U.S. Supreme Court. Fall 2010.

What separates a stereotype from reality?

       - Justice Scalia, November 10th, in the case of the young man who came to the USA with his U.S. Citizen father at the age of 2 or so v. the U.S. which wants to deport him for being here after he was deported and whose lawyer has a beard that would make Lincoln proud

You are not one of the stupid lawyers that we were worried about before.

       - Chief Justice Roberts, November 29th, in the case of a child molestor who wanted to file a petition for habeas corpus v. the state of Rhode Island which says, "Surprise!  Too late!  That's life!" (Wall v. Kholi)
U.S. Supreme Court
Washington, D.C.
Chamber of Commerce v. Whiting

     Illegal immigration has been a hot button issue recently.  The Department of Homeland Security estimates that out of 31 million foreign-born residents in the United States as of 2009, nearly 11 million were illegal.  Interestingly enough, the current Secretary of Homeland Security, Janet Napolitano, signed into law the Legal Arizona Worker’s Act in 2007, when she was Governor there.  It is that law which was the subject of this morning’s oral arguments at the United States Supreme Court.
     The Arizona law requires employers to check the immigration status of job applicants, with the threat of penalties that include revocation of an employer’s business license if undocumented workers are hired.  The District Court ruled that the Arizona law was not pre-empted by federal law, and the 9th Circuit agreed.  The Supreme Court will decide whether the Arizona statute is pre-empted by Federal law, namely the Immigration Reform and Control Act of 1986.  The court will also determine whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system called E-Verify, is pre-empted by a federal law that specifically makes that system voluntary.
     The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress and not to the States.  That’s what the U.S. Supreme Court ruled in 1876, in the case of Chy Lung v. Freeman.  In 1915, in the case of Truax v. Raich, the Supreme Court found that an Arizona law denying legal aliens the right to work in many jobs violated the 14th amendment, and also interfered with the “authority to control immigration, to admit or exclude aliens,” an authority which lies solely with the Federal government.
     All that sets the stage for today’s hearing.  The Federal law – the Immigration Reform and Control Act  – preempts any State or local law from imposing civil or criminal sanctions, other than through licensing and similar laws, upon those who employ, recruit or refer for a fee, unauthorized workers.  It was whether the Arizona law fell into the category of licensing and similar laws that the court spent most of its time investigating.  If Arizona’s law is determined to be a licensing law, it won’t be pre-empted by the federal law.
     Justice Kennedy saw a broad definition as to what could be a license under the federal law, stating that he saw no limitation on what the State can decide is a license.

     Justice Scalia joined in, stating that the Federal law didn’t limit what type of licenses would be permitted, and asking what did it intend to add to that? Barbers' licenses, beauticians' licenses? How would any of this have anything to do with the immigration laws?

     Justice Sotomayor tried to turn the discussion back to the issue of preemption, saying she thought the issue of how a license is defined was irrelevant.  The crux of the issue, according to Justice Sotomayor, was whether the Federal law preempted the system the Arizona law set up to determine whether employers had violated the law.  However, the licensing issue remained at the forefront throughout the hour-long hearing.
     If the Court agrees with the Chamber of Commerce that the Arizona law is preempted, it will be more difficult for states to regulate illegal immigration.  If the Court upholds the law, businesses will have to navigate a patchwork of state employment and immigration laws.

U.S. Supreme Court
Washington, D.C.
Thompson v. North American Stainless

     It was a cold, crisp, clear morning at the United States Supreme Court today.  Flags were at half-mast for Pearl Harbor Day.  The U.S. Capitol Dome was gleaming white across the street, having just shrugged off the morning alpenglow.  The Court heard oral arguments in the case of Thompson v. North American Stainless.

     In Carroll County, Kentucky, Petitioner Eric Thompson worked as a metallurgical engineer for North American Stainless from 1997 until 2003, when he was fired from his job, allegedly for performance-based reasons.  Thompson surmised that he was fired in retaliation because his fiancée at the time (and current wife) - Miriam Regalado – had filed a complaint of gender discrimination against the company with the Equal Employment Opportunity Commission.  Stainless fired Thompson 3 weeks after Regalado filed her discrimination complaint.

    Thompson filed his employment discrimination claim under the Civil Rights Act of 1964.  The statute forbids an employer from retaliating against an employee for engaging in a protected activity.  Filing a complaint of gender discrimination, as Thompson’s fiancée did, with the Equal Employment Opportunity Commission is an example of a protected activity.

     Thompson was not engaged in a protected activity that resulted in retaliation.  The issue the Court must decide in this case is whether Thompson is protected from retaliation by Stainless due to Regalado’s protected activity and therefore, has a right to sue under the Civil Rights Act as a third party, based on his close association with Regalado, who was engaged in protected activity.

     The Justices were skeptical of who would be eligible for the kind of 3rd party right to sue that Thompson is claiming.  At times, the hearing more resembled an episode of Seinfeld than of Law and Order.  Justice Alito kept asking who would be eligible -  someone you had lunch with, someone you dated, someone you tell secrets to.  He seemed perplexed. 

     Justice Sotomayor also wondered who could sue as a 3rd party under Thompson’s theory, asking what if they're just coworkers, but a coworker who has expressed sympathy for the discriminated person, has spoken about them in a favorable light, or has tried to defend them. Would that person be protected from being fired?

     Currently, there is a split among the federal courts on third-party retaliation claims under the Civil Rights Act – half do not recognize third party retaliation claims, while the rest allow this kind of lawsuit.   This case will give the Court the chance to resolve this discrepancy. 

U.S. Supreme Court
Washington, D.C.
Pepper v. United States

     This morning, the U.S. Supreme Court heard oral arguments in Pepper v. United States, a case involving the Federal Sentencing Guidelines.

     Jason Pepper, a convicted meth dealer, tried to paint a sympathetic picture of himself.  While Pepper was in high school, his brother died.  Soon after, his mother died.  Then Pepper became depressed and tried to kill himself.  A good student in high school, after going through so many ordeals, Pepper found himself nearly homeless.  He started using and selling meth, in an attempt to self-medicate and to support himself.

     Pepper was sentenced by the District Court to 2 years in prison for selling meth.  Under the Federal Sentencing Guidelines, Pepper’s conviction carried a 10 year mandatory minimum sentence.  Pepper received a reduced sentence because he had no prior convictions and because he provided evidence to the prosecution against other defendants.

     On appeal, the Circuit Court overturned Pepper’s sentence, ruling that the District Court abused its discretion by giving Pepper such a short sentence.  While the appeal was ongoing, Pepper completed his 2 year sentence, got married, stayed drug free, got a job, and got straight A’s in college.  Upon reconsideration of these developments, the District Court again sentenced Pepper to 2 years in prison.  The Circuit Court reversed this decision again, ruling that the District Court could not consider post-conviction rehabilitation evidence in giving Pepper a sentence below the Federal Guidelines.

     The U.S. Supreme Court must determine whether a federal district court judge may consider evidence of the defendant’s rehabilitation that occurred after conviction, or whether the judge must follow the Federal Sentencing Guidelines.

     Justice Sotomayor seemed to support allowing judges to consider this type of evidence in determining sentence, saying that when she was a district court judge, post sentencing criminal conduct would make her wonder if the person really was worthy of a lower sentence or not.

     Though the precise legal issue before the Court in this case is narrow, the justices could issue an opinion that has long-term consequences for the modern federal sentencing system.

Washington, D.C.
Milner v. Navy

     This morning, the U.S. Supreme Court heard arguments in the case of Milner v. Department of the Navy.  Glen Milner, a resident of Indian Island in the Puget Sound of Washington State, is seeking access through the Freedom of Information Act to files describing the blast radius of Navy-managed munitions stored in a magazine on the island.  Among the information Milner is requesting is the Explosive Safety Quantitative Distance information.  Milner claims this information is in the public interest, as the munitions are located within proximity of residential dwellings.

      The Navy has not complied with Milner’s request, arguing that the information cannot be released under the Freedom of Information Act because it circumvents the agency’s function.

     To advance his cause of action, Milner argues that the information should be released because it is related solely to internal rules and practices of the Navy and cannot be withheld from a Freedom of Information Act request. 

     The U.S. court seemed to accept Milner’s argument.  At one point, Chief Justice referred to Assistant Solicitor General Anthony Yang’s argument as “torturing” the language and spirit of the Freedom of Information Act.  The Navy’s argument that terrorists could get ahold of sensitive material was met with skepticism.  If that’s the case, Chief Justice Roberts queried, why not make it classified material?  Attorney Yang responded that if the Navy did that, they would not be able to share the information with first responders and other entities.

     If Milner prevails, the Navy will be required to release the information.

U.S. Supreme Court
Washington, D.C.
Schwarzenegger v. Plata

     Prison, it’s a bad thing.  In California, it’s really bad.  So bad, that in October of 2005, the U.S. District Court in California ordered that California’s prison medical system be placed under the control of a court appointed receiver.  In May of 2005, a federal district court judge described medical treatment in the California prison systems as “horrifying” and “shocking.”  He described widespread medical malpractice and neglect.  The court found that the system was broken beyond repair, causing an unconscionable degree of suffering and death.  The court found that, on average, an inmate in one of California’s prisons needlessly dies every six to seven days because of  grossly deficient medical care.

     This morning, in a rare 80 minute session, the United States Supreme Court heard oral arguments in the case of Schwarzenegger v. Plata.  The terminator seems to think that his prisons are hunky dory and doesn’t want to follow the orders of a federal 3-judge district court, set up as a result of a class action filed under the federal Prison Litigation Reform Act. 

     In January of this year, the court ordered that California reduce its prison overcrowding to 137.5 percent of capacity.  Right now, California prisons house over 160,000 inmates.  That is nearly twice as many as the facilities are designed to hold.  The federal 3 judge court stayed the population reduction order, meaning that it will not take effect, until the U.S. Supreme Court decides the appeal that the terminator has filed in this case.

     The justices gave the state of California a shellacking this morning.  The terminator’s attorney, Carter Phillips, came out swinging but completely missed the mark.  His argument that the reduction order was premature was met with disbelief by Justice Ginsburg, who asked how much longer do we have to wait to do something.  She referred to the 70 orders made by the district court during the 20 years that this prison litigation has gone on.  

     Justice Sotomayor, once again, took control of the argument, asking what are the alternatives to inmate reductions?  She said there is no other option and asked Attorney Phillips for concrete steps that California would take, instead of reducing the prison population.  When Phillips began to refer to a statement the receiver had made about prison levels, Justice Sotomayor held up her hands for him to stop, saying “if that is all you are relying on.”

     Phillips tried to say that the constitutional violations taking place in the California prison system are a result of a culture of disregard of inmates, not overcrowding.  The Justices did not seem to place this argument in high regard. 

     In sharp contrast to Attorney Phillips, a high-priced hired gun, was Donald Spector, attorney for the inmates.  Spector is an attorney with the Prison Law Office in Berkeley, California.  He is a thoughtful, soft-spoken man who seemed committed to the prisoners’ cause.  The Justices asked him for information about the history of the litigation and the evidentiary record.  Only Justice Alito, concerned about public safety upon the release of 46,000 inmates, questioned if there was another way, besides releasing inmates, to remedy the constitutional violations in the prison system.  Attorney Spector made it clear that nothing else in the past 20 years had worked to improve conditions, and that population reduction was the only option.
     If California loses and has to comply with the district court order, the terminator will have to release 46,000 prisoners by 2011.  That’s a lot of Hasta la Vista, baby lines that the terminator will have to deliver.

U.S. Supreme Court
Washington, D.C.
Wall v. Kholi

     Khalil Kholi is not the most sympathetic person to appear before the U.S. Supreme Court.  Convicted in 1993 on 10 counts of sexually molesting his two stepdaughters from the time they were toddlers until their teen years, Kholi was sentenced to two consecutive life terms by the Rhode Island Superior Court.  Kholi’s state court appeals were unsuccessful – a final decision was made in February of 1996.  In May of 1996, Kholi made an application for leniency, asking the state to reduce the length of his sentence.  This application was denied in August of 1996.  In May of 1997, Kholi filed a petition for petition for habeas corpus.  More than 1 year had passed since the denial of Kholi’s state court appeals.

     Under the Federal Anti-Terrorism and Effective Death Penalty Act, or AEDPA, a state prisoner has 1 year from the final court decision on his appeal to file a federal habeas corpus petition challenging his conviction.  However, AEDPA has a tolling clause.  That means that the time during which a prisoner has filed an appeal or other collateral review – that time does not count towards the one-year statute of limitations.

     In the case of Wall v. Kholi, the Supreme Court has to decide if Kholi’s leniency application pauses, or tolls, the 1 year deadline to file a federal habeas corpus petition.  If the deadline is paused, Kholi can appeal his conviction at the federal level.  If not, Kholi is mostly likely out of options.

     The State of Rhode Island tried to persuade the court that Kholi’s leniency application did not toll, or pause, the one year deadline to file a habeas corpus petition.  Their arguments were not met with understanding.  In fact, early in the proceeding, Justice Scalia declared, “I don’t understand your argument AT all.”  Justice Sotomayor, usually a few steps ahead, said “I’m TOTALLY confused,” when trying to figure out the fast-talking Assistant Attorney General of Rhode Island, Aaron Weisman. 

     Kholi’s attorney was not having much better luck explaining the difference between a collateral and direct review.  At one point, Justice Breyer seemed incredulous, violently shaking his head in confusion.  Justice Scalia seemed to sum up the court’s opinion, stating that rather than having federal courts try to determine whether a review of a conviction tolls AEDPA for habeas corpus purposes, federal courts should presume that all state proceedings that affect convictions and sentences toll the one year deadline.

     Totally confusing, indeed.

U.S. Supreme Court
Washington, D.C.
AT&T v. Concepcion

     AT&T, which has over 90 million customers, would really like to keep them from reaching out and touching one another.  That's basically what AT&T was asking the Supreme Court to do this morning, when it argued that the Federal Arbitration Act trumps a California law that was used in ruling that AT&T's arbitration clause is unconscionable and unenforceable.  The case was a result of AT&T's "buy a phone, get one free" offer.  Except this time, the free phone wasn't really free.  AT&T charged its customers a tax on the free phone, added in some fees, and hit customers with a 30 dollar 32 cent charge for its "free" phone.

     In 2006, Vincent and Liza Concepcion brought a class action against AT&T over the free phone.  AT&T requires all cell phone customers to sign an agreement that includes an arbitration clause, where the customer promises not to be involved in a class action.  AT&T argued, and lost, in the lower courts that its customers can't bring a class action because they agreed not to.  AT&T has an enormous financial stake in keeping customers from bringing a class action.  How many customers are going to go to arbitration or bring a lawsuit over 30 dollars and 32 cents?  From 2003 to 2007, only 200 customers - about .0029 percent of AT&T's customers - utilized the arbitration process.  But if millions of customers are allowed to join together to sue over these fraudulent charges, AT&T could be out a lot of money, and its days of 30 dollar 32 cent free phones may be over.

U.S. Supreme Court
Washington, DC
Arizona vouchers

     For listeners who followed the controversy over the past few years concerning Michelle Rhee, DC Public Schools, charter schools, vouchers, Wal-Mart and standardized testing, a case argued in the U.S. Supreme Court this week may be of interest.

     On Wednesday, the U.S. Supreme Court heard arguments in a taxpayer’s lawsuit which complained that Arizona’s voucher system violates the first amendment’s Establishment Clause, which prohibits certain types of governmental support of religion. 

     The court heard arguments first on whether the taxpayers actually had a right to sue.  If they don’t, the suit will be thrown out.  If they do, the court will then determine if Arizona’s voucher system violates the Establishment Clause.

     The court seemed frustrated when they learned what the taxpayers wanted their suit to accomplish.  Chief Justice Roberts said, “So the only difference is that Arizona set up this system where you get a tax credit instead of a tax deduction?”  Justice Scalia said, “This is a major lawsuit?”  He was surprised at the requested remedy, “So it really is just that line in the tax form that you are concerned about, and the only relief you really need is – is changing the tax form?”

U.S. Supreme Court
Washington, DC
Arizona Christian School Tuition Organization v. Winn/Garriott v. Winn.

    On November 3rd, the U.S. Supreme Court heard oral arguments in the consolidated cases of Arizona Christian School Tuition Organization v. Winn and Garriott v. Winn.  Winn filed a taxpayer's lawsuit, complaining that Arizona's voucher system, which offers tax abatements to contributors to a school tuition organization, violates the first amendment's Establishment Clause, which prohibits certain types of governmental support of religion.  First, the court will determine if the taxpayer has standing to challenge Arizona's voucher system as a violation of the principle of separation of church and state.  Next, the court will determine if the Arizona program that provides contributors a tax break for contributing to a school tuition organization, which may fund a religious school, violates the Establishment Clause.

     The Acting Solicitor General, Neal Katyal, tried to convince the court that the Winn had no taxpayer standing - no legal right to sue - in the original case.  This argument was met with skepticism.  Justice Kagan called it "silly and fictional."  Accepting Katyal's position would mean that a slew of first amendment and civil rights cases should be overturned, as the complainant had no right to sue as a taxpayer.

     Next up, Paula Bickett for Arizona, explained that Arizona set up this convoluted school tuition organization system for funneling money to private schools because the Arizona Constitution prohibits any direct aid to private schools.  It's a simple shell game that probably poses no constitutional problems.  Arizona's system made sure that no state actor was involved in any way with the decision of transferring tax money to private schools.  It is a multi-tiered system that required the "on" switch to be engaged by four separate and distinct sets of decision-makers before funds flow to private schools from a school tuition organization (STO) - the STO creators who set up the funding mechanism, the STO staff that grants scholarships, contributing taxpayers who fund the STO's, and parents and students who apply for STO scholarships.

      Paul Bender, attorney for the taxpayers, perhaps should have chosen a different route, skipping the argument altogether in favor of a bar-hopping bender on U Street.  Bender had difficulty establishing a violation of the Establishment Clause.  With Bender's call of "It turns on whether when the taxpayer makes the payment the taxpayer is paying the taxpayer's own money or the money the taxpayer owes to the government," evoking a response of "I completely don't understand that" from Justice Alito, the future of the STO seemed pretty secure.  When he finally understood that the basis of the claim of a violation of the doctrine of separation of church and state hinged on how the tax abatement that funded the STO was implemented - a tax credit after a tax bill is computed, or a tax deduction from income before a tax bill is computed - Justice Scalia went ballistic.  "So that it's a deduction before the line.  This is a major lawsuit??!"  Justice Scalia played his joker role, commiserating with the burden the State of Arizona faced if the STO was found to be unconstitutional, "That's the problem; they have to revise their form," and he nailed another gallery-erupting-in-guffaws one-liner.

     Chief Justice Roberts seemed to have been incredulous.  "So the only difference is that Arizona set up this system where you get a tax credit instead of a tax deduction?"

     Bender seemed to have no problem with the STO itself, "There is nothing unconstitutional about the taxpayers sending the money to an STO.  If STOs did not discriminate on the basis of religion in giving that money out, there would be no unconstitutionality."  Justice Scalia was surprised at their requested remedy, "So it really is just that line in the tax form that you are concerned about, and the only relief you really need is - is changing the tax form?"

     I'll bet a kit kat that the STO is A-OK.

U.S. Supreme Court
Washington, D.C.
Skinner v. Switzer

     On October 13th, the U.S. Supreme Court heard oral arguments in the case of Skinner v. Switzer.  Hank Skinner, convicted in a triple homicide and facing a death sentence in Texas, wants access to DNA evidence from the crime scene.  The court will determine if Skinner's request for DNA evidence is properly filed as a civil rights suit or must be filed as a petition for habeas corpus.

     The salient details surrounding the event would make a good script for a CSI or Law and Order (swiped from the headlines) episode.  Skinner's claim that he was too drunk to have committed the murders evokes a "yeah, right" response.  Too intoxicated on alcohol and pills, Skinner says he was physically incapable of mustering the strength needed to commit the violent acts that resulted in the deaths of his girlfriend and her two mentally disabled, adult children.  The toxicology reports seem to bear out this claim.  But the jury didn't buy it.  Skinner doesn't dispute that he was at the scene of the crime and that the blood of the victims was found on him.  The evidence that Skinner wants tested - a couple of knives, vaginal swabs, fingernail clippings, a bloody towel, a jacket - holds the key to the identity of the killer.

      Under Skinner's civil rights claim to access the untested DNA evidence, he has to prove that his request is not about the legitimacy of his conviction or sentence.  If it's about his conviction or sentence, Skinner has to go the habeas corpus route.  It made for a convoluted intellectual thrust-and-parry at times.  Justice Kennedy asked about the oddness and irony of the situation, querying Skinner's attorney, Robert C. Owen of the University of Texas at Austin, if it's not about the sentence, why did he ask the Supreme Court for a stay of execution?  A Catch-22 situation if there ever was one.  Owen should have said, "Why do you think?"  A dead man has no life, and thus no constitutional rights to anything.

     But the request to test the DNA evidence is not really about the conviction or sentence.  It is about the evidence and the possibility that it may shed some light on who the real killer is.  Skinner hopes it is exculpatory.  But it may be inculpatory.  Skinner doesn't know.  And that is why this case should be a no-brainer for the court.  It's not about the conviction or the sentence.

     The Texas prosecutors made the usual dire floodgate-deluge warnings that Supreme Court respondents make when they don't have a legal leg to stand on.  Just the day before, the Respondent's attorney in Bruesewitz v. Wyeth made the same argument with a straight face.  The 5th Circuit, of which Texas is the death penalty capital, is the only circuit that continues to insist that case law should be read to bar a civil rights suit for post-conviction DNA testing.  Every other circuit has recognized this type of suit.  The Texas prosecutors should pay close attention to the words of Justice Harlan in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics:  the fear of burgeoning caseloads "should not be permitted to stand in the way of recognition of otherwise sound constitutional principles."  But here, that fear is not even remotely rational.

     Success in this case means getting access to the evidence.  That's all.

U.S. Supreme Court
Washington, D.C.
Bruesewitz v. Wyeth

     On October 12th, the U.S. Supreme Court heard oral arguments in the case of Bruesewitz v. Wyeth.  The National Childhood Vaccine Injury Act protects vaccine manufacturers from liability for certain injuries caused by their vaccines (giving injured patients compensation from the government instead). The court examined whether that immunity applies when the victim claims that the design of the drug created an avoidable and unnecessary risk to patients.

     On April 1, 1992, Hannah Bruesewitz, then a healthy six-month-old baby girl, received her third dose of Wyeth’s Tri-Immunol vaccine.  Within hours, Hannah experienced her first seizure.  Her medical problems continue to this day.  She will require a lifetime of supervision and care.

     Her family filed a claim with the Vaccine Court, which was set up by the U.S. Government in 1986 by the National Childhood Vaccine Injury Act to handle injury claims from vaccines.  Since they could not prove a causal connection between the injuries and the vaccine, her claim was denied.

     The Bruseweitzes then filed a claim in state court under the theory that the vaccine had a design defect and therefore Wyeth was liable for Hannah's injuries.  The court did not agree and denied their claim.  Successive appeals failed, and now the Petitioners are asking the Supreme Court to let their claim go forward.  This case is about the claim procedure set up by the vaccine court.  Vaccine makers are not liable when the injury is unavoidable.  The only time an injury is avoidable is if the vaccine maker did not manufacture the product properly or if the required warnings were not provided.  To prove a design defect claim, the petitioner has to prove that an imagined, hypothetical vaccine that was never researched, tested or produced would be safer and thus the injuries are avoidable.  The justices were skeptical of this nebulous claim.

     Wyeth made it clear that this was a public safety matter, and that the vaccine compensation system has been effective in ensuring a safe supply of vaccines and providing a financial cushion for the vaccine makers.  The justices did question, however, whether the compensation system would result in vaccine makers becoming lax in safety matters, as there is no incentive under the National Childhood Vaccine Injury Act to improve their products - they are shielded from liability in this respect.

     If the petitioners win, it means they would be able to file a lawsuit for damages in state court.  They would still have to establish a factual record and demonstrate that the vaccine caused the petitioner's injuries.  They face years of litigation.  It also means that the MMR-autism claims, 6 of which have been denied in the vaccine court, would be able to proceed in state court.  Over 5,000 autism cases would be filed, even though the findings of Dr. Andrew Wakefield, which initially established the vaccine-autism connection, have been discredited.