED TO REACH THE
COMMERCE CLAUSE AND NECESSARY AND PROPER QUESTIONS? AND HIS RESPONSE WAS THAT
HE ONLY ADOPTED THIS “SAVING CONSTRUCTION” OF THE MANDATE
AS A TAX, WHICH, AS HE SAYS, IS NOT A NATURAL READING–HE
ONLY ADOPTS IT BECAUSE HE HAS TO. IF IT WASN’T FOR THE
UNCONSTITUTIONALITY UNDER THE COMMERCE CLAUSE, HE WOULDN’T
EVEN HAVE TO REACH THE QUESTION OF A TAX AND HE
WOULDN’T HAVE INTERPRETED THE STATUTE AS A TAX. SO THE WAY I READ THIS,
I THINK IT’S A FAIRLY STRONG REAFFIRMATION OF TWO
LONGSTANDING PRINCIPLES. ONE IS THE CANON OF AVOIDANCE
OF CONSTITUTIONAL QUESTIONS, AND THE OTHER IS THE DEFERENCE
OWED TO CONGRESS WITH THE PRESUMPTION OF
CONSTITUTIONALITY. NOW, THE COURT HAS, OF COURSE,
APPLIED THOSE PRINCIPLES BEFORE, BUT SOMETIMES IT’S
BEEN A LITTLE UNEVEN IN ITS APPLICATION. SO IT’S NOT ENTIRELY CLEAR
HOW STRONG THIS REAFFIRMATION OF THOSE PRINCIPLES IS. – I THINK YOU’RE RIGHT. I THINK IT IS A REAFFIRMATION
OF CONGRESS’ POWER TO TAX, AND I THINK THE MESSAGE IS,
SHOULD CONGRESS EVER WANT TO DISCOURAGE BEHAVIOR IN THE
FUTURE, CONGRESS CAN DO SO BY IMPOSING A TAX ON IT. – YEAH. I GUESS WE WILL HAVE TO WAIT
AND SEE HOW THE LOWER COURTS INTERPRET THAT PART OF THE
DECISION AND ULTIMATELY HOW THE SUPREME COURT RULES. SO LETS TALK ABOUT THE
GOVERNMENT’S ARGUMENTS BASED ON THE COMMERCE CLAUSE AND THE
NECESSARY AND PROPER CLAUSE. – WELL,
WITH REGARD TO THE COMMERCE CLAUSE, 5 JUSTICES–CHIEF
JUSTICE ROBERTS, WRITING FOR HIMSELF, AND THE 4
DISSENTING JUSTICES–REJECTED THE ARGUMENT THAT THE
INDIVIDUAL MANDATE’S IN THE SCOPE OF CONGRESS’
COMMERCE POWER. CHIEF JUSTICE ROBERTS
REAFFIRMED ALL OF THE EXISTING PRECEDENTS WITH REGARD TO THE
SCOPE OF CONGRESS’ COMMERCE POWER, BUT HE SAID WHAT THEY
ESTABLISHED WAS THAT CONGRESS CAN REGULATE
ECONOMIC ACTIVITY. BOTH CHIEF JUSTICE ROBERTS AND
THE DISSENTING JUSTICES SAID WHEN CONGRESS WAS FORCING
PEOPLE TO PURCHASE INSURANCE, THEY WERE REGULATING THOSE WHO
WERE NOT ENGAGED IN COMMERCE. THEY WERE REGULATING
INACTIVITY, AND THAT WAS BEYOND THE SCOPE
OF CONGRESS’ POWER. JUSTICE GINSBURG, JOINED BY
JUSTICES BREYER, SOTOMAYOR, AND KAGAN, STRONGLY
DISAGREED WITH THAT. JUSTICE GINSBURG SAID EVERYONE
IN THE UNITED STATES IS USING HEALTH CARE, THEREFORE
EVERYONE IS ENGAGED IN ECONOMIC ACTIVITY. EVERYONE’S EITHER BUYING
INSURANCE OR SELF-INSURING. WHAT CONGRESS IS DOING IS
REGULATING THOSE WHO ARE SELF-INSURING, AND THAT’S
PERMISSIBLE, IN HER VIEW, UNDER THE COMMERCE POWER. – THE CHIEF’S ARGUMENTS
IN THIS CASE, I THINK, WERE MOSTLY SLIPPERY
SLOPE ARGUMENTS. HE WAS WORRIED THAT IF THE
GOVERNMENT CAN FORCE PEOPLE TO BUY HEALTH INSURANCE, THE GOVERNMENT CAN FORCE
PEOPLE TO BUY ANYTHING. AND CERTAINLY THE DISSENT’S
ARGUMENT–THE JOINT DISSENT’S ARGUMENT–WAS ALSO A
SLIPPERY SLOPE ARGUMENT. IN THEIR UNSIGNED OPINION
THAT WAS JOINTLY WRITTEN BY JUSTICES KENNEDY, SCALIA,
ALITO, AND THOMAS, THEY SAY SEVERAL TIMES SOMETHING ALONG
THE LINES OF IF THIS LAW DOES NOT EXCEED CONGRESS’
CONSTITUTIONAL POWERS, THEN NOTHING DOES. BUT I THINK THE MOST
IMPORTANT THING TO KNOW ABOUT THE COMMERCE CLAUSE
ANALYSIS IS THAT IT MAY NOT MATTER IN THE FUTURE. HEALTH CARE AND HEALTH
INSURANCE IS PRETTY UNIQUE. CONGRESS ISN’T LIKELY TO
TRY AND FORCE PEOPLE TO BUY ANYTHING ELSE. SO EVEN THE MAJORITY
HOLDING THAT CONGRESS IS HERE REGULATING INACTIVITY AND
THAT THE COMMERCE CLAUSE PROHIBITS THEM FROM REGULATING
INACTIVITY, THAT IT’S NOT WITHIN THEIR COMMERCE CLAUSE
POWER, I DON’T THINK THAT THAT’S GOING TO MAKE ANY
DIFFERENCE IN THE FUTURE. FOR ALL PRACTICAL PURPOSES,
AS YOU SAY, THE COURT REAFFIRMED–JUSTICE ROBERTS
AND THE DISSENTING JUSTICES REAFFIRMED ALL OF THE EXISTING
COMMERCE CLAUSE JURISPRUDENCE. SO I THINK THAT THE COMMERCE
CLAUSE JURISPRUDENCE IS EXACTLY WHERE IT WAS
BEFORE THIS CASE. – I HAVE A SOMEWHAT
DIFFERENT TAKE ON THAT. I CERTAINLY AGREE WITH YOU
THAT I THINK IT’S UNLIKELY THAT CONGRESS IS GONNA BE
COMPELLING ECONOMIC TRANSACTIONS INTO THE FUTURE. CERTAINLY THE UNPOPULARITY
IN CERTAIN QUARTERS OF THE INDIVIDUAL MANDATE
MAKES IT EVEN LESS LIKELY TO HAPPEN. ON THE OTHER HAND, WHENEVER
THE COURT DRAWS A DISTINCTION, LIKE ACTIVITY VERSUS
INACTIVITY OR DIRECT VERSUS INDIRECT, I THINK THAT’S AN
OPEN INVITATION TO LITIGATION. IT’S UNCERTAIN WHAT THE
COURTS WILL DO WITH IT. LET ME GIVE YOU AN EXAMPLE. TITLE II OF THE 1964 CIVIL
RIGHTS ACT, WHICH WAS ADOPTED BY CONGRESS UNDER ITS COMMERCE
CLAUSE POWER, PREVENTS HOTELS AND RESTAURANTS FROM
DISCRIMINATING ON
THE BASIS OF RACE. WERE HOTELS AND RESTAURANTS
THAT DISCRIMINATED BASED ON RACE ENGAGING IN INACTIVITY,
OR IS THAT ACTIVITY? NOW, I DON’T THINK THE SUPREME
COURT’S GONNA DECLARE TITLE II OF THE 1964 CIVIL RIGHTS ACT
UNCONSTITUTIONAL, BUT I DO THINK IT SHOWS HOW
CHARACTERIZATIONS AND LABELS CAN LEAD TO CHALLENGES, AND I THINK THEY
WILL IN THE FUTURE. – NO, I DISAGREE. I DON’T THINK TITLE II IS
ANY DANGER, BECAUSE HOTELS AND RESTAURANTS ARE ENGAGED
IN COMMERCE JUST BY OPERATING THEIR BUSINESS, AND CONGRESS
CAN REGULATE HOW THEY OPERATE THAT BUSINESS. WHAT’S UNIQUE ABOUT HEALTH
INSURANCE IS THAT THE PEOPLE WHO DON’T HAVE HEALTH
INSURANCE ARE NOT ENGAGED IN COMMERCE AT ALL. THEY ARE NOT DOING ANYTHING. AND THE QUESTION IS WHETHER
CONGRESS CAN FORCE THEM TO ENTER INTO A
COMMERCIAL TRANSACTION, AND THE DISAGREEMENT BETWEEN
CHIEF JUSTICE ROBERTS AND THE PARTIAL DISSENT IS
WHETHER THE FACT THAT MOST PEOPLE WILL INEVITABLY NEED
HEALTH CARE IN THE FUTURE, WHETHER THAT’S ENOUGH TO
REQUIRE THEM TO BUY HEALTH INSURANCE NOW. – SO, ERWIN, WHAT ABOUT THE NECESSARY AND
PROPER CLAUSE ARGUMENT? – CHIEF JUSTICE ROBERTS
WROTE HERE THAT THE NECESSARY AND PROPER CLAUSE IS NOT AN
INDEPENDENT POWER OF CONGRESS. HE SAID WHAT THE NECESSARY AND
PROPER CLAUSE DOES IS ALLOW CONGRESS TO CHOOSE THE MEANS
TO CARRY OUT ITS OTHER POWERS, AND THUS IT WASN’T A
SUFFICIENT INDEPENDENT BASIS FOR UPHOLDING THE
INDIVIDUAL MANDATE. – WELL,
LET’S TURN TO THE OTHER MAJOR ISSUE IN THIS CASE, WHETHER
CONGRESS WAS COERCING THE STATES BY THREATENING TO TAKE
AWAY ALL OF THEIR MEDICAID FUNDING IF THEY DID NOT EXPAND
COVERAGE IN THAT PROGRAM UNDER THE NEW HEALTH CARE ACT. WHAT DID THE
COURT DECIDE HERE? – WELL,
HERE THE DECISION WAS ACTUALLY 7 TO 2. ONLY JUSTICES GINSBURG AND
SOTOMAYOR DISSENTED, AND WHAT THE COURT HELD THAT THE
CONGRESS WAS IMPERMISSIBLY COERCING THE STATES BY
THREATENING TO TAKE AWAY ALL OF THEIR MEDICAID FUNDING
BECAUSE SOME STATES STOOD TO LOSE AS MUCH AS 20% OF THEIR
ANNUAL BUDGET IF CONGRESS TOOK AWAY THEIR MEDICAID FUNDING. AND THE COURT SAID THAT
CONGRESS COULD WITHHOLD THE EXPANSION OF THE MEDICAID
FUNDS–THE NEW MEDICAID FUNDS– IF THE STATES DID NOT ABIDE
BY THE EXPANSION, BUT THEY COULDN’T TAKE AWAY THE STATES’
PRE-EXISTING MEDICAID FUNDS. NOW, WHAT’S THE
DIFFERENCE BETWEEN COERCION AND ENCOURAGEMENT? NEITHER THE CHIEF JUSTICE’S
MAJORITY NOR THE JOINT DISSENT SAID EXACTLY WHERE THE LINE
WAS BETWEEN ENCOURAGEMENT AND COERCION, BUT THEY BOTH SAID
THAT CONGRESS HAD CROSSED IT. AND I THINK THIS MAY WELL
BE THE MOST DOCTRINALLY SIGNIFICANT PART
OF THE DECISION. – I AGREE WITH THAT. I THINK IT’S THE PART OF THE
CASE THAT’S MOST LIKELY TO LEAD TO FUTURE LITIGATION. THIS IS THE FIRST TIME THE
SUPREME COURT HAS EVER FOUND THAT ANY CONDITIONS ON FEDERAL
MONEY WERE SO COERCIVE AS TO EXCEED THE SCOPE OF CONGRESS’
POWER AND TO VIOLATE THE TENTH AMENDMENT. THERE ARE SO MANY FEDERAL
LAWS THAT TIE FEDERAL MONEY TO STATE AND LOCAL GOVERNMENTS TO
CONDITIONS, AND THE QUESTION IS WHEN ARE THEY TOO COERCIVE? THINK OF THE SOLOMON AMENDMENT
THAT SAYS THAT IF A LAW SCHOOL REFUSED TO ALLOW THE
MILITARY TO RECRUIT ON CAMPUS, THE UNIVERSITY WILL LOSE
ALL OF ITS FEDERAL MONEY. IS THAT TOO COERCIVE? OR THINK ABOUT FEDERAL CIVIL
RIGHTS LAWS THAT SAY THAT IF ANY PART OF A UNIVERSITY
DISCRIMINATES ON THE BASIS OF RACE OR GENDER, THE ENTIRE
UNIVERSITY WILL LOSE ALL OF ITS FUNDS. OR NO CHILD LEFT BEHIND. – NO,
I DON’T THINK THAT’S RIGHT. WELL, FIRST OF ALL, THE CHIEF
JUSTICE DESCRIBED THE MEDICAID EXPANSION AS A “GUN
TO THE HEAD.” SO I THINK THAT REQUIRES A
VERY STRONG LEVEL OF COERCION, AND IN PARTICULAR, I THINK
IT REQUIRES THAT A VERY HIGH PERCENTAGE OF THE STATE’S
BUDGET BE AT ISSUE. SO YOUR EXAMPLE OF THE
UNIVERSITIES, I DON’T THINK THAT ANY LAWS AFFECTING STATE
UNIVERSITIES ARE LIKELY TO FALL UNDER THIS–UNDER THIS
CASE BECAUSE THE UNIVERSITY BUDGET IS SUCH A SMALL PART
OF THE STATE’S BUDGET. NOW, YOUR NO CHILD LEFT
BEHIND EXAMPLE IS DIFFERENT. THERE MIGHT BE ENOUGH THERE,
BUT STILL I THINK THAT THE PART OF THE STATE’S BUDGET
THAT WOULD BE AFFECTED IF CONGRESS WERE TO TAKE AWAY
FUNDING UNDER THAT STATUTE IS STILL SOMETHING LIKE 5% TO 10%
OF A STATE’S BUDGET, WHICH IS MUCH MORE SIMILAR TO WHAT
WAS AT ISSUE IN DOLE V. SOUTH DAKOTA, THE
HIGHWAY FUNDING CASE, WHERE THE COURTS SAID THAT
CONGRESS WAS NOT BEING COERCIVE. SO I THINK I’M STICKING TO
MY VIEW THAT NO OTHER FEDERAL STATUTE IS ACTUALLY LIKELY
TO BE HELD COERCIVE, ALTHOUGH YOU’RE RIGHT, THERE
MIGHT BE CHALLENGES. – THOSE DEVELOPMENTS WILL
BE INTERESTING TO WATCH. THANKS, SUZANNA.
THANKS, ERWIN. – NOW,
TWO DECISIONS ABOUT FEDERALISM AND TWO REGARDING
THE AUTHORITY OF THE FEDERAL COURTS. FIRST, ONE OF THE MOST
ANTICIPATED DECISIONS OF THE TERM, ARIZONA V.
UNITED STATES. AN ARIZONA LAW MADE STATE
CRIMES OUT OF SOME ACTIONS BY UNDOCUMENTED IMMIGRANTS
AND GAVE POLICE OFFICERS IN ARIZONA AUTHORITY TO
ENFORCE SOME FEDERAL IMMIGRATION VIOLATIONS. THE COURT REVIEWED 4 SECTIONS
OF THE LAW AND CAME TO DIFFERENT CONCLUSIONS ABOUT
THEIR CONSTITUTIONALITY OR UNCONSTITUTIONALITY. EVAN, CAN YOU START US OUT? – WELL,
WHY DON’T I START WITH THE 3 THAT THE COURT STRUCK DOWN? THERE WAS SECTION 3 OF THE
LAW, WHICH MADE FAILURE TO COMPLY WITH FEDERAL ALIEN
REGISTRATION LAW A MISDEMEANOR IN ARIZONA; THEN THERE WAS
SECTION 5-C, WHICH MADE IT A MISDEMEANOR FOR AN
UNDOCUMENTED ALIEN TO SEEK OR ENGAGE IN EMPLOYMENT IN THE
STATE OF ARIZONA; AND THEN THERE WAS SECTION 6,
WHICH AUTHORIZED STATE LAW ENFORCEMENT TO CONDUCT
WARRANTLESS ARRESTS OF PERSONS WHEN THEY HAD PROBABLE CAUSE
TO BELIEVE THAT THE PERSON HAD COMMITTED A DEPORTABLE
OFFENSE. THE 5-JUSTICE MAJORITY IN
THIS CASE FOUND THAT THESE 3 SECTIONS CONFLICTED WITH
A COMPREHENSIVE SYSTEM OF FEDERAL IMMIGRATION
REGULATION AND THEREFORE WERE IMPLIEDLY PREEMPTED
BY FEDERAL LAW. – AND WHAT ABOUT THE
FOURTH SECTION, SUZANNA? – WELL, THE FOURTH SECTION WAS
SECTION 2-B, THE “SHOW ME YOUR PAPERS”
SECTION, AND THAT WAS THE ONE THAT GATHERED
MOST OF THE ATTENTION. UNDER 2-B, STATE OFFICERS ARE
REQUIRED TO MAKE A REASONABLE ATTEMPT TO DETERMINE AN
IMMIGRATION STATUS OF ANYONE THAT THEY PROPERLY
STOP OR DETAIN. AND WHAT THE COURT FOUND HERE
WAS THAT IT WAS PREMATURE TO DECIDE WHETHER THAT STATUTE,
THAT SECTION, WAS OR WAS NOT PREEMPTED BECAUSE THE
SECTION COULD BE INTERPRETED AND APPLIED IN WAYS THAT WERE
CONSTITUTIONAL AND WAYS THAT WERE NOT PREEMPTED. THE COURT POINTED OUT THAT
STATE LEVEL LAW OFFICERS ALREADY HAVE THE AUTHORITY TO
CHECK WITH FEDERAL IMMIGRATION OFFICIALS ON THE STATUS,
AND SO THEY CAN JUST DO THAT, AND THAT WOULD BE FINE. THE MAJORITY, THOUGH,
ALSO POINTED OUT THAT THE STATUTE COULD BE CHALLENGED– THIS SECTION OF THE STATUTE
COULD BE CHALLENGED LATER AS IT’S INTERPRETED AND APPLIED
ONCE IT GOES INTO EFFECT. AND THEY GAVE AS AN EXAMPLE
THAT IF 2-B WAS INTERPRETED AND APPLIED TO ALLOW
OFFICERS TO DETAIN SOMEONE FOR AN UNREASONABLE AMOUNT
OF TIME JUST TO CHECK THEIR IMMIGRATION STATUS, THAT THAT
COULD BE UNCONSTITUTIONAL. – AND WHAT ABOUT THE DISSENTS? – JUSTICE SCALIA WROTE A VERY,
VERY STRONG DISSENT IN THIS CASE. HE DEFENDED ARIZONA’S
SOVEREIGN AUTHORITY TO DEFEND ITS BORDERS AND TO EXCLUDE
PERSONS FROM THE STATE THAT IT DIDN’T WANT TO BE THERE. HE SAID THAT FIELD PREEMPTION,
WHICH IS WHAT HE REALLY THOUGHT WAS GOING ON IN THIS
CASE, IS NOT SUFFICIENT TO OVERCOME STATE SOVEREIGNTY
IN THE IMMIGRATION FIELD. – THAT’S WHAT HE SAID. THERE ARE A COUPLE OF OTHER
POINTS THAT ARE INTERESTING– SIDE POINTS–ABOUT THIS CASE. FIRST OF ALL, JUSTICE KAGAN
RECUSED HERSELF, PRESUMABLY BECAUSE SHE HAD DEALT WITH
THE ISSUE WHEN SHE WAS SOLICITOR GENERAL. BUT THAT MEANS THAT IF THE
COURT HAD SPLIT 4-4 WITHOUT HER, THE NINTH CIRCUIT
DECISION WOULD HAVE BEEN AFFIRMED, BUT THERE WOULD
HAVE BEEN NO SUPREME COURT DECISION, AND THAT WAS
PREVENTED BECAUSE CHIEF JUSTICE ROBERTS DID
JOIN THE MAJORITY. AND HE DID SO IN FULL. HE DIDN’T WRITE A
SEPARATE OPINION. HE DIDN’T EXPLAIN
ANY OTHER REASONS. SO THAT’S INTERESTING. THE SECOND INTERESTING POINT
IS NOT ONE OF THE OPINIONS IN THIS CASE CITED THE COURT’S
DECISION FROM A FEW TERMS AGO IN AT&T V. CONCEPCION, WHICH IS ONE
OF THE COURT’S MOST RECENT AND MOST ELABORATED
DISCUSSIONS OF IMPLIED PREEMPTION. I THINK CONCEPCION WOULD
HAVE SUPPORTED THE MAJORITY’S DECISION IN THIS CASE,
BUT 3 OF THE JUSTICES WHO WERE IN THE MAJORITY IN THIS
CASE DISSENTED IN CONCEPCION, AND SO THEY PROBABLY
DIDN’T WANT TO CITE IT. – OUR SECOND FEDERALISM
DECISION, COLEMAN V. MARYLAND COURT OF APPEALS,
INVOLVES THE FEDERAL FAMILY AND MEDICAL LEAVE ACT. UNDER THAT LAW, EMPLOYERS MUST
ALLOW EMPLOYEES TO TAKE LEAVE TO CARE FOR THEMSELVES WHEN
ILL OR TO CARE FOR A NEW CHILD OR A SICK FAMILY MEMBER. THE QUESTION BEFORE THE COURT
WAS IF A STATE EMPLOYER–HERE, THE MARYLAND
COURT OF APPEALS– DOES NOT ALLOW AN
EMPLOYEE SUCH LEAVE TO CARE FOR HIMSELF, DOES THE STATE’S
SOVEREIGN IMMUNITY PROTECT IT FROM BEING SUED
IN THE FEDERAL COURT? AND WHAT DID THE
COURT DECIDE, SUZANNA? – WELL, THAT TAKES
A LITTLE EXPLAINING. WE HAVE TO START WITH THE
FIRST THING TO REMEMBER, WHICH IS THAT A STATE–AS
LONG AS IT DOESN’T WAIVE ITS SOVEREIGN IMMUNITY, A STATE
CAN ONLY BE SUED IF CONGRESS ABROGATES ITS IMMUNITY,
AND CONGRESS CAN ONLY ABROGATE A STATE’S IMMUNITY WHEN
CONGRESS IS ACTING UNDER SECTION 5 OF THE
14th AMENDMENT. SO THE REAL QUESTION IN THIS
CASE IS WHETHER THE FAMILY AND MEDICAL LEAVE ACT WAS A
VALID ACT OF CONGRESS UNDER SECTION 5. IT’S CLEARLY VALID UNDER
THE COMMERCE CLAUSE, BUT THE QUESTION IS WHETHER
IT’S VALID UNDER SECTION 5. SO A FEW YEARS AGO, IN 2003, IN NEVADA DEPARTMENT OF HUMAN
RESOURCES V. HIBBS, THE COURT DECIDED THAT
CONGRESS DID VALIDLY ABROGATE THE STATE’S SOVEREIGN IMMUNITY
WHEN IT REQUIRED LEAVE FOR FAMILY CARE AND SO
EMPLOYEES COULD SUE STATES FOR VIOLATING THAT
PORTION OF THE FMLA. BUT HERE IN COLEMAN, THE COURT
HELD THAT CONGRESS’ ATTEMPT TO ABROGATE SOVEREIGN IMMUNITY IN
REQUIRING LEAVE FOR SELF-CARE WAS NOT VALID UNDER SECTION 5
BECAUSE IT WAS NOT A CONGRUENT AND PROPORTIONAL REMEDY FOR
A CONSTITUTIONAL VIOLATION, AND SO CONGRESS
COULDN’T DO IT. – CAN YOU EXPLAIN THAT
A LITTLE MORE, EVAN? – WELL,
IN THE HIBBS DECISION, THE COURT FOUND THAT THE
STATES HAD FAMILY LEAVE POLICIES THAT DIFFERENTIATED
ON THE BASIS OF GENDER AND DISCRIMINATED
AGAINST FEMALE EMPLOYEES. THERE WAS EVIDENCE OF A
PATTERN OF SUCH DISCRIMINATION AGAINST WOMEN OVER A
NUMBER OF YEARS THAT WAS UNCONSTITUTIONAL. THAT’S THE HIBBS CASE. COLEMAN, ON THE OTHER HAND,
COULD NOT PROVE THAT PATTERN OF DISCRIMINATION. THE EVIDENCE HERE WAS THAT
MEN TOOK SELF-CARE LEAVE AT ABOUT THE SAME RATE
THAT WOMEN WERE TAKING IT, AND THERE WAS NO WIDESPREAD
DISCRIMINATION AGAINST WOMEN FOR TAKING SELF-CARE LEAVE. – SO HOW DOES THIS DECISION
AFFECT THE LAW IN THIS AREA? – I THINK IT BASICALLY SENDS
A SIGNAL THAT THE HIBBS CASE, AS WELL AS A 2004 CASE WHICH
ALSO ALLOWED CONGRESSIONAL ABROGATION, TENNESSEE V. LANE, WERE SOMEWHAT OF
ABERRATIONS IN ALLOWING CONGRESS BROAD LATITUDE UNDER
SECTION 5 IN ABROGATING STATE SOVEREIGN IMMUNITY. I THINK WHAT THIS TELLS US
IS THAT CONGRESS, IN ORDER TO ABROGATE STATE SOVEREIGN
IMMUNITY, IS REALLY GOING TO HAVE TO PROVIDE SOLID
EVIDENCE OF A PATTERN OF STATE CONSTITUTIONAL VIOLATIONS. – YEAH. JUSTICE SCALIA ONLY
CONCURRED IN THE JUDGMENT. AND HE WOULD GO ALL THE WAY. HE WOULD SAY, LET’S GET RID
OF THE CONGRUENCE AND PROPORTIONALITY TEST. IT’S IMPROPER FOR THE COURT
TO BE ENGAGING IN THAT. AND LET’S PROHIBIT CONGRESS
FROM ADOPTING ANY KIND OF PROPHYLACTIC REMEDIES,
EXCEPT IN RACE DISCRIMINATION CASES, WHERE STARE
DECISIS WOULD CONTROL. – NOW LET’S LOOK AT OUR TWO
DECISIONS AFFECTING JURISDICTION AND PROCEDURE IN
THE FEDERAL COURTS. THE FIRST OF THESE IS ANOTHER
DECISION DEALING WITH THE RIGHTS OF PUBLIC EMPLOYEES
TO BRING EMPLOYMENT ACTIONS IN FEDERAL COURT. THE DECISION INVOLVES THE
RIGHT OF FEDERAL EMPLOYEES TO BRING EMPLOYMENT
DISCRIMINATION CLAIMS IN FEDERAL COURT. THAT’S ELGIN V.
DEPARTMENT OF THE TREASURY. THE CIVIL SERVICE REFORM
ACT ALLOWS CERTAIN FEDERAL EMPLOYEES TO OBTAIN
ADMINISTRATIVE AND JUDICIAL REVIEW OF SPECIFIED
ADVERSE EMPLOYMENT ACTIONS. JUDICIAL REVIEW TAKES PLACE
IN THE FEDERAL CIRCUIT COURT OF APPEALS. NOW, THE QUESTION BEFORE THE
COURT WAS WHETHER THAT PROCESS WAS EXCLUSIVE UNDER THE
STATUTE OR IF AFFECTED EMPLOYEES CAN BRING SUIT
IN FEDERAL DISTRICT COURT ALLEGING THAT THEIR DISMISSAL
WAS UNCONSTITUTIONAL. SO WHAT DID THE COURT ANSWER
IN THAT SITUATION, SUZANNA? – THE MAJORITY HELD THAT THE
CSRA PROVIDED THE EXCLUSIVE AVENUE FOR REVIEW OF
COVERED DECISIONS. – WAS IT UNEXPECTED? – NO, I DON’T THINK IT
WAS VERY SURPRISING. CONGRESS’ INTENT WAS PRETTY
CLEAR–THE STATUTE WAS PRETTY CLEAR–THAT THEY WANTED
THE CSRA TO BE EXCLUSIVE. THE STATUTE DOES MAKE
SOME OTHER EXCEPTIONS. SO, FOR EXAMPLE, EMPLOYMENT
ACTIONS THAT ARE ALLEGED TO VIOLATE ONE OF THE FEDERAL
EMPLOYMENT DISCRIMINATION STATUTES ARE ACCEPTED FROM
THE STATUTE–EXEMPTED FROM THE STATUTE, AND SO CONGRESS KNOWS
HOW TO MAKE AN EXCEPTION TO THE CSRA IF IT WANTS TO. AND THE LAW ALSO DOES PROVIDE
FOR SOME JUDICIAL REVIEW IN THE FEDERAL CIRCUIT, AS YOU
SAID, SO IT DOESN’T RAISE ANY REALLY HARD QUESTIONS ABOUT
WHAT DO YOU DO IF THERE’S A DECISION BY AN AGENCY
THAT IS NOT REVIEWABLE AT ALL IN COURT? – THE FEDERAL EMPLOYEE WHO
BROUGHT THE ACTION IN THIS CASE, MICHAEL ELGIN,
WAS TERMINATED BECAUSE HE REFUSED TO REGISTER WITH
THE SELECTIVE SERVICE. HE CLAIMED THAT THE
REGISTRATION REQUIREMENT WAS UNCONSTITUTIONAL ON ITS FACE
AS A VIOLATION OF THE EQUAL PROTECTION CLAUSE AND ALSO
THE BILL OF ATTAINDER CLAUSE. THE COURT FOUND THAT WHILE THE
MERIT SYSTEM PROTECTION BOARD, WHICH IS CHARGED IN THE ACT
TO REVIEW THE EMPLOYEE’S COMPLAINT, LACKED JURISDICTION
TO ADJUDICATE A FACIAL CONSTITUTIONAL CHALLENGE TO A
STATUTE, IT COULD FIND ENOUGH FACTS TO PROVIDE THE FEDERAL
CIRCUIT WITH A SUFFICIENT RECORD TO ENGAGE IN AN
AS-APPLIED ANALYSIS OF THE STATUTE. – WE SHOULD NOTE THAT THERE
WAS A DISSENT IN THIS CASE. THE DISSENTERS ARGUED THAT
THESE CONSTITUTIONAL CLAIMS THAT EVAN WAS TALKING ABOUT
ARE NOT THE KINDS OF CLAIMS THAT CONGRESS WANTED TO
CHANNEL THROUGH THE CSRA, BUT I THINK THAT IS A REALLY
HARD ARGUMENT TO MAKE IN LIGHT OF THE LANGUAGE AND
HISTORY OF THE STATUTE. – YEAH,
AND I THINK THE TAKE-HOME MESSAGE FOR FEDERAL JUDGES IN
THIS CASE IS THAT THE BURDEN IS ON THE PLAINTIFF TO SHOW
THAT IT IS NOT, QUOTE, UNQUOTE, “FAIRLY DISCERNIBLE”
THAT CONGRESS INTENDED TO PRECLUDE SUCH AN ACTION
FROM BEING BROUGHT IN FEDERAL COURT. – EARLIER WE MENTIONED AT&T V.
CONCEPCION IN REGARDS TO FEDERAL PREEMPTION. NOW, THE FACTS OF THAT CASE
INVOLVED AN ARBITRATION CLAUSE IN A CONSUMER CONTRACT,
THE ENFORCEABILITY OF WHICH THE COURT UPHELD. BUT THIS TERM,
IN COMPUCREDIT V. GREENWOOD, THE COURT
ADDRESSES ARBITRATION CLAUSES FOR THE FIRST TIME SINCE
CONCEPCION AND AGAIN FINDS THEM TO BE BROADLY
ENFORCEABLE. THE QUESTION HERE IS ONE
OF STATUTORY INTERPRETATION REGARDING WHAT SEEM TO BE
CONFLICTING MANDATES BETWEEN TWO FEDERAL STATUTES. SO CAN YOU, EVAN, HELP
US EXPLAIN THE CONFLICT? – THE CREDIT REPAIR
ORGANIZATIONS ACT, OR CROA, ESTABLISHES A CONSUMER’S
RIGHT TO SUE IN DISAGREEMENTS WITH COMPANIES THAT HAVE
PROVIDED THEM WITH CREDIT. GREENWOOD WAS PART OF A
CLASS ACTION SUIT AGAINST COMPUCREDIT OVER CREDIT CARDS
THAT IT HAD ISSUED TO THE MEMBERS OF THE CLASS. BUT THE AGREEMENT THEY SIGNED
WHEN THEY APPLIED FOR THE CARD SAID THAT ANY CLAIM, DISPUTE,
OR CONTROVERSY BETWEEN THE PARTIES WOULD HAVE TO
BE RESOLVED IN BINDING ARBITRATION. SO THE QUESTION BEFORE THE
COURT WAS WHETHER CONGRESS MEANT TO OVERRIDE THE
FEDERAL ARBITRATION ACT, WHICH PROMOTES ENFORCEMENT OF
ARBITRATION CLAUSES WHERE THEY EXIST, WHEN IT
ENACTED THE CROA? – AND WHAT DID THE
COURT DECIDE, SUZANNA? – IT HELD THAT CONGRESS DID
NOT INTEND TO OVERRIDE IT. IT SAID THAT WHILE THE CROA
PROVIDED FOR A RIGHT TO SUE– IT ESTABLISHED A RIGHT TO SUE– IT DID NOT ESTABLISH A RIGHT
TO SUE IN COURT. SO IT WAS POSSIBLE FOR
INDIVIDUALS TO WAIVE THE RIGHT TO SUE IN COURT. ALL THE CROA DOES IS GIVE
NOTICE, THE COURT SAID, OF REMEDIES THAT ARE AVAILABLE
ELSEWHERE, AND THERE’S NO REMEDY THAT REQUIRES THAT THEY
BE ALLOWED TO SUE IN COURT. – YEAH, AND THE
COURT EXPLAINED THAT BECAUSE ARBITRATION AGREEMENTS
IN FEDERAL STATUTES WERE COMMONPLACE WHEN CROA WAS
ENACTED, THE FACT THAT CONGRESS DID NOT EXPRESSLY
RULE OUT ENFORCEMENT OF AN ARBITRATION AGREEMENT,
THAT INCLINED THE MAJORITY TO BELIEVE THAT CONGRESS FULLY
EXPECTED THAT THE FAA
WOULD APPLY. – THIS IS VERY MUCH IN KEEPING
WITH A SERIES OF CASES THAT THE COURT’S BEEN DECIDING THAT
HAVE BASICALLY BEEN HOLDING THAT IF CONGRESS WANTS
SOMETHING TO OVERRIDE THE FAA, CONGRESS HAS TO DO
SO QUITE EXPLICITLY. – THANK YOU, EVAN.
THANKS, SUZANNA. – FINALLY, WE LOOK AT 3 CIVIL
RIGHTS DECISIONS REACHED BY THE COURT THIS TERM. ALL 3 INVOLVED SUITS
AGAINST INDIVIDUALS WORKING FOR THE GOVERNMENT, AND ALL 3
RULED AGAINST THE PLAINTIFFS. ERWIN, CAN YOU TELL
US ABOUT MINECCI V. POLLARD? – POLLARD WAS A PRISONER AT
A PRIVATE PRISON THAT WAS OPERATING UNDER A CONTRACT
WITH THE FEDERAL GOVERNMENT. HE FELL WHILE IN THE PRISON,
LANDED ON HIS ARMS, AND FRACTURED BOTH ELBOWS. HE CLAIMED THAT HIS MEDICAL
TREATMENT SHOWED DELIBERATE INDIFFERENCE AND THIS WAS
CRUEL AND UNUSUAL PUNISHMENT. HE SAID WHEN HE WAS TAKEN TO THE
HOSPITAL HE WAS PUT IN ARM RESTRAINTS WHICH CAUSED
HIM EXCRUCIATING PAIN. HE SAID THAT ALSO HE WASN’T
TAKEN FOR APPROPRIATE X-RAYS AND REHABILITATION. AND HE BROUGHT A SUIT AGAINST
THE PRIVATE PRISON GUARDS UNDER BIVENS, CLAIMING IT
WAS A VIOLATION OF HIS CONSTITUTIONAL RIGHTS. – WHY DID THE COURT RULE
AGAINST POLLARD, LAURIE? – WELL,
BECAUSE THE COURT USED A TWO-PART TEST TO DECIDE
WHETHER THERE WAS A RIGHT UNDER BIVENS TO SUE. AND THE COURT SAID FIRST,
IS THERE AN ALTERNATIVE PROCESS FOR POLLARD TO
USE TO PROTECT HIS CONSTITUTIONAL RIGHTS? AND HERE, THERE IS A STATE
TORT ACTION THAT HE COULD USE. AND SECOND, EVEN IF THERE IS
NO ALTERNATIVE PROCESS THAT WOULD BE AS GIVING AS A BIVENS
ACTION, ARE THERE OTHER FACTORS COUNSELING AGAINST AUTHORIZING
THE FEDERAL LITIGATION? SO IN THIS CASE, THE
COURT SAID A BIVENS IS THE WRONG REMEDY. THERE IS A STATE
TORT LAW AVAILABLE. IT’S ADEQUATE ENOUGH
TO DETER THIS TYPE OF CONSTITUTIONAL VIOLATION. AND EVEN THOUGH THE STATE TORT
ACTON MIGHT HAVE LIMITATIONS THAT FORBID RECOVERY FOR
EMOTIONAL DAMAGES OR THE AMOUNT OF RECOVERY, IT DIDN’T
MEAN THAT IT AUTHORIZED A BIVENS ACTION. – I THINK THERE ARE A
COUPLE OF THINGS THAT ARE SIGNIFICANT HERE. IN 2001, IN CORRECTIONS
DEPARTMENT V. MALESKO, THE SUPREME COURT
SAID THAT PRIVATE PRISONS CANNOT BE SUED UNDER BIVENS. NOW THE SUPREME COURT HAS
ALSO SAID THAT PRIVATE PRISON GUARDS AT THOSE ENTITIES ALSO
CAN’T BE SUED UNDER BIVENS. AND SECOND, THIS IS THE FIRST
TIME THE SUPREME COURT HAS EVER SAID THAT THE EXISTENCE
OF A STATE TORT REMEDY PRECLUDES THE AVAILABILITY
OF A BIVENS CAUSE OF ACTION. IN BIVENS ITSELF, THERE WAS A
STATE TORT REMEDY AVAILABLE, BUT THE SUPREME COURT
SAID THAT THE VINDICATION OF FEDERAL CONSTITUTIONAL
RIGHTS SHOULDN’T DEPEND ON THE VAGARIES
OF STATE TORT LAW. NOW THE SUPREME COURT IS
SAYING AT LEAST IN THIS CONTEXT, THE EXISTENCE OF
STATE TORT REMEDY PRECLUDES THE BIVENS CAUSE OF ACTION. – THE APPELLEE IN THE NEXT
CASE, JAMES PAULK, WAS THE CHIEF INVESTIGATOR IN
THE D.A.’s OFFICE. PAULK TESTIFIED 3 TIMES BEFORE
A GRAND JURY THAT CHARLES REHBERG HAD HARASSED THE
PERSONNEL OF A LOCAL HOSPITAL. 3 TIMES THE GRAND JURY
INDICTED REHBERG, AND 3 TIMES REHBERG GOT THE
INDICTMENTS DISMISSED. FINALLY, REHBERG SUED PAULK
UNDER SECTION 1983 FOR DENYING HIM HIS CIVIL RIGHTS
UNDER COLOR OF LAW. PAULK ASSERTED ABSOLUTE
IMMUNITY AS HIS DEFENSE. THE QUESTION BEFORE THE COURT
WAS, DOES ABSOLUTE IMMUNITY PROTECT A GOVERNMENT OFFICIAL
WHO IS A COMPLAINING WITNESS IN A GRAND JURY PROCEEDING? LAURIE, WHAT WAS THE
COURT’S REASONING HERE? – WELL,
THE COURT CAME OUT WITH A UNANIMOUS DECISION
HERE, AND THEY SAID IN FACT, IF YOU LOOK AT COMMON LAW
PRINCIPLES, TRIAL WITNESSES HAD THE IMMUNITY, SO THE SAME
THING SHOULD APPLY HERE FOR GRAND JURY WITNESSES. AND FOR POLICY REASON,
THE COURT THOUGHT IT WAS IMPORTANT TO PROVIDE
THIS IMMUNITY. ONE, THEY DIDN’T WANT
WITNESSES TO BE RELUCTANT TO COME BEFORE THE GRAND JURY,
AND SECOND OF ALL, THEY WERE WORRIED ABOUT
GRAND JURY SECRECY. SO THE COURT SAYS, WE’RE
GONNA TAKE THE PRINCIPLES FROM COMMON LAW THAT APPLY TO TRIAL
WITNESSES AND APPLY IT TO GRAND JURY WITNESSES. NOW, ONE THING WE SHOULD MAKE
A POINT OF IS THAT THE COURT DIDN’T SAY THAT THAT IMMUNITY
APPLIED TO THINGS THAT HAPPENED OUTSIDE THE GRAND JURY ROOM. SO IF THERE WERE FALSE
AFFIDAVITS OR OTHER TYPES OF MISCONDUCT, MAYBE
THERE WOULD BE AN ACTION. – SO WAS THIS A SIGNIFICANT
EXPANSION ON EARLIER RULINGS? – IN BRISCOE V. LAHUE, THE SUPREME COURT SAID
THAT POLICE OFFICERS HAVE ABSOLUTE IMMUNITY TO CIVIL
SUITS FOR DAMAGES IF THEY GIVE FALSE TESTIMONY AT TRIAL. I DO THINK THAT THIS IS AN
EXPANSION BECAUSE THIS SAYS IT DOESN’T MATTER WHETHER IT’S
A POLICE OFFICER OR AN INVESTIGATOR. IT DOESN’T MATTER WHETHER
IT’S A TRIAL OR A GRAND JURY. IT DOESN’T MATTER THAT IT’S
THE CHIEF COMPLAINING WITNESS. ABSOLUTE IMMUNITY
STILL APPLIES. AND I THINK THE QUESTION IS,
HOW FAR WILL THIS EXTEND? WHAT ABOUT TESTIMONY AT
A PRELIMINARY HEARING? WHAT ABOUT TESTIMONY AT
A SUPPRESSION MOTION? OR LAURIE GIVES THE EXAMPLE
ABOUT, WHAT ABOUT FALSE STATEMENTS IN AN
AFFIDAVIT OR DECLARATION? IN KALINA V. FLETCHER IN 1997, THE SUPREME
COURT SAID, THOSE AREN’T PROTECTED BY ABSOLUTE
IMMUNITY, BUT IS THERE REALLY A MEANINGFUL DISTINCTION
BETWEEN THIS CASE AND THAT ONE? – AND OUR FINAL DECISION IS
ABOUT QUALIFIED IMMUNITY. THIS IS FILARSKY V. DELIA. QUALIFIED IMMUNITY HERE MEANS
THAT GOVERNMENT OFFICIALS WHO ARE NOT PROTECTED BY ABSOLUTE
IMMUNITY ARE STILL PROTECTED BY QUALIFIED IMMUNITY WHEN
SUED FOR MONEY DAMAGES SO LONG AS IT CANNOT BE PROVED
THAT THEY VIOLATED CLEARLY ESTABLISHED LAW THAT
A REASONABLE OFFICER SHOULD KNOW. THE ISSUE IN FILARSKY IS
WHETHER PRIVATE INDIVIDUALS WHO ARE CONTRACTING WITH A
STATE OR LOCAL GOVERNMENT AND ACTING UNDER COLOR OF LAW
CAN CLAIM QUALIFIED IMMUNITY AS A DEFENSE. ERWIN,
WHAT WERE THE FACTS? – DELIA WAS A FIREFIGHTER
WHO THEN TOOK TIME OFF WORK FOR A MEDICAL DISABILITY. BUT HE WAS SEEN GOING TO A
HOME IMPROVEMENT STORE BUYING BUILDING SUPPLIES. WHEN THAT WAS REPORTED TO HIS
EMPLOYER, THEY WERE THINKING, MAYBE HE’S NOT
REALLY DISABLED. SO THEY HIRED A PRIVATE
INVESTIGATOR TO GO TO HIS HOME TO SEE, AND THE PRIVATE
INVESTIGATOR AND OTHERS WENT AND SAID, WE WANT TO SEE THE
BUILDING MATERIALS TO SEE THAT YOU HAVEN’T INSTALLED THEM. HE BELIEVED THAT HE WAS
BEING HARASSED AND THAT HIS CONSTITUTIONAL RIGHTS WERE
VIOLATED, AND HE BROUGHT A CIVIL SUIT AGAINST THAT
PRIVATE INVESTIGATOR, WHO WAS CONTRACTED WITH THE
GOVERNMENT, SAYING THERE WAS A CONSTITUTIONAL VIOLATION. – SO HOW DID THE
COURT ANALYZE THIS? – WELL,
AGAIN THE COURT LOOKED TO HISTORY, AND THE COURT
SAID THAT THERE WAS A LONG TRADITION OF PRIVATE CITIZENS
HELPING WITH GOVERNMENT WORK. SO WHEN 1983 WAS ACTUALLY
ENACTED, PRIVATE INDIVIDUALS WERE DOING ALL SORTS
Of GOVERNMENT SERVICES. THEY WERE SERVING WITH SHERIFF
POSSES, THEY WERE FERRYMEN, THEY WERE EVEN SOMETIMES
PART-TIME PROSECUTORS. BASED UPON THAT, THAT THE
COMMON LAW DID NOT DRAW A DISTINCTION BETWEEN A
FULL-TIME PUBLIC SERVANT AND A PRIVATE INDIVIDUAL WHO
MIGHT HELP WITH GOVERNMENT SERVICE, THE COURT
SAID THAT IT WOULD NOT. SO, BOTTOM LINE OUT OF THIS
CASE, PRIVATE INDIVIDUALS WHO ARE DOING THE WORK FOR THE
GOVERNMENT WILL HAVE THE SAME TYPE OF IMMUNITY WHETHER
OR NOT THEY’RE FULL-TIME PUBLIC SERVANTS. – THIS IS A SIGNIFICANT
CHANGE TO THE LAW. IN TWO PRIOR CASES, WYATT V.
COLE AND RICHARDSON V. McNIGHT, THE SUPREME COURT SAID THAT
WHEN PRIVATE INDIVIDUALS ARE ACTING UNDER COLOR OF LAW,
THEY ARE NOT PROTECTED BY QUALIFIED IMMUNITY. THE SUPREME COURT DID NOT
OVERRULE THOSE DECISIONS, BUT CLEARLY LIMITED THEM
ESSENTIALLY TO THE FACT–AND I AGREE WITH LAURIE’S CONCLUSION– THAT APART FROM FACTS LIKE THOSE EARLIER DECISIONS,
WHEN A PRIVATE INDIVIDUAL ACTING UNDER COLOR OF LAW IS
SUED, THAT PERSON CAN RAISE QUALIFIED IMMUNITY
AS A DEFENSE. – YOU KNOW, ERWIN, I THINK
WE CAN SUM UP THESE CASES BY SAYING IT IS A LOT EASIER NOW
TO DEFEND AGAINST CIVIL RIGHTS ACTIONS, AND IF YOU LOOK AT
WHAT WE HAVE IN THESE 3 CASES– FIRST, THAT THERE IS NO
BIVENS ACTION UNLESS THERE ARE NO OTHER ADEQUATE REMEDIES;
TWO, THAT THE COURT IS GOING TO CONTINUE TO LOOK AT
IMMUNITY AS EVOLVED UNDER THE COMMON LAW; AND THIRD, THAT A
PERSON BEING SUED DOESN’T HAVE TO HAVE THAT FULL-TIME
RELATIONSHIP AS A GOVERNMENT SERVANT TO HAVE THE IMMUNITY;
IT DOES MAKE IT HARDER TO BRING THESE CIVIL
RIGHTS ACTIONS. – THANKS, LAURIE,
THANKS, ERWIN. HERE’S JOHN COOKE
WITH SOME FINAL WORDS. – THAT’S OUR PROGRAM
FOR THIS YEAR. I THANK OUR FACULTY FOR
THEIR THOUGHTFUL DISCUSSION. WE HOPE YOU FOUND THE PROGRAM
USEFUL AND INTERESTING.

One Comment

  • Phyllis Hyman

    Can a plantiff without notice wthdraw submitted discovery package , without written notice and can the prosecutor/ plantiff introduce new evidence the day of hearing and not give ample time to defense to review and prepare for the hearing? Can the prosecutor violate the rules of evidence without reprecussions? Can a Judge knowingly refuse to dismiss a case knowing the following issues of prosecutor violation?

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