Category Archives: 6-3

Lockhart v. Nelson

488 U. S. 33

November 14, 1988

Criminals could be sentenced to extra time if they could be proved ‘habitual offenders’ by the introduction of four prior convictions. Four prior convictions were offered for burglar Johnny Lee Nelson, but it was later discovered that one of those convictions had been pardoned by Governor Orval Faubus. Nelson argued that he could not be retried because of the Double Jeopardy clause. A case called Burks v. United States held that Double Jeopardy applied when a sentence was overturned on the basis of insufficient evidence. The government argued that introducing the pardoned conviction was a simple trial error, and that the rule against Double Jeopardy for insufficient evidence did not apply.

The Court held 6-3 that introducing the pardoned conviction was a trial error, and that a new trial was possible. Rehnquist stated that Burks was about protecting suspects when the government had totally failed to prove its case in the original trial. Here, a seemingly valid conviction had been introduced at trial, and Nelson’s sentence was later overturned because that conviction’s admission was in error. Rehnquist said that simple errors in admission of evidence were not the same as a simple lack of evidence, erroneous or not. He thus allowed the government to retry Nelson, and introduce four valid prior convictions.

Marshall, joined by Brennan and Blackmun, dissented. Marshall stressed that pardons totally expunge the conviction. Thus, the admission of that conviction into evidence was effectively like admitting a blank piece of paper into evidence. That, he contended, would certainly be a simple instance of insufficient evidence. The government needed to produce four prior convictions, and they produced only three. Marshall also complained that the majority was hasty and conclusory in its opinion, quite in contrast to the careful consideration usually found in the Court’s other Double Jeopardy cases.

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Huntington v. Huntington Branch, NAACP

488 U. S. 15

November 7, 1988

A town zoning law allowed the construction of multifamily housing projects only in the town’s urban core. Nearly all the town’s black population lived in the urban core, and the outlying areas were all almost entirely white. The local NAACP asked the town to amend their zoning code to allow for multifamily housing projects to be built in the non-urban white areas. The town refused, and the NAACP charged that this refusal perpetuated housing segregation, and violated the 1968 Civil Rights Act.

In a 6-3 per curiam ruling, the Court held that the town had indeed violated the 1968 Civil Rights Act. The Court offered no analysis of its own, but gave its imprimatur to the broad findings of the lower court that the disparate impact standard would be used to decide the case, and that the town’s justification for not amending the zoning code was insufficient. White, Marshall, and Stevens, without opinion, noted that the case should have received oral argument.

Rhodes v. Stewart

488 U. S. 1

October 17, 1988

Two prisoners sued to get magazines in prison. By the time the suit was decided, one prisoner was dead and the other had been paroled. Nonetheless, the living plaintiff sought to get attorneys fees under section 1988 as the prevailing party. The government argued that he could not be the prevailing party since the case was effectively moot and he had obtained effectively no relief.

The Supreme Court agreed that no 1988 fees could be awarded in a 6-3 per curiam decision. With reference to Hewitt v. Helms, the Court stated that declaratory judgment does not make you a prevailing party if you obtain no actual relief regarding your original complaint. As the plaintiff was out of prison, he got nothing by winning his court case. Marshall dissented because of his steadfast belief that the Court should never make summary judgment rulings. Blackmun, joined by Brennan, disagreed with the majority’s reading of Hewitt. Blackmun said that the ex-prisoner was still literally a prevailing party, even if he obtained no real relief for winning.

Bowen v. Massachusetts

487 U. S. 879

June 29, 1988

This case involved a dispute between the Department of Health and Human Services (HHS) and Massachusetts about the HHS disallowing a reimbursement for Massachusetts health expenditures. Massachusetts wanted the claim heard in District Court, as ostensibly allowed by the Administrative Procedure Act (APA). HHS contended that the APA did not allow suits against it in District Court for “money damages,” and that, in any case, Massachusetts had an adequate remedy through suing in Claims Court under the Tucker Act.

The Court ruled 6-3 that a District Court could have jurisdiction. Stevens said that the phrase “money damages” was a legal term of art referring to monetary compensation for other harm done. By contrast, seeking merely to gain an amount of money legally due was known as asking for “monetary compensation.” Stevens said that legislative history, as well as a lower court opinion by no less of an authority than Robert Bork, proved this distinction. Thus, Massachusetts could still ask for a money judgment against HHS in District Court. Stevens also found that the Claims Court would not offer an adequate remedy. Those courts did not provide equitable relief, such as the declaratory and injunctive relief Massachusetts was also seeking. Furthermore, there was reason to believe that the Medicaid administration questions involved in the case were really beyond the scope of the Claims Court’s wheelhouse.

White concurred in judgment. He cryptically noted that he agreed with all of the majority’s ultimate conclusions, except for its statement that Massachusetts could request monetary compensation in District Court. He said that they would have to settle for mere declaratory and injunctive relief. Scalia, joined by Rehnquist and Kennedy, dissented vigorously. He thought the majority’s distinction between “money damages” and “monetary relief” was total crap, and utterly unsupported by legal history. Almost any suit, he argued, to obtain money is a suit for “money damages.” Thus, the APA barred District Court jurisdiction. He also claimed that the majority’s reasons for holding that the Claims Court could not provide an adequate remedy were completely specious. The Claims Court was more than capable of taking the case and providing an adequate solution for Massachusetts.

Scalia made particular note that both of the case’s major holdings would effectively deprive the Claims Court of most of its docket, and cause a ream of other policy problems. He even predicted that lower courts would probably confine the ruling to its immediate facts, because trying to apply it would cause total chaos in the Claims Court. He closed with these words which I could not more heartily agree with: “Nothing is more wasteful than litigation about where to litigate, particularly when the options are all courts within the same legal system that will apply the same law. Today’s decision is a potential cornucopia of waste.”

Riley v. National Federation of Blind of N. C., Inc.

487 U. S. 781

June 29, 1988

To discourage charity fraud, North Carolina passed a law that placed tiered limits on how much professional solicitors for charitable donations could keep for themselves as a fee. These limits could be rebutted. The law also required solicitors to state to potential donors the percentage of money they had left to charities within the past year. Finally, it required these professionals to be licensed before engaging in any solicitation. All these provisions were challenged as impeding the First Amendment rights of both the charities and the solicitors.

The Supreme Court struck down the licensing requirement 6-3, and the other restrictions 7-2. Brennan cited precedents that had ruled flat restrictions on fees out of order. Although the North Carolina law was more flexible, it was still not flexible enough, and it justification of limiting solicitors to ‘reasonable’ fees demonstrated a paternal belief that the government knew better than the charities themselves. Brennan easily found that the compelled speech of telling donors up front about percentages retained and turned over would burden the collection of funds by scaring away both potential donors and solicitors. Finally, because the stat could potentially hold up indefinitely the licensing of unpopular solicitors, he found the licensing requirement unsound as well. In all cases, the charity’s ability to communicate to the public through its own chosen means was impinged upon.

Scalia concurred in all but a footnote which signaled approval of a hypothetical legal requirement that a solicitor merely disclose his professional status. Stevens concurred in all but the licensing part, feeling that states could be trusted to conduct licensing in a fair manner. Rehnquist, joined by O’Connor, dissented. He felt that the tiered restrictions, complete with the possibility of rebuttal, were nuanced enough to be considered narrowly tailored to. The licensing requirement no more implicated free speech than the requirement that legal defendants retain licensed lawyers. Finally, Rehnquist did not feel that a brief disclosure about charity financing by a solicitor would unduly burden fundraising efforts.

I’m not sure about the fee limits, or the licensing requirements, but I think the compelled disclosure is clearly unconstitutional. If I joined nothing else, I would have joined Brennan’s section on that.

Frisby v. Schultz

487 U. S. 474

June 27, 1988

A large group of pro-life activists peacefully picketed the home of an abortion doctor for several days, until the town passed an ordinance to ban residential picketing. The ordinance was passed with the expressed intent of protecting people in their homes from unwanted psychological harassment. The pro-life activist sued to have this ban struck down by the First Amendment. They argued in a facial challenge that it was overbroad, not narrowly tailored, and not written in service of a compelling interest.

The Supreme Court ruled 6-3 that the ordinance could survive a facial challenge. O’Connor once again slapped down an especially asinine justiciability argument, and moved to the merits. Because it targeted speech on the public fora of roads and sidewalks, the ordinance would have to meet strict scrutiny. Lower courts said the ban was content neutral, and O’Connor interpreted the statute to ban only picketing in front of a single residence, and not mobile picketing throughout an entire residential area. So interpreted, the ban was not overbroad, and O’Connor found that protecting people in their home from unwanted messages was a compelling interest. And because the Court construed the ban to only apply to picketing at a single house, O’Connor felt the ordinance was narrowly tailored to meet the harm it purported to address.

White, concurring in judgment, did not like how the majority unilaterally interpreted the ordinance to not apply to mobile picketing throughout a larger residential vicinity. He thought the ordinance might have a broader reach, but ultimately felt that it was still barely within the limits of constitutionality. Stevens, dissenting, felt the ordinance was overbroad becaue it could, literally read, forbid a kid from holding a sign that said “GET WELL CHARLIE – OUR TEAM NEEDS YOU.” Brennan, joined by Marshall, did not think the ordinance was narrowly tailored. If the state wished to protect people in homes from being harassed, it could allow some picketing, but limit the crowd size, time duration, and noise level. That would serve the compelling interest while suppressing the least amount of speech.

This is, without a doubt, the worst abortion ruling ever made by a conservative majority. O’Connor’s opinion has some shocking language that I can hardly believe Scalia joined. She charged the pro-life activists with behaving in “an especially offensive way.” She was horrified by the “devastating effect” the picketing had on “the quiet enjoyment of the home.” Furthermore, she contended that “the offensive and disturbing nature” of the behavior “could scarcely be questioned.”

Evil loves darkness and hates light because it loves to stay hidden, and hates exposure. The brave pro-life activists were piercing the darkness and exposing evil when they picketed the doctor’s house. The town had a right to know of the serial murderer in its midst, and of his quiet life free from any legal trouble. An intense spotlight was shone on the banality of evil. The town council, loving darkness, and hating the light, twisted justice, and passed an ordinance to silence the latter day prophets. The lonely voices crying in the wilderness were made lonelier still.

Let’s be clear – if you’re a doctor who murders babies, you have no right to complain of emotional trauma and harassment when a light is shone on your demonic barbarity. When you have so much blood on your hands, you have forfeited the right to comfort and peace in your home. God detests nations that spill innocent blood.

Schweiker v. Chilicky

487 U. S. 412

June 24, 1988

For a few years in the early 1980s, the Social Security administration was denying meritorious disability claims left and right. Congress finally stepped in to correct this by passing two different laws in consecutive years. Chilicky and others who temporarily lost their benefits during this era were not satisfied with the remedies provided by Congress. They sought a Bivens remedy – a judicially created cause of action that allowed for citizens to get monetary judgments against government agents who violated Constitutional rights. The question was whether a Bivens remedy should be created to address the alleged Due Process violations of the Social Security administration.

The Court ruled 6-3 that such a remedy would be inappropriate. O’Connor stressed that the Court should treat cautiously when creating new Bivens rights. They should not be created when Congress is capable of addressing the harm, and has decided against allowing redress. O’Connor said that Congress had considered the problem of erroneously denied disability claims several times in the 1980s, and never once hinted that claims against government agents themselves were the solution. Furthermore, allowing claims to proceed would bog down a Social Security administration that was already deeply bogged down in its duties. In a footnote, O’Connor dismissed as moot the question of whether one statute explicitly barred the creation of a Bivens remedy for Social Security violations.

In a concurring opinion, Stevens said that the statue referred to in the footnote did not explicitly bar a Bivens remedy. Brennan, joined by Marshall and Blackmun, was aghast at the majority’s contention that mere backpay of erroneously denied benefits was sufficient compensation for the harms suffered by Chilicky. They deserved extra remedies for the horrendous pain and suffering they endured before getting their disability payments back. Brennan could find no policy reasons for not creating a Bivens remedy. Congress had not, by its silence, communicated an intent to bar a Bivens remedy. Nor was Social Security a domain in which the expertise of Congress ought to be deferred to. He was also unsympathetic to the argument that Bivens suits would bog down the agency.

In the other Bivens case I’ve reviewed so far, I felt the majority was wrong to not allow for the claim. This one, I’m not so sure about. You do feel sorry for what Chilicky endured, but I’m not certain Bivens should be extended to cases where the right violated is partially government created. There is no unadorned Constitutional right to disability payments – it’s very much also a statutory one. I think that’s the place I’d draw the line.

Sheridan v. United States

487 U. S. 392

June 24, 1988

Some soldiers failed to keep control of another soldier who was drunk and had a gun. He drunkenly shot some people in a car. The injured people in the car sued. The Federal Tort Claim Act (FTCA) barred torts against government agents where the claim arose out of assault and battery. The government claimed that the drunken soldier’s assault and battery was the fount of the claim, so it had to fail, even if the other soldiers had acted negligently. The injured people claimed that the assailant was not acting within the scope of his employment, so the only true government action did in fact arise from negligence.

The Court ruled 6-3 that the FTCA did not bar the tort claim. Stevens argued that a negligence claim against the government would not “arise” from assault and battery if the assailant had not been connected with the government at all. Because the assailant was not acting within the scope of his employment, there seemed no reason to distinguish the two cases merely due to the accident that the assailant happened to be on the government payroll. Thus, if negligence was the only alleged government action, a FTCA claim could go forward even if it incidentally involved assault and battery that was not government action.

In a concurrence, White confessed that he had once joined an opinion which suggested the opposite of what the majority ruled. Nonetheless, White gamely admitted that he had changed his mind. Kennedy, concurring in judgment, worried that the majority was on the road to obliterating the assault and battery exception from the FTCA entirely, but felt that the facts of the current case warranted allowing the claim to proceed. He also faulted the dissent for its contention that all claims involving assault in their fact patterns would have to be barred.

O’Connor, joined by Rehnquist and Scalia, dissented. She contended that when assault and battery were the direct cause of the injuries complained of, the FTCA flatly banned any claims. She charged the majority with both ignoring and twisting precedents to support its conclusion, and also argued that legislative history supported her own point of view.

I’ve stated my views on these kinds of cases a few times already, but I will do so again. I really hate torts and broad tort liability. But, even so, I hate government immunity even more. Thus, I can only cheer on the majority, and even congratulate Justice White for owning up to a change of heart.

Mississippi Power & Light Co. v. Mississippi ex rel. Moore

487 U. S. 354

June 24, 1988

This was probably the most brutal case I’ve ever confronted. Quite honesty, I couldn’t even read the whole thing because I was so lost, and I had to rely on the syllabus to get the gist. Apologies.

Basically, FERC, a federal energy agency told a Mississippi power company how much electricity it needed to buy, and at what rate. A Mississippi agency then set retail rates based on what would enable the company to recover its expenditures. But it was argued that the company had imprudently wasted money building a nuclear power plant, and that only prudent expenditures could be passed on to consumers. The question was whether FERC’s setting of  wholesale rates preempted state agencies from considering whether the expenditures of power companies were prudent, and adjusting retail rates accordingly.

The Court ruled 6-3 that there was preemption. Stevens said that the case was pretty much controlled by a precedent called Nantahala, which generally disallowed state agencies from setting retail rates that wouldn’t allow power companies to recoup the investment made in buying the set quota of energy at rates set by FERC. Stevens said that any differences between that case and the instant case were negligible. He thought that FERC was entitled to take the prudence of a power company’s projects and expenditures into account when setting wholesale rates, and that states could not attack FERC’s final judgment by re-litigating the question of prudence after the fact, and monkeying with the retail rates to relieve consumers.

Scalia concurred in judgment. To him, it was a simple Chevron case. FERC had asserted the power to review the prudence of the decisions of power companies when setting wholesale rates, and since this was not flatly inconsistent with the underlying statutes, FERC deserved the Court’s deference. Brennan, joined by Marshall and Blackmun, did not find any statutory authority for FERC to deal with questions of prudence, and contended that it was still the domain of states, at least as it related to setting retail rates. It was simply beyond agency purview, and thus not entitled to Chevron deference. Furthermore, the central question of prudence served as an adequate basis to distinguish Nantahala, which did not squarely address that precise issue.

United States v. Taylor

487 U. S. 326

June 24, 1988

The Speedy Trial act requires trial within 70 days of indictment. The day before that time limit expired, the suspect ran away. When he was finally recaptured, the government wasted two months before it brought him to trial again. The District Judge found that the 70 day limit had expired, and also found that the “lackadaisical” attitude of the government after recapturing him was responsible for the great delay. The judge dismissed the case with prejudice. The question was whether the judge had abused her discretion in so doing.

The Court ruled 6-3 that she had abused her discretion. Blackmun said that the Speedy Trial act allowed for dismissal without prejudice, and that to dismiss with prejudice, a judge had to weigh several factors. Among those were the seriousness of the charges, and the degree to which the defendant was responsible for the delay. The judge barely addressed these factors, and concentrated only on the “lackadaisical” actions of the government, which she didn’t even explain all that well. Blackmun resorted to legislative history to show that the various different factors really did need to be considered. Scalia joined everything except the legislative history part. In his concurring opinion he sounded his old notes about the importance of sticking to clear statutory text.

White concurred to say that a delay initially caused by the suspect absconding should almost always be dismissed without prejudice. Stevens, joined by Brennan and Marshall, dissented. Dismissing with prejudice was a judgment call where reasonable judges could differ, and Stevens found no grounds to conclude that the judge had abused her discretion. He noted that the judge gave the runaway a harsh 5 year sentence for absconding, which was intended to compensate for the lost opportunity to prosecute the underlying charge. Allowing the case to be brought again risked essentially punishing him twice for the same drug charge. Stevens also said that the government’s delays were far more egregious than the “lackadaisical” label would leave you to believe.

I might be with Stevens on this one. The judge should not have dismissed with prejudice, but it probably wasn’t an abuse of discretion.