Monday, June 30, 2008

Thoughts on Heller

The Second Amendment provides that "[a] well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." In District of Columbia v. Heller, the Supreme Court held that the plain language of the Amendment recognizes a personal right, belonging to "the people," to possess firearms. The Court rejected arguments that the Second Amendment simply permits the states to form, arm, and maintain their own militias or the modern National Guard.

Heller arose out of the District's complete ban on possession of usable handguns in the home. In the District, it is a crime to carry an unregistered firearm and the registration of handguns is prohibited. Registered long guns, such as shotguns, are allowed in the home, but they must be unloaded and disassembled or bound by a trigger lock. The result is that citizens of the District have no legal means of defending themselves should an intruder enter their residences. They call 911 and hope a police cruiser is nearby.

Writing the majority opinion, Justice Antonin Scalia traced the origin of the right to bear arms to Great Britain where the eminent jurist William Blackstone described it as "the natural one of resistance and self-preservation." Commentators in the years after ratification of the Second Amendment took a Blackstonian view of this right. St. George Tucker, one of the early Republic’s most renowned constitutional scholars, described the Amendment as "the true palladium of liberty” and acknowledged that “the right of self-defense is the first law of nature."

Going forward in history, Justice Scalia examined post-Civil War state laws that prohibited blacks from owning firearms. Members of Congress and Freedmen’s Bureau officials protested that these laws infringed the federal constitutional "right of the people to keep and bear arms." No one ventured to argue that the state laws were permissible because the Second Amendment did not apply to individuals. The language in 1866 was just as clear as it was in 1791.

Hence, the Heller Court affirmed that the Second Amendment protects individual rights and struck down the District’s total ban on weapons for home defense. The Court also made clear that this right is not unlimited and that its holding should not cast doubt on reasonable restrictions prohibiting felons or the mentally ill from possessing firearms. Regulations prohibiting weapons in government buildings and other sensitive places also remain untouched.

The Supreme Court rightly deserves applause for its fidelity to the Constitution in deciding Heller. The case is perhaps the most significant decision of this century. However, Americans should not forget that this was a 5-4 decision. Four justices of the Supreme Court would have ignored the plain language and historical context of the Amendment. Believing themselves at liberty to rewrite fundamental law, these justices would leave Americans at the mercy of criminals and a future government tyranny.

The Second Amendment is part of the same Bill of Rights that guarantees liberty of the press, the right of assembly, and freedom of religious worship. If a near majority of the Court would attempt to erase the Second Amendment from the Constitution, what is to stop them from taking a cavalier approach to other constitutional rights?

While Americans should rejoice in the victory for individual rights in Heller, they should not forget that four justices of the nation’s highest court would have eradicated the right to bear arms. If only a slight majority of the Court will respect the ancient and fundamental right of resistance and self-preservation, Americans should be concerned about the fate of other liberties enumerated in the Bill of Rights.

Thursday, June 26, 2008

SCOTUS holds that the states may not execute those who rape children

In Kennedy v. Louisiana, the Supreme Court decided whether the Constitution bars a state from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim. The Court held that the Eighth Amendment does prohibit the death penalty for this offense. In its opinion, the Court stressed that the Eighth Amendment’s prohibition against cruel and unusual punishment is not determined by the standards that prevailed in 1791 when the amendment was adopted, but rather the norms of society that currently prevail. The Eighth Amendment, according to the Court, draws its meaning from the evolving standards of decency that mark the progress of a maturing society.

In coming to its decision, the Court based its reasoning on a consensus and its own independent judgment that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments. The consensus referred to by the Court is that in the thirty-seven jurisdictions that have the death penalty, only six of those jurisdictions authorize the death penalty for rape of a child. The Court also made note that no person has been executed for the rape of an adult or child since 1964.

The Courts ruling is best summed up in this paragraph:

"Consistent with evolving standards of decency and the teachings of our precedents, we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons, even including child rape, on the other. The latter claims may be devastating in their harm, as here, but in terms of moral depravity of the injury to the person and to the public, they cannot be compared to murder in their severity and irrevocability."

On our way to a 1:1 ratio with punitive damages??

Yesterday, the United States Supreme Court decided Exxon Shipping v. Baker. This decision dealt with a punitive damages award arising out of the spill from the Exxon Valdez in 1989. Millions of gallons of crude oil were dumped into Prince William Sound, causing extensive damage to the environment, commercial fishermen, and native Alaskans. Claims were brought for economic losses sustained by individuals who were dependent on the Prince William Sound for their livelihoods. A jury awarded $5 billion against Exxon in punitive damages. The Ninth Circuit reduced the punitive damage award to $2.5 billion. Total compensatory damages were calculated at $507.5 million.

The Supreme Court ordered that the punitive award be reduced even further. The Court was careful to emphasize that this case arose under federal maritime jurisdiction and required review of a jury award at the level of judge-made federal common law. The court adopted a 1:1 ratio as a fair upper limit in these maritime cases. Thus, the jury award of punitive damages was reduced to $5o7.5 million.

I don't care what the Court says. This case will be cited in state and federal courts for the proposition that a 1:1 ratio is preferred and comports with due process. It will be interesting to follow the life of this ruling.

Wednesday, June 25, 2008

SCOTUS holds assignee of claims claims have standing even if they have no interest in the proceeds of verdict or settlement

The Supreme Court decided Sprint v. APCC, which dealt with an interesting assignment issue. At base, the Court was asked to decide whether a plaintiff who has been assigned rights to pursue a legal claim, but will collect no proceeds from the outcome of the suit, has standing under Article 3 to bring suit. The Court held that such a plaintiff does have standing to sue.

This case arose out of the pay phone industry. A common practice in the industry is for pay phone service providers to assign claims against long-distance carriers to aggregators such as APCC. Because many of the claims are very small, the aggregators take assignments from multiple operators and then bring suit. The aggregator is paid a fee for this service and the settlement amount or proceeds from litigation goes back to the pay phone operator.

Reviewed a number of precedents and held that American courts have long found ways to allow assignees to bring suit. Lawsuits by assignees, including assignees for collections only, are cases in controversies of the sort traditionally amendable to, and resolved by, the judicial process. Emphasize that within the past decade it has expressly held that an assignee can sue based on his assignor’s injuries. The Court, as an example, cited that a qui tam relator possesses Article 3 standing to bring suit under the False Claims Act, which authorizes a private party to bring suit to remedy an injury that the United States suffered.

Supreme Court holds that court of appeals may not increase sentences without a government cross-appeal

In Greenlaw v. United States, the Supreme Court considered whether a United States Court of Appeals acting on its own initiative and without an appeal or cross-appeal from the government, may order an increase in a criminal defendant’s sentence. Greenlaw was convicted of various drugs and weapons offenses and sentenced to 442 months confinement. He appealed his sentence. After rejecting all of Greenlaw’s issues, the Court of Appeals determined that the law required the present sentence to be 15 years longer than the term imposed by the trial court. The Supreme Court reversed.

In making its ruling, the Court of Appeals claimed that Rule 52(b) of the Rules of Criminal Procedure gave it authority to alter the sentence. This rule provides that a plain error that effects substantial rights may be considered even though it was not brought to the Court’s attention. The Supreme Court held that nothing in the text of the rules suggested that the drafters meant to override the cross-appeal requirement. The Court further noted that case law using the plain-error doctrine has only invoked the doctrine to the benefit of the defendant who had petitioned the Court for review on other grounds.

Tuesday, June 24, 2008

SCOTUS holds right to counsel attaches at a defendant's first appearence before a magistrate

Yesterday in Rothgery v. Gillespie County the Supreme Court held that the right to counsel attaches at a defendant’s first appearance before a magistrate. The Court further held it does not matter whether a prosecutor is also present before the magistrate. Based on an erroneous criminal background check, Rothgery was arrested by Texas police officers for being a felon in possession of a firearm. The officers had no warrant, but promptly brought Rothgery before a magistrate judge. At the hearing the judge informed Rothgery of the accusation, set his bail at $5,000, and committed him to jail, from which he was released after posting a surety bond.

After his release, Rothgery made several written and oral requests for the appointment of counsel. These requests appear to have been ignored. Rothgery was later indicted by a Texas grand jury for unlawful possession of a firearm by a felon. This indictment resulted in his rearrest and an order increasing his bail to $15,000. When Rothgery could not post it, he was put in jail and remained there for three weeks. Six months after the first appearance before a magistrate, Rothgery was assigned counsel. Counsel promptly obtained a bail reduction and assembled paperwork confirming that Rothgery had never been convicted of a felony. Once the district attorney learned of this, he filed a motion to dismiss the indictment. The court granted the motion.

The case before the Supreme Court began when Rothgery brought a Section 1983 action against the County, claiming that if the County had provided a lawyer within a reasonable time after the first hearing, he would not have been indicted, rearrested, or jailed for three weeks. The District Court and the Court of Appeals held that Rothgery’s claim could not stand because no prosecutor was present during the initial hearing. Thus the right of counsel did not attach.

The Supreme Court of the United States reversed. The Court held that by focusing on whether a prosecutor was present at the initial hearing, the lower courts effectively focused not on the start of adversarial judicial proceedings, but on the activities and knowledge of a particular state official. The Supreme Court reaffirmed that the right to counsel attaches at the first formal proceeding, regardless of whether the prosecutor is in the room. An accusation filed with the judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, that the right of counsel must attach.

Friday, June 20, 2008

SCOTUS holds that states may require defendants with limited capacity to be represented by counsel

In Indiana v. Edwards, the Supreme Court decided an issue regarding self-representation. The case focused upon a criminal defendant whom a state court found mentally competent to stand trial if represented by counsel but not mentally competent to conduct the trial himself. The Supreme Court granted certiorari to determine the relation of mental competency to the right of self-representation. The Court ultimately held that a state may limit a defendant’s self-representation right by insisting upon counsel at trial on the ground that the defendant lacks the mental capacity to conduct his trial defense alone. The Court recognized that a trial judge has much discretion when making the determination about a defendant’s capacity to represent himself. According to the Court, the Constitution permits states to insist upon representation by counsel for those competent enough to stand trial but who still suffer from severe mental illness to the point where they are not competent to conduct the trial proceedings by themselves.

Wednesday, June 18, 2008

In Snavely v. Piedmont Medical Center, the Court of Appeals considered an action for breach of patient-physician confidentiality. At base, Snavely was accompanied to the Emergency Room by her sister-in-law. The sister-in-law also accompanied Snavely into the examination room. While examining Snavely, Dr. Zellner opined that Snavely had contracted hepatitis. He referred Snavely to another doctor to confirm the type of hepatitis. Snavely’s sister-in-law and brother-in-law accompanied her to this second doctor visit. It was confirmed that Snavely had Hepatitis B. Snavely shared this condition with her sister-in-law and brother, and they eventually informed Snavely’s employer, a local restaurant, that she had Hepatitis B. The restaurant fired Snavely and she brought suit against the medical care providers. The trial court granted summary judgment for the providers and the Court of Appeals affirmed.

The Court held that the record was clear that Snavely chose to take family members back to the examination room and did not ask them to leave during the examination. She also willingly shared a pamphlet that discussed Hepatitis B and preventative treatments. Hence, she at least passively consented to disclosure of her medical condition.

Tuesday, June 17, 2008

S.C. Supreme Court imposes duty to conduct a reasonable investigation on attorneys bringing legal mal claims

In Ex parte: Gregory v. Malloy, the Supreme Court dealt with an attorney's duty to investigate a claim before filing suit and the propriety of sanctions under the Frivolous Civil Proceedings Sanctions Act. The case essentially concerned a dispute over settlement proceeds. George W. Gregory was hired by Annie Melton to try to recover settlement proceeds that Melton believed were being wrongly held by her former attorney Gerald Malloy, who had represented Melton in a wreck case. Gregory eventually filed suit against Malloy alleging conversion and other causes of action. Allegations were made that the settlement proceeds had been improperly removed from a trust account. The trial court hearing the matter found that the funds remained in the trust account at all times and tha the action for conversion was frivolous. Apparently, the funds had not been disbursed because of an ongoing negotiation with Medicaid over a lien. The trial court found the cause of action for conversion was frivolous and awarded $27,364.31 in sanctions.

The Supreme Court affirmed. The court found that had the legal malpractice plaintiff’s attorney conducted a reasonable investigation, he would have known that there was no basis for the conversion action. The court chastised the attorney for relying on Melton's statements about the status of the money and for making inflammatory statements to a newspaper accusing Attorney Malloy of pocketing the settlement money. The court further noted that the legal malpractice plaintiff attorney had time before filing suit to contact Medicaid and/or could have contacted Attorney Malloy to learn of the status of the settlement proceeds. Neither action was taken.

The Supreme Court held that "we find that while an attorney or pro se litigant does not have a duty to consult with a potential defendant prior to filing suit, before alleging conversion against an attorney for misappropriation of client funds or legal malpractice, a reasonable investigation is necessary."

The Supreme Court also affirmed the sanctions imposed.

This is an important legal malpractice decision in South Carolina. Plaintiffs' attorneys contemplating a legal malpractice case are bound to undertake a reasonable investigation before filing a complaint. The attorney cannot simply rely on allegations or statements by the client. This duty, coupled with the Frivolous Proceedings Act, will perhaps lessen the number of frivolous malpractice suits filed in this state.

Monday, June 16, 2008

SCOTUS holds that Gitmo detainees have a right to habeas corpus

In Boumediene v. Bush, the Supreme Court gave the Bush Administration a black eye in its controversial war-on-terrorism policies. The Court held that the Guantanamo detainees have a right to pursue habeas corpus challenges to their detention. The alternative procedures to habeas review crafted by the government under the Detainee Treatment Act, the Court said, do not include adequate legal protections to be a substitute for the constitutional requirements of habeas corpus. Because of the High Court’s ruling, the detainees, some who have been in custody for six years with no judicial determination of the legality of their detention, can ask the federal courts to finally make this basic assessment.

A writ of habeas corpus ad subjiciendum is a legal mechanism requiring that the custodian of a prisoner bring the prisoner before the court for a determination of the lawfulness of incarceration. While bills of rights serve as guideposts for the people to monitor government infringements on their liberties, the "Great Writ" provides a mechanism by which a person can challenge a loss of personal freedom.

The Framers of the Constitution had such high regard for habeas corpus that it is one of the few direct safeguards of liberty enshrined in the actual document. Accordingly, the Constitution provides that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." With the Suspension Clause, the Framers ensured that the judiciary would have a device to maintain, in the Court’s words, "a delicate balance of governance that is the surest safeguard of liberty."

The federal Government, of course, has not suspended the Great Writ with regard to the detainees. The constitutional language imposes two separate conditions before suspension is permitted: (1) "Rebellion or Invasion" and (2) a threat to "public Safety." Instead of asserting that Al-Qaeda launched an invasion on September 11 and that the public is in danger, Congress instead crafted a poor substitute for habeas review.

The Court found serious defects in the military commission process that the Government created to decide which prisoners are designated as enemy combatants. This designation is important because it could lead to indefinite confinement. The Court found the alternative procedure to be inadequate because the detainee has limited means to present evidence and is often not even aware of the allegations relied upon by the Government.

The Court further held that an appellate body reviewing the commission's work must have the authority to correct errors that occurred in the commission, authority to assess the sufficiency of the Government’s evidence, and the authority to admit relevant, exculpatory evidence that was not introduced in the earlier proceeding. Most importantly, the reviewing authority must have the power to order the release of a detainee if his confinement is unlawful.

Four justices dissented from the Court’s ruling and argued that the majority was meddling in a wartime matter better left to the executive and military. While the dissenters' call for judicial restraint has appeal, the argument rings hollow in light of many of the Bush Administration’s war measures.

Every week we learn more about officially sanctioned abuses of men held in U.S. custody in the War on Terror. U.S. forces have used interrogation techniques such as subjecting detainees to water boarding and extremes of heat, cold, noise and light. Infliction of pain is all too routine and some detainees have died under questionable circumstances. On the domestic front, recent legislation such as the "Police America Act" has given the NSA carte blanche to wiretap Americans without judicial oversight. How much more discretion can we risk giving the executive branch?

The War on Terror is often described as a fight to preserve our system of government and traditions. In Boumediene, the Supreme Court acted to preserve the Great Writ--a foundation of Anglo-American liberty and essential to preservation of limited government. By permitting the detainees, many of whom are undoubtedly nefarious characters, to exercise this basic right while incarcerated in a prison that is de facto subject to American sovereignty, we make a powerful statement to our enemies. We tell them that we have taken Al-Qaeda’s best shot and that our rule of law remains supreme.

Wednesday, June 11, 2008

Ninth Circuit's chief judge posted porn on his personal website

Only in the 9th Circuit. Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, posted porn on his personal website, which could be viewed by members of the public. Oops.
The images included naked women on all fours painted to look like cows and a video of a dude arousing farm animals.

The website is now down.

This was stupid of Kozinski, but the matter should end with his embarrassment. I'll give him props for owning up to this and not engaging in a cover up. Kozinski said that the images were funny, and just a part of human life. He admitted that people send him similar images all the time.

The honesty is refreshing.

The LA Times article on Kozinski and his website can be found here.

Request to serve coffee is not sexual harassment

It seems pretty out there that a plaintiff's attorney would actually bring a Title VII case around a receptionist serving coffee to supervisors. The plaintiff testified that she acquiesced once or twice, but that she found the request demeaning and embarrassing and believed that they "reinforced outdated gender stereotypes."

The district court rejected the claim, and held that "the act of getting coffee is not, by itself, a gender-specific act."

The district court's opinion can be found here.

Thursday, June 05, 2008

Walt Wilkins clears the Senate

Congrats to Walt Wilkins on his confirmation as the US Attorney for the District of South Carolina!

WSPA has this story.

Walt has prosecuted several notable cases, including a $20 million mortgage fraud and an international human trafficking and prostitution ring. He has also won several awards, including top prosecution honors from the U.S. Attorney's Office and the U.S. Secret Service.

Monday, June 02, 2008

Capital defense lawyer's suit againt former Chief Judge Wilkins is resolved by Fourth Circuit

In 2006, a Virginia capital defense lawyer filed suit after the 4th U.S. Circuit Court of Appeals, with no explanation, cut in his bill from $38,000 to $10,000 for work on a death penalty appeal to the circuit, the Supreme Court and a clemency petition. The lawyer sued the man who signs off on the payments, 4th Circuit's former Chief Judge William Wilkins, claiming that the cut, without a chance to know why and challenge it, violated his due process rights. The Court held that due process rights were not violated:

At bottom, we find, assuming that he held a protected property interest in a reasonable fee, that Rosenfield was afforded constitutionally adequate procedural protections in the reduction of his requested award. While we are grateful for the service provided by Rosenfield and other CJA attorneys, and while we are committed to providing the level of review described in the Plan and the updated CJA Guidelines going forward, we cannot say that the careful processing of Rosenfield's award here was constitutionally deficient.