Category Archives: due process

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.


Satterwhite v. Texas

486 U. S. 249

May 31, 1988

In a case called Estelle v. Smith, the Supreme Court ruled that it was Constitutional error to allow psychiatric examination of a defendant in a capital case without notifying the defendant’s counsel. John Satterwhite was examined without notification of his counsel. The doctor who examined him testified at trial that Satterwhite was irredeemably dangerous, and he was sentenced to death. The question was whether this violation was harmless error, given that many other witnesses had provided ample evidence of how dangerous and sociopathic Satterwhite was.

The Court ruled unanimously that the error was not harmless (Kennedy did not participate). O’Connor, writing for a five Justice majority, said that violation of Estelle could sometimes be genuinely harmless, because the error only infects a small portion of the trial rather than the whole ordeal. Nonetheless, the harmlessness of the error had to be beyond a reasonable doubt. Because of the especially impressive and authoritative nature of the doctor’s court testimony, O’Connor was not prepared to conclude that it had not affected the jury’s final decision.

Marshall, joined by Brennan and Blackmun, said that any violation of Estelle should always result in the death sentence being vacated. Because it was usually too difficult to determine whether or not the error was harmless, harmless error analysis should never be undertaken. Furthermore, Estelle itself, and other precedents suggested that harmless error analysis was inappropriate for this particular violation. In a section not joined by Blackmun, Marshall went farther, and contended that absolutely any Constitutional violation in a capital case, even if harmless, must result in the death sentence being overturned. In a separate opinion, Blackmun briefly registered his continuing skepticism of psychiatric testimony in general.

Even though I usually favor upholding death sentences on the basis of harmless error, I must agree with the unanimous Court that this error might not have been harmless. Nevertheless, I’m not at all sure that Estelle was correct in deeming the psychiatric evaluation error in the first place. Certainly, it’s best practices to notify the defendant’s counsel, but to call it a Sixth Amendment violation might go a bit too far.

FDIC v. Mallen

486 U. S. 230

May 31, 1988

The FDIC has the power to suspend bank officials if good evidence shows that the official committed a crime involving dishonesty. There is no pre-suspension hearing, but a post-suspension hearing must be held within 30 days. At the post suspension hearing, there is no unqualified right to oral testimony, though the suspended official may request to proffer it. Mallen, a bank official suspended under these workings, charged that the procedures failed to protect his rights under the Due Process clause.

The Court ruled unanimously that the FDIC procedures were just fine. Justice Stevens said that the need for banks to have trustworthy leadership was compelling enough to allow for a suspension prior to a hearing. The 30 day period afterward to have a hearing, and the 90 day period to reach a final solution were reasonably prompt. Indeed, to shorten these periods would probably work to the bank official’s detriment, argued Stevens, because it would encourage hasty rather than deliberate consideration of the facts. Finally, because oral testimony would often be irrelevant or duplicative, there was no need for an unqualified right to offer it. A legal challenge would still be available, Stevens reminded, in a case where truly relevant oral testimony had been irrationally excluded from consideration.

Another case that’s perfectly reasonable, provided you accept as a premise the Constitutional validity of the expansive administrative state. Maybe it’s a good idea for the government to have the power to suspend rogue bank presidents, but a century ago I doubt the Supreme Court would have found that power consistent with the Constitution.

Bankers Life & Casualty Co. v. Crenshaw

486 U. S. 71

May 16, 1988

After Lloyd Crenshaw lost a leg, his insurance company denied him a payout on some BS reasoning. Crenshaw prevailed in court, and was awarded punitive damages. The insurance company appealed and lost. Under Mississippi law, appellants who lost had to pay an additional 15% over the total value of money at issue. This law was made to discourage frivolous appeals. The insurance company appealed to the Supreme Court on two grounds: first, that Mississippi could not allow for unlimited punitive damages, and second, that the 15% law violated the Due Process clause.

Unanimously, the Court dismissed the punitive damages argument (Kennedy and Stevens did not participate). Marshall said that it really wasn’t properly raised below, and prudential concerns counseled against the Supreme Court dealing with the issue now. On the 15% law argument, the Court ruled 6-1 that the law comported with Due Process. Marshall said that the discouragement of frivolous appeals was a rational reason for the law. In a previous case, the Court had struck down a law requiring renters to post a bond of twice the rent before appealing, but that precedent was easily distinguished. It applied only to renters, instead of all appellants, and required that the extra money be paid before the appeal rather than after.

White concurred in judgment on the punitive damages portion. To him, it wasn’t just prudential to pass over that issue, but jurisdiction laws actively required the Court to pass over it since it hadn’t properly been raised below. O’Connor and Scalia also concurred in judgment on the punitive damages portion (they both also refused to assent to one trivial footnote). O’Connor largely agreed with Marshall’s reasoning, but noted that the punitive damages issue was certainly worth of decision in another case. Scalia both agreed with White that jurisdiction law barred consideration, and with O’Connor that the issue ought to be decided some time in the future.

Blackmun dissented from the holding about the 15% law. It violated Due Process because a great many appeals that it punished were not actually frivolous. Worse yet, the law had an exception for plaintiffs who lost in the first instance, and then appealed. Blackmun could not tolerate that kind of discrimination, since the law could only ever punish the original defendant.

These kinds of cases always leave me torn. On the one hand, the insurance company was being a jerk, and deserved some extra punitive damages. On the other hand, there very often are meritorious appeals where the appeals court simply gets it wrong, and I hate seeing a party being punished just because the court failed to rule correctly. So, it’s a dilemma.

Hicks v. Feiock

485 U. S. 624

April 27, 1988

Phillip Feiock was very delinquent in child support payments, and so a California court imposed a 25 day jail sentence, suspended during a three year probation period. Feiock argued that he was financially unable to pay child support, and that the government should have the burden of proving ability to pay before imposing jail time. Under the Due Process clause, the government perhaps would have to prove ability to pay in a criminal case, but not in a civil case. But which was this?

The Court ruled 5-3 that this factual question didn’t have a clear answer, and remanded the case for more clarification (Kennedy did not participate). White said that some questions of the case could not be addressed, because they concerned interpretation of state law. On the civil/criminal question though, precedent was very clear. Criminal cases involved definite, punitive sanctions, like set jail sentences, and fines paid to the court. Civil cases involved conditional, rehabilitative sanctions, like jail time until a condition is complied with, or fines paid to another party. If Feiock made all the child support payments, it was unclear whether the jail time and probation would go away, so White ordered the remand.

O’Connor, joined by Rehnquist and Scalia, dissented. She thought the ruling of the California court was definitely civil. Unlike the majority, she thought it was clear that the jail time and probation would be gone if Feiock simply complied with the child support payment schedule. In my opinion, the facts were unclear enough that a remand was warranted, but regardless, I have to say that I hate the common assumption that civil proceedings do not require Due Process. Civil actions can sometimes destroy your life worse than criminal actions, and defendants do deserve some protection against getting rear-ended by horrible, unjust decisions.

Sorry for going a bit MRA here, but the cold, unforgiving self-righteousness of the child support system really turns me off. It’s a near lawless racket where innocent children are used as vicious clubs against imperfect men. Google the story of Carnell Alexander, and remember that there are many more like him who never even make the news. It’s a literally kafkaesque world out there, and so long as self-righteous demons make it impossible to stand up for ‘deadbeat dads,’ nothing will ever change.

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.

Peralta v. Heights Medical Center, Inc.

485 U. S. 80

February 24, 1988

A man named Peralta was sued in order to recover a debt. Peralta was never served with notice of the suit though. He did not appear, and default judgment was entered against him. He moved to set aside the decision because of the faulty notice, but the Texas courts refused, reasoning that he needed to show that he could have won the case even with proper notice. Peralta said that this reasoning violated the Due Process clause.

With White writing, the Supreme Court unanimously agreed (Kennedy did not participate). White found it an easy case, as service with notice is a bedrock requirement of due process. That Peralta would have had no legal defense did not matter, because he might have been able to settle the case before trial, and he was unfairly caught off guard when a lien was attached to his property to satisfy the debt. The Court made the legally correct ruling, but I’m not sure how right it was as a matter of natural justice. The American system cares far too much about processes, rights, and checking off boxes, and far too little about truth, justice, and righteousness. If Peralta really did owe the debt, he ought to have to pay it, and not get let off the hook for a procedural quirk.

One other thing – (a thing which I could just as easily have first brought up in any number of cases) – what the heck is Peralta’s first name? After giving his last name in the opening sentence of the decision, Justice White calls him “appellant” for the remainder of the opinion. I hate that. Every single Supreme Court case affects real living humans. They should not be de-personalized into oblivion. As I said sometime ago, laws were created for men, not men for laws.

United States v. Robinson

485 U. S. 25

February 24, 1988

At a mail fraud trial, the defense attorney claimed in closing arguments that his client had been denied an opportunity to tell his side of the story several times, including, ostensibly, at the trial itself. The prosecutor argued in response that the defendant had a perfect opportunity to tell his side at trial, but declined to do so. At the time, no objection was made to the prosecutor’s arguments. Later though, it was said that they violated the Griffin rule against commenting on a defendant’s silence.

The Court ruled 5-3 that no Constitutional rights were violated by the comment (Kennedy did not participate). Rehnquist said that the prosecutor was merely refuting a bad-faith argument by the defense attorney, and not attempting to suggest that the silence was evidence of guilt – the main harm that the Griffin rule was intended to guard against. Marshall, joined by Brennan, argued forcefully in dissent that the plain text of Griffin, and another case called Wilson, flatly prohibited all comment on trial silence, even if it was not intended to suggest the defendant’s guilt. From a textual matter, Marshall is surely right, but I still side with Rehnquist because the original Griffin rule was too broad, and ought not to have applied to situations like this.

The annoying wild card in all this was that there had been no objection to the prosecutor’s comment. Thus, the conviction could only be overturned if the error was “plain.” Rehnquist found no error at all, and thus sidestepped the issue. Marshall did not directly offer an opinion on this question either. Blackmun, writing for himself, agreed with Marshall that the comment constituted error, but wasn’t sure about plain error. He thought the lower court had gone completely astray on the issue, and that it needed to try again after getting better instruction from the Supreme Court. Like every Justice except Blackmun, I’m happy to simply sidestep this issue entirely.

Pennell v. San Jose

485 U. S. 1

February 24, 1988

A rent control ordinance in San Jose laid out several objective tests which limited the rent increases that a landlord could charge. But in addition to these tests, rent increases were also to be limited if a hearings officer concluded that they caused “hardship” to tenants. Landlords objected that this violated the takings clause, the due process clause, and the equal protection clause. The thrust of the protest was that the ordinance asked landlords to outright subsidize poor tenants, rather than to merely charge a fair price.

The Court upheld the ordinance 6-2 (Kennedy did not participate). Chief Justice Rehnquist first turned back a standing challenge. There was no definite instance yet of a landlord being denied a rent increase on the hardship basis, but Rehnquist accepted that it was indeed a very likely possibility in the immediate future. The lack of a developed record was enough of a roadblock though that the Court declined to address the takings clause issue. Moving on to the due process and equal protection clauses, Rehnquist said that protection of the consumer’s welfare and interest was a rational end of legislation, and thus allowing certain tenants to be charged below the objective reasonable price was not Constitutionally troublesome.

Scalia, joined by O’Connor, agreed with the majority on everything except the takings clause. A close reading of recent takings clause decisions showed that an underdeveloped record was no impediment to considering the issue. Moving to the merits, Scalia said that forcing a landlord to charge less than the ‘fair’ price to needy tenants was indeed a regulatory taking. He compared it to forcing grocery stores to sell its food at lower prices to those suffering economic hardship. If San Jose wanted to alleviate hardship to the poor, Scalia said they could do so through welfare or public housing. I think this opinion is right, and the Court should have addressed the takings clause challenge on the merits (of course, I’ve never really been one for abstention based on standing issues).

Lowenfield v. Phelps

484 U. S. 231

January 13, 1988

So, this bad guy murders five people all in one go. Then, at sentencing, the jury seems to be at an impasse. Twice the judge polls the jury on whether more deliberation will help, and both times a majority of jurors say it will. The judge asks them to reach a conclusion if they can, and reminds them that the murderer will get life imprisonment if the jury cannot agree. Finally, the jury comes back with the death sentence. The aggravating circumstance that merited death was the five-fold nature of the murder – precisely what allowed the crime to be charged as first degree murder at all.

Rehnquist wrote for the Court that the death sentence was sound. The Court held 5-3 that the jury had not been coerced by the judge’s actions, and held 6-2 that the aggravating circumstance used was appropriate. Rehnquist noted that the judge never pressured the jurors to choose one sentence over another, just to come to a decision. He distinguished the case factually from other jury coercion rulings. What’s more, the defense counsel did not even object to the judge’s actions during the trial, so obviously any illicit coercion must have been extremely subtle. With regard to the aggravating circumstance being one of the factors that allowed for a first degree murder charge to be brought, Rehnquist noted that this was perfectly consistent with the 1976 death penalty cases. The point of the aggravating circumstance was only that it narrowed the field of death penalty candidates.

Marshall wrote the dissent, which Brennan joined in full, and Stevens joined on the coercion issue. He argued that a jury would only come to a verdict after 22 hours of deliberations if a judge was exerting pressure. He further noted that the judge’s repeated statement about life imprisonment must have functioned as tacit coercion to return with a death sentence. Finally, Marshall found it significant that the judge was informed which jury members were the most intransigent. On the issue of aggravating circumstances, Marshall blankly asserted that letting an element of the crime also function as a aggravating circumstance was unfair. It’s cases like this that give me an ever so slight appreciation for Justice Blackmun. As much as he hated the death penalty, he was sometimes willing to let sentences stand when the only argument against them were idiotic minutia.