Recently in U.S. Supreme Court Category

The U.S. Supreme Court issued a summer orders list today, and it includes a grant of certiorari, which is unusual for a summer list.

The case is Murphy v. Smith, 16-1067.  It involves 42 U.S.C. § 1997e(d)(2).  Section 1997e applies to civil rights suits by prisoners.  Subdivision (d)(2) reads:

Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant. If the award of attorney's fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.
The Question Presented, as framed by attorneys for the plaintiff prisoner, is:

Whether the parenthetical phrase "not to exceed 25 percent," as used in 42 U.S.C. § 1997e(d)(2), means any amount up to 25 percent (as four circuits hold), or whether it means exactly 25 percent (as the U.S. Court of Appeals for the 7th Circuit holds).
Late on Friday, the U.S. Supreme Court launched its revamped website.  Fortunately, the horrible red background on some of the pages was removed even faster than Mr. Scaramucci.  The big news is the upcoming launch of electronic filing:

The Supreme Court's new electronic filing system will begin operation on November 13, 2017. A quick link on the Court's website homepage will provide access to the new system, developed in-house to provide prompt and easy access to case documents. Once the system is in place, virtually all new filings will be accessible without cost to the public and legal community.
That last part is very good news.  In the lower federal courts, public documents are available only by payment of a fee that has little relation to the cost of providing the service.  On a per-page basis the fee may not seem like much, but it adds up for a small non-profit that needs and uses the system extensively.

The good part about the lower federal courts' e-filing system is that if you e-file a PDF of your brief on the due date then the deadline is met.  The paper copies can be printed and mailed in due course.  The Supreme Court's current requirement that paper copies be mailed by the due date effectively backs up the deadline a few business days, particularly since they have to be printed in the high court's odd little booklet size.

I rarely recommend that the Supreme Court follow the Ninth Circuit.  Quite the contrary, the Conclusion section of my SCOTUS briefs quite often reads, "The decision of the Court of Appeals for the Ninth Circuit should be reversed."  When it comes to e-filing, though, the Ninth does it right, and the Supreme Court would do well to consider its template.

Justice Rebooted in Ohio

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Alan Johnson reports for the Columbus Dispatch:

Ronald Phillips could not avoid his seventh execution date.

After six postponements, the 43-year-old Summit County man was executed Wednesday for a murder he committed 24 years ago, a week into Bill Clinton's first term as president. Phillips' victim was Sheila Marie Evans, the 3-year-old daughter of his then-girlfriend.

The time of Phillips' death was 10:43 a.m. at the Southern Ohio Correctional Facility near Lucasville.

The execution was completely calm with none of the complications or reactions of the last execution.
The last-minute legal maneuvering involved the three-drug protocol with midazolam as the first drug.  States have had to turn to this controversial method since the "guerrilla war against the death penalty" succeeding in cutting off the preferred barbiturates.  A Sixth Circuit panel originally upheld the district court's preliminary injunction against executions, but the full court reversed.

Every other court of appeals to consider that procedure has likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical challenge in a procedural posture identical to the one here. See McGehee v. Hutchinson, 854 F.3d 488, 492 (8th Cir. 2017) (en banc) (per curiam), cert. denied, 137 S. Ct. 1275 (2017); Glossip, 135 S. Ct. at 2739-40 (collecting cases); Brooks v. Warden, 810 F.3d 812, 818-22 (11th Cir. 2016); cf. Jordan v. Fisher, 823 F.3d 805, 811-12 (5th Cir. 2016). Yet here the district court thought the same procedure is likely invalid. We respectfully disagree and reverse the court's grant of a preliminary injunction.

Cafeteria Duty

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Jess Bravin of the WSJ has this light-hearted look at the SCOTUS cafeteria and the traditional assignment of the junior justice to the governing committee.

Justice Gorsuch arrives at the cafeteria as something of a stealth candidate. President Donald Trump, despite running several restaurants in his hotel empire, selected a judge with practically no food-service experience.

The 10th U.S. Circuit Court of Appeals, where Justice Gorsuch previously sat, has no cafeteria in its Denver courthouse. He avoided signaling his culinary philosophy during confirmation hearings in April.

"The Senate overlooked that," laments retired Justice John Paul Stevens, who first dined in the cafeteria as a law clerk in the 1940s.
The article headline advises, "Don't Eat There."
On June 26, the U.S. Supreme Court granted in part the Government's request to stay the injunctions against enforcement of the travel ban for nationals of six countries.  The court left the injunction in effect for, among others, persons with "a close familial relationship" with a person in the United States.  How close is "close"?  The Supreme Court did not say.

The Government's interpretation was largely along the lines of family relationships that Congress has designated as close enough to file an application for a family-based immigration petition, which seemed sensible to me.  The U.S. District Court did not think so and modified its injunction to include "grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States."  Sounds like something out of Gilbert and Sullivan

The District Court also enjoined application of the Executive Order to two classes of refugees, those who "(i) have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee; or (ii) are in the U.S. Refugee Admissions Program through the Lautenberg Program."

Acting swiftly in response to a petition by the Government, the Court issued this order:

The Government's motion seeking clarification of our order of June 26, 2017, is denied. The District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government's appeal to the Court of Appeals for the Ninth Circuit.

Justice Thomas, Justice Alito, and Justice Gorsuch would have stayed the District Court order in its entirety.
Hmmm.  The District Court's furthest stretch, to refugees who merely have an assurance from an agency but no other contact within the U.S., is stayed, but the rest remains in force.  This is the Supreme Court that our Politically Correct academia keeps telling us is "conservative."

Beats Me, Ask SCOTUS

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Yesterday in the Hawaii travel ban case, District Judge Derrick Watson denied the Plaintiffs' Emergency Motion to Clarify Scope of Preliminary Injunction.

Upon careful consideration of the parties' submissions, it is evident that the parties quarrel over the meaning and intent of words and phrases authored not by this Court, but by the Supreme Court in its June 26, 2017 per curiam decision. That is, the parties' disagreements derive neither from this Court's temporary restraining order, this Court's preliminary injunction, nor this Court's amended preliminary injunction, but from the modifications to this Court's injunction ordered by the Supreme Court. Accordingly, the clarification to the modifications that the parties seek should be more appropriately sought in the Supreme Court.
Ariane de Vogue has this article for CNN.  The full text of the order is here.
SCOTUSblog has a symposium on the U.S. Supreme Court's capital cases this term.  The index of posts is here.

My contribution is here.

SCOTUS Justice Circuit Assignments

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The U.S. Supreme Court issued a new allotment order, assigning Justices to the various circuits.  The Circuit Justice generally rules on extension requests.  Stay requests are also addressed to the Circuit Justice, though these are routinely referred to the full court when there is time to do so.

Justice Gorsuch gets the Eighth Circuit.  Justice Sotomayor keeps the Tenth.  New Justices are typically not assigned the circuits from which they came right out of the gate.  The cases they participated in need to drain out of the pipeline first.  I wouldn't be surprised to see Justice Gorsuch get the Tenth eventually, as Justice Kennedy did the Ninth.

The court also issued an orders list taking up several cases.  The only criminal case taken is a tax fraud case, Marinello v. United States.

SCOTUS Action This Morning

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Quick takes on U.S. Supreme Court action this morning:

1.  Affirmed the Fifth Circuit in Davila v. Davis, declining to go further toward creating an endless spiral of lawyers getting new claims before the federal courts by accusing prior lawyers of incompetence.  This is a win for CJLF.  Our press release is here.

2.  Sent the cross-border shooting case of Hernandez v. Mesa back to the Fifth Circuit to reconsider in light of the Abbasi decision.  Not too much to consider since they got it right the first time and Abbasi does not in any sense move the ball in plaintiff's direction.  This is a partial win for CJLF as well.

3.  Took up the travel ban case and stayed the orders enjoining its enforcement to the extent they apply to persons with no connection to the United States.  This is a bit of a slap to the lower courts for granting preliminary injunctions that are far broader than their justification.
The U.S. Supreme Court this morning went back into the area of criminal defense lawyers giving bad advice on the immigration consequences of a conviction, a can of worms it opened in its 2010 decision of Padilla v. Kentucky.  Today's case is Lee v. United States, No. 16-327.

Jae Lee was a legal permanent resident who was caught dealing ecstasy.  When offered a plea deal, he asked his retained attorney about immigration consequences and was assured he would not be deported.  "According to Lee, the lawyer assured him that if deportation was not in the plea agreement, 'the government cannot deport you.' "  Wow.  What an idiot, if that was really the basis of his advice.  Dealing drugs is an "aggravated felony" under immigration law.  As such it results in mandatory deportation, and no, Bozo, it doesn't have to be in the plea agreement.

The two prongs of an ineffective assistance claim are deficient performance and resulting prejudice.  Here we have deficient performance in spades.  How about prejudice?  Is a defendant prejudiced by a plea deal when the prosecution has a slam-dunk case for guilt that almost certainly would have resulted in a higher sentence plus deportation anyway?  The majority, per C.J. Roberts, says yes.  Justice Thomas, joined by Justice Alito, dissents.  Justice Gorsuch did not participate.

Materiality

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Today's theme out of the United States Supreme Court is materiality.  If you describe what happened in a case and people look puzzled and ask "So what?" you have a materiality issue.

Maslenjak v. United States, No. 16-309, involves the crime of lying in the naturalization process.  It is error to instruct the jury that they can convict on finding a false statement without also finding that the falsity somehow contributed to the decision.

Turner v. United States, 15-1503, involves the rule of Brady v. Maryland that prosecutors must turn over to the defense any material exculpatory evidence in their possession.  "Material" in this context means a reasonable probability it would have made a difference in the result.  The Court holds 6-2 that the evidence in this case was not material.

Weaver v. Massachusetts, No. 16-240, involves a claim that the defendant's trial lawyer was ineffective for failure to object to the exclusion of the public (including the defendant's mother) from an overcrowded courtroom during jury selection.  Violation of the public trial right is a "structural error," reversible without any showing that it mattered, but that claim was forfeited by failure to object.  Ineffective assistance of counsel is reversible only upon a showing of "prejudice" which means the same thing as "materiality" in the Brady context, i.e., a reasonable probability it made a difference.  The Court held that the prejudice requirement continues to apply even when the underlying error is "structural," or at least this particular subspecies of structural errors, and no prejudice has been shown here.

Justice Kennedy wrote the opinion of the Court.  Justice Thomas wrote a concurring opinion.  Justice Alito wrote an opinion concurring in the judgment.  Justice Gorsuch joined all three.  Justice Breyer dissented, joined by Justice Kagan.  CJLF filed an amicus brief in this case, written by Kym Stapleton.

Freezing Bivens In Place

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Can and should the federal courts invent new kinds of lawsuits, creating causes of action that Congress has not authorized?  The U.S. Supreme Court's thinking on that question has evolved over the years, and it took another step today.

Courts have been creating causes of action for a very long time.  The English courts did so before there even was a Parliament as we now know it, and these are the "common law" causes of action we learned in the first year of law school.  They created common law crimes as well.

But courts do this less than they used to, and the federal courts do less than the state courts.  Many states no longer have common law crimes; the federal courts have never been thought to have the power to create them.

During Reconstruction, Congress created a cause of action for people whose constitutional rights are violated by state and local officials, but not by federal officials.  In 1971, the Supreme Court created such a cause of action under the banner of "for every wrong there is a remedy."  That was the Bivens case, involving an alleged Fourth Amendment violation by federal agents.  In the next few years, the Court expanded Bivens a couple of times to new areas, but then it stopped.

The present Supreme Court term has two cases presenting the questions of what it means to extend Bivens to a new area and whether to do so.  One of those cases was decided today by a short-handed six-Justice Supreme Court.  If the approach of the four-Justice majority is reaffirmed in the next case, then Bivens is effectively frozen in ice.  It will exist within its current scope, but it will not be extended, and nearly any variation on existing themes will be considered an extension.

Busy Decision Day at SCOTUS

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Here are some quick notes on this morning's decisions from the U.S. Supreme Court.

Jenkins v. Hutton is a per curiam reversal of the Sixth Circuit for wrongly overturning a death sentence.  The Sixth misapplied the "fundamental miscarriage of justice" exception of Sawyer v. Whitley.  On a quick read, though, it appears the opinion may do more to muddy the waters about the distinction between death penalty eligibility and selection than it does to clarify them.

McWilliams v. Dunn ducks the question of whether, when a defendant qualifies for appointment of an expert under Ake v. Oklahoma, the expert must be a defense expert, not a neutral.  The court holds that the state court in this case did not meet the basic requirements of Ake.  Justice Alito's dissent blasts the majority for proceeding in this manner, ducking the question the court agreed to decide and deciding on a question it had denied review on.  I am pleased to see Justice Gorsuch joining this dissent.

Ziglar v. Abbasi, decided by a six-member court, declines to extend civil suits to suing high government officials for detention policies in the wake of 9/11.  Congress has not authorized such suits, and the court continues to decline to extend its Bivens line of cases into new territory.

Packingham v. North Carolina decides that the state went too far in banning convicted sex offenders from social media sites.  No dissent on the result.  Justice Alito, joined by the Chief Justice and Justice Thomas, concurs in the result, expressing concern about the sweeping rhetoric of the Justice Kennedy's majority opinion.  Justice Gorsuch did not participate in this case.

The next expected decision day is Thursday.
The U.S. Supreme Court today released orders from its conference last week, opinions in several argued cases, and one summary per curiam opinion.  There were no criminal law cases accepted for review or decided after argument.  However, the summary opinion was yet another reversal of a federal court of appeals for failure to respect the limits Congress placed on its authority to overturn state judgments for mere disagreement with a state court on an unsettled question.

Virginia v. LeBlanc, No. 16-1177, involves the rule of Graham v. Florida that a person under 18 at the time of the crime cannot be sentenced to life without parole for a crime less than murder.  The Fourth Circuit had disagreed with the Virginia state courts on the question of whether the state's "geriatric release" program provided a sufficient possibility of release to satisfy the Graham rule.

The Court today holds only that the Virginia trial court's ruling, resting on the Virginia Supreme Court's earlier ruling in Angel, was not objectively unreasonable in light of this Court's current case law.
In Honeycutt v. United States (16-142), the U.S. Supreme Court unanimously reversed the Court of Appeals for the Sixth Circuit holding that a co-conspirator cannot be ordered to forfeit conspiracy proceeds did not personally obtain under a theory of joint and severable liability.

In this case, the Honeycutt brothers operated a hardware store - Tony owned the store with their father, and Terry was a "salaried employee" who managed sales and inventory.  The brothers were warned by law enforcement that a product they carried called "Polar Pure", a iodine based water purification product, contained an ingredient that could be used to manufacture methamphetamine.  Despite the warning, the brothers continued to sell large quantities of the product, and over a 3-year period the store grossed more than $400,000 from the sale of more than 20,000 bottles of Polar Pure.  The brothers were subsequently indicted for various federal crimes relating to the sale of iodine with the knowledge it would be used to manufacture methamphetamine.

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