19 June 2017

More SCOTUS Rulings

The latest from the U.S. Supreme Court:

* An Ohio death penalty sentence for a 1985 murder in Jenkins v. Hutton, is affirmed in a per curium opinion (overturning a 6th Circuit reversal) where the jury was not properly instructed regarding how to weigh evidence in the penalty phase of the case, but the objection was not preserved and neither the 6th Circuit nor the defendant could show in a way that met the heavy burden of proof that no reasonable jury would have convicted him had it been properly instructed.

* In Matal v. Tam, a unanimous 8-0 court (although with some concurring opinions) affirmed the determination that a law prohibiting offensive trademarks (in this case for the band "The Slants") is unconstitutional, affirming the en banc Federal Circuit, at least in this context. The statute is "a Lanham Act provision prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a)." Neither of the two concurrences undermine the holding in any way. (The case name was changed between oral arguments and a decision on the merits because the director of the PTO changed in the interim.)

* In McWilliams v. Dunnthe Court's 5-4 decision marks the first dissenting opinion that Judge Gorsuch has joined, which he does with the other conservatives on the court. The Court reversed an Alabama death sentence where the defense was not permitted to obtain a mental health expert as part of his right to effective counsel in his defense to argue their client's insanity as a mitigating factor in the face of evidence that there was a mental health problem present. Neither the state expert's testimony nor brief assistance from a volunteer psychiatrist meet this obligation. A harmless error determination was reserved for the 11th Circuit on remand.

* In Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty. the court finds that "specific personal jurisdiction" (as opposed to general jurisdiction) is lacking in this case brought in a California state trial court in an 8-1 decision. According to the official syllabus:
A group of plaintiffs, most of whom are not California residents, sued Bristol-Myers Squibb Company (BMS) in California state court, alleging that the pharmaceutical company’s drug Plavix had damaged their health. BMS is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. Although it engages in business activities in California and sells Plavix there, BMS did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in the State. And the nonresident plaintiffs did not allege that they obtained Plavix from a California source, that they were injured by Plavix in California, or that they were treated for their injuries in California. The California Superior Court denied BMS’s motion to quash service of summons on the nonresidents’ claims for lack of personal jurisdiction, concluding that BMS’s extensive activities in the State gave the California courts general jurisdiction. Following this Court’s decision in Daimler AG v. Bauman, 571 U. S. ___, the State Court of Appeal found that the California courts lacked general jurisdiction. But the Court of Appeal went on to find that the California courts had specific jurisdiction over the claims brought by the nonresident plaintiffs. Affirming, the State Supreme Court applied a “sliding scale approach” to specific jurisdiction, concluding that BMS’s “wide ranging” contacts with the State were enough to support a finding of specific jurisdiction over the claims brought by the nonresident plaintiffs. That attenuated connection was met, the court held, in part because the nonresidents’ claims were similar in many ways to the California residents’ claims and because BMS engaged in other activities in the State. 
The high court finds that the absence of an in-state injury or injury to a resident plaintiff is controlling. The high court is also unimpressed with the fact that the drug giving rise to the product liability is distributed by a California company. The official syllabus also notes that:
The Court’s decision will not result in the parade of horribles that respondents conjure up. It does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS. Alternatively, the nonresident plaintiffs could probably sue together in their respective home States. In addition, since this decision concerns the due process limits on the exercise of specific jurisdiction by a State, the question remains open whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court.
Statutory limits on federal court jurisdiction probably prohibit the possibility of federal court jurisdiction now, but the decision leaves Congress with the option of potentially changing that statute. which currently limits the personal jurisdiction of federal trial courts to that of a state court of general jurisdiction in the same state, even though this is probably not constitutionally required.

Sotomayor's dissent argues that:
Three years ago, the Court imposed substantial curbs on the exercise of general jurisdiction in its decision in Daimler AG v. Bauman, 571 U. S. ___ (2014). Today, the Court takes its first step toward a similar contraction of specific jurisdiction by holding that a corporation that engages in a nationwide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State.  
I fear the consequences of the Court’s decision today will be substantial. The majority’s rule will make it difficult to aggregate the claims of plaintiffs across the country whose claims may be worth little alone. It will make it impossible to bring a nationwide mass action in state court against defendants who are “at home” in different States. And it will result in piecemeal litigation and the bifurcation of claims. None of this is necessary. A core concern in this Court’s personal jurisdiction cases is fairness. And there is nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike. . . . 
It “does not offend ‘traditional notions of fair play and substantial justice,’” International Shoe, 326 U. S., at 316, to permit plaintiffs to aggregate claims arising out of a single nationwide course of conduct in a single suit in a single State where some, but not all, were injured. But that is exactly what the Court holds today is barred by the Due Process Clause. This is not a rule the Constitution has required before. I respectfully dissent. 
In short, this is another manifestation of the Court's longstanding aversion to class action lawsuits. I agree strongly with Sotomayor on this point, but the reality is that the majority's rule is the one I'll have to litigate under for the indefinite future.

* In Packingham v. North Carolina, a unanimous court held that a ban on social media usage for sex offenders was unconstitutional. The official syllabus explains that:
North Carolina law makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” N. C. Gen. Stat. Ann. §§14–202.5(a), (e). According to sources cited to the Court, the State has prosecuted over 1,000 people for violating this law, including petitioner, who was indicted after posting a statement on his personal Facebook profile about a positive experience in traffic court. The trial court denied petitioner’s motion to dismiss the indictment on the ground that the law violated the First Amendment. He was convicted and given a suspended prison sentence. On appeal, the State Court of Appeals struck down §14–202.5 on First Amendment grounds, but the State Supreme Court reversed. Held: The North Carolina statute impermissibly restricts lawful speech in violation of the First Amendment. 
Basically, the judges find that the ruling is not sufficiently narrowly tailored to the objective to meet constitutional must and must be limited to postings that could harm children or facilitate contact with children.

* Ziglar v. Abbasi is procedurally weird. Two Justices of the eight person court (both liberal whose involvement would have resulted in the opposite conclusion on the merits) recused themselves and Justice Gorsuch did not participate, and two Justices dissented, so the majority opinion commanded only 4 votes out of 6 justices participating (still a quorum). SCOTUS blog explains that the release of the decision involved some drama, no doubt, in part, because the liberal wing of the Court was pawned on procedural grounds allowing a minority of the court to prevail when it wouldn't have been able to otherwise. The dissent accurately discerns that this ruling is dangerous to the future of liberty in the United States. An analysis at the Atlantic explains why this is the case - basically because it lets officials get away with admittedly wrongful conduct against innocent people in violation of their civil rights in the name of the War on Terrorism.
Kennedy’s second opinion is in Ziglar v. Abbasi, about whether a so-called Bivens civil rights action is available to six people of Arab or South Asian descent detained after the Sept. 11, 2001, terrorist attacks who challenged the conditions of their confinement. 
Kennedy’s opinion for a four-justice majority (out of six participating) holds that most of the Bivens actions brought by the detainees should not have been allowed to go forward. 
“Judicial inquiry into the national security realm raises serious separation-of-powers concerns,” Kennedy says. He is joined in full by Roberts and Alito, and for the most part by Thomas. Sotomayor and Kagan did not participate for unspecified reasons of recusal, and Gorsuch did not participate because he was not on the court when the case was argued. 
Breyer has written a dissent, joined by Ginsburg, which he will read from at some length from the bench. It is the first dissent from the bench in a term in which some were predicting we might not see any at all. 
“The majority concludes that the plaintiffs cannot or may not be able to bring their suit, even if they prove their allegations and even if the defendants violated clearly established constitutional commands,” Breyer says. “Justice Ginsburg and I disagree. In our view, Bivens actions should continue to provide appropriate compensation for those deprived of important constitutional rights and in times of special national-security need.” 
Breyer goes on for a good 15 minutes. Alito mostly looks down or out toward the crowded courtroom, as do the other justices. 
“We understand the majority’s basic concern, namely that federal officials might hesitate in carrying out their security-related responsibilities if they fear future lawsuits for damages with an attendant risk of judicial second-guessing of decisions,” Breyer says. 
In time of war or national-security emergency, Bivens actions “may be particularly needed,” he adds. “History warns of the risk to liberty in times of national crisis.” He cites the Alien and Sedition Acts, the suppression of civil liberties during World War I, and the internment during World War II of “70,000 American citizens of Japanese origin.” 
While the majority points to suits for injunctive relief that may be brought to challenge government overreach, those are filed during national emergencies when the courts may be hesitant to interfere. “A damages action, however, is typically brought after the emergency is over, after emotions have cooled, and at a time when more factual information is available,” Breyer says. 
He closes by citing Lord Atkins, a British judge who wrote during World War II that “amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.” 
“The court should say the same here,” Breyer concludes.

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