Black Robes Speak!: June 2008
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Friday, June 27, 2008

As I Predicted, The U. S. Supreme Court Says The Second Amendment Secures Individual Rights To Bear Arms. Amen To That!

The case is DISTRICT OF COLUMBIA ET AL. v. HELLER, 07-290 (2008), and represents the FIRST REAL DEFINITE statement from the Court on what the Second Amendment's provision that "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" means.

The Court in a SHOCKINGLY SURPRISING 5 to 4 opinion (yes, you read it -- 5 to 4, NOT UNANIMOUS -- you go figure who could dissent from the CLEAR provision) held that the Second Amendment secures our collective individual right to bear arms, subject to REASONABLE regulation.

The nearly 160 page decision demands a read, but if you can't read it, I'll leave you with the Court's summary below:

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and disassembled or bound by a trigger lock or similar device.
Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused.

He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.


1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Anti federalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.
Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.
Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation.
Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56.
3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this
prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64.
478 F. 3d 370, affirmed.

Editor's (QUICK) comment: I believe the Majority is ABSOLUTELY CORRECT in its opinion. I love how Justice Scalia uses the dissenting Justices premise against them. Thus, while the dissenters will urge an approval of the gun ban because of the high crime in Washington D. C., Justice Scalia retorts that THAT is precisely why people of the District need to own hand guns.


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U. S. Supreme Court Finds The So-Called "Millionaires Amendment" For Politicians Unconstitutional.

The U. S. Supreme Court, in a very fractured but near unanimous opinion, ruled in DAVIS v. FEDERAL ELECTION COMMISSION, 07-320 (2008), that the so called "Millionaires' Amendment" to the federal election laws, which require a candidate for elective office who intends to spend more than $350,000.00 to inform his opponent and also suffer some monetary penalties, was unconstitutional on free speech and privacy of association and belief grounds.

Below are the facts of the case as articulated by the Court:

Federal-law limits on the amount of contributions a House of Representatives
candidate and his authorized committee may receive from an individual, and the amount his party may devote to coordinated campaign expenditures, 2 U. S. C. §§441a(a)(1)(A), (a)(3)(A), (c), and (d), normally apply equally to all competitors for a seat and their authorized committees. However, §319(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), 2 U. S. C. §441a–1(a), part of the so-called “Millionaire’s Amendment,” fundamentally alters this scheme when, as a result of a candidate’s expenditure of personal funds, the “opposition personal funds amount” (OPFA) exceeds $350,000. The OPFA is a statistic comparing competing candidates’ personal expenditures and taking account of certain other fundraising. When a “self-financing” candidate’s personal expenditure causes the OPFA to pass $350,000, a new, asymmetrical regulatory scheme comes into play.The self-financing candidate remains subject to the normal limitations, but his opponent, the “non-self-financing” candidate, may receive individual contributions at treble the normal limit from individuals who have reached the normal limit on aggregate contributions, and may accept coordinated party expenditures without limit. See §§441a–1(a)(1)(A)–(C). Because calculating the OPFA requires certain information about the self-financing candidate’s campaign assets and personal expenditures, §319(b) requires him to file an initial “declaration of intent” revealing the amount of personal funds the candidate intends to spend in excess of $350,000, and to make additional disclosures to the other candidates, their national parties, and the Federal Election Commission (FEC) as his personal expenditures exceed certain benchmarks. Appellant Davis, a candidate for a House seat in 2004 and 2006 who lost both times to the incumbent, notified the FEC for the 2006 election, in compliance with §319(b), that he intended to spend $1million in personal funds. After the FEC informed him it had reason to believe he had violated §319 by failing to report personal expenditures during the 2004 campaign, he filed this suit for a declaration that §319 is unconstitutional and an injunction preventing the FEC from enforcing the section during the 2006 election. The District Court concluded sua sponte that Davis had standing, but rejected his claims on the merits and granted the FEC summary judgment.

Editor's comment: While I am one who is EXTREMELY disgusted at the CHOKE HOLD special interest money has on our political system (and politicians), and the CORRUPTION it breeds, I TOTALLY agree with the Court that a person spending his/her "unlimited" personal funds for his/her own campaign does NOT present ANY DANGER to society's interests.

If you got it, you can BURN it, baby!


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Wednesday, June 25, 2008

Tomorrow, I Will Post My Analyses Of The U. S. Supreme Court's Opinions On The Child Rape Case, And Hopefully, The D. C. Gun Rights Case. Come Back!

As you are well away, or should be, the U. S. Supreme Court released its opinion in the Louisiana child rape case, where the court held that a state CANNOT execute a child rapist who has not killed his victim or has acted with intent to do so.

I shall post my analysis of the ruling tomorrow morning.

Also, I expect the Court to release its opinion in the Washington, D. C. case, where the District banned the possession of hand guns, while arguing that the Second Amendments right to possess firearms, is not a personal but a state right.

I expect the Supreme Court will pour water on the District's seemingly fiery argument and hold that the right is for the individual.

I shall analyze that case once it is issued by the Court (though professional duties will keep me occupied all day tomorrow).

So come back, will ya?

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U. S. Supreme Court: Right To Counsel Attaches At "Probable Cause" Hearing With Or Without "Prosecutor’s Knowledge Or Involvement"

In another important case released a couple of days ago, the U. S. Supreme Court held in ROTHGERY v. GILLESPIE COUNTY, TEXAS, 07–440 (2008), that a "probable cause" hearing is an "adversarial" one entitling the accused to a lawyer, whether or not a prosecutor was aware of, or was involved with, the prosecution.

Below is the Court's analysis:

Texas police relied on erroneous information that petitioner Rothgery had a previous felony conviction to arrest him as a felon in possession of a firearm. The officers brought Rothgery before a magistrate judge, as required by state law, for a so-called “article 15.17 hearing,”at which the Fourth Amendment probable-cause determination was made, bail was set, and Rothgery was formally apprised of the accusation against him. After the hearing, the magistrate judge committed Rothgery to jail, and he was released after posting a surety bond. Rothgery had no money for a lawyer and made several unheeded oral and written requests for appointed counsel. He was subsequently indicted and rearrested, his bail was increased, and he was jailed when he could not post the bail. Subsequently, Rothgery was assigned a lawyer, who assembled the paperwork that prompted the indictment’s dismissal. Rothgery then brought this 42 U. S. C. §1983 action against respondent County, claiming that if it had provided him a lawyer within a reasonable time after the article 15.17 hearing, he would not have been indicted, rearrested, or jailed. He asserts that the County’s unwritten policy of denying appointed counsel to indigent defendants out on bond until an indictment is entered violates his Sixth Amendment right to counsel. The District Court granted the County summary judgment, and the Fifth Circuit affirmed, considering itself bound by Circuit precedent to the effect that the right to counsel did not attach at the article 15.17 hearing because the relevant prosecutors were not aware of, or involved in, Rothgery’s arrest or appearance at the hearing, and there was no indication that the officer at Rothgery’s appearance had any power to commit the State to prosecute without a prosecutor’s knowledge or involvement.

Held: A criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct.

Editor's comment: This case is so rudimentarily first year law school stuff (though I must admit it was not yet settled, but logic EASILY dictated the same conclusion reached by the majority) that one would NOT have expected any Justice to dissent, but writing a dissent was where Justice Thomas found himself writing -- ALONE!

You may read that dissent, if you need to WASTE your time!!

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U. S. Supreme Court: Absent An Appeal By Government, Court Lacks Authority To Increase Sentence.

In a case decided a couple of days ago, the U. S. Supreme Court ruled in GREENLAW v. UNITED STATES, 07–330 (2008), that without a government appeal or cross appeal of a sentence, an appeals court lacks authority to enlarge the defendant's sentence under a "plain error" doctrine.

Here is the Court's opinion analysis:

Petitioner Greenlaw was convicted of seven drug and firearms charges and was sentenced to imprisonment for 442 months. In calculating this sentence, the District Court made an error. Overlooking this Court’s controlling decision in Deal v. United States, 508 U. S. 129, 132–137, interpreting 18 U. S. C. §924(c)(1)(C)(i), and over the Government’s objection, the District Court imposed a 10-year sentence on a count that carried a 25-year mandatory minimum term. Greenlaw appealed urging, inter alia, that the appropriate sentence for all his convictions was 15 years. The Government neither appealed nor cross-appealed. The Eighth Circuit found no merit in any of Greenlaw’s arguments, but went on to consider whether his sentence was too low. The court acknowledged that the Government, while it had objected to the trial court’s error at sentencing, had elected not to seek alteration of Greenlaw’s sentence on appeal. Nonetheless, relying on the “plain-error rule” stated in Federal Rule of Criminal Procedure 52(b), the Court of Appeals ordered the District Court to enlarge Greenlaw’s sentence by 15 years, yielding a total prison term of 662 months.

Held: Absent a Government appeal or cross-appeal, the Eighth Circuit could not, on its own initiative, order an increase in Greenlaw’s sentence.

Editor's comment: The dissenters, Justices Alito, Stevens Breyer, objected to the Majority's ruling on the cross appeal requirement, finding instead that that requirement does NOT deprive an Appeals Court of the authority, sua sponte, to correct plain error.

I tend to agree with the Majority in this case. If the parties are OK with the outcome, why should the Court act on its own and meddle with it, especially where no SUBSTANTIAL miscarriage of justice has occurred?

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U. S. Supreme Court: Aggregators, Who Were Assigned Legal Titles To Claims, Have "Standing" In Federal Court To Bring Suit For Others.

In a case purely for lawyer's interest, SPRINT COMMUNICATIONS CO., L. P., ET AL. v. APCC SERVICES, INC., ET AL., 07–552 (2008), the U. S. Supreme Court held that the so called aggregators, who are non lawyers assigned legal claims to bring suit for others for a "service fee", have "standing" to do so in Federal Courts.

Below is the Court's 5 member Majority opinion analysis:

A payphone customer making a long-distance call with an access code or 1–800 number issued by a long-distance carrier pays the carrier(which completes the call). The carrier then compensates the pay-phone operator (which connects the call to the carrier in the first place). The payphone operator can sue the long-distance carrier for any compensation that the carrier fails to pay for these “dial-around”calls. Many payphone operators assign their dial-around claims to billing and collection firms (aggregators) so that, in effect, these aggregators can bring suit on their behalf. A group of aggregators (respondents here) were assigned legal title to the claims of approximately 1,400 payphone operators. The aggregators separately agreed to remit all proceeds to those operators, who would then pay the aggregators for their services. After entering into these agreements,the aggregators filed federal-court lawsuits seeking compensation from petitioner long-distance carriers. The District Court refused to dismiss the claims, finding that the aggregators had standing, and the D.C. Circuit ultimately affirmed.

Held: An assignee of a legal claim for money owed has standing to pursue
that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor.
(a) History and precedent show that, for centuries, courts have found ways to allow assignees to bring suit; where assignment is at issue, courts—both before and after the founding—have always permitted
the party with legal title alone to bring suit; and there is a strong tradition specifically of suits by assignees for collection. And while precedents of this Court, Waite v. Santa Cruz, 184 U. S. 302, Spiller v. Atchison, T. & S. F. R. Co., 253 U. S. 117, and Titus v. Wal2lick, 306 U. S. 282, do not conclusively resolve the standing question here, they offer powerful support for the proposition that suits by assignees for collection have long been seen as “amenable” to resolution by the judicial process, Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 102. Pp. 3–16.
Petitioners offer no convincing reason to depart from the historical tradition of suits by assignees, including assignees for collection.
In any event, the aggregators satisfy the Article III standing requirements articulated in this Court’s more modern decisions. Petitioners argue that the aggregators have not themselves suffered aninjury and that assignments for collection do not transfer the pay-phone operators’ injuries. But the operators assigned their claims lock, stock, and barrel, and precedent makes clear that an assignee can sue based on his assignor’s injuries. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765. In arguing that the aggregators cannot satisfy the redressability requirement because they will remit their recovery to the payphone operators, petitioners misconstrue the nature of the redressability inquiry, which focuses on whether the injury that a plaintiff alleges is likely to be redressed through the litigation—not on what the plaintiff ultimately intends to do with the money recovered. See, e.g., id., at 771. Petitioners’ claim that the assignments constitute nothing more than a contract for legal services is overstated. There is an important distinction between simply hiring a lawyer and assigning a claim to a lawyer. The latter confers a property right (which creditors might attach); the former does not. Finally, as a practical matter, it would be particularly unwise to abandon history and precedent in resolving the question here, for any such ruling could be overcome by, e.g., rewriting the agreement to give the aggregator a tiny portion of the assigned
claim itself, perhaps only a dollar or two.
Petitioners’ reasons for denying prudential standing—that the aggregators are seeking redress for third parties; that the litigation represents an effort by the aggregators and payphone operators to circumvent Federal Rule of Civil Procedure 23’s class-action requirements; and that practical problems could arise because the aggregators are suing, e.g., payphone operators may not comply with discovery
requests or honor judgments—are unpersuasive. And because there are no allegations that the assignments were made in bad faith and because the assignments were made for ordinary business purposes, any other prudential questions need not be considered here.
489 F. 3d 1249, affirmed.

Editor's comment: I have always had issues with these kinds of arrangements, and I think the dissenting opinion authored by Chief Justice John Roberts captures my sentiment on this issue EXACTLY:

"Article III of the Constitution confines the judicial power of the federal courts to actual “Cases” and “Controversies.” §2. As we have recently reaffirmed, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal court jurisdiction to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006) (quoting Raines v. Byrd, 521 U. S. 811, 818 (1997). Unlike the political branches,directly elected by the people, the courts derive their authority under Article III, including the power of judicial review, from “the necessity . . . of carrying out the judicial function of deciding cases.” Cuno, supra, at 340. That is why Article III courts “may exercise power only . . . ‘as a necessity,’” that is, only when they are sure they have an actual case before them.

Given the importance of assuring a court’s jurisdiction before deciding the merits of a case, “[w]e have always insisted on strict compliance with th[e] jurisdictional standing requirement.” Raines, supra, at 819. And until today, it has always been clear that a party lacking a direct, personal stake in the litigation could not invoke the power of the federal courts. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 573 (1992).

Here, respondents are authorized to bring suit on behalf of the payphone operators, but they have no claim to the recovery.
The absence of any right to the substantive recovery means that respondents
cannot benefit from the judgment they seek and thus lack Article III standing. “When you got nothing, you got nothing to lose.” Bob Dylan, Like A Rolling Stone, on Highway 61 Revisited (Columbia Records 1965)."

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U. S. Supreme Court: Indian Tribal Court Lacks Jurisdiction To Entertain Suit Over Non Indian Tribe Member.

The case is PLAINS COMMERCE BANK v. LONG FAMILY LAND & CATTLE CO., INC., ET AL., 07–411 (2008), where the Court ruled that an Indian Tribal Court lacks jurisdiction over non Tribal member who was conveyed Tribal land in fee simple, as the conveyance causes the Tribe to "lose[] any former right of absolute and exclusive use and occupation of the conveyed lands" and “the tribe has no authority itself . . . to regulate the use of [the conveyed] fee land.”

Moreover, according to the Court, "[b]ecause the Bill of Rights does not apply to tribes and because nonmembers have no say in the laws and regulations governing tribal territory, tribal laws and regulations may be applied only to nonmembers who have consented to tribal authority, expressly or by action. Even then the regulation must stem from the tribe’s inherent sovereign authority to set conditions on entry, preserve self-government, or control internal relations."

Below is the Court's analysis:

Petitioner Plains Commerce Bank (Bank), a non-Indian bank, sold land it owned in fee simple on a tribal reservation to non-Indians. Respondents the Longs, an Indian couple who had been leasing the land with an option to purchase, claim the Bank discriminated against them by selling the parcel to nonmembers of the Tribe on terms more favorable than the Bank offered to sell it to them. The couple sued in Tribal Court, asserting, inter alia, discrimination, breach-of-contract, and bad-faith claims. Over the Bank’s objection, the Tribal Court concluded that it had jurisdiction and proceeded to trial, where a jury ruled against the Bank on three claims, including the discrimination claim. The court awarded the Longs damages plus interest. In a supplemental judgment, the court also gave the Longs an option to purchase that portion of the fee land they still occupied, nullifying the Bank’s sale of the land to non-Indians. After the Tribal Court of Appeals affirmed, the Bank filed suit in Federal District Court, contending that the tribal judgment was null and void because, as relevant here, the Tribal Court lacked jurisdiction over the Longs’ discrimination claim. The District Court granted the Longs summary judgment, finding tribal court jurisdiction proper because the Bank’s consensual relationship with the Longs and their company (also a respondent
here) brought the Bank within the first category of tribal civil jurisdiction over nonmembers outlined in Montana v. United States, 450 U. S. 544. The Eighth Circuit affirmed, concluding that the Tribe had authority to regulate the business conduct of persons voluntarily dealing with tribal members, including a nonmember’s sale of fee land.


The Bank has Article III standing to pursue this challenge. Both with respect to damages and the option to purchase, the Bank was “injured in fact,” see Lujan v. Defenders of Wildlife, 504 U. S. 555, 560, by the Tribal Court’s exercise of jurisdiction over the discrimination claim. This Court is unpersuaded by the Longs’ claim that the damages award was premised entirely on their breach-of-contract verdict, which the Bank has not challenged, rather than on their discrimination
claim. Because the verdict form allowed the jury to make a damages award after finding liability as to any of the individual claims, the jury could have based its damages award, in whole or in part, on the discrimination finding. The Bank was also injured by the option to purchase. Only the Longs’ discrimination claim sought deed to the land as relief. The fact that the remedial purchase option applied only to a portion of the total parcel does not eliminate the injury to the Bank, which had no obligation to sell any of the land to the Longs before the Tribal Court’s judgment. That judgment effectively nullified a portion of the sale to a third party. These injuries can be remedied by a ruling that the Tribal Court lacked jurisdiction and that its judgment on the discrimination claim is null and void.
The Tribal Court did not have jurisdiction to adjudicate a discrimination claim concerning the non-Indian Bank’s sale of its fee land.
(a) The general rule that tribes do not possess authority over non-Indians who come within their borders, Montana v. United States, 450 U. S. 564, 565, restricts tribal authority over nonmember activities taking place on the reservation, and is particularly strong when the nonmember’s activity occurs on land owned in fee simple by non-Indians, Strate v. A-1 Contractors, 520 U. S. 438, 446. Once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it. See County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 267–268. Moreover, when the tribe or its members convey fee land to third parties, the tribe “loses any former right of absolute and exclusive use and occupation of the conveyed lands.” South Dakota v. Bourland, 508 U. S. 679,689. Thus, “the tribe has no authority itself . . . to regulate the use of fee land.” Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 430. Montana provides two exceptions under which tribes may exercise “civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands,” 450 U. S., at 565: (1) “A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements,” ibid.; and (2) a tribe may exercise “civil authority over the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe,” id., at 566. Neither exception authorizes tribal courts to exercise jurisdiction over the Longs’ discrimination claim. Pp. 8–11.
(b) The Tribal Court lacks jurisdiction to hear that claim because the Tribe lacks the civil authority to regulate the Bank’s sale of its fee land, and “a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction,” Strate, supra, at 453. Montana does not permit tribes to regulate the sale of non-Indian fee land. Rather, it permits tribal regulation of nonmember conduct inside the reservation that implicates the tribe’s sovereign interests. 450 U. S., at 564–
565. With only one exception, see Brendale, supra, this Court has never “upheld under Montana the extension of tribal civil authority over nonmembers on non-Indian land,” Nevada v. Hicks, 533 U. S. 353, 360. Nor has the Court found that Montana authorized a tribe to regulate the sale of such land. This makes good sense, given the limited nature of tribal sovereignty and the liberty interests of nonmembers.
Tribal sovereign interests are confined to managing tribal land, see Worcester v. Georgia, 6 Pet. 515, 561, protecting tribal self-government, and controlling internal relations, see Montana, supra, at 564. Regulations approved under Montana all flow from these limited interests. See, e.g., Duro v. Reina, 495 U. S. 676, 696. None of these interests justified tribal regulation of a nonmember’s sale of fee land. The Tribe cannot justify regulation of the sale of non-Indian fee land by reference to its power to superintend tribal land because non-Indian fee parcels have ceased to be tribal land. Nor can regulation of fee land sales be justified by the Tribe’s interest in protecting internal relations and self-government. Any direct harm sustained because of a fee land sale is sustained at the point the land passes from Indian to non-Indian hands. Resale, by itself, causes no additional damage. Regulating fee land sales also runs the risk of subjecting nonmembers to tribal regulatory authority without their consent. Because the Bill of Rights does not apply to tribes and because nonmembers have no say in the laws and regulations governing tribal territory, tribal laws and regulations may be applied only to nonmembers who have consented to tribal authority, expressly or by action.
Even then the regulation must stem from the tribe’s inherent sovereign authority to set conditions on entry, preserve self-government, or control internal relations. There is no reason the Bank should have anticipated that its general business dealings with the Longs would permit the Tribe to regulate the Bank’s sale of land it owned in fee simple. The Longs’ attempt to salvage their position by arguing that the discrimination claim should be read to challenge the Bank’s whole course of commercial dealings with them is unavailing.
Their breach-of-contract and bad-faith claims involve the Bank’s general dealings; the discrimination claim does not. The discrimination claim is tied specifically to the fee land sale. And only the discrimination claim is before the Court. Pp. 11–22.
Because the second Montana exception stems from the same sovereign interests giving rise to the first, it is also inapplicable here. The “conduct” covered by that exception must do more than injure a tribe; it must “imperil the subsistence” of the tribal community. Montana, 450 U. S., at 566. The land at issue has been owned by anon-Indian party for at least 50 years. Its resale to another non-Indian hardly “imperil[s] the subsistence or welfare of the tribe.” Ibid. Pp. 22–23.
Contrary to the Longs’ argument, when the Bank sought the Tribal Court’s aid in serving process on the Longs for the Bank’s pending state-court eviction action, the Bank did not consent to tribal court jurisdiction over the discrimination claim. The Bank has consistently contended that the Tribal Court lacked jurisdiction. P. 23.
491 F. 3d 878, reversed.

Editor's comment: Whenever an Indian Tribe sells property on it's reservation to a non member, the non member property owner and the property no longer become subject to Tribal Court jurisdiction unless the property owner consents to it, except under extremely limited circumstances that implicate the "tribe’s inherent sovereign authority to set conditions on entry, preserve self-government, or control internal relations."

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U. S. Supreme Court: Constitution Permits An Accused To "Confront" An Accuser, Unless The Accused, With Intent, Caused Accuser's "Unavailability".

The case is GILES v. CALIFORNIA, 07–6053 (2008), where a SEVERELY fractured Court held that "the Sixth Amendment’s Confrontation Clause gives defendants the right to cross-examine witnesses who give testimony against them, except in cases where an exception to the confrontation right was recognized at the founding", and that the state of California's "theory of forfeiture by wrongdoing is not an exception to the Sixth Amendment’s confrontation requirement because it was not an exception established at the founding."

For those of you who want a QUICK conclusion, please scroll to the bottom. For others, here's the Court's analysis of the case, by Justice Scalia:

At petitioner Giles’ murder trial, the court allowed prosecutors to introduce
statements that the murder victim had made to a police officer responding to a domestic violence call. Giles was convicted. While his appeal was pending, this court held that the Sixth Amendment’s Confrontation Clause gives defendants the right to cross-examine witnesses who give testimony against them, except in cases where an exception to the confrontation right was recognized at the founding. Crawford v. Washington, 541 U. S. 36, 53–54. The State Court of Appeal concluded that the Confrontation Clause permitted the trial court to admit into evidence the unconfronted testimony of the murder victim under a doctrine of forfeiture by wrongdoing. It concluded that Giles had forfeited his right to confront the victim’s testimony because it found Giles had committed the murder for which he was on trial — an intentional criminal act that made the victim unavailable to testify. The State Supreme Court affirmed on the same ground.

Held: The California Supreme Court’s theory of forfeiture by wrongdoing is not an exception to the Sixth Amendment’s confrontation requirement because it was not an exception established at the founding.
Common-law courts allowed the introduction of statements by an absent witness who was “detained” or “kept away” by “means or procurement” of the defendant. Cases and treatises indicate that this rule applied only when the defendant engaged in conduct designed to prevent the witness from testifying. Pp. 4–7.
The manner in which this forfeiture rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying.
In cases where the evidence suggested that the defendant wrongfully caused the absence of a witness, but had not done so to prevent the witness from testifying, unconfronted testimony was excluded unless it fell within the separate common-law exception to the confrontation requirement for statements made by speakers who were both on the brink of death and aware that they were dying.
Not only was California’s proposed exception to the confrontation right plainly not an “exceptio[n] established at the time of the founding,” Crawford, supra, at 54; it is not established in American jurisprudence since the founding. No case before 1985 applied forfeiture to admit statements outside the context of conduct designed to prevent a witness from testifying. The view that the exception applies only when the defendant intends to make a witness unavailable is also supported by modern authorities, such as Federal Rule of Evidence 804(b)(6), which “codifies the forfeiture doctrine,” Davis v. Washington, 547 U. S 813, 833. Pp. 11–14.
The dissent’s contention that no testimony would come in at common law under a forfeiture theory unless it was confronted is not supported by the cases. In any event, if the dissent’s theory were true, it would not support a broader forfeiture exception but would eliminate the forfeiture exception entirely. Previously confronted testimony by an unavailable witness is always admissible, wrongful procurement or not. See Crawford, supra, at 68. Pp. 15–20.
Acts of domestic violence are often intended to dissuade a victim from resorting to outside help. A defendant’s prior abuse, or threats of abuse, intended to dissuade a victim from resorting to outside help would be highly relevant to determining the intent of a defendant’s subsequent act causing the witness’s absence, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. Here, the state courts did not consider Giles’ intent, which they found irrelevant under their interpretation of the forfeiture doctrine. They are free to consider intent on remand.
vacated and remanded.

Editor's comment: I agree with the Court's opinion, particularly this nugget from -- believe it or not -- Justices Souter and Ginsburg (the Court's MOST Liberal Justices, who supported Justice Scalia's opinion -- Justice Scalia is the Court's MOST Conservative!):

"Examining the early cases and commentary, however,reveals two things that count in favor of the Court’s understanding of forfeiture when the evidence shows domestic
abuse. The first is the substantial indication that the Sixth Amendment was meant to require some degree of intent to thwart the judicial process before thinking it reasonable to hold the confrontation right forfeited; otherwise the right would in practical terms boil down to a measure of reliable hearsay, a view rejected in Crawford v. Washington, 541 U. S. 36 (2004). The second is the absence from the early material of any reason to doubt that the element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process. If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger."

At the same time, I disagree with the other Liberal Justices' suggestion that California's "theory of forfeiture" is constitutionally acceptable, as "one who obtains the absence of a witness by wrongdoing [in this instance the homicide itself] forfeits the constitutional right to confrontation.”

In conclusion, and for the benefit of non lawyers, this case means that an accused may confront his accuser, unless the accused has done something to the accuser with intent to make the accuser not appear in court to testify against the accused.

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U. S. Supreme Court Issues Significant Rulings. The First Up Is The Exxon Valdez Alaska Oil Spill Case.

In EXXON SHIPPING CO. ET AL. v. BAKER ET AL, 07-219 (2008) the Court's summary opinion is set out below:

In 1989, petitioners’ (collectively, Exxon) supertanker grounded on a reef off Alaska, spilling millions of gallons of crude oil into Prince William Sound. The accident occurred after the tanker’s captain, Joseph Hazelwood — who had a history of alcohol abuse and whose blood still had a high alcohol level 11 hours after the spill—inexplicably exited the bridge, leaving a tricky course correction to unlicensed subordinates.

Exxon spent some $2.1 billion in cleanup efforts, pleaded guilty to criminal violations occasioning fines, settled a civil action by the United States and Alaska for at least $900 million, and paid another $303 million in voluntary payments to private parties. Other civil cases were consolidated into this one, brought against Exxon, Hazelwood, and others to recover economic losses suffered by respondents
(hereinafter Baker), who depend on Prince William Sound for their livelihoods. At Phase I of the trial, the jury found Exxon and Hazelwood reckless (and thus potentially liable for punitive damages) under instructions providing that a corporation is responsible for the reckless acts of employees acting in a managerial capacity in the scope of their employment. In Phase II, the jury awarded $287 million
in compensatory damages to some of the plaintiffs; others had settled their compensatory claims for $22.6 million. In Phase III, the jury awarded $5,000 in punitive damages against Hazelwood and $5 billion against Exxon. The Ninth Circuit upheld the Phase I jury instruction on corporate liability and ultimately remitted the punitive damages award against Exxon to $2.5 billion.


1. Because the Court is equally divided on whether maritime law allows corporate liability for punitive damages based on the acts of managerial agents, it leaves the Ninth Circuit’s opinion undisturbed in this respect. Of course, this disposition is not precedential on the derivative liability question. See, e.g., Neil v. Biggers,
2. The Clean Water Act’s water pollution penalties, 33 U. S. C.§1321, do not preempt punitive-damages awards in maritime spill cases. Section 1321(b) protects “navigable waters . . . , adjoining shorelines, . . . [and] natural resources,” subject to a saving clause reserving “obligations . . . under any . . . law for damages to any . . . privately owned property resulting from [an oil] discharge,” §1321(o).Exxon’s admission that the CWA does not displace compensatory remedies for the consequences of water pollution, even those for economic harms, leaves the company with the untenable claim that the CWA somehow preempts punitive damages, but not compensatory damages, for economic loss. Nothing in the statute points to that result, and the Court has rejected similar attempts to sever remedies from their causes of action, see Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 255–256. There is no clear indication of congressional intent to occupy the entire field of pollution remedies, nor is it likely that punitive damages for private harms will have any frustrating effect on the CWA’s remedial scheme.
3. The punitive damages award against Exxon was excessive as a matter of maritime common law. In the circumstances of this case, the award should be limited to an amount equal to compensatory damages.
(a) Although legal codes from ancient times through the Middle Ages called for multiple damages for certain especially harmful acts, modern Anglo-American punitive damages have their roots in 18th century English law and became widely accepted in American courts by the mid-19th century. See, e.g., Day v. Woodworth, 13 How. 363,
371. Pp. 16–17.
The prevailing American rule limits punitive damages to cases of “enormity,” Day v. Woodworth, 13 How. 363, 371, in which a defendant’s conduct is outrageous, owing to gross negligence, willful, wanton, and reckless indifference for others’ rights, or even more deplorable behavior. The consensus today is that punitive damages are aimed at retribution and deterring harmful conduct. Pp. 17–21.
State regulation of punitive damages varies. A few States award them rarely, or not at all, and others permit them only when authorized by statute. Many States have imposed statutory limits on punitive awards, in the form of absolute monetary caps, a maximum ratio of punitive to compensatory damages, or, frequently, some combination
of the two. Pp. 21–23.
American punitive damages have come under criticism in recent decades, but the most recent studies tend to undercut much of it.
Although some studies show the dollar amounts of awards growing over time, even in real terms, most accounts show that the median ratio of punitive to compensatory awards remains less than 1:1. Nor do the data show a marked increase in the percentage of cases with punitive awards. The real problem is the stark unpredictability of punitive awards. Courts are concerned with fairness as consistency, and the available data suggest that the spread between high and low individual awards is unacceptable. The spread in state civil trials is great, and the outlier cases subject defendants to punitive damages that dwarf the corresponding compensatories. The distribution of judge-assessed awards is narrower, but still remarkable. These ranges might be acceptable if they resulted from efforts to reach a generally accepted optimal level of penalty and deterrence in cases involving a wide range of circumstances, but anecdotal evidence suggests
that is not the case, see, e.g., Gore, supra, at 565, n. 8. Pp. 24–27.
This Court’s response to outlier punitive damages awards has thus far been confined by claims that state-court awards violated due process. See, e.g., State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408, 425. In contrast, today’s enquiry arises under federal maritime jurisdiction and requires review of a jury award at the level of judge-made federal common law that precedes and should obviate any application of the constitutional standard. In this context, the unpredictability of high punitive awards is in tension with their punitive function because of the implication of unfairness that an eccentrically high punitive verdict carries. A penalty should be reasonably predictable in its severity, so that even Holmes’s “bad man” can look ahead with some ability to know what the stakes are in choosing one course of action or another. And a penalty scheme ought to threaten defendants with a fair probability of suffering in like degree for like damage. Cf. Koon v. United States, 518 U. S. 81, 113. Pp. 28–29.
The Court considers three approaches, one verbal and two quantitative, to arrive at a standard for assessing maritime punitive damages. Pp. 29–42.
The Court is skeptical that verbal formulations are the best insurance against unpredictable outlier punitive awards, in light of its experience with attempts to produce consistency in the analogous business of criminal sentencing. Pp. 29–32.
Thus, the Court looks to quantified limits. The option of setting a hard-dollar punitive cap, however, is rejected because there is no “standard” tort or contract injury, making it difficult to settle upon a particular dollar figure as appropriate across the board; and because a judicially selected dollar cap would carry the serious drawback that the issue might not return to the docket before there was a
need to revisit the figure selected. Pp. 32–39.
(iii) The more promising alternative is to peg punitive awards to compensatory damages using a ratio or maximum multiple. This is the model in many States and in analogous federal statutes allowing multiple damages. The question is what ratio is most appropriate. An acceptable standard can be found in the studies showing the median ratio of punitive to compensatory awards. Those studies reflect
the judgments of juries and judges in thousands of cases as to what punitive awards were appropriate in circumstances reflecting the most down to the least blameworthy conduct, from malice and avarice to recklessness to gross negligence. The data in question put the median ratio for the entire gamut at less than 1:1, meaning that the compensatory award exceeds the punitive award in most cases. In a well-functioning system, awards at or below the median would roughly express jurors’ sense of reasonable penalties in cases like this one that have no earmarks of exceptional blameworthiness. Accordingly, the Court finds that a 1:1 ratio is a fair upper limit in such maritime cases. Pp. 39–42.
(iv) Applying this standard to the present case, the Court takes for granted the District Court’s calculation of the total relevant compensatory damages at $507.5 million. A punitive-to-compensatory ratio of 1:1 thus yields maximum punitive damages in that amount. P. 42.

Editor's comment: For non legal practitioners, the ONLY thing you need to get out of this opinion is this "Applying this standard to the present case, the Court takes for granted the District Court’s calculation of the total relevant compensatory damages at $507.5 million. A punitive-to-compensatory ratio of 1:1 thus yields maximum punitive damages in that amount."


Meaning that the Exxon Valdez verdict for punitive damages has been reduced to a roughly 1 to 1 ration with compensatory damages -- or reduced from $2.5 BILLION to $.5 BILLION.

Yes, you read it right: Exxon saved $2 BILLION by appealing the case, a win if you are the oil company.

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Thursday, June 19, 2008

U. S. Supreme Court: Constitution Does NOT Prevent A State From Forcing Legal Representation On Those "Who Suffer From Severe Mental Illness".

The case is Indiana Vs. Edwards, 07-208 (2008).

The Court held as follows:

After Indiana charged respondent Edwards with attempted murder and other crimes for a shooting during his attempt to steal a pair of shoes, his mental condition became the subject of three competency proceedings and two self-representation requests, mostly before the same trial judge. Referring to the lengthy record of psychiatric reports, the trial court noted that Edwards suffered from schizophrenia and concluded that, although it appeared he was competent to stand trial, he was not competent to defend himself at trial. The court therefore denied Edwards’ self-representation request. He was represented by appointed counsel at trial and convicted on two counts.

Indiana’s intermediate appellate court ordered a new trial, agreeing with Edwards that the trial court’s refusal to permit him to represent himself deprived him of his constitutional right of self-representation under the Sixth Amendment and Faretta v. California, 422 U. S. 806.

Although finding that the record provided substantial support for the trial court’s ruling, the Indiana Supreme Court nonetheless affirmed the intermediate appellate court on the ground that Faretta and Godinez v. Moran, 509 U. S. 389, required the State to allow Edwards to represent himself.

Held: The Constitution does not forbid States from insisting upon representation
by counsel for those competent enough to stand trial but who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.

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Kentucky In The U. S. Supreme Court News.

The U. S. Supreme Court has issued an opinion today affecting Kentucky's retirement system.

In KENTUCKY RETIREMENT SYSTEMS ET AL. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 06-1037 (2008), the court decided the case as follows:

Kentucky permits “hazardous position” workers, e.g., policemen, to receive normal retirement benefits after working either 20 years or 5 years and attaining age 55 and pays “disability retirement” benefits to workers meeting specified requirements. Kentucky’s “Plan” calculates normal retirement benefits based on actual years of service.

The Plan calculates disability benefits by adding to an employee’s actual years of service the number of years that the employee would have had to continue working in order to become eligible for normal retirement benefits, adding no more than the number of years the employee had previously worked. Charles Lickteig, who continued
working after becoming eligible for retirement at age 55, became disabled and retired at age 61. He filed an age discrimination complaint with respondent (EEOC) after the Plan based his pension on his actual years of service without imputing any additional years. The EEOC filed suit against Kentucky and others (collectively Kentucky), arguing that the Plan failed to impute years solely because Lickteig
became disabled after age 55. The District Court granted Kentucky summary judgment, holding that the EEOC could not establish age discrimination, but the Sixth Circuit ultimately reversed on the ground that the Plan violated the Age Discrimination in Employment Act of 1967 (ADEA).

Held: Kentucky’s system does not discriminate against workers who become disabled after becoming eligible for retirement based on age.

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Thursday, June 12, 2008

U. S. Supreme Court Deals MAJOR Blow To Pres. Bush's (And Congress') Post 9/11 Denial Of Habeas Corpus Rellief To Guantanamo Bay (Gitmo) Prisoners.

The case is Boumediene v. Bush 06-1195 (2008), where a 5 to 4 majority of the Court held that the privilege of Habeas Corpus applied to prisoners at Guatanamo (GITMO) Bay, Cuba.

Read the lengthy background information and opinion of the Court below (and my comments):

In the Authorization for Use of Military Force (AUMF), Congress empowered the President “to use all necessary and appropriate force against those . . . he determines planned, authorized, committed, or aided the terrorist attacks . . . on September 11, 2001.” In Hamdi v. Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs)to determine whether individuals detained at the U. S. Naval Station at Guantanamo Bay, Cuba, were “enemy combatants.” Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Tali-ban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473. Petitioners’ cases were then consolidated into two proceedings. In the first, the district judge granted the Government’s motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas action. In the second, the judge held that the detainees
had due process rights.

While appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that “no court, justice, or judge shall have jurisdiction to . . . consider . . . an application for . . . habeas corpus filed by or on behalf of an alien detained . . . at Guantanamo,” and gave the D. C. Circuit “exclusive” jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provision inapplicable to cases (like petitioners’) pending when the DTA was enacted. Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any other action against the United States . . . relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a detained alien determined to be an enemy combatant. MCA §7(b) provides that the 2241(e) amendments “shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date . . . which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained . . . since September 11, 2001.”

The D. C. Circuit concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners’ habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas.

1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment. Section §7(b)’s effective date provision undoubtedly applies to habeas actions, which, by definition, “relate to . . . detention” within that section’s meaning. Petitioners argue to no avail that§7(b) does not apply to a §2241(e)(1) habeas action, but only to “any other action” under §2241(e)(2), because it largely repeats that section’s language. The phrase “other action” in §2241(e)(2) cannot be understood without referring back to §2241(e)(1), which explicitly mentions the “writ of habeas corpus.” Because the two paragraphs’ structure implies that habeas is a type of action “relating to any aspect of . . . detention,” etc., pending habeas actions are in the category of cases subject to the statute’s jurisdictional bar. This is confirmed by the MCA’s legislative history. Thus, if MCA §7 is valid, petitioners’ cases must be dismissed. Pp. 5–8.

2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo. Pp. 8–41.
A brief account of the writ’s history and origins shows that protection for the habeas privilege was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. That the Framers considered the writ a vital instrument for the protection
of individual liberty is evident from the care taken in the Suspension
Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution’s essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance.” Hamdi, supra, at 536. Separation-of-powers principles, and the history that influenced their design, inform the Clause’s reach and purpose. Pp. 8–15.
A diligent search of founding-era precedents and legal commentaries reveals no certain conclusions. None of the cases the parties cite reveal whether a common-law court would have granted, or refused to hear for lack of jurisdiction, a habeas petition by a prisoner deemed an enemy combatant, under a standard like the Defense Department’s in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control.
The evidence as to the writ’s geographic scope at common law is informative, but, again, not dispositive. Petitioners argue that the site of their detention is analogous to two territories outside England to which the common-law writ ran, the exempt jurisdictions and India, but critical differences between these places and Guantanamo render these claims unpersuasive. The Government argues that Guantanamo is more closely analogous to Scotland and Hanover, where the writ did not run, but it is unclear whether the common-law courts lacked the power to issue the writ there, or whether they refrained from doing so for prudential reasons. The parties’ arguments that the very lack of a precedent on point supports their respective positions are premised upon the doubtful assumptions that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before the Court.Pp. 15–22.
The Suspension Clause has full effect at Guantanamo. The Government’s argument that the Clause affords petitioners no rights because the United States does not claim sovereignty over the naval station is rejected. Pp. 22–42.
The Court does not question the Government’s position that Cuba maintains sovereignty, in the legal and technical sense, over Guantanamo, but it does not accept the Government’s premise that de jure sovereignty is the touchstone of habeas jurisdiction. Common-law habeas’ history provides scant support for this proposition,and it is inconsistent with the Court’s precedents and contrary to fundamental separation-of-powers principles. Pp. 22–25.
Discussions of the Constitution’s extraterritorial application in cases involving provisions other than the Suspension Clause undermine the Government’s argument. Fundamental questions regarding the Constitution’s geographic scope first arose when the Nation acquired Hawaii and the noncontiguous Territories ceded by Spain after the Spanish-American War, and Congress discontinued its prior practice of extending constitutional rights to territories by statute. In the so-called Insular Cases, the Court held that the Constitution had independent force in the territories that was not contingent upon acts of legislative grace. See, e.g., Dorr v. United States, 195 U. S. 138. Yet because of the difficulties and disruption inherent in transforming the former Spanish colonies’ civil-law system into an Anglo-American system, the Court adopted the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories. See, e.g., id., at 143. Practical considerations
likewise influenced the Court’s analysis in Reid v. Covert, 354 U. S. 1, where, in applying the jury provisions of the Fifth and Sixth Amendments to American civilians being tried by the U. S. military abroad, both the plurality and the concurrences noted the relevance of practical considerations, related not to the petitioners’ citizenship,but to the place of their confinement and trial. Finally, in holding that habeas jurisdiction did not extend to enemy aliens, convicted of violating the laws of war, who were detained in a German prison during the Allied Powers’ post-World War II occupation, the Court, in Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficulties of ordering the production of the prisoners, id., at 779. The Government’s reading of Eisentrager as adopting a formalistic test for determining
the Suspension Clause’s reach is rejected because: (1) the discussion of practical considerations in that case was integral to apart of the Court’s opinion that came before it announced its holding, see id., at 781; (2) it mentioned the concept of territorial sovereignty only twice in its opinion, in contrast to its significant discussion of practical barriers to the running of the writ; and (3) if the Government’s reading were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases’ (and later Reid’s) functional approach. A constricted reading of Eisentrager overlooks what the Court sees as a common thread uniting all these cases: The idea that extraterritoriality questions turn on objective factors and practical concerns, not formalism. Pp. 25–34.
(iii) The Government’s sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by Guantanamo’s political history. Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect
there, at least as to non citizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of,and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.”
Marbury v. Madison, 1 Cranch 137, 177. These concerns have particular bearing upon the Suspension Clause question here, for the habeas writ is itself an indispensable mechanism for monitoring the separation of powers. Pp. 34–36.
(iv) Based on Eisentrager, supra, at 777, and the Court’s reasoning in its other extraterritoriality opinions, at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government presents no credible arguments that the military mission at Guantanamo
would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany. Pp. 36–41.
Petitioners are therefore entitled to the habeas privilege, and if that privilege is to be denied them, Congress must act in accordance with the Suspension Clause’s requirements.
Cf. Rasul, 542 U. S., at 564. Pp. 41–42.
3. Because the DTA’s procedures for reviewing detainees’ status are not an adequate and effective substitute for the habeas writ,MCA §7 operates as an unconstitutional suspension of the writ. Pp.42–64.
(a) Given its holding that the writ does not run to petitioners, the
D. C. Circuit found it unnecessary to consider whether there was an adequate substitute for habeas. This Court usually remands for consideration of questions not decided below, but departure from this rule is appropriate in “exceptional” circumstances, see, e.g., Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the grave separation-of-powers issues raised by these cases and the fact that petitioners have been denied meaningful access to a judicial forum for years. Pp. 42–44.

(b) Historically, Congress has taken care to avoid suspensions of the writ. For example, the statutes at issue in the Court’s two leading cases addressing habeas substitutes, Swain v. Pressley, 430 U. S. 372, and United States v. Hayman, 342 U. S. 205, were attempts to streamline habeas relief, not to cut it back. Those cases provide little guidance here because, inter alia, the statutes in question gave the courts broad remedial powers to secure the historic office of the writ, and included saving clauses to preserve habeas review as an avenue of last resort. In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7’s jurisdiction-stripping language, from the DTA’s text limiting the Court of Appeals’ jurisdiction to assessing whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a saving clause in either Act. That Congress intended to create a more limited procedure is also confirmed by the legislative history and by a comparison of the DTA and the habeas statute that would govern in MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress authorized “any justice” or “circuit judge” to issue the writ, thereby accommodating the necessity for fact finding that will arise in some cases by allowing the appellate judge or Justice to transfer the case to a district court. See §2241(b). However, by granting the D. C. Circuit “exclusive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A), Congress has foreclosed that option in these cases. Pp. 44–49.
This Court does not endeavor to offer a comprehensive summary of the requisites for an adequate habeas substitute. It is uncontroversial, however, that the habeas privilege entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law, INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have the power to order the conditional release of an individual unlawfully detained. But more may be required depending on the circumstances.

Petitioners identify what they see as myriad deficiencies in the CSRTs, the most relevant being the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. At the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s
case, does not have the assistance of counsel, and may not be aware of the most critical allegations that the Government relied upon to order his detention. His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limits on the admission of hearsay. The Court therefore agrees with petitioners that there is considerable risk of error in the tribunal’s findings
of fact. And given that the consequence of error may be detention for the duration of hostilities that may last a generation or more, the risk is too significant to ignore. Accordingly, for the habeas writ, or its substitute, to function as an effective and meaningful remedy in this context, the court conducting the collateral proceeding must have some ability to correct any errors, to assess the sufficiency of the Government’s evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1, 23–25, distinguished. Pp. 49–57.

Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority under the AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus effects an unconstitutional suspension of the writ.

There is no jurisdictional bar to the District Court’s entertaining petitioners’
Pp. 57–64.
4. Nor are there prudential barriers to habeas review. Pp. 64–70.
Petitioners need not seek review of their CSRT determinations in the D. C. Circuit before proceeding with their habeas actions in the District Court. If these cases involved detainees held for only a short time while awaiting their CSRT determinations, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. But these qualifications no longer pertain here. In some instances six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. To require these detainees to pursue the limited structure of DTA review before proceeding with habeas actions would be to require additional months, if not years, of delay. This holding should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. Except in cases of undue delay, such as the present, federal courts should refrain from entertaining an enemy combatant’s habeas petition at least until after the CSRT has had a chance to review his status. Pp. 64–67.
In effectuating today’s holding, certain accommodations— including channeling future cases to a single district court and requiring that court to use its discretion to accommodate to the greatest extent possible the Government’s legitimate interest in protecting sources and intelligence gathering methods—should be made to reduce
the burden habeas proceedings will place on the military, without impermissibly diluting the writ’s protections.
Pp. 67–68.
5. In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom’s first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. Pp. 68–70.
476 F. 3d 981, reversed and remanded.

Chief Justice Roberts, in his dissent, accused the majority of issuing an "ambitious opinion, that ... is not really about the detainees at all, but about control of federal policy regarding enemy combatants."

The Chief Justice also accused the majority of "hemming and hawing" as it "appears not to understand how the review system it invalidates actually works", while it plays "bait and switch" and interferes with congressional power "as the Constitution surely allows Congress to [wield]."

The Chief Justice further warned that "[a]ll that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary."

"So who has won?", asks the Chief Justice.

"Not the detainees", he answers.

Continuing, the Chief stated: "The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine— through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers,who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges."

Justice Scalia wrote to express his conclusion that "[m]y problem with today’s opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires."

Justice Scalia further accused his colleagues of acting upon a notion of "an inflated notion of judicial supremacy", while also expressing his belief that the majority's "game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed."

Editor's comment: While I AGREE with today's majority opinion that "all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield, [but] over which the United States exercises 'absolute and indefinite' control, may seek a writ of habeas corpus in federal court," I also AGREE with Chief Justice Roberts (and his fellow dissenters) that the Writ can be suspended in time of war, such as the war on terror that we find ourselves involved in right now, and that suspension power belongs to Congress, such as Congress has exercised in this case, "as the Constitution surely allows Congress to [wield]."

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Monday, June 9, 2008

U. S. Supreme Court Issues Opinions Today.

The first case is ENGQUIST v. OREGON DEPARTMENT OF AGRICULTURE ET AL, 07-474 (2008). According to the court:

The question in this case is whether a public employee can state a claim under the Equal Protection Clause by alleging that she was arbitrarily treated differently from other similarly situated employees, with no assertion that the different treatment was based on the employee’s membership in any particular class. We hold that such a
“class-of-one” theory of equal protection has no place in the public employment context.

In the second case, QUANTA COMPUTER, INC., ET AL. v. LG ELECTRONICS, INC., 06-937 (2008). The court was unanimous in finding that:

For over 150 years this Court has applied the doctrine of patent exhaustion to limit the patent rights that survive the initial authorized sale of a patented item. In this case, we decide whether patent exhaustion applies to the sale of components of a patented system that must be combined with additional components in order to practice the patented methods. The Court of Appeals for the Federal Circuit held that the doctrine does not apply to method patents at all and, in the alternative, that it does not apply here because the sales were not authorized by the license agreement. We disagree on both scores. Because the exhaustion doctrine applies to method patents, and because the license authorizes the sale of components that substantially embody the patents in suit, the sale exhausted the patents.

In the third case, BRIDGE ET AL. v. PHOENIX BOND & INDEMNITY CO. ET AL., 07-210 (1980), which involves Cook County Treasurer’s Office's public auction to sell its tax liens on delinquent taxpayers’ property, the court held:

The Racketeer Influenced and Corrupt Organizations Act (RICO or Act), 18 U. S. C. §§1961–1968, provides aprivate right of action for treble damages to “[a]ny person injured in his business or property by reason of a violation” of the Act’s criminal prohibitions. §1964(c). The question presented in this case is whether a Plaintiff asserting a RICO claim predicated on mail fraud must plead and prove that it relied on the defendant’s alleged misrepresentations. Because we agree with the Court of Appeals that a showing of first-party reliance is not required, we affirm.

and, in the fourth case, ALLISON ENGINE CO., INC., ET AL. v. UNITED STATES EX REL. SANDERS ET AL, 07-214 (2008), a unanimous court held as follows:

The False Claims Act (FCA) imposes civil liability on any person who knowingly uses a “false record or statement to get a false or fraudulent claim paid or approved by the Government,” 31 U. S. C. §3729(a)(2), and any person who “conspires to defraud the Government by getting a false or fraudulent claim allowed or paid,” §3729(a)(3). We granted review in this case to decide what a plaintiff asserting a claim under these provisions must show regarding the relationship between the making of a “false record or statement” and the payment or approval of “a false or fraudulent claim . . . by the Government.”

Contrary to the decision of the Court of Appeals below, we hold that it is insufficient for a plaintiff asserting a §3729(a)(2) claim to show merely that “[t]he false statement’s use . . . result[ed] in obtaining or getting payment or approval of the claim,” 471 F. 3d 610, 621 (CA6 2006)or that “government money was used to pay the false or fraudulent claim,” id., at 622. Instead, a plaintiff asserting a §3729(a)(2) claim must prove that the defendant intended that the false record or statement be material to the Government’s decision to pay or approve the false claim. Similarly, a plaintiff asserting a claim under §3729(a)(3) must show that the conspirators agreed to make use of the false record or statement to achieve this end.

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