Category Archives: White

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.”

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Pierce v. Underwood

487 U. S. 552

June 27, 1988

A law allowed citizens to recover attorneys fees against the government if the government’s position was not “substantially justified.” The attorneys fees awarded would be capped at $75 per hour, but that could be adjusted upward based on “special factors.” A lower court found for citizens who were suing the Department of Housing and Urban Development. The court found that HUD’s position was not substantially justified, and awarded large attorneys fees, ballooned greatly by “special factors.”

Scalia wrote the majority opinion, and Kennedy did not participate. It concluded 6-2 that lower courts findings that government positions were not “substantially justified” should be reviewed under an abuse of discretion standard. It concluded 5-3 that “substantially justified” meant that the position was basically reasonable, plausible, and arguable. It concluded 6-2 that the lower court did not abuse discretion in finding that the government’s position was not substantially justified. And it concluded 5-3 that the “special factors” cited by the lower court were not quite special enough, and it vacated the greatly ballooned award of attorneys fees. In the 6-2 parts, Scalia was joined by Rehnquist, Brennan, Marshall, Blackmun, and Stevens. In the 5-3 parts, he was joined by Rehquist, White, Stevens, and O’Connor.

To very briefly summarize, Scalia felt that abuse of discretion was better than allowing de novo review because of how weird the legal question of substantial justification was. He defined “substantially justified” by looking at how the word ‘substantial’ was used in other legal contexts. He noted that HUD’s string of losses in lower courts, together with some tough legal criticisms of HUD’s position, foreclosed any possibility that the lower court judge abused his discretion. Finally, he thought the lower court’s expansive reading of “special factors” was so broad as to virtually eliminate the $75 limit.

Brennan, joined by Marshall and Blackmun, though Scalia was too forgiving to the government in how it defined “substantially justified.” To Brennan, the government’s position had to be more than just reasonable – there had to be some true force and persuasion to the government’s position. He also felt Scalia was not recognizing enough “special factors,” and that things like the difficulty of the litigation should be reflected in an upward adjusted fee. White, joined by O’Connor, contended that questions of law were always reviewed de novo, and that questions of whether a government’s legal position was “substantially justified” ought to be no different. He further contended that, under a de novo standard, he would find enough justification for HUD’s position to absolve them of the duty to pay attorneys fees.

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.

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.

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.

Patterson v. Illinois

487 U. S. 285

June 24, 1988

A gang member was indicted for murder. Subsequently, but before he received a lawyer, this gang member made inculpatory statements upon being given the Miranda warning. At trial, he moved to suppress these statements on the grounds that his Sixth Amendment right to counsel had been violated by the interview, and that he had not been duly informed of the consequences of waiving his right to a lawyer by the Miranda warning.

The Supreme Court ruled 5-4 that his confessions were admissible. White said that there was nothing wrong with initiating an interview with an indicted suspect as long as he was always free to cut off the interview by requesting a lawyer. This was the rule in Edwards, and White would not disturb it. As to the sufficiency of the waiver, White pointed out that the Miranda warning summarized the dangers of making statements without counsel quite accurately and succinctly. He further noted that no one had been able to come up with a better warning that the suspect could have been presented with before making the decision to waive his rights. White concluded with the argument that indictment did not make the need for a lawyer more weighty than the need for a lawyer in the pre-indictment investigation context.

Blackmun, in dissent, said that a lawyer must be appointed before any post-indictment questioning begins. Stevens, joined by Brennan and Marshall, argued that questioning a party in a case without their lawyer is universally considered unethical in the civil context. Once the indictment occurs, there are formal adversarial proceedings, and taking advantage of an unrepresented party requires a very well informed waiver. Stevens said that Miranda’s bare warnings were not sufficient to really alert the suspect of the dangers of talking without a lawyer. Furthermore, he found a conflict of interest in the police offering the Miranda warning at all after an indictment. He said it was effectively the prosecution offering the defense legal advice.

There’s something messed up about being so dead set against voluntary confessions. Voluntary confessions are something to be encouraged, and not something to be thwarted at every turn. There’s very little gain to society in making it needlessly difficult to convict people who will openly admit to their guilt.

Franklin v. Lynaugh

487 U. S. 164

June 22, 1988

In Texas, a defendant is sentenced to death if the jury answers ‘yes’ to two questions focused on the defendant’s substantial guilt, and his future danger to the community. The Supreme Court upheld this sentencing process in a case called Jurek. Nonetheless, one convict challenged his sentence by claiming that the jury did not have adequate opportunity under the two questions to consider his good behavior in prison, and any lingering doubts about his guilt. Under the Lockett-Eddings line of cases, juries had to be given the chance to weight any mitigating evidence.

The Court ruled 6-3 that the jury had an adequate opportunity to consider all the mitigating evidence. White, joined by Rehnquist, Scalia, and Kennedy, said that there is no Eighth Amendment right to have the jury consider lingering residual doubt over the defendant’s guilt (indeed, all nine Justices agreed with this proposition). Turning to the prison behavior issue, White said that this would naturally be considered under the jury question about the defendant’s future danger to the community. Since the Court had found the Texas system Constitutional in Jurek, White was loath to entertain doubts about it now. And indeed, it was quite appropriate for states to have preexisting systems in place to channel and foster proper consideration of mitigating evidence.

O’Connor, joined by Blackmun, said that the Jurek framework would sometimes be insufficient for certain mitigating factors. Nonetheless, she agreed that good prison behavior did go directly to the question of the defendant’s future danger. Thus, in the facts of this particular case, the jury questions allowed for the consideration of all relevant mitigating evidence.

Stevens, joined by Brennan and Marshall, dissented. He contended that the prison behavior issue communicated two different things about the defendant. First, it communicated that he would not be a danger in the future. But it also communicated that he was a decent person in the past. A precedent called Skipper had recognized this subtle distinction. The Jurek system did not allow for proper consideration of mitigating evidence relevant to a defendant’s good behavior in the past. Stevens stressed that the Jurek case only upheld the system against a facial challenge, and that in the facts of this case, the jury was indeed denied the opportunity to weigh all of the facets of the prison behavior evidence.

With prosecutors having to deal with junk appeals like this, it’s a wonder that anyone gets executed at all. The most appalling part of the decision was a footnote where we learn that defendant Franklin had been sentenced to death three separate times for the same murder. The first two sentences, we can safely assume, were overturned on the basis of some similarly trivial BS.

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.

New York State Club Assn., Inc. v. City of New York

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.

Mackey v. Lanier Collection Agency & Service, Inc.

486 U. S. 825

June 17, 1988

Creditors tried to obtain money by garnishing an ERISA employee welfare plan. A Georgia law banned garnishing ERISA plans, but this law was said to be pre-empted by ERISA itself. Additionally, the debtors argued that even without the Georgia law, the suits for garnishing were also pre-empted by ERISA. ERISA did openly say that state laws about ERISA were pre-empted, and it did prohibit any garnishment of employee pension plans, but it was murkier about employee welfare plans.

The Court unanimously ruled that the Georgia law was pre-empted, but split 5-4 about the garnishment. White said the Georgia law was flatly banned by the text of ERISA, and that was that. With respect to the garnishment question, White observed that the law did seem to tacitly assume in a few places that employee welfare plans might be sued. He also emphasized that the part of the law explicitly protecting pension plans from garnishment would be surplusage if all plans were meant to be implicitly protected from garnishment. Finally, White rejected the argument that Congress seemed to reject the possibility of welfare plan garnishment when they amended ERISA in 1984. He contended that the intent of the original drafters was what mattered, and not latter amending legislators.

Kennedy, joined by Blackmun, O’Connor, and Scalia, dissented. He argued that some of the law’s features that implicitly pointed to allowing garnishment suits were being wrongly construed. He stressed that garnishment was extremely disruptive to ERISA plans. ERISA pre-empted state laws relating to plans, and if garnishment was so disruptive, then Kennedy felt that state laws allowing the procedure qualified. While the text specifically exempting pension plans was mildly redundant, Kennedy said that the majority’s refusal to come to grips with the 1984 amendments constituted far worse violence against the statutory text. The intent behind the amendment could not be ignored or dismissed on the argument that only the original drafters were relevant.

I’m all in favor of debts being paid, but Kennedy really is right about the effect of the 1984 amendments. The majority’s treatment of that argument is clearly cavalier, and I’m surprised that White got five votes for it.