Black Robes Speak!: June 2011
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Wednesday, June 29, 2011

U. S. Supreme Court Invalidates Arizona's Campaign Finance Law That "Substantially Burdens Political Speech" Of Privately Funded Candidates.

The US Supreme Court struck down an Arizona campaign finance regulation that provided publicly financed candidates with additional government subsidies, which are triggered by independent expenditure groups' speech against such candidates or by the candidates' privately financed opponents. The Court held such a law violates the First Amendment by system substantially burdening political speech and is not sufficiently justified by a compelling state interest to satisfy the First Amendment.


My obligatory court synopsis follows below:

The Arizona Citizens Clean Elections Act created a public financing system to fund the primary and general election campaigns of candi-dates for state office. Candidates who opt to participate, and who ac-cept certain campaign restrictions and obligations, are granted an initial outlay of public funds to conduct their campaign. They are also granted additional matching funds if a privately financed candi-date’s expenditures, combined with the expenditures of independent groups made in support of the privately financed candidate or in op-position to a publicly financed candidate, exceed the publicly financed candidate’s initial state allotment. Once matching funds are trig-gered, a publicly financed candidate receives roughly one dollar for every dollar raised or spent by the privately financed candidate—including any money of his own that a privately financed candidate spends on his campaign—and for every dollar spent by independent groups that support the privately financed candidate. When there are multiple publicly financed candidates in a race, each one receives matching funds as a result of the spending of privately financed can-didates and independent expenditure groups. Matching funds top out at two times the initial grant to the publicly financed candidate. Petitioners, past and future Arizona candidates and two independ-ent expenditure groups that spend money to support and oppose Ari-zona candidates, challenged the constitutionality of the matching funds provision, arguing that it unconstitutionally penalizes their speech and burdens their ability to fully exercise their First Amend-ment rights. The District Court entered a permanent injunction against the enforcement of the matching funds provision. The Ninth Circuit reversed, concluding that the provision imposed only a mini-mal burden and that the burden was justified by Arizona’s interest in reducing quid pro quo political corruption.

Held: Arizona’s matching funds scheme substantially burdens political speech and is not sufficiently justified by a compelling interest tosurvive First Amendment scrutiny. Pp. 8–30.
The matching funds provision imposes a substantial burden on the speech of privately financed candidates and independent expendi-ture groups. Pp. 8–22.
Petitioners contend that their political speech is substantially burdened in the same way that speech was burdened by the so-called“Millionaire’s Amendment” of the Bipartisan Campaign Reform Act of 2002, which was invalidated in Davis v. Federal Election Comm’n, 554 U. S. 724. That law—which permitted the opponent of a candi-date who spent over $350,000 of his personal funds to collect triple the normal contribution amount, while the candidate who spent the personal funds remained subject to the original contribution cap—unconstitutionally forced a candidate “to choose between the First Amendment right to engage in unfettered political speech and subjec-tion to discriminatory fundraising limitations.” Id., at 739. This “unprecedented penalty” “impose[d] a substantial burden on the ex-ercise of the First Amendment right to use personal funds for cam-paign speech” that was not justified by a compelling government in-terest. Id., at 739–740. Pp. 8–10.
The logic of Davis largely controls here. Once a privately fi-nanced candidate has raised or spent more than the State’s initial grant to a publicly financed candidate, each personal dollar the pri-vately financed candidate spends results in an award of almost one additional dollar to his opponent. The privately financed candidate must “shoulder a special and potentially significant burden” when choosing to exercise his First Amendment right to spend funds on his own candidacy. 554 U. S., at 739. If the law at issue in Davis im-posed a burden on candidate speech, the Arizona law unquestionably does so as well.
The differences between the matching funds provision and the law struck down in Davis make the Arizona law more constitutionally problematic, not less. First, the penalty in Davis consisted of raising the contribution limits for one candidate, who would still have to raise the additional funds. Here, the direct and automatic release of public money to a publicly financed candidate imposes a far heavier
burden. Second, in elections where there are multiple publicly fi-nanced candidates—a frequent occurrence in Arizona—the matching funds provision can create a multiplier effect. Each dollar spent bythe privately funded candidate results in an additional dollar of fund-ing to each of that candidate’s publicly financed opponents. Third, unlike the law in Davis, all of this is to some extent out of the pri-vately financed candidate’s hands. Spending by independent expen-diture groups to promote a privately financed candidate’s election triggers matching funds, regardless whether such support is welcome or helpful. Those funds go directly to the publicly funded candidate to use as he sees fit. That disparity in control—giving money directly to a publicly financed candidate, in response to independent expendi-tures that cannot be coordinated with the privately funded candi-date—is a substantial advantage for the publicly funded candidate.
The burdens that matching funds impose on independent expendi-ture groups are akin to those imposed on the privately financed can-didates themselves. The more money spent on behalf of a privately financed candidate or in opposition to a publicly funded candidate,the more money the publicly funded candidate receives from the State. The effect of a dollar spent on election speech is a guaranteed financial payout to the publicly funded candidate the group opposes, and spending one dollar can result in the flow of dollars to multiple candidates. In some ways, the burdens imposed on independent groups by matching funds are more severe than the burdens imposed on privately financed candidates. Independent groups, of course, are not eligible for public financing. As a result, those groups can only avoid matching funds by changing their message or choosing not to speak altogether. Presenting independent expenditure groups with such a choice—trigger matching funds, change your message, or do not speak—makes the matching funds provision particularly burden-some to those groups and certainly contravenes “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573. Pp. 10–14.
(3) The arguments of Arizona, the Clean Elections Institute, and amicus United States attempting to explain away the existence or significance of any burden imposed by matching funds are unpersua-sive.
Arizona correctly points out that its law is different from the law invalidated in Davis, but there is no doubt that the burden on speech is significantly greater here than in Davis. Arizona argues that the provision actually creates more speech. But even if that were the case, only the speech of publicly financed candidates is increased by the state law. And burdening the speech of some—here privately fi-nanced candidates and independent expenditure groups—to increase the speech of others is a concept “wholly foreign to the First Amend-ment,” Buckley v. Valeo, 424 U. S. 1, 48–49; cf. Miami Herald Pub-lishing Co. v. Tornillo, 418 U. S. 241, 244, 258. That no candidate or group is forced to express a particular message does not mean thatthe matching funds provision does not burden their speech, especially since the direct result of that speech is a state-provided monetary subsidy to a political rival. And precedents upholding government subsidies against First Amendment challenge provide no support for matching funds; none of the subsidies at issue in those cases were granted in response to the speech of another.
The burden on privately financed candidates and independent ex-penditure groups also cannot be analogized to the burden placed on speakers by the disclosure and disclaimer requirements upheld in Citizens United v. Federal Election Comm’n, 558 U. S. ___. A political candidate’s disclosure of his funding resources does not result in a cash windfall to his opponent, or affect their respective disclosure ob-ligations.
The burden imposed by the matching funds provision is evident and inherent in the choice that confronts privately financed candi-dates and independent expenditure groups. Indeed every court to have considered the question after Davis has concluded that a candi-date or independent group might not spend money if the direct result of that spending is additional funding to political adversaries. Ari-zona is correct that the candidates do not complain that providing a lump sum payment equivalent to the maximum state financing that a candidate could obtain through matching funds would be imper-missible. But it is not the amount of funding that the State provides that is constitutionally problematic. It is the manner in which that funding is provided—in direct response to the political speech of pri-vately financed candidates and independent expenditure groups.Pp. 14–22.
Arizona’s matching funds provision is not “ ‘justified by a com-pelling state interest,’ ” Davis, supra, at 740. Pp. 22–28.
There is ample support for the argument that the purpose of the matching funds provision is to “level the playing field” in terms of candidate resources. The clearest evidence is that the provision op-erates to ensure that campaign funding is equal, up to three times the initial public funding allotment. The text of the Arizona Act con-firms this purpose. The provision setting up the matching funds re-gime is titled “Equal funding of candidates,” Ariz. Rev. Stat. Ann.§16–952; and the Act and regulations refer to the funds as “equaliz-ing funds,” e.g., §16–952(C)(4). This Court has repeatedly rejected the argument that the government has a compelling state interest in“leveling the playing field” that can justify undue burdens on political speech, see, e.g., Citizens United, supra, at ___, and the burdens im-posed by matching funds cannot be justified by the pursuit of such an interest. Pp. 22–25.
(2) Even if the objective of the matching funds provision is to combat corruption—and not “level the playing field”—the burdens that the matching funds provision imposes on protected political speech are not justified. Burdening a candidate’s expenditure of his own funds on his own campaign does not further the State’s anticor-ruption interest. Indeed, “reliance on personal funds reduces the threat of corruption.” Davis, supra, at 740–741; see Buckley, supra, at 53. The burden on independent expenditures also cannot be sup-ported by the anti corruption interest. Such expenditures are “politi-cal speech . . . not coordinated with a candidate.” Citizens United, 558 U. S., at ___. That separation negates the possibility that the ex-penditures will result in the sort of quid pro quo corruption with which this Court’s case law is concerned. See e.g., id., at ___–___. Moreover, “[t]he interest in alleviating the corrupting influence of large contributions is served by . . . contribution limitations.” Buck-ley, supra, at 55. Given Arizona’s contribution limits, some of the most austere in the Nation, its strict disclosure requirements, and the general availability of public funding, it is hard to imagine what marginal corruption deterrence could be generated by the matching funds provision.
The State and the Clean Elections Institute contend that even if the matching funds provision does not directly serve the anti corrup-tion interest, it indirectly does so by ensuring that enough candidates participate in the State’s public funding system, which in turn helps combat corruption. But the fact that burdening constitutionally pro-tected speech might indirectly serve the State’s anti corruption inter-est, by encouraging candidates to take public financing, does not es-tablish the constitutionality of the matching funds provision. The matching funds provision substantially burdens speech, to an even greater extent than the law invalidated in Davis. Those burdens cannot be justified by a desire to “level the playing field,” and much of the speech burdened by the matching funds provision does not pose a danger of corruption. The fact that the State may feel that the matching funds provision is necessary to allow it to calibrate its pub-lic funding system to achieve its desired level of participation—without an undue drain on public resources—is not a sufficient justi-fication for the burden.
The flaw in the State’s argument is apparent in what its reasoning would allow. By the State’s logic it could award publicly financed candidates five dollars for every dollar spent by a privately financed candidate, or force candidates who wish to run on private funds to pay a $10,000 fine, in order to encourage participation in the public funding regime. Such measures might well promote such participa-tion, but would clearly suppress or unacceptably alter political speech. How the State chooses to encourage participation in its pub-lic funding system matters, and the Court has never held that a State may burden political speech—to the extent the matching funds provi-sion does—to ensure adequate participation in a public funding sys-tem. Pp. 25–28.
(c) Evaluating the wisdom of public financing as a means of fund-ing political candidacy is not the Court’s business. But determining whether laws governing campaign finance violate the First Amend-ment is. The government “may engage in public financing of election campaigns,” and doing so can further “significant governmental in-terest[s].” Buckley, 424 U. S., at 57, n. 65, 92–93, 96. But the goal of creating a viable public financing scheme can only be pursued in a manner consistent with the First Amendment. Arizona’s program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group. It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State. This goes too far; Arizona’s matching funds provision substantially bur-dens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest.Pp. 28–30.
611 F. 3d 510, reversed.

Editor's note: ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. KAGAN, J., filed a dissenting
opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

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Monday, June 27, 2011

U. S. Supreme Court Sides With First Amendment, Says Violent Video Games Can't Be Banned. Parents, Try To Parent Your Children, Will Ya? Watch News Video.

For fellow Lawyers, the case is BROWN, GOVERNOR OF CALIFORNIA, ET AL. v. ENTERTAINMENT MERCHANTS ASSOCIATION ET AL., No. 08–1448. You can read the entire case here, but the synopsis follows below:

Respondents, representing the video-game and software industries, filed a preenforcement challenge to a California law that restricts the sale or rental of violent video games to minors. The Federal District Court concluded that the Act violated the First Amendment and permanently enjoined its enforcement. The Ninth Circuit affirmed.

Held: The Act does not comport with the First Amendment. Pp. 2–18.
(a) Video games qualify for First Amendment protection. Like pro-tected books, plays, and movies, they communicate ideas through fa-miliar literary devices and features distinctive to the medium. And “the basic principles of freedom of speech . . . do not vary” with a new and different communication medium. Joseph Burstyn, Inc. v. Wil-son, 343 U. S. 495, 503. The most basic principle—that government lacks the power to restrict expression because of its message, ideas,subject matter, or content, Ashcroft v. American Civil Liberties Un-ion, 535 U. S. 564, 573—is subject to a few limited exceptions for his-torically unprotected speech, such as obscenity, incitement, and fight-ing words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test. See United States v. Stevens, 559 U. S. ___, ___. Unlike the New York law upheld in Ginsberg v. New York, 390 U. S. 629, Cali-fornia’s Act does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. Instead, the State wishes to cre-ate a wholly new category of content-based regulation that is permis-sible only for speech directed at children. That is unprecedented and
mistaken This country has no tradition of specially restricting chil-dren’s access to depictions of violence. And California’s claim that “interactive” video games present special problems, in that the player participates in the violent action on screen and determines its out-come, is unpersuasive. Pp. 2–11.
(b) Because the Act imposes a restriction on the content of pro-tected speech, it is invalid unless California can demonstrate that it passes strict scrutiny, i.e., it is justified by a compelling government interest and is narrowly drawn to serve that interest. R. A. V. v. St. Paul, 505 U. S. 377, 395. California cannot meet that standard. Psy-chological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demon-strated effects are both small and indistinguishable from effects pro-duced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regula-tion is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint. California also cannot show that the Act’s restrictions meet the alleged substantial need of parents who wish to restrict their children’s access to violent videos. The video-game industry’s voluntary rating system already accomplishes that to a large extent. Moreover, as a means of assisting parents the Act is greatly overinclusive, since not all of the children who are pro-hibited from purchasing violent video games have parents who dis-approve of their doing so. The Act cannot satisfy strict scrutiny. Pp. 11–18.
556 F. 3d 950, affirmed.

Editor's note: SCALIA, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opin-ion concurring in the judgment, in which ROBERTS, C. J., joined. THO-MAS, J., and BREYER, J., filed dissenting opinions.

Yes, you read it right: Thomas and Breyer are on the same page on this one,though INCORRECTLY I might add.

Update, 6/30/2011: read George Wills excellent piece on the opinion. Read also, if you will, Cal Thomas' piece.

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Friday, June 24, 2011

U. S. Supreme Court Rules Guilty Plea Sentence May Be Reduced If Sentencing Guidelines Later Change.

The case is Freeman v. United States, 09-10-245. You can read the case here.

You guessed it: below is your long synopsis:

In order to reduce unwarranted federal sentencing disparities, the Sen-tencing Reform Act of 1984 authorizes the United States SentencingCommission to create, and to retroactively amend, Sentencing Guide-lines to inform judicial discretion. Title 18 U. S. C. §3582(c)(2) per-mits a defendant who was sentenced to a term of imprisonment“based on” a Guidelines sentencing range that has subsequently beenlowered by retroactive amendment to move for a sentence reduction.This case concerns §3582(c)(2)’s application to cases in which the de-fendant and the Government have entered into a plea agreement un-der Federal Rule of Criminal Procedure 11(c)(1)(C), which permits the parties to “agree that a specific sentence or sentencing range is the appropriate disposition of the case,” and “binds the court [to theagreed-upon sentence] once [it] accepts the plea agreement.” Petitioner Freeman was indicted for various crimes, including pos-sessing with intent to distribute cocaine base. 21 U. S. C. §841(a)(1).He entered into an 11(c)(1)(C) agreement to plead guilty to allcharges; in return the Government agreed to a 106-month sentence.The agreement states that the parties independently reviewed theapplicable Guidelines, noted that Freeman agreed to have his sen-tence determined under the Guidelines, and reflected the parties’ un-derstanding that the agreed-to sentence corresponded with the minimum sentence suggested by the applicable Guidelines range of 46 to 57 months, along with a consecutive mandatory minimum of 60months for possessing a firearm in furtherance of a drug-traffickingcrime under 18 U. S. C. §924(c)(1)(A). Three years after the District Court accepted the plea agreement, the Commission issued a retroac-tive Guidelines amendment to remedy the significant disparity be-tween the penalties for cocaine base and powder cocaine offenses.
2 Because the amendment’s effect was to reduce Freeman’s applicable sentencing range to 37 to 46 months plus the consecutive 60-month mandatory minimum, he moved for a sentence reduction under §3582(c)(2). However, the District Court denied the motion, and the Sixth Circuit affirmed because its precedent rendered defendants
sentenced pursuant to 11(c)(1)(C) agreements ineligible for §3582(c)(2) relief, barring a miscarriage of justice or mutual mistake.

Held: The judgment is reversed, and the case is remanded.

JUSTICE KENNEDY, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN, concluded that defendants who enter into 11(c)(1)(C) agreements that specify a particular sentence as a condition of the guilty plea may be eligible for relief under §3582(c)(2). Pp.
(a) The text and purpose of the statute, Rule 11(c)(1)(C), and the governing Guidelines policy statements compel the conclusion that the district court has authority to entertain §3582(c)(2) motions when sentences are imposed in light of the Guidelines, even if the defendant enters into an 11(c)(1)(C) agreement. The district judge must, in every case, impose “a sentence sufficient, but not greater than necessary, to comply with” the purposes of federal sentencing, in light of
the Guidelines and other relevant factors. §3553(a). The Guidelines provide a framework or starting point—a basis, in the term’s commonsense meaning—for the judge’s exercise of discretion. Rule 11(c)(1)(C) permits the defendant and the prosecutor to agree on a specific sentence, but that agreement does not discharge the district court’s independent obligation to exercise its discretion. In the usual
sentencing, whether following trial or plea, the judge’s reliance on the
Guidelines will be apparent when the judge uses the Guidelines range as the starting point in the analysis and imposes a sentence within the range. Gall v. United States, 552 U. S. 38, 49. Even where the judge varies from the recommended range, id., at 50, if the judge uses the sentencing range as the beginning point to explain the deviation, then the Guidelines are in a real sense a basis for the sen
tence. The parties’ recommended sentence binds the court “once the court accepts the plea agreement,” Rule 11(c)(1)(C), but the relevant policy statement forbids the judge to accept an agreement without first giving due consideration to the applicable Guidelines sentencing range, even if the parties recommend a specific sentence as a condition of the guilty plea, see U. S. Sentencing Commission, Guidelines Manual §6B1.2. This approach finds further support in the policy
statement applicable to §3582(c)(2) motions, which instructs the district court in modifying a sentence to substitute the retroactive amendment, but to leave all original Guidelines determinations in place, §1B1.10(b)(1). Pp. 5–7.
Petitioner’s sentencing hearing transcript reveals that the Dis-trict Court expressed its independent judgment that the sentencewas appropriate in light of the applicable Guidelines range. Its deci-sion was therefore “based on” that range within §3582(c)(2)’s mean-ing. P. 7.
The Government’s argument that sentences that follow an 11(c)(1)(C) agreement are based only on the agreement itself and not the Guidelines, and are therefore ineligible for §3582(c)(2) reduction, must be rejected. Even when a defendant enters into an 11(c)(1)(C)agreement, the judge’s decision to accept the plea and impose therecommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek §3582(c)(2) relief.Pp. 7–10.

JUSTICE SOTOMAYOR concluded that if an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) ((C) agreement) expressly uses a Guidelines sentencing range applicable to the charged offense to es-tablish the term of imprisonment, and that range is subsequently lowered by the Sentencing Commission, the prison term is “based on” the range employed and the defendant is eligible for sentence reduc-tion under 18 U. S. C. §3582(c)(2). Pp. 1–11.
The term of imprisonment imposed by a district court pursuantto a (C) agreement is “based on” the agreement itself, not on the judge’s calculation of the Guidelines sentencing range. To hold oth-erwise would be to contravene the very purpose of (C) agreements—to bind the district court and allow the Government and the defendant to determine what sentence he will receive. Pp. 1–5.
This does not mean, however, that a term of imprisonment im-posed under a (C) agreement can never be reduced under §3582(c)(2).Because the very purpose of a (C) agreement is to allow the parties to determine the defendant’s sentence, when the agreement itself em-ploys a particular Guidelines sentencing range applicable to the charged offenses in establishing the term of imprisonment imposedby the district court, the defendant is eligible to have his sentence re-duced under §3582(c)(2). Pp. 5–9.
Freeman is eligible. The offense level and criminal history cate-gory set forth in his (C) agreement produce a sentencing range of 46 to 57 months; it is evident that the parties combined the 46-month figure at the low end of the range with the 60-month mandatory minimum sentence under §924(c)(1)(A) to establish the 106-monthsentence called for in the agreement. Under the amended Guide-lines, however, the applicable sentencing range is now 37 to 46 months. Therefore, Freeman’s prison term is “based on” a sentencing range that “has subsequently been lowered by the Sentencing Com-mission,” rendering him eligible for sentence reduction. Pp. 9–11.

Editor's note: KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined. SO-TOMAYOR, J., filed an opinion concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined.

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U. S. Supreme Court Finds There Is No Constitutional Requirement For State Appointed Attorney In A Civil Child Support Case, But Defendant Has To Have "Substitute Procedural Safeguards" Before Punishment For Civil Contempt.

This case is TURNER v. ROGERS ET AL., No. 10–10. You can read the entire case here, or read the long, but important synopsis, which follows below:

After a South Carolina family court ordered petitioner Turner to pay $51.73 per week to respondent Rogers to help support their child,Turner repeatedly failed to pay the amount due and was held in con-tempt five times. For the first four, he was sentenced to 90 days’ im-prisonment, but he ultimately paid what he owed (twice without be-ing jailed, twice after spending a few days in custody). The fifth time he did not pay but completed a 6-month sentence. After his release, the family court clerk issued a new “show cause” order against Turner because he was $5728.76 in arrears. Both he and Rogers were unrepresented by counsel at his brief civil contempt hearing. The judge found Turner in willful contempt and sentenced him to 12months in prison without making any finding as to his ability to payor indicating on the contempt order form whether he was able to make support payments. After Turner completed his sentence, the South Carolina Supreme Court rejected his claim that the Federal Constitution entitled him to counsel at his contempt hearing, declar-ing that civil contempt does not require all the constitutional safe-guards applicable in criminal contempt proceedings.

1. Even though Turner has completed his 12-month sentence, and there are not alleged to be collateral consequences of the contempt determination that might keep the dispute alive, this case is not moot, because it is “capable of repetition” while “evading review,” Southern Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U. S. 498, 515. A case remains live if “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or ex-piration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Weinstein v. Bradford, 423 U. S. 147, 149. Here, the “challenged ac-tion,” Turner’s imprisonment for up to 12 months, is “in its duration too short to be fully litigated” through the state courts (and arrive here) prior to its “expiration.” First Nat’l Bank of Boston v. Bellotti, 435 U. S. 765, 774. And there is a more than “reasonable” likelihood that Turner will again be “subjected to the same action” because he has frequently failed to make his support payments, has been the subject of several civil contempt proceedings, has been imprisoned several times, and is, once again, the subject of civil contempt pro-ceedings for failure to pay. DeFunis v. Odegaard, 416 U. S. 312, and St. Pierre v. United States, 319 U. S. 41, distinguished. Pp. 5–7.
2. The Fourteenth Amendment’s Due Process Clause does not auto-matically require the State to provide counsel at civil contempt pro-ceedings to an indigent noncustodial parent who is subject to a child support order, even if that individual faces incarceration. In particu-lar, that Clause does not require that counsel be provided where the opposing parent or other custodian is not represented by counsel and the State provides alternative procedural safeguards equivalent to adequate notice of the importance of the ability to pay, a fair oppor-tunity to present, and to dispute, relevant information, and express court findings as to the supporting parent’s ability to comply with the support order. Pp. 7–16.
This Court’s precedents provide no definitive answer to the question whether counsel must be provided. The Sixth Amendment grants an indigent criminal defendant the right to counsel, see, e.g., United States v. Dixon, 509 U. S. 688, 696, but does not govern civil cases. Civil and criminal contempt differ. A court may not impose punishment “in a civil contempt proceeding when it is clearly estab-lished that the alleged contemnor is unable to comply with the terms of the order.” Hicks v. Feiock, 485 U. S. 624, 638, n. 9. And once a civil contemnor complies with the underlying order, he is purged of the contempt and is free. Id., at 633. The Due Process Clause allows a State to provide fewer procedural protections in civil contempt pro-ceedings than in a criminal case. Id., at 637–641. Cases directly con-cerning a right to counsel in civil cases have found a presumption of such a right “only” in cases involving incarceration, but have not held that a right to counsel exists in all such cases. See In re Gault, 387 U.S. 1; Vitek v. Jones, 445 U. S. 480; and Lassiter v. Department of Social Servs. of Durham Cty., 452 U. S. 18. Pp. 7–10.
Because a contempt proceeding to compel support payments is civil, the question whether the “specific dictates of due process” re-quire appointed counsel is determined by examining the “distinct fac-tors” this Court has used to decide what specific safeguards are needed to make a civil proceeding fundamentally fair. Mathews v. Eldridge, 424 U. S. 319, 335. As relevant here those factors include
the nature of “the private interest that will be affected,” (2) the comparative “risk” of an “erroneous deprivation” of that interest with and without “additional or substitute procedural safeguards,” and (3) the nature and magnitude of any countervailing interest in not pro-viding “additional or substitute procedural requirement[s].
” Ibid.
The “private interest that will be affected” argues strongly for the right to counsel here. That interest consists of an indigent defen-dant’s loss of personal liberty through imprisonment. Freedom “from bodily restraint” lies “at the core of the liberty protected by the Due Process Clause.” Foucha v. Louisiana, 504 U. S. 71, 80. Thus, accu-rate decision making as to the “ability to pay”—which marks a divid-ing line between civil and criminal contempt, Hicks, supra, at 635, n. 7—must be assured because an incorrect decision can result in a wrongful incarceration. And because ability to comply divides civil and criminal contempt proceedings, an erroneous determination would also deprive a defendant of the procedural protections a crimi-nal proceeding would demand. Questions about ability to pay are likely to arise frequently in child custody cases. On the other hand, due process does not always require the provision of counsel in civil proceedings where incarceration is threatened. See Gagnon v. Scar-pelli, 411 U. S. 778. To determine whether a right to counsel is re-quired here, opposing interests and the probable value of “additionalor substitute procedural safeguards” must be taken into account. Mathews, supra, at 335.
Doing so reveals three related considerations that, taken together, argue strongly against requiring counsel in every proceeding of the present kind. First, the likely critical question in these cases is the defendant’s ability to pay, which is often closely related to his indi-gence and relatively straightforward. Second, sometimes, as here, the person opposing the defendant at the hearing is not the govern-ment represented by counsel but the custodial parent unrepresented by counsel. A requirement that the State provide counsel to the non-custodial parent in these cases could create an asymmetry of repre-sentation that would “alter significantly the nature of the proceed-ing,” Gagnon, supra, at 787, creating a degree of formality or delay that would unduly slow payment to those immediately in need and make the proceedings less fair overall. Third, as the Federal Gov-ernment points out, an available set of “substitute procedural safe-guards,” Mathews, supra, at 335, if employed together, can signifi-cantly reduce the risk of an erroneous deprivation of liberty. These include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equiva-lent) to elicit relevant financial information from him; (3) an oppor-tunity at the hearing for him to respond to statements and questions
about his financial status; and (4) an express finding by the court that the defendant has the ability to pay.

This decision does not address civil contempt proceedings where the underlying support payment is owed to the State, e.g., for reim-bursement of welfare funds paid to the custodial parent, or the ques-tion what due process requires in an unusually complex case where a defendant “can fairly be represented only by a trained advocate,” Gagnon, supra, at 788. Pp. 10–16.
3. Under the circumstances, Turner’s incarceration violated due process because he received neither counsel nor the benefit of alter-native procedures like those the Court describes. He did not have clear notice that his ability to pay would constitute the critical ques-tion in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his fi-nancial circumstances. And the trial court did not find that he was able to pay his arrearage, but nonetheless found him in civil con-tempt and ordered him incarcerated. P. 16. 387 S. C. 142, 691 S. E. 2d 470, vacated and remanded.

Editor's note: BREYER, J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed a dis-
senting opinion, in which SCALIA, J., joined, and in which ROBERTS,
C. J., and ALITO, JJ., joined as to Parts I–B and II.

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U. S. Supreme Court Rules That Private Action Under The "Petition Clause" Only Applies To Matters Of Public Concern.

The case can be found here. Check out the synopsis below:

After petitioner borough fired respondent Guarnieri as its police chief, he filed a union grievance that led to his reinstatement. When the borough council later issued directives instructing Guarnieri how toperform his duties, he filed a second grievance, and an arbitrator or-dered that some of the directives be modified or withdrawn. Guarni-eri then filed this suit under 42 U. S. C. §1983, alleging that the di-rectives were issued in retaliation for the filing of his first grievance, thereby violating his First Amendment “right . . . to petition the Gov-ernment for a redress of grievances”; he later amended his complaint to allege that the council also violated the Petition Clause by denying his request for overtime pay in retaliation for his having filed the §1983 suit. The District Court instructed the jury, inter alia, that the suit and the grievances were constitutionally protected activity, and the jury found for Guarnieri. Affirming the compensatory damages award, the Third Circuit held that a public employee who has peti-tioned the government through a formal mechanism such as the fil-ing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a mat-ter of solely private concern. In so ruling, the court rejected the view of every other Circuit to have considered the issue that, to be pro-tected, the petition must address a matter of public concern.
Held: A government employer’s allegedly retaliatory actions against an employee do not give rise to liability under the Petition Clause unless the employee’s petition relates to a matter of public concern. The Third Circuit’s conclusion that the public concern test does not limit public employees’ Petition Clause claims is incorrect. Pp. 4–19.
(a) A public employee suing his employer under the First Amend-ment’s Speech Clause must show that he spoke as a citizen on a mat-ter of public concern. Connick v. Myers, 461 U. S. 138, 147. Even where the employee makes that showing, however, courts balance his employee’s right to engage in speech against the government’s inter-est in promoting the efficiency and effectiveness of the public services it performs through its employees. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568. Al-though cases might arise in which special Petition Clause concerns would require a distinct analysis, public employees’ retaliation claims do not call for this divergence. The close connection between the rights of speech and petition has led Courts of Appeals other than the Third Circuit to apply the public concern test to public employees’ Pe-tition Clause claims. This approach is justified by the substantial common ground in the definition and delineation of these rights. Pp.4–8.
(b) The substantial government interests that justify a cautious and restrained approach to protecting public employees’ speech are just as relevant in Petition Clause cases. A petition, no less than speech, can interfere with government’s efficient and effective opera-tion by, e.g., seeking results that “contravene governmental policies or impair the proper performance of governmental functions,” Gar-cetti v. Ceballos, 547 U. S. 410, 419. A petition taking the form of a lawsuit against the government employer may be particularly disrup-tive, consuming public officials’ time and attention, burdening their exercise of legitimate authority, and blurring the lines of accountabil-ity between them and the public. Here, for example, Guarnieri’s at-torney invited the jury to review myriad details of government deci-sionmaking. It is precisely to avoid this sort of intrusion into internal governmental affairs that this Court has held that, “while the First Amendment invests public employees with certain rights, it does not empower them to ‘constitutionalize the employee grievance.’ ” Id., at
420. Interpreting the Petition Clause to apply even where matters of public concern are not involved would be unnecessary, or even dis-ruptive, when there is already protection for the public employees’ rights to file grievances and litigate. Adopting a different rule for Pe-tition Clause claims would provide a ready means for public employ-ees to circumvent the public concern test’s protections and aggravate potential harm to the government’s interests by compounding the costs of complying with the Constitution. Pp. 8–13.
(c) Guarnieri’s claim that applying the public concern test to the Petition Clause would be inappropriate in light of the private nature of many petitions for redress lacks merit. Although the Clause un-doubtedly has force and application in the context of a personal grievance addressed to the government, petitions to the government assume an added dimension when they seek to advance political, so-cial, or other ideas of interest to the community as a whole. The Clause’s history reveals the frequent use of petitions to address awide range of political, social, and other matters of great public im-port and interest. Pp. 13–17.
The framework used to govern public employees’ Speech Clause claims, when applied to the Petition Clause, will protect both the government’s interests and the employee’s First Amendment right. If a public employee petitions as an employee on a matter of purely pri-vate concern, his First Amendment interest must give way, as it does in speech cases. San Diego v. Roe, 543 U. S. 77, 82–83. If he peti-tions as a citizen on a matter of public concern, his First Amendment interest must be balanced against the government’s countervailing interest in the effective and efficient management of its internal af-fairs. Pickering, supra, at 568. If that balance favors the public em-ployee, the First Amendment claim will be sustained. If the balance favors the employer, the employee’s First Amendment claim will faileven though the petition is on a matter of public concern. As under the Speech Clause, whether a petition relates to a matter of public concern will depend on its “content, form, and context . . . , as re-vealed by the whole record.” Connick, supra, at 147–148, n. 7. The forum in which a petition is lodged will also be relevant. See Snyder
Phelps, 562 U. S. ___, ___. A petition filed with a government em-ployer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view beyond the employment context. Pp. 17–18.
(e) Absent full briefs by the parties, the Court need not consider
how the foregoing framework would apply to this case. P. 19. 364 Fed. Appx. 749, vacated and remanded.

Editor's note: KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment in part and dis-senting in part.

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Well, I'll Be: Liberal Justices Ginsburg, Sotomayo, Kagan, Join Conservative Justices Thomas And Scalia In Finding That Confrontation Clause REQUIRES Expert To Testify Regarding His Report UNLESS "Unavailable". STRANGE Bed Fellows, Indeed!

The case is BULLCOMING v. NEW MEXICO, No. 09–10876, and can be read here. A long synopsis appears below from the court:

The Sixth Amendment’s Confrontation Clause gives the accused “[i]nall criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[t]estimonial statements of witnesses absent from trial . . . only where the decla-rant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachu-setts, 557 U. S. ___, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, cre-ated specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes. Absent stipula-tion, the Court ruled, the prosecution may not introduce such a re-port without offering a live witness competent to testify to the truth of the report’s statements. 557 U. S., at ___. Petitioner Bullcoming’s jury trial on charges of driving while in-toxicated (DWI) occurred after Crawford, but before Melendez-Diaz. Principal evidence against him was a forensic laboratory report certi-fying that his blood-alcohol concentration was well above the thresh-old for aggravated DWI. Bullcoming’s blood sample had been tested at the New Mexico Department of Health, Scientific Laboratory Divi-sion (SLD), by a forensic analyst named Caylor, who completed, signed, and certified the report. However, the prosecution neither called Caylor to testify nor asserted he was unavailable; the record showed only that Caylor was placed on unpaid leave for an undis-closed reason. In lieu of Caylor, the State called another analyst, Razatos, to validate the report. Razatos was familiar with the testing device used to analyze Bullcoming’s blood and with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcoming’s blood sample. Bullcoming’s counsel objected, as-serting that introduction of Caylor’s report without his testimonywould violate the Confrontation Clause, but the trial court overruled the objection, admitted the SLD report as a business record, and permitted Razatos to testify. Bullcoming was convicted, and, while his appeal was pending before the New Mexico Supreme Court, this Court decided Melendez-Diaz. The state high court acknowledged that the SLD report qualified as testimonial evidence under Melendez-Diaz, but held that the report’s admission did not violate the Confrontation Clause because: (1) certifying analyst Caylor was a mere scrivener who simply transcribed machine-generated test re-sults, and (2) SLD analyst Razatos, although he did not participate in testing Bullcoming’s blood, qualified as an expert witness with re-spect to the testing machine and SLD procedures. The court affirmed Bullcoming’s conviction.

Held: The judgment is reversed, and the case is remanded. 147 N. M. 487, 226 P. 3d 1, reversed and remanded. JUSTICE GINSBURG delivered the opinion of the Court with respect to all but Part IV and footnote 6. The Confrontation Clause, the opin-ion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in or-der to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the ac-cused had an opportunity, pretrial, to cross-examine that particular scientist. Pp. 8–16.
If an out-of-court statement is testimonial, it may not be intro-duced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness. Pp. 8–14.
Caylor’s certification reported more than a machine-generated number: It represented that he received Bullcoming’s blood sample intact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Bullcoming’s sample, adhering to a precise protocol; and that he left the report’s remarks section blank,indicating that no circumstance or condition affected the sample’s in-tegrity or the analysis’ validity. These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination. The potential ramifi-cations of the state court’s reasoning, therefore, raise red flags. Most witnesses testify to their observations of factual conditions or events.Where, for example, a police officer’s report recorded an objective fact
Cite as: 564 U. S. ____ (2011) 3
such as the read-out of a radar gun, the state court’s reasoning would permit another officer to introduce the information, so long as he orshe was equipped to testify about the technology the observing officer deployed and the police department’s standard operating procedures. As, e.g., Davis v. Washington, 547 U. S. 813, 826, makes plain, how-ever, such testimony would violate the Confrontation Clause. The comparative reliability of an analyst’s testimonial report does not dispense with the Clause. Crawford, 541 U. S., at 62. The analystswho write reports introduced as evidence must be made available for confrontation even if they have “the scientific acumen of Mme. Curieand the veracity of Mother Teresa.” Melendez-Diaz, 557 U. S., at ___,
n. 6. Pp. 10–11.
Nor was Razatos an adequate substitute witness simply be-cause he qualified as an expert with respect to the testing machine and the SLD’s laboratory procedures. Surrogate testimony of the kind Razatos was equipped to give could not convey what Caylor knew or observed about the events he certified, nor expose any lapses or lies on Caylor’s part. Significantly, Razatos did not know why Caylor had been placed on unpaid leave. With Caylor on the stand, Bullcoming’s counsel could have asked Caylor questions designed to reveal whether Caylor’s incompetence, evasiveness, or dishonesty ac-counted for his removal from work. And the State did not assert that Razatos had any independent opinion concerning Bullcoming’s blood alcohol content. More fundamentally, the Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fairtrial, it does not follow that such rights can be disregarded because,on the whole, the trial is fair. United States v. Gonzalez-Lopez, 548
S. 140, 145. If a “particular guarantee” is violated, no substitute procedure can cure the violation. Id., at 146. Pp. 11–14.
Melendez-Diaz precluded the State’s argument that introduc-tion of the SLD report did not implicate the Confrontation Clause be-cause the report is non testimonial. Like the certificates in Melendez-Diaz, the SLD report is undoubtedly an “affirmation made for the purpose of establishing or proving some fact” in a criminal proceed-ing. 557 U. S., at ___. Created solely for an “evidentiary purpose,” id., at ___, the report ranks as testimonial. In all material respects, the SLD report resembles the certificates in Melendez-Diaz. Here, as there, an officer provided seized evidence to a state laboratory re-quired by law to assist in police investigations. Like the Melendez-Diaz analysts, Caylor tested the evidence and prepared a certificate concerning the result of his analysis. And like the Melendez-Diaz
certificates, Caylor’s report here is “formalized” in a signed document, Davis, 547 U. S., at 837, n. 2. Also noteworthy, the SLD report formcontains a legend referring to municipal and magistrate courts’ rulesthat provide for the admission of certified blood-alcohol analyses.Thus, although the SLD report was not notarized, the formalities at-tending the report were more than adequate to qualify Caylor’s as-sertions as testimonial. Pp. 14–16.

Editor's note: GINSBURG, J., delivered the opinion of the Court, except as to Part IVand footnote 6. SCALIA, J., joined that opinion in full, SOTOMAYOR and KAGAN, JJ., joined as to all but Part IV, and THOMAS, J., joined as to all but Part IV and footnote 6. SOTOMAYOR, J., filed an opinion concurring in part. KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C. J., and BREYER and ALITO, JJ., joined.

Check out the opinion to see about part IV and footnote 6.

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U. S. Supreme Court Hands TWIN Victories To Drug Manufacturers.

Justices ruled today that generic drug makers cannot be sued by injured patients in most cases and that drug manufacturers have a 1st Amendment right to buy private prescription records to use for marketing purposes.

The former case is PLIVA, INC., ET AL. v. MENSING, No. 09–993; and the latter case is SORRELL, ATTORNEY GENERAL OF VERMONT, ET AL. v. IMS HEALTH INC. ET AL., 10–779, and you can read both cases by clicking on the linked case names.

You can read also read more about the cases here at LATimes.

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Monday, June 20, 2011

Breaking News: U. S. Supreme Court Sides With Walmart, Dashes Hopes Of Class Action Plaintiffs.

The case is WAL-MART STORES, INC. v. DUKES ET AL., No. 10–277. A long synopsis of the opinion is below:

Respondents, current or former employees of petitioner Wal-Mart, sought judgment against the company for injunctive and declaratory relief, punitive damages, and back pay, on behalf of themselves and a nationwide class of some 1.5 million female employees, because of Wal-Mart’s alleged discrimination against women in violation of Title VII of the Civil Rights Act of 1964. They claim that local managers exercise their discretion over pay and promotions disproportionately in favor of men, which has an unlawful disparate impact on female employees; and that Wal-Mart’s refusal to cabin its managers’ au-thority amounts to disparate treatment.

The District Court certified the class, finding that respondents satisfied Federal Rule of Civil Procedure 23(a), and Rule 23(b)(2)’s requirement of showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corre-sponding declaratory relief is appropriate respecting the class as a whole.” The Ninth Circuit substantially affirmed, concluding, inter alia, that respondents met Rule 23(a)(2)’s commonality requirement and that their back pay claims could be certified as part of a (b)(2) class because those claims did not predominate over the declaratory and injunctive relief requests. It also ruled that the class action could be manageably tried without depriving Wal-Mart of its right to present its statutory defenses if the District Court selected a random set of claims for valuation and then extrapolated the validity and value of the untested claims from the sample set.

1. The certification of the plaintiff class was not consistent with Rule 23(a). Pp. 8–20.
(a) Rule 23(a)(2) requires a party seeking class certification to prove that the class has common “questions of law or fact.” Their claims must depend upon a common contention of such a nature that it is capable of classwide resolution—which means that determina-tion of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Here, proof of com-monality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination. The crux of a Title VII inquiry is “the reason for a particular em-ployment decision,” Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 876, and respondents wish to sue for millions of employ-ment decisions at once. Without some glue holding together the al-leged reasons for those decisions, it will be impossible to say that ex-amination of all the class members’ claims will produce a common answer to the crucial discrimination question. Pp. 8–12.
General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, describes the proper approach to commonality. On the facts of this case, the conceptual gap between an individual’s discrimination claim and “the existence of a class of persons who have suffered the same injury,” id., at 157–158, must be bridged by “[s]ignificant proof that an employer operated under a general policy of discrimination,” id., at 159, n. 15. Such proof is absent here. Wal-Mart’s announced pol-icy forbids sex discrimination, and the company has penalties for de-nials of equal opportunity. Respondents’ only evidence of a general discrimination policy was a sociologist’s analysis asserting that Wal-Mart’s corporate culture made it vulnerable to gender bias. But be-cause he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testi-mony was worlds away from “significant proof” that Wal-Mart “oper-ated under a general policy of discrimination.” Pp. 12–14.
The only corporate policy that the plaintiffs’ evidence convinc-ingly establishes is Wal-Mart’s “policy” of giving local supervisors discretion over employment matters. While such a policy could be the basis of a Title VII disparate-impact claim, recognizing that a claim “can” exist does not mean that every employee in a company with that policy has a common claim. In a company of Wal-Mart’s size and geographical scope, it is unlikely that all managers would exercise their discretion in a common way without some common di-rection. Respondents’ attempt to show such direction by means of statistical and anecdotal evidence falls well short. Pp. 14–20.
2. Respondents’ back pay claims were improperly certified under Rule 23(b)(2). Pp. 20–27.
(a) Claims for monetary relief may not be certified under Rule23(b)(2), at least where the monetary relief is not incidental to the requested injunctive or declaratory relief. It is unnecessary to decide whether monetary claims can ever be certified under the Rule be-cause, at a minimum, claims for individualized relief, like back pay, are excluded. Rule 23(b)(2) applies only when a single, indivisible remedy would provide relief to each class member. The Rule’s his-tory and structure indicate that individualized monetary claims be-long instead in Rule 23(b)(3), with its procedural protections of pre-dominance, superiority, mandatory notice, and the right to opt out.Pp. 20–23.
Respondents nonetheless argue that their back pay claims were appropriately certified under Rule 23(b)(2) because those claims do not “predominate” over their injunctive and declaratory relief re-quests. That interpretation has no basis in the Rule’s text and does obvious violence to the Rule’s structural features. The mere “pre-dominance” of a proper (b)(2) injunctive claim does nothing to justify eliminating Rule 23(b)(3)’s procedural protections, and creates incen-tives for class representatives to place at risk potentially valid mone-tary relief claims. Moreover, a district court would have to reevalu-ate the roster of class members continuously to excise those who leave their employment and become ineligible for class wide injunc-tive or declaratory relief. By contrast, in a properly certified (b)(3)class action for backpay, it would be irrelevant whether the plaintiffs are still employed at Wal-Mart. It follows that back pay claims should not be certified under Rule 23(b)(2). Pp. 23–26.
It is unnecessary to decide whether there are any forms of “in-cidental” monetary relief that are consistent with the above interpre-tation of Rule 23(b)(2) and the Due Process Clause because respon-dents’ back pay claims are not incidental to their requested injunction. Wal-Mart is entitled to individualized determinations of each employee’s eligibility for back pay. Once a plaintiff establishes a pattern or practice of discrimination, a district court must usually conduct “additional proceedings . . . to determine the scope of indi-vidual relief.” Teamsters v. United States, 431 U. S. 324, 361. The company can then raise individual affirmative defenses and demon-strate that its action was lawful. Id., at 362. The Ninth Circuit erred in trying to replace such proceedings with Trial by Formula. Because Rule 23 cannot be interpreted to “abridge, enlarge or modify any sub-stantive right,” 28 U. S. C. §2072(b), a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory de-fenses to individual claims.

Editor's note: What does all the legal mumbo jumbo mean? Read below:

Though divided in some ways, justices unanimously agreed that the sex discrimination lawsuit filed on behalf of 1.5 million female Wal-Mart employees swept in too many unrelated people. The ruling will constrain future class-action suits as well.

“The mere claim by employees of the same company that they have suffered a (discrimination) injury…gives no cause to believe that all their claims can be productively litigated at once,” Justice Antonin Scalia wrote for the court.

Individual employees at Wal-Mart stores in Pittsburgh, Calif. and Duarte Calif. had claimed that they were passed over for pay and promotions. They argued that the Wal-Mart “corporate culture” permitted systematic bias against women, and so pressed for what would have been one of the largest class-action lawsuits ever.

“They have little in common but their sex and their lawsuit,” Scalia reasoned, approvingly citing the words of 9th Circuit Court of Appeals Judge Alex Kozinsk.

The decision Monday does not end the individual discrimination complaints. Those may still proceed.

Read more:

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In Case You Missed It, U. S. Supreme Court Rules Private Individuals Have Standing To Challenge Laws On Tenth Amendment Grounds. GREAT!

The case is Bond Versus United States, and you can read it here. A synopsis is below:

When petitioner Bond discovered that her close friend was pregnant byBond’s husband, she began harassing the woman. The woman suf-fered a minor burn after Bond put caustic substances on objects the woman was likely to touch. Bond was indicted for violating 18 U. S. C. §229, which forbids knowing possession or use, for nonpeace-ful purposes, of a chemical that “can cause death, temporary inca-pacitation or permanent harm to humans,” §§229(a); 229F(1); (7); (8), and which is part of a federal Act implementing a chemical weapons treaty ratified by the United States.

The District Court denied Bond’s motion to dismiss the §229 charges on the ground that the statute exceeded Congress’ constitutional authority to enact. She en-tered a conditional guilty plea, reserving the right to appeal the rul-ing on the statute’s validity. She did just that, renewing her Tenth Amendment claim. The Third Circuit, however, accepted the Gov-ernment’s position that she lacked standing. The Government has since changed its view on Bond’s standing.

Held: Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States.

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Friday, June 10, 2011

In Another U. S. Supreme Court Case, Court Holds That "Cocaine Base" Broadly Applies To More Than Crack Cocaine.

The US Supreme Court ruled yesterday in a unanimous opinion authored by Justice Sonia Sotomayor, in the case of DePierre v. United States, that the harsher sentences under a federal anti-drug statute for "cocaine base" applied to more than just "crack cocaine," but to all forms of cocaine in its basic form.

Surprisingly, the term "cocaine base" as used in the Anti-Drug Abuse Act of 1986 (ADAA) [21 USC § 841(a), as amended] referred only to "crack cocaine." The ADAA imposes harsher penalties for those convicted of selling "cocaine base" than the penalties for "powder cocaine."

Editor's note: Franz DePierre argued was convicted for selling two bags of cocaine base to government informant.

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U. S. Supreme Court Rules That Fleeing To Evade Police After Being Ordered To Stop Is A "Violent Felony" In ACCA.

Supreme Court finds fleeing in vehicle is violent felony

The US Supreme Court ruled 6-3 in Sykes v. United States that fleeing after being ordered to stop is a violent felony within the meaning of the Armed Career Criminal Act (ACCA) [18 USC § 924(e)].

Justice Anthony Kennedy, who wrote for the majority, analyzed the case by comparing the violence in running to the violence in burglaries:

Burglary is dangerous because it can end in confrontation leading to violence. The same is true of vehicle flight, but to an even greater degree. The attempt to elude capture is a direct challenge to an officer's authority. It is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase. The felon's conduct gives the officer reason to believe that the defendant has something more serious than a traffic violation to hide.

Justice Clarence Thomas filed a concurring opinion. His colleagues, Justice Elena Kagan, joined by Justice Ruth Bader Ginsburg, dissented, writing that they believe there are too many distinctions in ways to flee a police officer to rule all of them "violent felonies". Thus, "a person may fail to heed an officer's command to pull over, but otherwise drive in a lawful manner, perhaps just trying to find a better place to stop," they observed. In a weird coalition, Justice Antonin Scalia also dissented, but focused his remarks on the vagueness of the law itself. According to Scalia:

"We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports. As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today's opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA's residual provision is a drafting failure and declare it void for vagueness."

Kennedy addressed this in the majority opinion, by observing that "[a]lthough this approach may at times be more difficult for courts to implement, it is within congressional power to enact."

Editor's note: The residual clause of the ACCA states that, "the term 'violent felony' means any crime punishable by imprisonment for a term exceeding one year, or 'otherwise involves conduct that presents a serious potential risk of physical injury to another." ACCA's intent appears to be to impose harsher and longer sentences on "career criminals." The Court has analyzed this intent several times in recent terms.

For instance, the Court unanimously ruled in McNeill v. United States that a federal sentencing court must determine whether "an offense under State law" is a "serious drug offense" under the ACCA by consulting the "maximum term of imprisonment" applicable to a defendant's prior state drug offense at the time of the defendant's conviction for that offense.

(Please also note: Earlier, this past March, the court ruled in Johnson v. United States that a "violent felony" requires the use of physical force. The Court declared in Chambers v. United States that failure to report to prison does not constitute a "violent felony" in January 2009. United States v. Rodriquez decided in May 2008, clarified that for purposes of increasing a sentence under the ACCA a conviction qualifies as a predicate serious drug offense even when the crime is made punishable by a 10-year prison term only because of additional penalties imposed on repeat offenders.)

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Tuesday, June 7, 2011

In A RARE WTF Moment, U. S. Supreme Court Upholds In-State Tuition for Illegal Immigrants. Watch Video And Read Opinion.