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.
487 U. S. 250
June 22, 1988
A prosecutor led a grand jury on a lawless witch hunt against a bank and several associated individuals. The prosecutor violated several grand jury rules to secure 27 indictments. A District Court dismissed all the indictments because of the violations, using its supervisory power as a court of law. The government tried to salvage the case by claiming that the District Court could not exercise such a supervisory power unless the defendants were prejudiced by the violations, and that the alleged violations were all harmless error.
Regrettably, the Supreme Court agreed in an 8-1 vote. Kennedy said that Rule 52(a) very strongly implied that indictments could only be dismissed upon a finding of harmful error to the defendant. The indictments could be dismissed only if the abuses had substantial likelihood of pushing the grand jury to indict. Kennedy then went through an impressively long listing of prosecutorial abuse. For each and every instance, Kennedy found a way to argue that it probably would not have affected the grand jury’s final decision. Because all the errors were somehow harmless, the indictments had to be reinstated.
Scalia, concurring, noted that a District Court’s supervisory powers should generally be construed narrowly. Marshall filed a lonely dissent. He pointed out that it was extremely difficult to discover instances of prosecutorial abuse during a grand jury phase because of all the attendant secrecy. He contended that insulating prosecutors even further with a harmless error analysis was unfair. “Today’s decision reduces [grand jury rules] to little more than a code of honor that prosecutors can violate with virtual impunity.”
I think what really bothered me about this case was not the legal holding, but the majority’s application of it. I’m all for a single instance of harmless error being forgiven. What strained my credulity were the majority’s casual assurances that every single one of the long list of errors were all coincidentally harmless.
487 U. S. 223
June 22, 1988
In the 1978 ruling Manhart, the Court ruled that pension contributions which differ based on sex are illegal. In the 1983 ruling Norris, the Court ruled that pension payouts which differ based on sex are illegal. Until the Norris decision, Florida had pension payouts which differed based on sex. There were two questions. First, could sex-based underpayment between Manhart and Norris be retroactively recouped. Second, could pension plans that started paying out before Norris be prospectively adjusted upward.
The Court answered these questions in the negative, in a 5-4 vote. Kennedy said that Manhart in no way implied that sex-based pension payouts were clearly illegal. Because that question remained entirely unsettled before Norris, there could be no liability for extra payment before the date of the latter decision. Kennedy explained that retroactive liability could destroy the fiscal workability of pension plans, and that it punished states for flaws that they had no way of knowing about. Moving on to the question of prospective adjustment, Kennedy claimed that it was still a retroactive remedy. It threw the balance of contributions and payouts off-kilter, and thus still punished states for violations they could not have known about.
Blackmun, joined by Brennan and Marshall, though Manhart clearly implied that all sex-based pension workings were illegal, be they contributions or payouts. Because Florida should have understood the implications of Manhart, he felt that workers should be entitled to retroactive payments since the Manhart decision, and an increase in payments going forward. Blackmun did concede that pensioners who began receiving payments prior to Manhart were out of luck. Stevens was bolder. He felt that every unequal paycheck was a new violation. Thus, even pensioners who began receiving payments before Manhart deserved to have all payments since that decision (and all payments going forward) adjusted upward.
This was a very good decision – once which favored prudential concerns over fiscally irresponsible utopianism. In fact, those ‘discriminated’ against in the payouts were men, not women, and the ‘discrimination’ was only present in some payout plans out of all those offered. This ruling was also good because it refused to penalize an institution for not correctly guessing the Supreme Court’s next doctrinal move. The Supreme Court has this horrendously annoying shtick of being ultra coy and cagey on a specific issue; but then, when it finally makes a direct ruling, it will pretend that this ruling should have been obvious for years beforehand. This is what the dissent tries to do to the Norris ruling – pretend that it was totally obvious from Manhart. It wasn’t, and I’m glad the majority slapped them down.
487 U. S. 201
June 22, 1988
The government suspected that ‘John Doe’s’ offshore bank accounts contained incriminating documents. Unfortunately for the government, the banks refused to turn over anything without Doe’s signed consent. The government prepared a broadly worded statement, which said that Doe granted consent for any offshore banks to turn over documents in their possession. Doe said that signing this would be testimonial self-incrimination banned by the Fifth Amendment.
The Supreme Court, with Blackmun writing, disagreed in a 8-1 ruling. The statement did not mention any specific banks, accounts, documents, or anything that could be considered testimonial. He was not vouching for the existence, relevance, or authenticity of anything – all of those judgments would be made by the banks and the government. In the end, it was no more compelled testimony than an order for a defendant to turn over a hair or blood sample.
Stevens, in dissent, disagreed. He thought it was more analogous to an order that a defendant “reveal the combination to his wall safe – by word or deed.” Stevens contended that any order requiring the defendant to use his mind to assist the prosecution could count as testimonial self-incrimination. As for me, this one’s a close call, and I’m not sure who I side with.
487 U. S. 72
June 20, 1988
An abortion rights group sued the IRS to get the Roman Catholic Church’s tax exempt status revoked. It served a subpoena on the United States Catholic Conference, demanding evidence to be used in the suit. The Catholic Conference refused, and the court held them in contempt. The Conference challenged the contempt on the grounds that the court had no subject matter jurisdiction in the underlying suit. The question before the Supreme Court was whether a non-party witness could challenge a contempt ruling because of an alleged lack of subject matter jurisdiction.
The Court ruled 8-1 that such a challenge could be mounted. As Kennedy explained, subject matter jurisdiction was absolutely fundamental to all workings of any Article III court. Without such jurisdiction, any and all actions of the court were absolutely void. An old precedent about grand juries was easily distinguished, and concerns that challenges to jurisdiction might be abused were brushed aside as irrelevant. Anyone, even a non-party witness, was allowed to point out that the court had no legal grounds for being in session. Marshall dissented, and did the ‘read what the lower court judge said’ thing in lieu of explaining why.
The Court’s decision was obviously correct; elementary in fact. The underlying legal dispute though, is the very face of evil. Not content with murdering babies, the abortion rights group was trying to cripple the Catholic Church for daring to speak up in defense of those babies. If anyone wants to know why Donald Trump has pledged to overturn the horrific Johnson amendment on religious involvement in politics, this is the reason why.
Civil politics is an intrinsically spiritual domain. The nation who uses its laws to honor God and do good is blessed. The nation who uses its laws to dishonor God and do evil is cursed. It is Christian churches, above all other organizations, who ought to be involved in civil politics the most. No other group is so well equipped to discern when a legal policy is murderous and reprobate. Back in the late 1960s, when states first began legalization abortion for rape, incest, and birth defects, the Catholic Church stood almost alone in opposition. They alone perceived the beginning of a great genocide, and they alone raised the prophetic voice of alarm.
God will judge America one day for its legal system’s open embrace of sin. And God will also judge those who tried to cripple and silence the lonely voices in the wilderness who tried to fight back.
487 U. S. 42
June 20, 1988
When a prisoner received insufficient care from a doctor contractually employed by a prison, he tried to sue the doctor under Section 1983. The question was whether the doctor could be legally described as “acting under color of state law.” The lower courts did not think so, and cited a 1981 ruling called Dodson where public defenders were held immune from 1983 suits.
The Supreme Court unanimously disagreed. Blackmun said that the doctor was working for the state prison, and that the prisoner could not choose another doctor. The fact that the doctor worked for the prison only by contract was totally irrelevant. He was a state actor with respect to the prisoner. Blackmun distinguished Dodson because public defenders have a unique adversarial relationship with the government. Though doctors exercise independent professional judgment, their interests are in no way adversarial to the prison.
Scalia concurred in judgment. He disagreed with the Court’s assumption that the right the doctor allegedly violated “under color of law” was the Eighth Amendment. Scalia thought it would be the 14th Amendment, if anything, that the doctor violated. Frankly, I’m not sure the doctor violated either one. I can certainly accept this ruling that prison doctors are state actors. I’m less certain that insufficient medical care violates any Constitutional right.
487 U. S. 22
June 20, 1988
A contract dispute from Alabama went to federal court. The contract said that venue would be in New York, but Alabama had a state policy against putting binding venue selection in contracts. The question was whether Alabama’s federal court had to follow the state policy, or if it could consider it preempted by federal jurisdiction rules. The dispute centered on Section 1404(a). It said “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”
The Supreme Court ruled 8-1 that 1404(a) governed the situation. Marshall identified the key issue as whether or not 1404(a) was meant to cover the general topic of forum selection clauses. He said it was, because forum selection clauses bear heavily on any possible transfers, and the interests of justice in ordering them. Marshall thought 1404(a) was a perfectly reasonable housekeeping rule, and allowed it to preempt any Alabama policies on the topic. He stressed that the federal courts would still weigh the equities of transfer – they would make neither state policies nor forum selection clauses dispositive, but would consider both along with other factors.
Kennedy, joined by O’Connor, concurred to say that federal courts should almost always follow venue selection clauses, unless there was a really strong reason not to. Scalia dissented. He felt the wording of 1404(a) was too vague to conclude that it covered forum selection clauses, especially given that other federal jurisdiction rules covered arbitration clauses far more specifically. Scalia also felt that the majority’s interpretation was inconsistent with the policy goals of the Erie doctrine. It wouldn’t, he contented, stop forum shopping, and it could produce inequitable administration of the law.
I really hate lawyers who will fight to the death over every single stupid little jurisdictional thing. These meta-lawsuits – lawsuits about lawsuits – clog up way too much of the Supreme Court’s valuable time. After I read this case’s first sentence (“This case presents the issue whether a federal court sitting in diversity should apply state or federal law in adjudicating a motion to transfer a case to a venue provided in a contractual forum-selection clause.”) I actually said aloud “Oh, for crap’s sake.” The Court did, at least, make the right decision. When you agree to a venue selection clause in a contract, pacta sunt servanda should prevail.
487 U. S. 1
June 20, 1988
A statute with the Orwellian sounding name “Human Rights Law” banned certain private clubs from discriminating in membership based on race or sex. The law was limited in several respects, leaving alone clubs with less than 400 members, and clubs that were religious or benevolent in character – this based on the state’s finding that business activity was not prevalent at those organizations. A large club mounted a facial challenge to the law, based on both the First Amendment right to freedom of association, and the Equal Protection clause, given the aforementioned exemptions from the law’s reach.
The Supreme Court unanimously rejected these facial challenges. White first brushed aside one of those asinine jurisdiction challenges, because Court precedent did allow private associations to mount facial challenges. Nonetheless, in light of prior rulings in Rotary Club and Roberts v. Jaycees, White said there was little chance the New York law was invalid on its face because of the association concerns. Indeed, it seemed carefully drawn to leave most freedom of association rights intact, and could not be described as overbroad. With respect to the Equal Protection challenge, White said that New York had proffered rational reasons for exempting religious and benevolent organizations, and that no hard evidence had been offered to rebut the state’s reasoning.
O’Connor, joined by Kennedy, concurred to say that there could be an odd case where the law did violate a club’s association rights, and that the law was still vulnerable to an as-applied challenge. Scalia did not join the Equal Protection section, but concurred in judgment. He did not take the state’s reasoning at face value, but looked at the clubs classified as religious and benevolent for himself before concluding that the distinction drawn by the law was a defensible one (in case your wondering, ‘benevolent’ organization are mostly lodges like the Masons, VFW, or Knights of Columbus).
I have already given my opinion about laws like this in my Rotary Club write up, and I will not repeat it here. If you follow the principle of stare decisis, then this case was correctly decided. But I would have overruled Rotary Club, because that decision was awful, and doesn’t deserve precedential respect.
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.
486 U. S. 578
June 13, 1988
When Samuel Johnson was sentenced to death, one of the aggravating circumstances was a prior felony conviction in New York. Some time later, New York vacated that conviction, and Johnson argued that the prior conviction aggravating circumstance was now destroyed. Mississippi disagreed for several reasons. Though it was now vacated, Johnson had indeed been convicted at one point in time, and allowing other states to throw death penalty sentences into question through overturned verdicts was bad public policy. Finally, Johnson had not challenged the New York conviction in his original round of Mississippi appeals.
The Court unanimously rejected all these arguments (though O’Connor concurred only in judgment, without opinion). Stevens said that New York’s action worked a total expunging of the conviction. Thus, the death sentence was indeed based on an aggravating circumstance which was simply not factual. Further, allowing overturned verdicts in other states to affect death penalty impositions was good public policy, because it helped the system to become more accurate. Finally, because the Mississippi Supreme Court was not consistent in applying their rule against raising new legal concerns after the first round of appeals, Stevens was unimpressed by Mississippi’s contention that Johnson should have raised the issue in his original appeal.
I hardly need to tell you what Brennan said in a one paragraph concurrence joined by Marshall. But just in case you don’t know yet, he restated his continuing belief that the death penalty was always unconstitutional. White, joined by Rehnquist, concurred to point out that there were other aggravating circumstances against Johnson, and that the Mississippi Supreme Court could therefore decide, on remand, that his death penalty sentence ought to be summarily reimposed. I sure hope Mississippi did follow White’s recommendation, because this was yet another awful decision where a death sentence got overturned on dumb ticky-tacky grounds.