THE SUPREME COURT TOP TEN COUNTDOWN

JUDGE ANDREW S. HANEN Ashley Morris, Law Clerk for Judge Hanen

United States District Court 600 E. Harrison, #301

Brownsville, TX 78520

State Bar of Texas SOAKING UP SOME CLE:

A SOUTH PADRE LITIGATION SEMINAR May 10-11, 2007

South Padre Island

CHAPTER 8

Andrew S. Hanen© 2007 All Rights Reserved

ANDREW S. HANEN, UNITED STATES DISTRICT JUDGE

FOR THE SOUTHERN DISTRICT OF TEXAS, BROWNSVILLE DIVISION Judge Hanen grew up in Waco, Texas. He graduated from Denison University in Granville, Ohio, with honors in 1975. He then attended Baylor University School of Law where he graduated first in his class in 1978. Following graduation, he was a briefing attorney for Chief Justice Joe R. Greenhill of the Supreme Court of Texas. He then moved to Houston where he practiced civil trial law for over twenty years. He is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization. He has been recognized as the Outstanding Young Lawyer in Texas and as an Outstanding Young Alumnus of Baylor University. In 2000, he was awarded the Professionalism Award by the State Bar College and has also received recognition as the co-author of the state’s outstanding Law Review Article by the Texas Bar Foundation. He is a past President of the Houston Bar Association and a past director of the State Bar of Texas. In 1992, he was nominated to be a United States District Judge by President George H. W. Bush, but the nomination lapsed. He was nominated by President George W. Bush in 2002 to be a District Judge. He was confirmed in May of 2002 by a 97-0 Senatorial vote and serves in the Brownsville Division of the Southern District of Texas. He is 53 years old and is married to real estate attorney Diane Dillard, and they have one child.

ASHLEY MORRIS, LAW CLERK FOR JUDGE HANEN Ashley Morris grew up in West Texas and Port Isabel, Texas. She is a graduate of Columbia University in New York. She is also an honors graduate of the University of Texas School of Law and was a member of the Order of the Coif. She was the recipient of the Mary Pearl Williams Scholarship for leadership and community service and the George H. Mitchell, University of Texas Co-Op Public Interest Fellowship. She was one of five students named as Public Service Scholars in 2006. She currently serves as a law clerk for Judge Hanen.

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The Supreme Court’s Top Ten Countdown

of Cases for the 2006-2007 Term Andrew S. Hanen and Ashley Morris

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Purcell v. Gonzalez; Arizona v. Gonzalez October 20, 2006 127 S.Ct. 5 Issue : Voting Rights Act of 1965 Did the Court of Appeals properly defer to the District’s Court’s fact findings in reversing the denial of the injunction of Arizona Proposition 200? Vote : Per Curiam (Stevens, J. concurring) Holding : The plaintiffs sought injunctive relief to prevent the implementation of voter fraud prevention measures pursuant to “Proposition 200" in Arizona elections. Proposition 200 was passed by voters in 2004, requiring proof of citizenship to register and identification to vote. In addition to registration and identification requirements, Arizona’s law contained alternatives to strict documentation requirements, including conditional ballot casting subject to review and early voting. The District Court denied the request for an injunction, but did not make findings of fact until a month later. The Court of Appeals

reversed without oral argument and granted the injunction. With time pressure before the election, the Court of Appeals also reversed the District Court without making it own factual findings. The Supreme Court recognized the significance of the case, considering the dangerous risk of voter fraud, which the Court equated with the dilution of valid votes. The Supreme Court found that the Court of Appeals’s failure to show deference to the District Court’s factual findings was error. Even though the District Court had not yet issued its findings when the Court of Appeals made its time-sensitive decision on review, the Supreme Court still found the absence of express deference was error. The Supreme Court acknowledged that its decision allowed the election to proceed with the contested voter identification requirements in effect. The Supreme Court effectively ruled that the time pressure due to pending elections was no excuse for the Ninth Circuit’s failure to find its own facts or point out the lower court’s factual error to support their reversal. Without this specificity, the Court of Appeals could not overcome the proper deference owed the District Court’s findings. Best Lyrics : “Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our

“Respect” by Otis Redding

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government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.” “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.” “These considerations, however, cannot be controlling here. It was still necessary, as a procedural matter, for the Court of Appeals to give deference to the discretion of the District Court. We find no indication that it did so, and we conclude this was error.”

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Lance v. Coffman March 5, 2007 127 S.Ct. 1194 Issue : Standing Did a state court’s redistricting violate the Election Clause of the United States Constitution? Vote : Per Curiam Holding : Private citizens do not have standing to challenge whether a state redistricting law violated the Election Clause merely on the basis of the injury suffered by all citizens.

After Colorado legislators failed to redraw the congressional districts to add a representative as required by the 2000 census, the Colorado state court did it for them. The United States Supreme Court had previously reversed a dismissal for lack of jurisdiction on the “Rooker-Feldman” abstention doctrine, and the District Court had found that the case was foreclosed by Salazar v. Davidson, 79 P.3d 1221 (Col. 2003)(litigated by the Secretary of State) under the doctrine of issue preclusion. The Supreme Court determined that the plaintiffs, four voters, did not have standing. They were asserting a generalized grievance that the law —the Election Clause — was not being followed. To be a “case or controversy” one must demonstrate injury in fact, traceability, and redressability. A generalized grievance will not suffice; one must have a particularized stake in the litigation.

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Lopez v. Gonzalez December 5, 2006 127 S.Ct. 625 Issue : Immigration Status/Aggravated Felonies Is a prior conviction for simple drug possession under state law an aggravated felony? Vote : 8 - 1 (Thomas, J. dissenting)

“Stand By Your Man” by Tammy Wynette

“Immigration Man” by Graham Nash

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Holding : Federal law, the Controlled Substance Act, and how a defendant’s crime would have been characterized under federal law, govern whether a prior conviction constitutes an aggravated felony, even if it was a state misdemeanor conviction. Future Applications of This Case : This reasoning has since been extended to apply not only to the immigration law question regarding whether a defendant’s prior conviction constituted an aggravated felony under the Immigration and Nationality Act, but also to determine whether the prior conviction was an aggravated felony for sentencing enhancement purposes. Dissent : Justice Thomas’s dissent points out that the majority’s opinion does not help uniformity of the classification of aggravated felonies. Some drug possessions are still aggravated felonies even under federal law (even though they could be misdemeanors under state law). The dissent suggests the majority has taken its own trip “through the looking glass.” Best Lyric : “Humpty Dumpty used a word to mean ‘just what [he chose] it to mean – neither more nor less,’ and legislatures too, are free to be unorthodox.”

8B (the Flip Side)

Gonzales v. Duenas-Alvarez January 17, 2007 127 S.Ct. 815 Issue : Theft Offenses/Immigration Law Was an alien who had a prior conviction for California’s non-consensual driving or taking of a vehicle offense, which included aiding and abetting, deportable for committing a “theft offense”? See Cal. Veh. Code Ann. §10851(a) (West 2000). Vote : Unanimous (Stevens, J. concurring in part and dissenting in part) Holding : The meaning of a “theft offense” includes “aiding and abetting” a theft offense. A prior conviction for aiding and abetting a theft offense should also subject a defendant to deportation under 8 U.S.C. § 1101(a)(43)(G). Whether a prior conviction is a “theft offense” is determined by the generic theft definition. Judges should look first at the state statute and not the facts, but if the state crime defines theft broadly to include crimes falling outside generic burglary, the judge should also examine the charging document

“Drivin’ My Life Away” by Eddie Rabbit, David Malloy, and Even

Stevens

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and jury instructions to determine whether the conviction required the prosecutor to prove all the elements of generic theft. Aiders and abettors have been treated as equal to principals across all state and federal jurisdictions for a long time. Best Lyrics : “[W]e cannot agree that . . . California’s law is somehow special” (referring to aiding and abetting offenses that include unintentional, unknowing acts). “Moreover in our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language.” “Duenas-Alvarez does not defend the Ninth circuit’s position.”

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Carey v. Musladin December 11, 2006 127 S.Ct. 649 Issue : Trial Procedure / Inherent Prejudice In a 2254 habeas corpus petition following a death penalty conviction, the Defendant claimed his constitutional rights were violated because the victim’s family had sat in the front row with buttons displaying the victim’s image at trial. The United States

Supreme Court addressed whether the state court’s conviction was a decision contrary to, or an unreasonable application of “clearly established federal law as determined by the Supreme Court.” Vote : Unanimous Holding : At the defendant’s capital murder trial, the victim’s family sat in the front row and wore buttons displaying an image of the victim’s face. Since the activity was not a state action, the defendant in this case could not necessarily show the requirements for habeas relief. The Ninth Circuit held that the California court’s conviction was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court. The Supreme Court’s previous precedent only established that government sponsored practices, such as a law enforcement victim’s co-worker state troopers presence in uniform, or the defendant’s appearance in court dressed in prison garb was a constitutional violation. The family’s buttons were not government sponsored. The Supreme Court held that the issue of private spectator activity such as this was not clearly established. Consequently, the Supreme Court had not yet addressed whether the practice was so inherently prejudicial to deprive a defendant of a fair trial that it was required justification of an essential state policy or interest. The lack of a factual record regarding the buttons may have hurt the Defendant’s record in this case. The buttons were apparently two to four inches in

“The First Time Ever I Saw Your Face” by Ewan MacColl

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diameter, with a photo image of the victim on them. The court was not sure how many family members wore the buttons or how many days they wore them. The Supreme Court’s other precedent cases regarding the prejudice of the defendant in prison garb, and the placement of state trooper spectators behind the defendant, were distinguishable because they were state-sponsored conduct. Concurrences (Stevens, Kennedy, Souter) : Justice O’Connor made a “posthumous” appearance in Justice Stevens’s concurrence. Justice O’Connor made such a lasting impression on death penalty jurisprudence that even her dicta on the subject of dicta lives on. Stevens notes “in a somewhat ironic dictum in her Williams opinion, Justice O’Connor stated that the statutory phrase ‘clearly established Federal law, as determined by the Supreme Court of the United States’ refers to ‘the holdings, as opposed to the dicta, of this Court’s decisions as of that time of the relevant state-court decision.’” citing Williams v. Taylor, 529 U.S. 362, 412 (2000). But O’Connor’s dicta could not minimize the impact of even her own dicta. The O’Connor dictum, quoted above, Stevens noted, “has been repeated in three subsequent opinions in which a bare majority of the Court rejected constitutional claims that four of us would have upheld.” Stevens, after quoting her once again, goes on to say he disagrees with her dicta about dicta. Stevens says dicta is important guidance which courts must consider in deciding what constitutes “clearly established federal law by the Supreme Court” in habeas analysis. In other words, Stevens wants to make sure judges are instructed to regard

every Supreme Court word as precious, including those he is able to slip in to his concurrences. “It is quite wrong to invite state court judges to discount the importance of such guidance on the ground that it may not have been strictly necessary as an explanation of the Court’s specific holding in the case.” Both Kennedy’s and Souter’s separate concurrences make clear that their analysis did not turn on the spectator versus state-sponsored distinction. Kennedy also focuses on whether the trial is tainted by an atmosphere of coercion or intimidation. Souter’s opinion focuses on the juror’s perspective — whether there was an unacceptable risk of impermissible factors coming into play in the jury’s consideration of the case. Best Lyric : “The text of AEDPA itself provides sufficient obstacles to obtaining habeas relief without placing a judicial thumb on the warden’s side of the scale” (Stevens, J. concurring).

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Cunningham v. California January 22, 2007 127 S.Ct. 856 Issue : Constitutionality of California’s Sentencing Guidelines Does the California sentencing guideline scheme violate a Defendant’s Sixth and

“Oops! . . . I Did It Again” by Max Martin and Rami

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Fourteenth Amendment rights? Vote : 6 - 3 (Kennedy, J., Breyer and Alito dissenting) Holding : Supreme Court precedent in Apprendi and Blakely require that the California Sentencing Guidelines be held unconstitutional under the Sixth and Fourteenth Amendments. See Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004). The Constitution prohibits a sentencing scheme that allows a judge to impose a sentence above a statutory maximum based upon a fact (other than a prior conviction) not found by a jury. The dissent and majority in this case seem to have polar opposite, inconsistent interpretations of how the Determinate Sentencing Law (“DSL”) (California sentencing guideline scheme) functions. Alito views the guidelines as “comparable” to post-Booker federal sentencing guidelines. See United States v. Booker, 543 U.S. 220 (2005). But the majority thinks the scheme works the same as the scheme under pre-Booker guidelines. In California, the sentencing options under the DSL are three prescribed, definite terms ─ “three fixed sentences with no ranges between them.” Cunningham’s sentence, based upon his offense of sexual assault, had to be either 6, 12, or 16 years. The medium term is the default term of imprisonment, and the sentencing judge has no discretion to vary the sentence, unless he makes additional findings of fact. According to the majority, this fact finding is mandatory, in order for a judge to sentence the low or high term. California

must either allocate to the jury any fact finding necessary to the imposition of a higher sentence, or give the judges broad discretion within a statutory range. Dissents : Kennedy interprets the California scheme as “guided discretion.” Kennedy expounds on the institutional capacity of judges for discretion and the importance of this discretion. (quoting O’Connor’s dissents in Blakely, 542 U.S. at 314). Kennedy draws a line between characteristics of the offense, which should be decided by the jury under Apprendi, and characteristics of the offender, which he believes should be open to a judge’s determination for sentencing. Alito thinks the California scheme is inoffensive, because, like the post-Booker federal sentencing guidelines, the discretion can be subject to appellate review for reasonableness. If the federal guidelines can be read as merely advisory, Alito thinks the California scheme allows for advisory guidelines for judicial fact finding as well. Alito thinks that even post-Booker, federal judges are using some fact finding applied to their discretionary criteria to sentence under the advisory guidelines. Alito finds the California DSL scheme effectively indistinguishable.

Alito also draws a distinction between an “adjudicative fact” and a “circumstance in aggravation” which includes more “policy consideration[s]” such as a judge’s subjective belief as to the appropriateness of the sentence and underlying sentencing “objectives.” The DSL permits judge to find “circumstances in aggravation” to sentence appropriately in their discretion while leaving “adjudicative facts” in the sole domain of the jury.

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Best Lyrics : “Justice Alito maintains, however, that a circumstance in aggravation need not be a fact at all. In his view, a policy judgment, or even a judge’s ‘subjective belief’ regarding the appropriate sentence, qualifies as an aggravating circumstance.” “A fact underlying an enhancement cannot do double duty; it cannot be used to impose an upper term sentence and, on top of that, an enhanced term. Where permitted by statute, however, a judge may use a fact qualifying as an enhancer to impose an upper term rather than an enhanced sentence.” “Reasonableness, however, is not, . . . the touchstone of the Sixth Amendment analysis.”

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Whorton v. Bockting February 28, 2007 127 S.Ct. 1173 Issue : Retroactivity of Crawford v. Washington, 541 U.S. 36 (2004) How should the Crawford v. Washington interpretation of the Confrontation Clause be applied on collateral review? Vote : Unanimous

Holding : Crawford is not to be applied retroactively to cases already final on direct review when Crawford was decided because it is announced a new rule. Teague v. Lane, 489 U.S. 288 (1989). The interpretation of the Confrontation Clause in Crawford was not dictated by precedent governing at the time this Defendant’s conviction became final.

The decision does not fall into the extremely narrow exception for “watershed rules” of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. Crawford v. Washington does not rise to this level, meeting the two requirements to classify it as a watershed case like the guarantee of counsel in Gideon v. Wainwright. First, Crawford does not relate to an impermissibly large risk of an inaccurate conviction. Second, the Crawford rule did not alter the Court’s understanding of the “bedrock procedural elements essential to the fairness of a proceeding.” The Confrontation Clause interpretation itself was not based on a previously unrecognized bedrock procedural element essential to a fair proceeding. Background Facts : The victim of the sexual assault conviction at issue in this case was a child under ten years of age. A Nevada statute permitted out of court statements made by a child under ten years of age describing acts of sexual assault or physical abuse to be admitted if the court finds that the child was unavailable or unable to testify, and if the time, content, and circumstances of the statement provide sufficient circumstantial

“I Heard It Through the Grapevine” by Norman Whitfield and Barrett Strong

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guarantees of trustworthiness. Nev.Rev.Stat. § 51.835(1)(a) (2003). The out of court statements were admitted at trial. The Nevada court, before Crawford, applied Roberts v. Ohio and found the admission of the victim’s statements constitutional because the circumstances surrounding it provided particularized guarantees of trustworthiness. See Ohio v. Roberts, 448 U.S. 56 (1980). If Crawford were to apply to this case, the issue would have been whether the statements by the child were testimonial, but there was no dispute in this case that the conviction became final before the Crawford decision. After the conviction became final, the Supreme Court issued its decision in Crawford v. Washington, describing its interpretation of the Confrontation Clause as consistent with the outcome in Roberts, but overruling the interpretation in Roberts as unsound in several aspects. Best Lyric : “A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.”

4 Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp. March 5, 2007 127 S.Ct. 1184 Issue :

Forum Non Conveniens / Personal Jurisdiction Can a court dismiss on the basis of Forum Non Conveniens before it conclusively establishes that it has subject-matter and personal jurisdiction? Vote : Unanimous Holding : A federal court may dismiss on the basis of forum non conveniens even before addressing whether it has subject matter jurisdiction or personal jurisdiction over the defendant if a foreign tribunal is a more suitable arbiter of the merits of the case. This case arose out of a Chinese corporation’s misrepresentations before a Chinese admiralty court. That court’s decision led to the arrest of a Malaysian vessel in China. A federal court generally must first determine its subject matter jurisdiction and personal jurisdiction over the defendant before addressing the merits. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 93-102 (1998). Nevertheless, the Court established in this case that “there is no mandatory sequencing of nonmerits issues.” “A court has leeway to choose among threshold grounds for denying audience to a case on the merits” (omitting internal citations and quotes). Forum non conveniens is a nonmerits ground for dismissal. Since forum non conveniens was a sound, well-considered basis for dismissal in this case, judicial economy would have been disserved by continuing litigation in the District Court. Even though there were factual issues surrounding the bill of lading and the

“Sail Away” by Randy Newman

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payment of the non-party domestic purchaser that occurred within the Third Circuit’s jurisdiction, the fact that there were already on-going proceedings in China influenced the forum non conveniens holding. The Court distinguished this case from other circumstances where there might be a real threat that another more appropriate forum would not be willing to hear the case. The Court considered that “the gravamen of Malaysia International’s complaint—misrepresentations to the Chinese admiralty court in securing the vessel’s arrest in China” was most appropriate for the discretion of a Chinese court. Considering the costly discovery that would be necessary to develop the issues relevant to personal jurisdiction, the Supreme Court said that burden would have been wasteful in light of the clear forum non conveniens issues. The Supreme Court provided practical guidance: “If [] a court can readily determine that it lacks jurisdiction over the cause or the defendant, the proper course would be to dismiss on that ground. . . . But where subject-matter or personal jurisdiction is difficult to determine, and forum non conveniens considerations weigh heavily in favor of dismissal, the court properly takes the less burdensome course.” Future Applications of This Case : District courts may apply this decision most readily to similar disputes where the forum chosen is not the plaintiff’s home jurisdiction. This case involved a dispute between international parties and would have depended on a determination of foreign law. Not only would the legal issues have been difficult for the domestic district court, but there were factual issues as well

which occurred in China, such as the payment of a Malaysian company that would have been in controversy. If, however, the practical issues relevant to forum non conveniens in another case would also require arduous inquiry, cost, or delay, district courts may find it more efficient to address the threshold, nonmerits issues in another order. The Third Circuit had required a finding of personal jurisdiction based on a case, Gulf Oil, 330 U.S. at 504, the Supreme Court described as “less than felicitously crafted.” That case, the Court clarified, merely required that if a court had already determined there was definitely no jurisdiction, it was required to dismiss at once, without further examining other threshold issues like forum non conveniens. In this case, however, the District Court had not yet reached a determination on personal jurisdiction, and in fact saw that discovery would be necessary to do so. This verdict resolved a circuit split in which the Fifth Circuit that, like the Third Circuit decision on review in this case, fell on the losing end. It effectively reverses the Fifth Circuit decision of Dominguez-Cota v. Cooper Tire and Rubber Co., 396 F.3d 650, 652-54 (2005), which required jurisdictional issues to be resolved before a court could rule on a motion for forum non conveniens. Best Lyric : “This is a textbook case for immediate forum non conveniens dismissal.”

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3 Travelers Cas. and Sur. Co. of Am. v. Pac.

Gas and Elec. Co. March 20, 2007 127 S.Ct. 1199 Issue : Contractual Attorney’s Fees in Bankruptcy If a particular unsecured creditor has contracted for attorney’s fees with the debtor in the context of litigation before bankruptcy is filed, can a Federal Bankruptcy Court enforce that attorney’s fees agreement? Vote : Unanimous Holding : If the parties have contracted in advance for attorney’s fees, the bankruptcy court may respect that contract in the reorganization plan. The Bankruptcy Code does not necessarily prohibit the enforcement of a contract which allocates attorney’s fees. Although the agreements between the parties gave Pacific Gas and Electric Co. (“PG&E”) the right to object to attorney’s fees, the Bankruptcy Court erred in ruling that Travelers Casualty and Surety Co. of America (“Travelers”) could not recover attorney’s fees simply because they were

litigating issues of bankruptcy law. Generally, “state law governs the substance of claims.” For the first time at oral argument, instead of trying to defend the Ninth Circuit law, PG&E argued that §506(b) of the Bankruptcy Code barred the attorney’s fees related to litigating unsecured bonds. Because PG&E’s statutory interpretation of this provision had not been briefed, argued, and analyzed by the lower courts, the Supreme Court refused to address it. Background Facts : Travelers had issued a “$100 million surety bond on PG&E’s behalf to the California Department of Industrial Relations.” Travelers guaranteed PG&E’s payment for workers compensation benefits to injured state workers. In exchange, PG&E made indemnity agreements to Travelers benefit. Those indemnity agreements included coverage for any attorney’s fees “incurred in pursuing, protecting, or litigating Travelers’ rights in connection with those bonds.” Thereafter, PG&E filed for bankruptcy voluntarily under Chapter 11, but continued its business. Travelers then filed a claim against PG&E and the dispute was settled by a stipulation between the parties that was approved by the Bankruptcy Court. That stipulation explicitly provided for Travelers’ right to attorney’s fees under the indemnity agreements. Future Applications of This Case : This case resolved a circuit split, overruling an invention of the Ninth Circuit called the Fobian rule, which was a blanket bar on attorney’s fees for litigation of issues governed entirely by federal bankruptcy law. See In re Fobian, 951 F.2d 1149 (9th

“Take the Money and Run” by Steve Miller

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Cir. 1991). The Supreme Court makes clear that the ruling of this case would not necessarily apply if Travelers claim for attorney’s fees was related to property tax, child support or alimony, services provided by an attorney of the debtor, damages resulting from the termination of a lease or employment contract, or the late payment of any employment tax” because the Bankruptcy Code would affirmatively bar those claims. §§502(b)(2)-(8). Similarly, if the proof of claim was untimely, a contractual agreement for attorney’s fees could not subvert the timeliness requirement of the Bankruptcy Code. §502(b)(9). Nevertheless, unless expressly disallowed by the Bankruptcy Code, claims for attorney’s fees should be allowed, as governed by state law. Best Lyrics : “PG&E makes no effort to defend the Fobian rule.” “We generally assume that claims enforceable under applicable state law will be allowed in bankruptcy unless they are expressly disallowed.”

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Massachusetts v. E.P.A. April 2, 2007 127 S.Ct. 1438 Issue : Standing / Meaning of “Pollutant” Under the

Clean Air Act There were two significant issues in this case. The first is whether any of the some 20 odd plaintiffs, some of which were states, had standing to assert a justiciable case or controversy under Article III of the Constitution. The second issue is whether the EPA violated the Clean Air Act in refusing to regulate new car carbon dioxide emissions based on scientific evidence of purported global warming. Vote : 5 - 4 (Roberts, C.J., Scalia, Thomas and Alito dissenting) Holdings : A. Standing One of the petitioners, the state of Massachusetts, had standing to challenge the EPA interpretation of the Clean Air Act. Massachusetts could show an injury in fact because the Massachusetts coastline was under imminent threat caused by global warming. The Supreme Court ultimately held that the type of injury Massachusetts would suffer satisfied the injury, causation, and redressability required by Article III standing jurisprudence. The majority looked at precedent as far back as 1907, Georgia v. Tennessee Copper Co., 206 U.S. 230, which recognized a state’s judicially cognizable interest as a property owner, on behalf of its citizens’ health interests, as well remarkably for its protection of its own position and special interests as a “sovereign.” In reaching this decision the majority accorded Massachusetts “special solicitude” without elaborating further. B. Clean Air Act Interpretation

“Ocean Front Property” (In Arizona) by Hank Cochran, Dean Dillon, and

Royce Porter

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The Court found the Clean Air Act’s authorization of the regulation of carbon dioxide emissions unambiguous, and the EPA’s conclusion that it lacked power to regulate, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Clean Air Act’s definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air.” §7602(g). The Court ruled that the statutory definition included carbon dioxide. The majority catalogs the evidence submitted by various organizations regarding global warming linked to carbon dioxide emissions. The Court goes on to list the various measures passed by the House and Senate in response to the threat, which indicate an appreciation for greenhouse gas emissions and the connection to global warming. The agency conceded the facts demonstrating increased greenhouse gases from human activity and rising temperatures, but resisted the conclusion of global warming by hanging on the NRC Report stating that the causal link could not be “unequivocally established.” (citing NRC Report 16). Future Applications of This Case : This case is being hailed as potentially establishing a new standing jurisprudence for states, as plaintiffs, describing their “capacity of quasi-sovereign.” (citing Georgia, 206 U.S. at 237). The decision does not necessarily mandate specific carbon dioxide regulations, but only that the EPA cannot defend its refusal to regulate by saying that it has no

authority under the Clean Air Act. This holding requires that the “EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.” This case may also make it more likely parties will be able to show standing based on an injury caused by an agency’s failure to act. Dissents : Chief Justice Roberts offered a dissent, joined by Scalia, Thomas, and Alito. The complaint of global warming, raised by the states as petitioners, is nonjusticiable according to the dissent’s application of standing doctrine. The Chief Justice warns against relaxing the constitutional bar for standing for a State. He says that under the judicial review provision, 42 U.S.C. § 7607(b)(1), states have “ no special rights or status.” He criticizes the majority’s reliance on Georgia v. Tennessee, 206 U.S. 230 (1907) explaining that its only distinction granted the State from a private litigant was with respect to available remedies, not standing. The Chief Justice goes on to raise doubt as to the true threat to the Massachusetts coastline, and to suggest that the connection to global warming was speculative. The dissent’s complaint is that the data relied upon by the majority’s standing holding has a margin of error which exceeds the projected loss of coastline. Lastly, he attacks the factual conclusion that the majority bestowed upon the State of Massachusetts standing by giving it “special solicitude.” It is not clear how the Court’s

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“special solicitude” for Massachusetts plays out in the standing analysis except as an implicit concession that the petitioners can not establish standing on traditional terms. Justice Scalia wrote a dissent, joined by the Chief Justice, Thomas, and Alito. Scalia objects to carbon dioxide’s characterization as “an air pollution agent or combination of such agents.” Scalia defends the policy judgments of the EPA and its discretion in deciding that a piecemeal mandated regulation of emissions would not be the best approach. He argues that the statute is flexible enough to give the EPA the option to decide the scientific support for action is too uncertain. He goes on to quote the 2001 National Research Council (NRC) report on climate change which describes more nuanced uncertainties in climatology than what the majority simplified as the inability to “unequivocally establish” the causation. Best Lyrics : “[Climate Scientist, Michael] MacCracken's 2004 affidavit-drafted more than a year in advance of Hurricane Katrina-was eerily prescient. Immediately after discussing the “particular concern” that climate change might cause an “increase in the wind speed and peak rate of precipitation of major tropical cyclones (i.e., hurricanes and typhoons),” MacCracken noted that “[s]oil compaction, sea level rise and recurrent storms are destroying approximately 20-30 square miles of Louisiana wetlands each year. These wetlands serve as a ‘shock absorber’ for storm surges that could inundate New Orleans, significantly enhancing the risk to a major urban population.” (quoting the declaration of Michael MacCracken, former Executive Director, U.S. Global Change Research

Program ¶ 15 available in 2 Petitioners' Standing Appendix in No. 03-1361, etc., (CADC), p. 207 (Stdg.App.)). “Today’s decision recalls the previous high-water mark of diluted standing requirements. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973). . . . Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer’s game . . . . Today’s decision is SCRAP for a new generation” (Roberts, C.J. dissenting). “The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency” (Scalia, J. dissenting). “It follows [from the majority’s analysis] that everything airborne from Frisbees to flatulence qualifies as an ‘air pollutant.’” (Scalia, J. dissenting).

1

Phillip Morris USA v. Williams February 20, 2007 127 S.Ct. 1057 Issue : Constitutionality of Punitive Damages Did an award for punitive damages, wherein a jury was permitted to take into account the harm suffered by victims not before the

“Why Do You Punish Me?” by Erwin King

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court, constitute a due process violation? Vote : 5 - 4 (Stevens, J. Ginsburg, Scalia, and Thomas dissenting) Holding : Punishing the defendant for harming persons who are not presently before the court violates due process. State law must provide guidance for the jury’s discretion to award punitive damages. Unbridled discretion unconstitutionally permits the jury to arrive at an arbitrary punishment. The Supreme Court found the jury instructions lacked standards to cabin their discretion. This omission made the damages award arbitrary, and thus in violation of a defendant’s constitutional right under the Due Process Clause. Background Facts :

The trial judge, applying Oregon law, had rejected a jury instruction, offered by Phillip Morris, specifically stating that the punitive damages should not “punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims.” The jury found Phillip Morris liable for proximately causing the death of Jesse Williams, awarding $821,000 in compensatory damages and 79.5 million dollars in punitive damages to the estate based upon theories of negligence and deceit under Oregon common law. The trial judge reduced that punitive damage award to $32 million, finding it unconstitutionally “excessive.” See BMW of North America, Inc. v. Gore, 517 U.S. 559, 599 (1996).

The Oregon Court of Appeals, however, found the 79.5 million dollar award was not “grossly excessive,” although it was almost 100 times the compensatory damages and reversed the trial court’s remmititur. Future Application of this Case : The Supreme Court clarified that although a jury could award punitive damages, even for potential harm, it had to be harm potentially caused the plaintiff in that particular case. Although evidence of harm to others may be presented to the jury, relevant to the issue of “reprehensibility” of a defendant’s conduct, it must not be used to calculate punitive damages. Without dictating what procedures a trial court must use to guide and limit jury discretion, the Supreme Court found that no procedures were implemented here to protect against an arbitrary verdict. Without clarifying the role harm to others would play or not play in the reprehensibility analysis, the risk of the jury reaching an arbitrary verdict was unconstitutionally impermissible. By deciding the case on other grounds, the Court avoided addressing any interpretation of how to apply its “grossly excessive” standard from previous precedent. Dissents : Justices Stevens, Thomas, and Ginsburg wrote separate dissents. Justice Stevens thinks the Oregon court did not err in allowing punitive damages to cover public harm at large, which is attributable to reprehensible conduct. Justice Ginsburg’s opinion is joined by Scalia and Thomas. She points out that

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damage to others appropriately serves as proof of the defendant’s reprehensibility in the punitive damage analysis. Ginsburg’s decision also turns on her determination that Philip Morris did not preserve an objection to the failure to deliver its own charge to the jury, but only preserved its objection to the trial court’s refusal to give the defendant’s requested charge. She points out the confusion in the defendant’s requested charge left the judge obligated to refuse it. Ginsburg, sympathizing with the trial court’s dilemma in rejecting the requested jury charge, “would accord more respectful treatment to the proceedings and dispositions of state courts that sought diligently to adhere to our changing, less than crystalline precedent.” Justice Thomas, writes only to add an originalist constitutional support for Ginsburg’s opinion. He quotes from the BMW dissent, noting that the punitive damages jurisprudence is “insusceptible of principled application.” See BMW, 517 U.S. at 599. Thomas also reaches a point unaddressed by the majority, that the Constitution does not limit the size of punitive damage awards. Best Lyrics : “[A] defendant threatened with punishment for injuring a nonparty victim has no opportunity to defend against the charge.” “[T]o permit punishment for injuring a non- party victim would add a near standardless dimension to the punitive damages equation.” “It is far too late in the day to argue that the Due Process Clause merely guarantees fair procedure and imposes no substantive limits on a State’s lawmaking power. It remains

true, however, that the Court should be reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended” (Stevens, J. dissenting) (omitting internal citations).

Significant Denials of Certiorari

Boumediene v. Bush, Odah v. United States April 2, 2007 127 S.Ct. 1478 Issue : Writ of Habeas Corpus What is the availability of Habeas Corpus for Guantanamo detainees in light of the jurisdiction stripping clause in the Detainee Treatment Act of 2005 (“DTA”)? Vote : Ginsburg and Breyer, Souter for the Denial of Certiorari. Kennedy and Stevens Concur in the Denial of Certiorari. Discussion : Justices Kennedy and Stevens deny certiorari but strongly warn the government not to delay giving the detainees process. Justices Ginsburg, Breyer, and Souter said they would expedite review of the DTA.

“Sitting On the Dock of the Bay” by Otis Redding and Steve Crooper

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Anticipated Decisions In Cases Argued This Term

Gonzalez v. Carhart, 05-380, 126 S.Ct. 1314 , 413 F.3d 791 Gonzalez v. Planned Parenthood Federation of America, Inc., 05-1382, 126 S.Ct. 2901, 435 F.3d 1163 Oral Argument : November 8, 2006 Issue : The Partial Birth Abortion Ban Act of 2003 lacks an exception for the health of the mother. It only allows for the procedure if necessary to preserve the life of the mother. Congress made findings, however that no such case would exist where the procedure was necessary for the health of the mother. The issue is whether the ban is unconstitutional on its face. Arguments : The Government argued that Partial-birth abortions (dilation and extraction or dilation and evacuation) were never medically necessary. The Government argued that the statute drawing a line between infanticide and abortion strictly between whether the fetus was terminated when any part of it was outside the mother’s uterus was Congress’s intent, and that bright line test intended by Congress should be respected. The counsel for the government also argued that any challenge to the

medical necessity should be brought as an as applied challenge, not a challenge to the constitutionality of the statute. Respondents argued that the Government’s position was contrary to the Stenberg precedent of the Supreme Court which invalidated a previous Nebraska “partial birth abortion” ban. Stenberg v. Carhart, 530 U.S. 914 (2000). The Justices seemed surprised and disappointed that the Respondent could not produce any statistics on what percentage of cases where the procedure at issue was used were medically necessary as opposed to elective situations. Courts Below : The Eighth Circuit ruled that the lack of a health exception made the statute invalid if the procedure was necessary in “some instances.” Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005). The Ninth Circuit enjoined the enforcement of the same federal Partial-Birth Abortion Act of 2003 as unconstitutional. Planned Parenthood Federation of America, Inc. v. Gonzales, 435 F.3d 1163 (9th Cir. 2006). The Ninth Circuit also found the statute invalid under the Stenberg precedent. The Court of Appeals rejected the Congressional factual findings regarding the necessity of the health exception. Both cases presented a facial attack on the statute.

“Ready or Not” by Jackson Browne

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Parents Involved in Community Schools v. Seattle School Dist. No. 1, 05-908, 127 S.Ct. 574 Meredith v. Jefferson, 05-915, 127 S.Ct. 575 Oral Argument : December 4, 2006 Issue : Did race-based admissions policies for public schools, seeking to achieve racial balance, violate students’ and parents’ equal protection rights? Petitioner in the Jefferson County, Kentucky case complains that the racial quotas were inflexibly applied to force a kindergartner to change schools between kindergarten and first grade. The Petitioner in the Seattle case complains that the Court of Appeals’s acceptance of the school officials’ definition of racial diversity as a pre-determined ratio between white and non-white students was inconsistent with Grutter and “render[ed] nugatory much of the narrow tailoring prong of strict scrutiny.” The Petitioner refers back to Supreme Court precedent since Bakke, establishing that the mere “prevention of possible future discrimination” is not sufficient to justify a compelling interest. They accuse the school district of relying on just that interest in

preventing possible future discrimination to justify the school placement policy at issue in this case. Courts Below : The Ninth Circuit found for the parents and enjoined the use of race in admissions before the Supreme Court decided Gratz and Grutter. Then, it vacated its decision, and in an en banc decision after Gratz and Grutter, decided for the school district. In the Kentucky case, in 2000, the District Court in Kentucky dissolved a 1975 desegregation decree. However the school board continued to use a strict racial quota system. There were two polices, one for traditional schools and one for non-traditional schools, like magnet schools. Plaintiffs were from both traditional and non-traditional schools. The Plaintiff that remains in the case was denied entrance into a traditional school across the street from his home solely because he was white. The trial court found that the quota for traditional schools violated Equal Protection specifically because it was not narrowly tailored. The Western District of Kentucky ratified the use of quotas to continue or maintain desegregation. The parties sought certiorari to address the application of precedent involving higher education to these public schools. They also sought certiorari review to resolve circuit splits on the interpretation of what constitutes compelling interest for these schools. Another issue raised to support certiorari was the question regarding how these elementary and high school placement policies could be “narrowly tailored” to pass constitutional scrutiny.

“Be True To Your School” by Brian Wilson and Mike Love

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SUPREME COURT PUZZLER Use your knowledge of the Court and popular music to decipher this puzzle as to the Court’s biggest complaint this term. (Hint: Use the name of the singer/group that popularized the song.) 1. Stand By Your Man ~ 2. Drivin’ My Life Away ~ 3. Take the Money and Run ___ ___ ___ ___ ___ ~ ___ ___ ___ ___ ___ 4. Oceanfront Property ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ~ ___ 5. Be True To Your School ___ ___ ___ ___ ___ ___ ___ ___ ~ 6. Oops! ...I Did It Again ___ ___ ___ ___ ___ ___ ___ ~ ___ ___ ___ ___ ___

7. Ready Or Not ___ ___ ___ ___ ___ ___ ___ ___ ~ ___ ___ ___ 8. Immigration Man ~, , & . 9. First Time Ever I Saw Your Face ~ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ 10. Sitting On The Dock Of The Bay ___ ___ ___ ___ ___ ___ ___ ___ ___ ~ ___ 11. I Heard It Through The Grapevine ___ ___ ___ ___ ___ ~ ___ ___ ___ ___ 12. Why Do You Punish Me? ~ ___ ___ ___ ___ ___ ___ ___ ___

13. Respect ~ ___ ___ ___ __ ___ ___ Answer: ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ 1 2 3 4 5 6 7 8 9 10 11 12 13