Category Archives: 7-2

Pennsylvania v. Bruder

488 U. S. 9

October 31, 1988

A police officer stopped a car that was driving erratically and ran a red light. During the stop, the police officer observed signs of intoxication, and asked if the driver had been drinking. He answered in the affirmative, and subsequently failed a sobriety test. The driver was then arrested and given the Miranda warning. The issue was whether the officer’s question about drinking before the arrest was unconstitutional without a prior Miranda warning.

The Supreme Court ruled 7-2 that the officer’s question was Constitutionally sound. In a per curiam opinion, the Court said that the facts of the case were almost identical to those in Berkemer v. McCarty. In Berkemer, the Court had ruled that questioning during a traffic stop was not custodial investigation, and did not require prior administration of the Miranda warning. The same principle applied in the case at hand.

Marshall filed his customary dissent against any and all summary judgments by the Court. Stevens, joined by Marshall, whined that certiorari should not have been granted, because the case involved absolutely no novel question of law. In his view, the Court should never take a case without a doctrinal aim in mind, and should never reverse a judgment merely because it’s erroneous.

Justice Stevens is colossally and staggering wrong. The Court’s mandate is not to resolve interesting doctrinal puzzles, but impartially administer justice. Real people are affected by lawless lower court rulings, and the Supreme Court is often their only hope of vindication. Telling them that their cases aren’t doctrinally interesting enough to reverse is the height of banally unjust cruelty.

United States v. Kozminski

487 U. S. 931

June 29, 1988

The Kozminski family ran a dairy farm, and they brought two mentally retarded people to work on it. The family made these two work extremely long hours seven days a week without pay, and used a variety of psychological manipulation techniques to keep them from leaving. The family was ultimately charged under two federal laws, which banned involuntary servitude, and conspiracy to practice involuntary servitude – obviously in reference to the Thirteenth Amendment. Jury instructions stated that involuntary servitude could be created exclusively through psychological coercion, as opposed to physical or legal coercion. The Kozminski family contended that this definition of involuntary servitude was far too broad.

The Court agreed in a 7-2 vote, but split 5-4 about the correct definition of involuntary servitude. O’Connor, writing for the majority, looked at various Thirteenth Amendment precedents, and concluded that only threats of legal or physical coercion could create the practice of involuntary servitude. The legislative history of various acts enacted on the basis of the Amendment also confirmed this more restrictive definition. O’Connor stressed that expanding the definition to include psychological manipulation would sweep too broadly, possibly making someone like a charismatic religious leader guilty under the statutes. She left it to the lower court to determine whether there was enough evidence in the record to convict the Kozminskis even under the narrower definition.

Brennan, joined by Marshall, agreed that the jury instructions swept too broadly, but felt O’Connor’s test was too narrow. His test was whether the means of coercion actually reduced someone to a slavelike state. Long hours, no pay, no days off, and squalid conditions added up to a slavelike condition, and that was what the Amendment and the enforcing statutes were meant to ban. Brennan noted that psychological coercion was very often far more effective than legal or physical coercion – the threat of having your house burned down is no less convincing than the threat of being beaten.

Stevens, joined by Blackmun, thought it unwise for the Court to attempt to formulate a precise definition. He trusted prosecutors, judges, and juries to intelligently apply, on a case by case basis, the broad Thirteenth Amendment terms of involuntary servitude. Based on the facts in the record, he thought the jury instructions were fine, and that a new trial was not warranted.

Here is another case where Brennan actually got the better of the more conservative Justices. While the majority was rightly concerned about limiting the legal reach of involuntary servitude, Brennan had exactly the right legal test to address those concerns. His points seem pretty well unanswerable, and I wish his opinion had been the majority one.

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.

Torres v. Oakland Scavenger Co.

487 U. S. 312

June 24, 1988

Jose Torres was one of 16 people who was appealing a District Court ruling. Unfortunately, due to clerical error, his name was left off the list of people in the formal appeal. The Appeals Court refused to allow him to be part of the case, reasoning that without formal notice of appeal, it quite simply had no jurisdiction pertaining to him. Torres countered that the appeal rules were not meant to penalize minor errors and technicalities.

The Supreme Court left Torres high and dry in an 8-1 ruling. Marshall said that appeal rules should be interpreted liberally, but that this liberality could not be extended to instances where no jurisdiction existed. Without his name in the official appeal, a court could simply offer Torres no cognizance. Scalia, concurring in judgment, didn’t even like Marshall’s assertion that any spirit of liberality should animate application of the rules.

Brennan waged a lonely dissent. Rather than sum it up, I’ll quote the final paragraph. “After today’s ruling, appellees will be able to capitalize on mere clerical errors and secure the dismissal of unnamed appellants no matter how meritorious the appellant’s claims and no matter how obvious the appellant’s intention to seek appellate review, and courts of appeals will be powerless to correct even the most manifest of resulting injustices. The Court identifies no policy supporting, let alone requiring, this harsh rule, which I believe is patently inconsistent not only with the liberal spirit underlying the Federal Rules, but with Rule 2’s express authorization permitting courts of appeals to forgive noncompliance where good cause for such forgiveness¬†is shown. Instead, the Court simply announces by fiat that the omission of a party’s name from a notice of appeal can never serve the function of notice, thereby converting what is in essence a factual question into an inflexible rule of convenience.”

All right, NOW I’m mad at the majority in Houston. If you’re going to be activist about jurisdiction, at least be consistent about it. Worse yet, Brennan makes a great case that pleading the case of Jose Torres wasn’t even activism, but just what the law demanded. I myself would have joined Brennan’s opinion. Torres got screwed over badly, and if a majority of the Justices were going to press the case of Houston, they should have pressed his case too.

Felder v. Casey

487 U. S. 131

June 22, 1988

Wisconsin law said that any suit against government officials in state court had to wait until a notice process was gone through first. The plaintiff had 120 to describe the injury and damages sought to the officials, then the officials had 120 days to make it right, and then there were six months to file charges.  A victim of police beating who wanted to bring a 1983 case in state court said that this law was pre-empted by 1983 itself. The state responded that it was just a state procedural rule that did not affect the principal substance of 1983.

The Supreme Court ruled 7-2 that the Wisconsin law could not stop 1983 suits. Brennan said that the law frustrated several purposes and goals of 1983. It required a sort of state exhaustion first, by requiring the state to have an opportunity to correct the complaint prior to a suit. It acted as a too-short statute of limitations, by effectively giving victims only four months to initiate the action. And it was too deferential to the interests of state officials, giving them a kind of extended notice that no other potential defendants could receive. That the law only applied to state court suits did not matter to Brennan, because the outcome of a 1983 suit should not turn on whether it was filed in state or federal court – indeed, for there to be such a difference in notice requirements went against Erie principles.

White concurred to note that the Court had recently established the definitive statute of limitations for 1983 suits, and that the Wisconsin law, with an effective four month limit, violated it. O’Connor, joined by Rehnquist, dissented. Invoking nebulous purposes or goals of 1983 was not enough – there had to be some definitive facet of 1983 violated by the Wisconsin law, and none existed. Because litigants could always file a suit in federal court, it was of no concern that one extra procedural hurdle existed for state courts. She further contended that giving notice was easy, and was not a de facto statute of limitations.

O’Connor’s dissent may or may not be correct. I’m not entirely sure. But I do think that if the majority opinion was activism, it was one of those rare cases where it was at least good activism. The policy reasons articulated by Brennan for holding the Wisconsin law inapplicable to 1983 suits were pretty solid.

Supreme Court of Va. v. Friedman

487 U. S. 59

June 20, 1988

Virginia allowed lawyers licensed in other states to skip the Virginia Bar Exam if they lived in Virginia. Myrna Friedman, licensed by Illinois and DC, had worked in Virginia for many years, but lived across the river in Maryland. She applied for admission without the Bar Exam, but was denied because of her Maryland residency. Friedman charged that this rule violated the Privileges and Immunities clause, especially because a recent Supreme Court ruling prohibited states from denying non-residents a law license if they passed the state bar exam.

The Court ruled 7-2 that Virginia could not enforce its rule. Kennedy claimed that the Privileges and Immunities clause protected the rights of citizens to practice law regardless of state residency, and that laws burdening this were suspect. That Friedman could still be licensed by passing the Virginia Bar Exam was irrelevant, because it was a needless extra burden. Kennedy was unimpressed by Virginia’s argument that the rule was necessary to ensure the familiarity with Virginia law of those who got licensed. Friedman was clearly familiar with Virginia law. In any event, a different rule that Virginia lawyers had to practice in Virginia was sufficient for all the ends the state wished to achieve.

Rehnquist, joined by Scalia, dissented. He refused to accept that requiring residency for a law license violated the Privileges and Immunities clause (and he referred to a previous dissent for a more in depth explanation of why). He concluded that the Court’s dumb ruling could very well encourage Virginia to eliminate all reciprocity, and thus require all applicants to take the Bar Exam.

Supreme Court activism might be most blatantly visible not when it’s applied toward an evil end like abortion, but when it’s applied toward a merely dumb end like bar admission. When activism serves an evil cause, it’s easy to care more about the terrible real world effects of the decision than the reasoning behind the decision itself. Conversely, when activism is employed to reach a stupid but basically harmless result, the activism sticks out far more prominently.

Bendix Autolite Corp. v. Midwesco Enterprises, Inc.

486 U. S. 888

June 17, 1988

Ohio had a 4 year statute of limitations on contract disputes. But that time limit was tolled if the corporation being sued was out-of-state, unless the corporation had a designated agent in Ohio. When an Illinois corporation without an Ohio agent was sued six years after a contract, it argued that Ohio’s strange law discriminated against interstate commerce. It forced a choice between being subject to Ohio’s general jurisdiction, or being subject to contract disputes without any time limit.

The Supreme Court ruled 8-1 that Ohio was violating the Commerce clause. Kennedy said that being subject to general Ohio jurisdiction was a significant burden, and that not being able to take advantage of a statute of limitations was another significant burden. Because only out-of-state corporations had to choose between these two burdens, and because there was little compelling interest for Ohio’s law, there was clear discrimination against interstate commerce, and the law had to go.

Scalia concurred in judgment. He had difficulty assessing just how burdensome the alleged burdens were. He absolutely hated the ‘balancing’ that the Supreme Court did in state commerce cases. “[T]he scale analogy is not really appropriate, since the interests on both sides are incommensurate. It is more like judging whether a particular line is longer than a particular rock is heavy.” He would leave all balancing to Congress, where it belonged. Nonetheless, he did agree that in this case Ohio’s law did blatantly discriminate against foreign corporations.

Rehnquist filed a cryptic dissent, which argued that Ohio’s law had some non-obvious similarities to other state laws that the Supreme Court had upheld. His argument is a bit too subtle and underdeveloped for me to fairly evaluate it.

Allied Tube & Conduit Corp. v. Indian Head, Inc.

486 U. S. 492

June 13, 1988

The National Fire Protective Association is a professional group dedicated to publishing expert quality electrical codes. Indeed, almost all states adopt the Association’s code into law wholesale. When polyvinyl electrical conduits were developed in 1980, the steel industry worried that polyvinyl would overtake steel as the standard conduit material. Thus, the steel industry packed the membership of the Association, for the sole purpose of determining that polyvinyl was unsafe in the 1981 electrical code. The polyvinyl industry charged that this brazen act of ballot stuffing violated antitrust law. The steel industry replied that quasi-legislative bodies were immune from antitrust liability.

Brennan rejected claims of immunity in a 7-2 decision. Because the Association had no official government capacity, and was in no way answerable to the American public, it was not a quasi-legislative body. The steel industry, undaunted, insisted that it still had immunity because its ultimate aim in overrunning the Association was to influence the state legislatures when they passed the legal electrical codes. Brennan would have none of this. Traditional political advocacy, like direct appeals to legislatures, public interest advertising, and boycotts were still immune. Cynical attempts to take over respected, non-partisan, and expert standard setting associations were not.

White, joined by O’Connor, charged in dissent that the actual holdings of the immunity precedents had been ignored. White could not get around the fact that the steel industry’s ultimate goal was to influence state legislatures by means of the Association code. It was no less intrinsically political at heart than direct lobbying of legislators. While the steel industry’s actions within the Association were scurrilous, they were also a rare aberration, and White did not wish to see rare aberrations warping antitrust immunity doctrine.

I’m not certain, but White may be correct. The old saying ‘hard cases make bad law’ applies well to this one. The steel industry acted unethically, and I’m glad they got punished for it. At the same time, making professional organizations which publish industry standards liable to antitrust suits is a rather slippery slope.

 

Monessen Southwestern R. Co. v. Morgan

486 U. S. 330

June 6, 1988

A railroad worker was permanently injured, allegedly due to the railroad’s negligence. He brought a federal action in Pennsylvania state court to recover lost future earnings. The court did two questionable things, the first based on a state law, and the second based on a state judicial ruling – first, it awarded ‘prejudgment interest,’ which gave the worker interest on damages that accrued prior to the verdict. Second, it instructed the jury not to find the present value of his lost future earnings, but the nominal value of it. Both these things were challenged as inconsistent with the federal law that formed the basis of the suit.

The Court ruled 7-2 that prejudgment interest could not be awarded. White said that state laws allowing prejudgment interest were substantial rules that could not be countenanced unless the federal law clearly allowed them. At the time the federal law was enacted, White contended, prejudgment interest was seen as suspect by most courts. Therefore, it could be presumed that Congress did not intend the law to allow prejudgment interest damages when it was passed. White also noted that Congress had ample opportunity in subsequent years to clearly include prejudgment interest within the law’s scope, but declined to do so.

Turning to the jury instruction question, the Court ruled unanimously that the Pennsylvania court had erred in instructing the jurors to merely find the nominal value. Precedents held that present value was the correct value to find for future earnings, and that the jury needed some freedom in determining the best formula for that calculation. By assuring the jury that the nominal value was legally presumed to be the same as the present value, the judge took this freedom away from the jury. O’Connor, joined by Rehnquist, only concurred in judgment on this issue. She felt that a judge could appropriately suggest that jurors compute nominal value if the judge had carefully studied the economics before doing so.

Blackmun, joined by Marshall, dissented from the prejudgment interest holding. He said the federal law should be interpreted liberally, and with an eye on its purpose of compensating injured workers with damages. Blackmun argued that prejudgment interest was an integral component of making the plaintiff whole, and that the alleged judicial aversion to interest at the time of the law’s passage was overblown. Finally, he felt prejudgment interest was especially appropriate given the rule that the present value should be found for future earnings – interest on pre-verdict lost earnings was simply the other side of that coin.

Once again, as in K mart v. Cartier, my brain is too taxed just from trying to understand this stupid decision to have much of an opinion about its soundness.

Tulsa Professional Collection Services, Inc. v. Pope

485 U. S. 478

April 19, 1988

In Oklahoma, once you die, the executor of the estate can publish a general notice of the death in a newspaper for two weeks. If creditors of the deceased do not step forward within two months of the notice, their claims are barred. A hospital wanted to be paid for a dead man’s medical costs, but it missed the notice, and was barred. The hospital said that the lack of actual notice violated the Due Process clause.

The Court ruled 8-1 that Oklahoma law did violate the Due Process clause. According to established law, creditors had a Due Process right to actual notice rather than publication notice when state action was involved. The dead man’s family said that there was no state action – they published the notice on their own accord, and the two month timeframe ran by itself. O’Connor, writing for the Court, disagreed. The probate court, a state actor, is very much involved. The probate court appoints the executor, and asks for copies of the publication notice. Because of this level of state action, actual notice was required for creditors. O’Connor said that mail notice to reasonably ascertainable creditors would suffice, and that herculean efforts would not be expected.

Blackmun concurred in the result without comment. But Rehnquist dissented, and actually explained himself for once. The probate court’s involvement was so minimal and perfunctory that the proceeding really ought to be considered private rather than state action. Because private action did not require actual notice to creditors, the Oklahoma law was sound. I’m not sure who was right. This was a close call, and in any event I’m glad O’Connor included the limiting words at the end that over-the-top efforts were not Constitutionally mandated.