As today's Blog Scan reports, the U.S. Supreme Court heard oral arguments in Robertson v. U.S. ex rel Watson (08-6261) today to determine whether the victim of domestic violence had the power to bring a criminal contempt proceeding against the person who had violated her restraining order. The case contests the constitutionality of a D.C. law that authorizes victims to seek protective orders on their own initiative, and conduct criminal contempt proceedings, when D.C. Corporation Counsel's office cannot meet the demand. Jordan Weissman reported on Blog of Legal Times that "at least four justices wondered aloud about the protections afforded to
criminal defendants facing such charges[,]" but others wondered about the rights afforded to the victims.
Justice Scalia made it clear that he was as uncomfortable with allowing the appointment of private prosecutors as he was when the Court decided Young v. United States ex rel Vuitton Et Fils, S.A in 1987, and compared private prosecutions brought "on behalf of the executive" to allowing a private organization to take over for the Department of Education, just because there were insufficient resources to handle all of the problems. Justice Breyer similarly worried about level of control a court could exercise over these private prosecutors.
Justice Stevens, on the other hand, appeared concerned that if the Court accepted Robertson's argument, private individuals would lose their authority to prosecute violations of "consent decree[s] that would enjoin certain conduct." He did not appear to like the idea that not even the attorney for "the party who entered into the settlement could [not] bring a contempt proceeding against the adversary who had violated the settlement."
Justice Ginsburg also appeared concerned over how far the Court's ruling could reach. At one point, she asked Frankfurt whether other states had implemented procedures similar to D.C.'s law that allowed domestic violence victims to initiate criminal contempt. Frankfurt responded, "the same procedure is a question of how that is defined[,]" prompted Justice Ginsburg to state, "I mean, however you describe it in practical terms, are there other places that say, abused person, you can initiate this and you can have your lawyer present it, whether it's on behalf of the State or -- but just the practical of how you go through the motions[.]"
Based on today's arguments, the Court's decision remains up in the air. It may come down to whether the Court agrees with Robertson, that criminal actions must be brought on behalf of the sovereign, or whether it agrees with Solicitor Kagan who argued "that when a single U.S. Attorney's Office says that the government will decide to drop a certain set of charges, that U.S. Attorney's Office we believe is -- is speaking for itself," and not necessarily other parts of the government.
Justice Scalia made it clear that he was as uncomfortable with allowing the appointment of private prosecutors as he was when the Court decided Young v. United States ex rel Vuitton Et Fils, S.A in 1987, and compared private prosecutions brought "on behalf of the executive" to allowing a private organization to take over for the Department of Education, just because there were insufficient resources to handle all of the problems. Justice Breyer similarly worried about level of control a court could exercise over these private prosecutors.
Justice Stevens, on the other hand, appeared concerned that if the Court accepted Robertson's argument, private individuals would lose their authority to prosecute violations of "consent decree[s] that would enjoin certain conduct." He did not appear to like the idea that not even the attorney for "the party who entered into the settlement could [not] bring a contempt proceeding against the adversary who had violated the settlement."
Justice Ginsburg also appeared concerned over how far the Court's ruling could reach. At one point, she asked Frankfurt whether other states had implemented procedures similar to D.C.'s law that allowed domestic violence victims to initiate criminal contempt. Frankfurt responded, "the same procedure is a question of how that is defined[,]" prompted Justice Ginsburg to state, "I mean, however you describe it in practical terms, are there other places that say, abused person, you can initiate this and you can have your lawyer present it, whether it's on behalf of the State or -- but just the practical of how you go through the motions[.]"
Based on today's arguments, the Court's decision remains up in the air. It may come down to whether the Court agrees with Robertson, that criminal actions must be brought on behalf of the sovereign, or whether it agrees with Solicitor Kagan who argued "that when a single U.S. Attorney's Office says that the government will decide to drop a certain set of charges, that U.S. Attorney's Office we believe is -- is speaking for itself," and not necessarily other parts of the government.
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