Issue No. Volume No. 35 - American Bar · PDF fileVolume No. 35 March 17, 2008 ... Section 5...

COVERING THE COURT’S ENTIRE MARCH

CALENDAR OF CASES, INCLUDING …

Issue No.

6Volume No. 35

March 17, 2008

Division for Public Education

DISTRICT OF COLUMBIA V. HELLER

The Supreme Court has never clearly decided whether the SecondAmendment protects an individual right to keep firearms for self-defense

or whether it protects only a right associated with participation in astate-regulated militia. The District of Columbia prohibits almost all ofits residents from possessing handguns and requires all firearms to bestored unloaded and mechanically disabled. This test case considers

whether such regulations violate the Second Amendment.

MUNAF V. GEREN AND GEREN V. OMAR

In these consolidated cases, the Court has agreed to review the government’s assertion that its participation in a multinational force—

even a coalition force dominated and led by U.S. forces—precludes U.S. citizens detained by the U.S. military from filing habeas petitions

in the United States.

RILEY V. KENNEDY

Section 5 of the federal Voting Rights Act requires covered jurisdictions,including Alabama, to obtain preclearance from federal authoritiesbefore enacting or administering changes to voting procedures. The

Supreme Court of Alabama found a state statute invalid on state constitutional grounds, and the governor sought to administer voting

practices in accordance with this judgment without preclearance. The federal district court held that preclearance of the new

procedures was required.

www.supremecourtpreview.org

MARCH MARCH MARCH

MONDAY TUESDAY WEDNESDAY

17 18 19

MARCH MARCH MARCH24 25 26

Republic of the Philippineset al. v. Mariano J. Pimentelet al.

Rothgery v. GillespieCounty, Texas

District of Columbia et al.v. Heller

Richlin Security Service Co. v.Chertoff, Secretary of HomelandSecurity

Chamber of Commerce et al. v.Brown, Jr., et al.

Burgess v. United States

United States v.Clintwood ElkhornMining Company et al.

Riley v. Kennedy et al.

Munaf v. Geren and Gerenv. Omar

United States v. Ressam

Indiana v. Edwards

Florida Department of Revenuev. Piccadilly Cafeterias, Inc.

Cal

enda

rC

alen

dar

STANDING COMMITTEE ON PUBLIC EDUCATION

ADVISORY COMMISSION ON PUBLIC EDUCATION

CHAIRDwight L. Smith

Tulsa, OK

Chair, Law DayWilliam H. Allen

Little Rock, AR

William E. BrownMableton, GA

Karen Marie B. EdwardsMemphis, TN

Gary T. JohnsonChicago, IL

Jeffrey CornettCedar Falls, IA

Timothy S. DavisAlexandria, VA

Cathy GornCollege Park, MD

Alamdar Shabbir HamdaniHouston, TX

Valerie HansIthaca, NY

Harry S. JohnsonBaltimore, MD

Jill S. MillerDurham, NC

Harry Truman MooreParagould, AR

Marty N. OlsenMidvale, UT

Patricia Lee RefoPhoenix, AZ

Gary SlaimanWashington, DC

Bert Z. TigermanSan Francisco, CA

Mary T. TorresAlbuquerque, NM

Patricia D. WhiteTempe, AZ

William J. Woodward, Jr.Philadelphia, PA

Charles HaynesArlington, VA

Peter LevineCollege Park, MD

Orlando LuceroAlbuquerque, NM

Mary McFarlandChesterfield, MO

Harriet S. Mostache, PhDNew Rochelle, NY

Robert M. PaoliniMontpelier, VT

Gayle Y. ThiemanWashougal, WA

Deborah WilliamsonFrankfort, KY

Contents

Contents

Division for Public Education

ATTORNEY FEES

Richlin Security Service Co. v. Chertoff, Secretary of Homeland Security — page 262

CRIMINAL LAwUnited States v. Ressam — page 273

ELECTION LAW

Riley v. Kennedy et al. — page 280

HABEAS CORPUS

Munaf v. Geren and Geren v. Omar — page 294

INTERNATIONAL LAW

Republic of the Philippines et al. v. Mariano J. Pimentel et al. — page 267

PREEMPTION

Chamber of Commerce et al. v. Brown, Jr., et al. — page 299

SECOND AMENDMENT

District of Columbia et al. v. Heller — page 252

SENTENCING

Burgess v. United States — page 290

SIXTH AMENDMENT

Indiana v. Edwards — page 257Rothgery v. Gillespie County, Texas — page 286

TAXATION

Florida Department of Revenue v. Piccadilly Cafeterias, Inc. — page 276United States v. Clintwood Elkhorn Mining Company et al. — page 248

ALPHABETICAL INDEX — page 302

SUBJECT INDEX — page 306

GLOSSARY — page 310

© 2008 American Bar Association ISSN 0363-0048

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In this case, the Court

must decide whether a suit

to obtain a refund on taxes

collected in violation of

the Export Clause must

meet the substantial

procedural barriers that

apply to most tax refund

suits. The United States

argues that it must, and

that this suit therefore

was filed too late. The

respondents, coal

companies who paid taxes

that were later determined

to be unconstitutional,

argue that the Export

Clause imposes

unique limits on the

constitutional authority

of Congress to levy taxes.

Taxpayers seeking a refund of taxesthat they have paid but do not owemust first present their claim to theInternal Revenue Service and haveonly a limited time to do so. Personswho have a claim for money dam-ages against the United Statesbecause of an unconstitutionalaction do not have to present theirclaim first to any federal agency andhave a much longer period of timeto file suit. Respondents paid taxesunder a statute that was found toviolate the Export Clause, Article I,§ 9, cl. 5 of the Constitution. Thecase gives the Court an opportunityto address the general issue of reme-dies for unlawful government con-duct, and specifically the extent towhich the Export Clause creates aspecial regime to limit federal power.

ISSUEMust a suit seeking compensationfor collection of a tax in violation ofthe Export Clause comply with theInternal Revenue Code’s require-

ments for obtaining a tax refund, oris it enough to meet the require-ments of the Tucker Act, 28 U.S.C.§ 1491(a), for money claims againstthe United States resting on theConstitution?

FACTSArticle I, § 9, cl. 5 of theConstitution provides that: “No Taxor Duty shall be laid on Articlesexported from any State.” At thetime of the founding, this rulemeant a great deal, because onlysome of the original states (mostlysouthern) produced goods forexport. The founders feared thatCongress might redistribute wealthfrom the richer states to the poorerones. Other constitutional rules, inparticular Article I, § 8, cl. 1 (theUniformity Clause) and Article I, § 9, cl. 4 (the Direct Tax Clause)limit the manner in which Congressmay structure taxes to promoteinterstate redistribution of wealth.The Export Clause deals with inter-state redistribution directly by for-bidding outright a kind of tax that,in the late eighteenth century,would have lent itself to the evil inquestion.

248

PREVIEW of United States Supreme Court Cases, pages 248–251. © 2008 American Bar Association.

Case at a

Glance

Case at a

Glance

T A X A T I O N

Do Different Procedural Rules Apply to Export

Clause Lawsuits?by Paul B. Stephan

UNITED STATES V. CLINTWOOD

ELKHORN MINING COMPANY ET AL.DOCKET NO. 07-308

ARGUMENT DATE:MARCH 24, 2008

FROM: THE FEDERAL CIRCUIT

Paul B. Stephan is the Lewis F.Powell, Jr., professor at the

University of Virginia School ofLaw in Charlottesville, Virginia. He

is the co-author of The Limits ofLeviathan—Contract Theory andthe Enforcement of InternationalLaw, and International Businessand Economics: Law and Policy.

Professor Stephan can be reached at [email protected]

or (434) 924-7098.

American Bar Association

With the growth of a national com-mon market and, in the twentiethcentury, the rise of a federally fund-ed welfare state, concerns aboutinterstate redistribution may seemanachronistic. Today there are dra-matic disparities among the stateswith respect to net contributions to,or receipts from, the federal fisc.Nevertheless, the Supreme Courtcontinues to treat the Export Clauseas a serious limit on federal taxingpower. The Rehnquist Court at leasttwice upheld Export Clause chal-lenges to federal statutes.

Congress in 1978 levied an excisetax on coal that functioned muchlike a sales tax and which had noexception for export sales. In 1998 afederal district court ruled this taxunconstitutional to the extent itapplied to coal destined for export.The federal government did notappeal the ruling, and in 2000 theInternal Revenue Service (IRS) pub-lished its acquiescence in the court’sdecision. Respondents then filedtimely refund claims with the IRSfor the 1997–1999 tax years andbrought suit in the Claims Court fordamages equal to taxes paid plusinterest for the 1994–1996 tax years.

Under the Internal Revenue Code,taxpayers have three years from thetime they have filed a tax return toseek a refund from the IRS and maynot bring a refund suit in federalcourt for any tax “erroneously orillegally assessed or collected” with-out first seeking a refund from theIRS. A provision of the JudicialCode, 28 U.S.C. § 2411, does requirethe government to pay interest onall wrongfully collected taxes. Underthe Tucker Act, the Claims Courthas jurisdiction to hear suits basedon a “claim against the United Statesfounded either upon theConstitution, or any Act of Congress…” within six years of the claimarising. There is no statute providinggenerally for payment of interest onclaims covered by the Tucker Act.

The Claims Court, following an ear-lier decision of the Federal Circuit,ruled that respondents’ ExportClause claims came under theTucker Act and did not have tocomply with the more stringentrules of the Internal Revenue Code.It also held that it lacked authorityto award interest. On appeal, theFederal Circuit upheld its earlierruling that Export Clause cases donot have to meet the proceduralrequirements for a tax refund suit.It further decided that the statutoryprovision requiring the governmentto pay interest on wrongfullyassessed taxes nonetheless appliesto Export Clause claims. The gov-ernment sought certiorari to over-turn this decision.

CASE ANALYSISOver the last decade or so, a majori-ty of the justices have tended to sup-port the general proposition that vic-tims of violations of the Constitutionor federal statutes must comply withthe rules Congress has provided forhearing their claims, and that thefederal courts do not have much lee-way to infer a capacity to hear aclaim absent express congressionalauthorization. The effect of thesedecisions is to limit the power ofcourts, acting on behalf of private lit-igants, to enforce constitutional andstatutory rights, to increase theresponsibility of the executivebranch to determine how to vindi-cate these rights, and to put the onuson Congress to provide expressly forprivate lawsuits when it wishes to doso. Here the government contendsthat Congress has provided for anelaborate administrative scheme tohandle tax refunds, with judicialreview limited to cases in which tax-payers have first met specific admin-istrative requirements. Allowing dif-ferent procedural rules to apply, thegovernment argues, would under-mine a finely crafted set of legislativecompromises and introduce uncer-tainty and instability into the admin-istration of the tax laws.

This dispute, however, does notrequire the Court to imply any rem-edy for the respondents, but ratherto choose which congressionallyauthorized remedial scheme applies.Tax refund cases have one set ofrules, with a requirement of goingfirst to the IRS for relief and a rela-tively short period of time to do so.Constitutional claims have a differ-ent set of rules, with no administra-tive claim requirement and a con-siderably longer period of time inwhich to bring suit. As a matter ofliteral statutory interpretation, therespondents’ suit falls into both cat-egories, and the Court must decidewhich is the better fit.

The government also argues that alltax refund suits should be treatedalike, whether the taxpayer claimsthat the IRS acted inconsistentlywith the Internal Revenue Code orwith the Constitution. It notes thattaxpayers may bring any number ofconstitutional challenges to a tax.These might include due process,equal protection, and FirstAmendment claims, in addition toarguments that a tax does not com-ply with the constitutional provi-sions expressly directed to taxation.Focusing on the specific language ofthe Internal Revenue Code, the gov-ernment points out that respon-dents assert the illegality of the tax-es they paid, and that the stringentrules of the Code by their expressterms thus apply. The governmentfurther argues that respondents aretrying to have it both ways.Although they believe that theCode’s rules do not apply to theirclaim, the respondents nonethelesscharacterize their suit as one chal-lenging a tax overpayment so thatthey come under the special rulerequiring the government to payinterest.

The respondents argue that they arenot taxpayers seeking a refund butrather victims of a constitutionalviolation seeking damages equal in

(Continued on Page 250)249

250 Issue No. 6 Volume 35

amount to the taxes collected plusinterest. The Export Clause, theymaintain, is a unique constitutionalprohibition, the only provision thatcompletely withholds a taxing powerfrom the federal government. Theprocedural rules that normally applyto tax refund claims rest on theassumption that challenges to theconduct of the IRS put a burden onthat agency and thus interfere withthe critical task of revenue collec-tion. Export Clause claims, by con-trast, challenge not IRS conduct butrather the decisions of Congress.Were Congress permitted to use thestringent IRS refund rules to limitattacks on Export Clause violations,it would have less of an incentive tocomply with the Clause. Therespondents also argue that they donot need to rely on the specificstatute mandating interest on taxrefunds, because the Export Clauseclearly implies an obligation on thepart of the federal government topay interest on wrongfully collectedtaxes.

SIGNIFICANCEThis case may be of greater interestto lawyers than to the general popu-lation, but the technical issues itpresents are fascinating. At its coreis the question of whether the Courtshould regard the Export Clause asan anachronism or instead as a fun-damental check on federal power. Asecondary issue is how much flexi-bility the courts should enjoy inpicking among the legislatively man-dated remedial schemes for rightsviolations.

One might regard the Export Clauseas important, if for no other reasonthan that for the founders it embod-ied a critical compromise withoutwhich the Constitution would nothave happened. If so, one mightregard it as unwise to encourageCongress to impose onerous proce-dural hurdles on suits challengingunconstitutional taxes. Strictly

speaking, the question in this caseis not whether Congress mayimpose strict limits on ExportClause claims, but rather whetherthe Court should pick the more rig-orous of two procedural regimes,both of which on their face mightapply. The Court might decide thatit should not make it easy forCongress to avoid the ExportClause. It also might require inter-est on the overpayment to preventthe federal government from bene-fitting from an unconstitutional tax.

If one instead were to regard effi-cient revenue administration as themore important policy goal, onemight conclude that all tax refundclaims should be treated alike.Although respondents argue that theExport Clause is distinguishablefrom other constitutional con-straints on federal taxation thatinvolve the mechanics of taxationrather than to the kind of tax, theCourt might regard this as a distinc-tion without a difference. TheInternal Revenue Code refund procedures apply whenever a tax-payer maintains that the govern-ment “illegally” collected a tax.Unconstitutionality is a form of ille-gality. Respondents reply that a taxon exports does not involve “inter-nal” revenue, making the entireInternal Revenue Code irrelevant.Yet the respondents do seek thebenefit of another IRC provisionrequiring an award of interest on“any overpayment in respect of anyinternal-revenue tax.”

In addition, the case gives the Courta chance to develop further itsjurisprudence of remedies for viola-tions of federal law. For many years,the Court regarded the fashioning ofremedies as a distinctly judicialfunction. If the Constitution or astatute forbade certain conduct, theCourt felt comfortable deciding onits own how victims could obtainredress. Beginning with Justice

Powell’s dissenting opinion inCannon v. University of Chicago,441 U.S. 677 (1979), however, theCourt increasingly has taken theposition that the responsibility fordesigning remedies rests withCongress rather than the courts.This principle might extend not justto questions of whether private per-sons have access to the courts, butalso whether to pick stringent or lib-eral access rules when both mightapply. The government argues thatthe Court in the past has followed a“best fit” approach and that a “taxrefund suit” is a better fit in the cir-cumstances of this case than is a“constitutional violation suit.”

The question of implying a remedyextends to the issue of whetherrespondents are entitled to interestin addition to a refund. On the onehand, a failure to include interest ina compensation award effectivelypermits the wrongdoer to retainsome of the fruits of its wrongfulact. On the other hand, the federalgovernment generally benefits fromthe doctrine of sovereign immunity,which requires express legislativeconsent for any money claimagainst the government. In the pastthe Court has held that this legisla-tive-consent requirement appliesseparately to the recovery of inter-est on a claim otherwise authorizedby statute. And in this case, theonly statute authorizing interest islimited to suits for the recovery ofinternal revenue taxes. It is hard tosee how an export tax escapes somerules for internal revenue taxes butnot others.

It is not inconceivable that theCourt might decide that respon-dents’ case is not a tax refund suitfor purposes of the Internal RevenueCode (Title 26) but is a tax refundsuit for the separate purposes of theJudicial Code (Title 28). To reachthat result, however, the Courtwould have to decide that discour-


aging Congress from violating theExport Clause is especially impor-tant. Why the Court would do so isnot clear.

ATTORNEYS FOR THE

PARTIESFor Petitioner United States (PaulD. Clement, Solicitor General (202)514-2217)

For Respondent ClintwoodElkhorn Mining Company et al.(Patricia A. Millett (202) 887-4000)

AMICUS BRIEFSIn Support of RespondentClintwood Elkhorn MiningCompany et al.

Alliance Coal LLC (Clifton S.Elgarten (202) 624-2500)

National Federation ofIndependent Business LegalFoundation (Anthony T. Caso (916)386-4432)

251

S E C O N D A M E N D M E N T

Does the Second Amendment Guarantee a Right ofIndividuals to Keep Operable Firearms in Their

Homes for Self-Protection?by Nelson Lund

The Supreme Court has

never clearly decided

whether the Second

Amendment protects a

right of individuals to

keep firearms for self-

defense or only a right

associated with participa-

tion in a state-regulated

militia. The District of

Columbia prohibits

almost all of its residents

from possessing hand-

guns, and requires all

firearms to be stored

unloaded and mechani-

cally disabled. This test

case considers whether

such regulations violate

the Second Amendment.

Nelson Lund is the Patrick HenryProfessor of Constitutional Lawand the Second Amendment at

George Mason University School of Law. He filed an amicus curiae

brief, supporting respondent, on behalf of the Second

Amendment Foundation in thiscase. Professor Lund can bereached at [email protected]

or (703) 993-8045.

DISTRICT OF COLUMBIA ET AL. V. HELLER

DOCKET NO. 07-290


FROM: THE DISTRICT

OF COLUMBIA CIRCUIT

ISSUEDo the District of Columbia’s guncontrol laws—which forbid almostall civilians to possess handguns andwhich require other firearms to bestored unloaded and mechanicallydisabled—violate the SecondAmendment rights of individualswho are not affiliated with anystate-regulated militia but who wishto keep handguns and otherfirearms for private use in theirhomes?

FACTSDick Heller is a D.C. special policeofficer who carries a gun while onduty as a guard at the FederalJudicial Center in Washington. Afterhis application for a permit to keepa handgun in his home was deniedby the District’s government, Hellerfiled suit challenging the constitu-tionality of the applicable laws. Thedistrict court dismissed the case on

the ground that the SecondAmendment does not protect anindividual right to bear arms sepa-rate and apart from service in themilitia.

The court of appeals reversed, 2-1,holding that the District’s gun regu-lations violate the Constitution.After examining the text and historyof the Second Amendment, thecourt of appeals concluded that itprotects an individual right that isnot confined to service in the mili-tia. Because handguns are linealdescendants of founding-eraweapons and are still in commonuse today, the court held, they maynot be banned. The court also heldthat the District’s requirement thathandguns be stored in a mechani-cally disabled condition is unconsti-tutional because it prevents themfrom being used for self-defense.

Judge Henderson dissented, con-tending that the Second Amend-ment does not apply to a federal lawthat operates only in a federalenclave like the District, which isnot a state within the meaning ofthe Second Amendment.

252


Case at a

Glance

Case at a

Glance


Both parties urged the SupremeCourt to grant the District’s petitionfor certiorari, and the Court did so.

CASE ANALYSISThe Second Amendment states: “Awell regulated Militia, being neces-sary to the security of a free State,the right of the people to keep andbear Arms, shall not be infringed.”

The only significant Supreme Courtopinion interpreting the meaning ofthis text came in United States v.Miller, 307 U.S. 174 (1939). In thatcase, the Supreme Court consideredthe validity of a federal statute pro-hibiting the interstate transporta-tion of unregistered short-barreledshotguns. In the crucial passage,which is somewhat ambiguous, theCourt said:

In the absence of any evidencetending to show that possessionor use of a [short-barreled]shotgun at this time has somereasonable relationship to thepreservation or efficiency of awell regulated militia, we can-not say that the SecondAmendment guarantees theright to keep and bear such aninstrument. Certainly it is notwithin judicial notice that thisweapon is any part of the ordi-nary military equipment or thatits use could contribute to thecommon defense.

The District’s principal contention isthat the Second Amendment pro-tects a right to arms only in serviceof a government-organized militia.The District argues that this conclu-sion is dictated by the language ofthe Constitution, which is fraughtwith military terminology and refersexpressly to the militia without anyhint about private uses of firearms.The District reinforces its textualargument with historical materialsindicating (1) that the Amendmentwas adopted in response to fears

that the new federal governmentmight pursue tyrannical aims bydisarming the state militias, and (2) that there was no discussion of the use of arms for private pur-poses anywhere in the legislativehistory. Finally, the District arguesthat Miller is consistent with aninterpretation that limits the rightto arms to service in an organizedmilitia.

Heller maintains that the SecondAmendment’s preamble (“A well reg-ulated Militia, being necessary to thesecurity of a free State …”) refersonly to one, nonexclusive justifica-tion for securing a private right toarms, and that a preamble cannotlimit or negate the language thatestablishes the right. Heller rein-forces this textual argument with his-torical materials indicating (as Millerhad also noted) that founding-eramilitiamen were expected to haveprivate ownership of the arms theywould need if called to service in themilitia. Heller also maintains that amilitia can be well-regulated withoutbeing regulated by the governmentand notes that such self-regulatedmilitias were formed by Americancolonists to resist British oppression.The Second Amendment, he argues,protects an individual, private rightto arms that existed before theConstitution was adopted. This rightserves to prevent the federal govern-ment not only from disarming thestate militias but also from disarmingthe individual citizens who mightneed to organize and arm themselvesagainst a tyrannical government.

Consistent with its interpretation ofthe Second Amendment’s purpose,the District maintains that it hascomplete discretion to ban civiliansfrom possessing a particular class offirearms, such as handguns, or anyfirearms at all. Heller acknowledgesthat the government may restrictaccess to certain weapons but con-tends that the Constitution puts

sharp limits on this power. He readsMiller to mean that the SecondAmendment protects arms thatcivilians would be expected to pos-sess for ordinary lawful purposesand that would be useful in militiaservice. Heller argues that handgunsmeet both prongs of this test andtherefore they may not be banned.

The District also offers two alterna-tive and independent arguments indefense of its statutes.

First, the District argues thatbecause the Second Amendment’spurpose is to protect the states fromthe federal government, it has noapplication in the District, which isa federal enclave. Heller respondsthat the Bill of Rights applies in theDistrict, just as it does in otherAmerican jurisdictions.

Second, the District argues that ifthe Court concludes that theConstitution protects a private rightto arms, its handgun ban should beupheld as a reasonable effort to pro-tect the public against severalunique dangers posed by theseweapons. Heller responds that evenif the Court rejects a per se test pre-cluding a ban on handguns as aclass, the appropriate constitutionaltest would be strict scrutiny. Hecontends that these statutes cannotsatisfy that standard of reviewbecause they sweep too broadlybeyond what is needed to serve theDistrict’s concededly valid interestin public safety.

In a related argument, the Districtalso defends as a reasonable safetyregulation its requirement that riflesand shotguns (and the handgunsthat a few of the city’s residents arepermitted to have) be storedunloaded and mechanically disabled(i.e., either disassembled or securedwith a trigger lock). According tothe District, its laws permit civiliansto put a gun into an operable condi-

(Continued on Page 254)

253


tion in order to defend themselvesagainst a sudden intruder. Hellerresponds that the District’s statutesunequivocally prohibit its residentsfrom possessing a functional firearmand that it has never been interpret-ed otherwise.

A very large number of amicus curi-ae briefs have been filed in thiscase. Two of them suggest approach-es to the case that are significantlydifferent from those of either party.

First, the solicitor general filed abrief urging that the case beremanded for further considerationby the lower courts. Consistent witha 2004 opinion from the JusticeDepartment’s Office of LegalCounsel, the solicitor general agreeswith Heller that the SecondAmendment protects an individualright to possess firearms for self pro-tection. The solicitor general, how-ever, argues that the court ofappeals applied the wrong legal testwhen it adopted a per se rule underwhich handguns may not bebanned. According to this amicusbrief, the court of appeals’ test(which prevents the governmentfrom banning guns that aredescended from founding-eraweapons and that have military util-ity) would cast constitutional doubton important federal laws, includingthe current machine-gun ban.

The solicitor general also rejectsHeller’s proposed test (categoricalprotection for weapons that areboth in common use by civiliansand potentially useful in militia ser-vice), as well as Heller’s alternativeargument that strict scrutiny shouldbe applied. Instead of theseapproaches, the solicitor generalurges the Court to adopt a moreflexible heightened scrutinyapproach derived from the field ofelection law. Under certain cases inthat field, the government is permit-ted to impose reasonable restric-

tions on First Amendment rights inorder to serve important regulatoryinterests. Because the governmentis authorized to regulate the militia,just as it is authorized to regulateelections, the solicitor general sug-gests that these cases provide anappropriate analogy. The solicitorgeneral goes on to argue that thisnew test should be applied in thefirst instance by the lower courts,which might need to consider addi-tional legal or factual issues (such aswhether the District’s laws permitits residents to possess a functionalfirearm or not).

Another alternative approach is pro-posed in an amicus brief filed onbehalf of the Second AmendmentFoundation (SAF) by the author ofthis preview. SAF argues that thetest suggested in Miller, and appliedby the court of appeals in this case,is unworkable. Miller asked whetherthe gun at issue in that case was“part of the ordinary military equip-ment or [one whose] use could con-tribute to the common defense.” Ata minimum, this test would protectstandard-issue infantry rifles likethe M-16 machine gun, and proba-bly also more lethal weapons suchas rocket launchers. Accordingly,SAF argues that Miller’s reasoningshould not be extended beyond thefacts of that case.

SAF argues that the purpose of theSecond Amendment is to preventCongress from using its Article Iauthorities, including its authorityto regulate the militia, to disarmAmerican citizens. The brief main-tains that the principal reason forincluding a preamble praising themilitia, a preamble that does notsubstantively alter the operativeprohibition on federal overreaching,was to endorse (without constitu-tionalizing) the traditional citizenmilitia, which many Americans pre-ferred as an alternative to standingarmies. This symbolic endorsement,

however, was not meant to limit theright to arms to the militia context.SAF supports this conclusion withan analysis of the language, gram-mar, and history of the Amendment.

According to SAF, this analysis ofthe text and history demonstratesthat the Second Amendment pro-tects a right to have arms for self-defense against violent criminals. Ittherefore follows, argues SAF, thatthe District’s statutes are unconsti-tutional because they effectivelyprevent the city’s law-abiding resi-dents from keeping any firearms ina condition useful for self-defense inthe home.

SIGNIFICANCEIf the Court accepts the District’sprincipal contention, that civilianshave no constitutional right to pos-sess firearms except in connectionwith militia service, the SecondAmendment will essentially becomea dead letter. The states mightretain a theoretical right to keep upmilitia forces at their own expense,but the federal government has nev-er sought to prevent them fromdoing so. Furthermore, if Congressever wanted to do so, it could pre-sumably induce the desired aboli-tion of state militias by offeringfinancial inducements in the form ofconditional grants (just as it hasinduced states to raise the drinkingage to 21 by threatening to cut offhighway funding to those that donot comply).

If the Court recognizes a right tothe private possession and use offirearms, the significance of the casewill depend on how it defines thenature and scope of the right. TheDistrict’s laws are so highly restric-tive that a decision upholding themis likely to mean that virtually anygun control regime will be regardedas the kind of reasonable regulationthat the government is free to


adopt. This would leave the SecondAmendment with little practical significance.

If the Court strikes down theDistrict’s regulations (or adopts thesolicitor general’s invitation toremand the case), a great manyimportant questions are likely toremain open. Because this would bethe first case in history in which thefederal courts invalidated a gun con-trol statute under the SecondAmendment, the Court would prob-ably write its opinion narrowly. Andbecause the District’s statute isapparently the most restrictive inthe nation, such an opinion wouldprobably not provide clear guidanceto future courts faced with chal-lenges to less restrictive statutes.

Another reason to expect that anopinion invalidating the District’sstatutes would be narrowly writtenarises from a question not directlyraised in this case. Originally, theBill of Rights affected only federallaws, like the one at issue in thiscase. By the end of the twentiethcentury, the Supreme Court hadapplied most provisions of the Bill ofRights to state (and local) laws aswell, using an incorporation doc-trine derived from FourteenthAmendment substantive dueprocess. During this time, the Courtalso decided that a few Bill of Rightsprovisions do not apply to the stategovernments. The Court has neverdecided whether or not substantivedue process renders the SecondAmendment applicable to the stateand local governments.

Except for the regulations at issuein this case, the federal governmenthas adopted few laws imposing sig-nificant restrictions on civilianaccess to ordinary firearms. Most ofthe laws that might be vulnerable toplausible Second Amendment chal-lenges have been adopted by stateand local governments, and theincorporation issue will undoubtedly

be presented to the Court if itstrikes down the statutes at issue inthis case. Recognizing this, theCourt will probably be cautiousabout making definitive statementsthat could have unforeseen conse-quences with respect to a wide vari-ety of statutory schemes that it hasnot yet had occasion to examine indetail.

ATTORNEYS FOR THE

PARTIESFor Petitioner District of Columbiaet al. (Todd S. Kim (202) 724-6609)

For Respondent Dick AnthonyHeller (Alan Gura (703) 835-9085)

AMICUS BRIEFSIn Support of Petitioner District ofColumbia et al.

American Academy of Pediatricset al. (Bert H. Deixler (310) 557-2900)

American Bar Association(William H Neukom (312) 988-5000)

American Jewish Committee etal. (Jeffrey A. Lamken (202) 639-7700)American Public Health Associationet al. (Alison M. Tucher (415) 268-7000)

Brady Center to Prevent GunViolence et al. (Jonathan G.Cedarbaum (202) 663-6000)

City of Chicago et al. (Andrew L.Frey (202) 263-3000)

District Attorneys (Alexis S. Coll-Very (650) 251-5000)

DC Appleseed Center for Lawand Justice et al. (Jonathan S.Franklin (202) 662-0466)

Former Department of JusticeOfficials (Robert A. Long Jr. (202)662-6000)

Jack N. Rakove et al. (Carl T.Bogus (401) 254-4617)

Law Professors ErwinChemerinsky and Adam Winkler(Erwin Chemerinsky (919) 613-7173)

Major American Cities et al.(Jeffrey L. Bleich (415) 512-4000)

Members of Congress (Scott E.Gant (202) 237-2727)

NAACP Legal Defense &Educational Fund, Inc. (Victor A.Bolden (212) 965-2200)

National Network to EndDomestic Violence et al. (Bruce D.Sokler (202) 434-7300)

New York, Hawaii, Illinois, andMaryland (Barbara D. Underwood(212) 416-8016)

Professors of Criminal Justice(Albert William Wallis (617) 856-8200)

Professors of Linguistics andEnglish (Charles M. Dyke (415) 371-1200)

Violence Policy Center et al.(Daniel G. Jarcho (202) 496-7500)

In Support of Respondent DickAnthony Heller

Academics for the SecondAmendment (David T. Hardy (520)749-0241)

Alaska Outdoor Council et al.(Jack Brian McGee (907) 586-2548)

American Center for Law andJustice (Jay Alan Sekulow (202)546-8890)

American Civil Rights Union(Peter J. Ferrara (703) 582-8466)

American Legislative ExchangeCouncil (Robert Dowlut (703) 267-1254)

Association of AmericanPhysicians and Surgeons, Inc.(Andrew L. Schlafly (908) 719-8608)

Bruce L. Benson et al. (RichardE. Gardiner (703) 352-7276)

Buckeye Firearms FoundationLLC et al. (L. Kenneth Hanson(740) 363-1213)

Cato Institute et al. (CharlesKevin Marshall (202) 879-3939)

Center for Individual Freedom(Renee L. Giachino (703) 535-5836)

Congress of Racial Equality(Stefan Bijan Tahmassebi (703) 267-1259)


255


Criminologists, Social Scientists,Other Distinguished Scholars et al.(Marc James Ayers (205) 521-8598)

Disabled Veterans for Self-Defense and Kestra Childers (JamesH. Warner (301) 432-4935)

Dr. Suzanna Gratia Hupp et al.(Kelly J. Shackelford (972) 423-3131)

Eagle Forum Education & LegalDefense Fund (Douglas G. Smith(312) 861-2000)

Former Senior Officials ofDepartment of Justice (Charles J.Cooper (202) 220-9600)

Foundation for Free Expression(Deborah Dewart (910) 326-4554)

Foundation for Moral Law(Gregory M. Jones (334) 262-1245)

GeorgiaCarry.Org, Inc. (John R.Monroe (678) 362-7650)

Goldwater Institute (Bradford A.Berenson (202) 736-8000)

Grass Roots of South Carolina,Inc. (Robert Jeffords Barham (803)799-1111)

Gun Owners of America, Inc., etal. (Herbert W. Titus (703) 356-5070)

Heartland Institute (Richard K.Willard (202) 429-3000)

Institute for Justice (Erik S. Jaffe(202) 237-8165)

International Law EnforcementEducators and Trainers Associationet al. (David B. Kopel (303) 279-6536)

International Scholars (James R.Schaller (503)-635-1505)

Jeanette M. Moll, Ohio ConcealedCarry Permitholders, et al. (JeanetteM. Moll (740) 408-0431)

Jews for the Preservation ofFirearms Ownership (Daniel L.Schmutter (973) 214-6298)

Libertarian National Committee,Inc. (Robert L. Barr Jr. (770) 836-1776)

Major General John D.Altenburg, Jr., et al. (Robert PhillipCharrow (202) 533-2396)

Maricopa County Attorney’sOffice et al. (Daryl Manhart (602)274-7611)

Mountain States LegalFoundation (William Perry Pendley(303) 292-2021)

National Rifle Association et al.(Stephen D. Poss (617) 570-1000)

National Shooting SportsFoundation, Inc. (Lawrence G.Keane (203) 426-1320)

Organizations and ScholarsCorrecting Myths andMisrepresentations etc. (Jeffrey B.Teichert (360) 594-4321)

Paragon Foundation, Inc. (PaulM. Kienzle (505) 246-8600)

Pink Pistols and Gays andLesbians for Individual Liberty(Michael B. Minton (314) 552-6000)

President Pro Tempore of theSenate of Pennsylvania, Joseph B.Scarnati III (John P. Krill Jr. (717)231-4505)

Retired Military Officers (AndrewG. McBride (202) 719-7000)

Rutherford Institute (John W.Whitehead (434) 978-3888)

Second Amendment Foundation(Nelson Lund (703) 993-8045)

Southeastern Legal Foundation,Inc., et al. (Shannon Lee Goessling(404) 257-9667)

State Firearm Associations(David J. Schenck (214) 220-3939)

Texas et al. (R. Ted Cruz (512)936-1700)

Virginia1774.org (Richard E. HillJr. (757) 259-0017)

55 Members of United StatesSenate et al. (Stephen P. Halbrook(703) 352-7276)

126 Women State Legislators andAcademics (M. Carol Bambery (240)515-6034)

In Support of Neither PartyUnited States (Paul D. Clement

(202) 514-2217)

Ahmad Edwards was

found competent to stand

trial despite a diagnosis of

severe mental illness. In

the following trials, he

asked to represent him-

self and was denied

despite a finding of

competence to stand

trial. Now the Supreme

Court must decide

whether a defendant who

is competent to stand

trial but is mentally ill

and may not be able to

communicate coherently

with the jury can be

denied his right under

Faretta v. California

to knowingly and

voluntarily waive counsel

and represent himself.

S I X T H A M E N D M E N T

May States Adopt a Higher Competence Standard for Self-Representation at Trial

Than Competence for Standing Trial?by Michael Kaye

ISSUEMust a mentally ill defendant whomay lack the ability to communi-cate coherently but who is compe-tent to stand trial be allowed to rep-resent himself if he requests, so longas his waiver of counsel is knowingand voluntary?

FACTSOn July 12, 1999, Ahmad Edwardswas caught stealing a pair of shoesfrom an Indianapolis departmentstore. Pursued and then tackled bya security guard outside the store,Edwards fired three shots. One bul-let struck a passerby in the ankleand the security guard was slightlywounded by another shot. Edwardsfled to a parking garage and wasthen pursued by an off-duty FBI

special agent who happened uponthe incident. When Edwards did notdrop his gun after being cornered inthe garage, the FBI agent shot himin the leg and arrested him.

The State of Indiana chargedEdwards with the crimes of attempted murder, battery with adeadly weapon, criminal reckless-ness, and theft.

On June 27, 2005, Edwards stoodtrial on these charges. Nearly sixyears had elapsed since his arrest.During this interval, he had beenconfined in a state mental hospital,had been diagnosed as schizo-phrenic, and had been found incom-petent to stand trial. However, by2004 and after successive evalua-tions, the court and psychiatristsdetermined that Edwards was com-petent to stand trial; that he had thepresent ability to consult with hislawyer with a reasonable degree ofunderstanding; and that he had arational as well as factual under-standing of the proceedings againsthim.


257


Case at a

Glance

Case at a

GlanceProfessor Michael Kaye teaches

Criminal Law, Criminal Procedure,Evidence and Trial Advocacy atWashburn University School of

Law. He also directs the WashburnCenter for Excellence in Advocacy

and has supervised students incriminal cases in the WashburnLaw Clinic. He is the editor of

Vernon’s Kansas StatutesAnnotated—Criminal Code

Volumes 10 and 11 and serves as amember of the Kansas CriminalCode Recodification Committee.

He can be reached [email protected] or

(785) 670-1370.

INDIANA V. EDWARDS

Docket No. 07-208

Argument Date: March 26,2008

From: Supreme Court of Indiana


Edwards asked to represent himselfat trial. Noting that Edwards intend-ed to plead insanity, the trial judgedenied the self-representationrequest, since the insanity pleawould require a continuance of trial.Edwards went to trial with counseland was convicted of criminal reck-lessness and theft. Jurors did notagree, however, on verdicts ofattempted murder and battery witha deadly weapon. The judgedeclared a mistrial on these chargesand scheduled a second trial.

Edwards was retried on December19, 2005. By then, he had filedthree more motions for leave to rep-resent himself. Two of thesemotions were denied in advance oftrial. The third motion was heard onthe morning of the first day of theretrial. The trial judge found thatEdwards was competent to stand tri-al, but also concluded that Edwardslacked the ability to conduct hisown defense. Because Edwards wasincapable of conducting his owndefense, the trial judge also con-cluded that Edwards was incapableof knowingly and voluntarily waiv-ing his right to counsel. The trialjudge based his denial of the right ofself-representation on Edwards’sdiagnosis of schizophrenia, onEdwards’s admission at his first trialthat he needed counsel, and on thejudge’s own belief, informed byexperience, that Edwards could notadequately defend himself againstthe charges.

Edwards’s second trial lasted threedays. This time, he was convicted ofattempted murder and battery witha deadly weapon. He was sentencedto thirty years in prison on all fourof the charges that had originallybeen brought against him.

Edwards appealed claiming he hadbeen denied his Sixth Amendmentright of self-representation at thesecond trial. The Indiana Court of

Appeals agreed with his contentionand remanded for trial on theattempted murder and battery witha deadly weapon charges. On thestate’s motion, the Indiana SupremeCourt transferred the case to itself.

The Indiana high court agreed withthe state that the trial judge couldreasonably have concluded thatEdwards was incapable of represent-ing himself. However, the courtobserved that Edwards had previ-ously been found to be competentto stand trial and that U.S. SupremeCourt precedent, Faretta v.California, 422 U.S. 806 (1975),and Godinez v. Moran, 509 U.S.389 (1993), required the trial judgeto apply the same standard to deter-mine whether Edwards was compe-tent to represent himself at trial.Accordingly, even though the recordcontained a “substantial basis” toagree with the “experienced trialjudge” that Edwards was incapableof presenting his defense, the courtconcluded that the case should bereversed and remanded for a newtrial on the attempted murder andbattery with a deadly weaponcounts.

The Indiana Supreme Court heldthat the federal constitutional rightof self-representation requires thata defendant who is competent to betried for a crime be permitted toproceed pro se if that is the defen-dant’s choice. And the court alsoobserved that the case offered “anopportunity to revisit the holdingsof Faretta and Godinez if theSupreme Court of the United Statesdecides that is to be done.”

CASE ANALYSISBefore the U.S. Supreme Court, theState of Indiana will contend thatthe Sixth Amendment to the U.S.Constitution permits states toimpose a higher standard of compe-tency for self-representation thanthe competency standard for stand-

ing trial. Indiana will argue that theCourt should balance the interestsof fairness and due process againstthe defendant’s own interest in self-representation and should allow tri-al courts to deny a criminal defen-dant the right to proceed pro se atleast in those instances where thetrial court concludes that the defen-dant cannot communicate coherent-ly with the tribunal.

The State of Indiana points out thattrials seek to determine truth, buttrials are also forensic contests topersuade fact finders. Thus, to suc-ceed, the advocate must be able tocommunicate with the fact finders.A waiver of the right to counselwhen a defendant seeks to representhimself but is unable to communi-cate amounts to waiver of the rightto a fair trial. This point is animportant part of the state’s “coher-ent communication” argument tothe Supreme Court.

The state frames the issue as whetherthe defendant has demonstrated theability to exercise the judgment torelinquish the right to counsel infavor of self-representation. Thequestion is not the right to use badjudgment in seeking to proceed prose, but whether the defendant lacksthe capacity for making a rational,though poor, decision.

In the case of Ahmad Edwards, eventhe question of competency to standtrial was not free of doubt and thestate lists, in detail, a case history ofconflicting psychiatric opinionsregarding competency to stand trialand points to many instances ofEdwards’s verbal and written inco-herence and delusion. Edwards, aschizophrenic, had a delusional dis-order, a developmental and expres-sive writing and language disorder,hallucinations, and severelyimpaired working memory thatinterfered with mental focus. Histhinking was randomly disorga-


nized, grandiose, and reflective of athought disorder. His lawyer report-ed that he used sentences erro-neously and inappropriately andwent off on tangents.

The trial judge took into accountEdwards’s long history of incompe-tence, his diagnosis of schizophre-nia, his inability to communicate,his delusions, and lack of focus. Itwas upon these factors that thecourt based its decision to denyEdwards’s motion to represent him-self at his second trial after rulingthat he was competent to stand trial.

Against the backdrop of this record,Indiana argues that neither the SixthAmendment nor Faretta is violatedwhen a judge refuses to allow adefendant who cannot coherentlycommunicate to represent himselfsince self-representation requiresthe capacity to communicate coher-ently. Such a rule is also consistentwith decisions limiting defendant’srights to self-representation whenthese defendants become disruptivein the courtroom. Such occurrencesviolate the court’s institutionalintegrity, trial fairness, and the trialprocess.

The decision to deny a criminaldefendant the right to proceed pro seshould be based on a trial judge’sobservations and experience,informed by expert opinion or diag-nosis, but not necessarily dependingon such an opinion. The trial judgedecides whether, under the circum-stances, the defendant will be able tocommunicate a theory of defense orpresent exculpatory evidence at trial.

A defendant who has a mental,physical, or emotional disabilitymay or may not meet this standard,which seeks to permit autonomyand also to safeguard the fairness ofthe trial itself. A judge makes thisdetermination during a Farettahearing to determine whether the

requested waiver of counsel isknowing and voluntary. Indeed, afinding that a waiver is knowing andvoluntary with awareness of therisks of proceeding without counselwould not necessarily be inconsis-tent with a determination that adefendant could not coherentlycommunicate with the fact finder attrial. And the determination wouldbe consistent with the leading caseon competency to stand trial, Duskyv. United States, 362 U.S. 402(1960), where competency to standtrial was determined to include theability to consult with counsel. Suchability presupposes that counsel willcommunicate to judge and jurorsbased on the consultation.

The fairness of the trial itself is alsoan important element of the state’sargument. The elements of a funda-mentally fair trial are set forth notonly in the Sixth Amendment butalso in case precedents that identifythe elements of advocacy thatassure not only the defendant, butalso society, are both ensured a fairtrial. These elements include tellingone’s side of the story, making anopening statement and closing argu-ment, cross-examination, objectingto inadmissible evidence, and engag-ing in competent jury selection, toname some of the most importantfactors. These factors are consid-ered in cases involving effective rep-resentation by counsel and assurethat, by their use, verdicts will beconsidered accurate and reliable.Frequently, the state argues,through numerous examples, pro sedefendants fall far short of thesestandards in their own defense. Andin cases where pro se defendantsalso suffer mental disabilities, thepro se defense is also a bad defense.

According to the State of Indiana,limiting the right to self representa-tion by application of the right to afair trial would not only be consis-tent with Faretta and the cases it

relied on (none of which concerneda defendant who could not coher-ently communicate), but the deci-sion would also conform to casesdecided since Faretta. The Courthas already held that there is noright to self representation onappeal and has held that stand-bycounsel can be appointed over adefendant’s objections as long as thedefendant is allowed to make hisvoice heard and continue controlover the trial.

Although the state argues that limit-ing the right to self representationto conform with requirements of afair trial would be consistent withFaretta, the state also challengesthe Court to review the correctnessof that landmark case and, if neces-sary to ensure that defendants likeEdwards can be required to proceedto trial with counsel, “sweep” awaythe Faretta decision. This critiquechallenges Faretta’s logic, the use ofhistory as an interpretative consti-tutional source, and even the valueof the right of self-representation inan era when the right to counseldemands certain skills and abilitiesto produce a just result.

Taking issue with Faretta’s view ofthe history of self-representation,the state notes that counsel wasrequired and imposed on defendantsappearing before the English StarChamber. These counsels were con-sidered subordinates of the Crown.However, in other serious criminalproceedings, there was no right tocounsel available to defendants.Defendants were thus burdenedwith the bleak necessity of self-representation in an unfair system.

The State of Indiana argues thatSupreme Court precedent indicatesboth the importance of legal repre-sentation and the value of that rep-resentation being trained and com-petent. In the modern era, the

259



Supreme Court has recognized theimportance of the right to counsel incases such as Gideon v. Wainright,372 U.S. 335 (1963), andArgersinger v. Hamlin, 407 U.S. 25(1972). The state also notes thatFaretta preceded the period inwhich the Court recognized theimportance of trial skills in effectu-ating the Sixth Amendment right tocounsel. Strickland v. Washington,466 U.S. 668 (1984), decided afterFaretta, required trial counsel toconduct a defense with minimallycompetent trial skills. Faretta’s“nebulous” and “abstract” conceptof self-autonomy as a value underly-ing self-representation, Indianaargues, should not trump the oppor-tunity of actual justice resultingfrom a meaningful adversarial trial.States should be permitted torequire counsel for defendants whocannot coherently communicate attrial and should deny such defen-dants the right to defend themselves.

Respondent Edwards urges theCourt to uphold his SixthAmendment right to represent him-self at trial even if this increases therisk of conviction. The constitution-al right to defend is personal, hesays, and is not restricted to anyparticular class of defendants.Faretta, Edwards argues, foresawself-representation by the feeble aswell as the strong. Moreover, theability to defend effectively at trialis not relevant to determining com-petence to waive trial counsel. AndEdwards challenges the factualassertion that he lacked the abilityto communicate coherently.

Edwards further rejects the balanc-ing of interests approach thatIndiana applies to self-representa-tion. He looks to the language andhistory of the Sixth Amendment,which protects the right to theassistance of counsel, and toFaretta’s mandate, reaffirmed inGodinez, that the choice to proceed

pro se is to be made with eyes wideopen and free of undue pressure.Only the defendant can make thecritical decision to waive counsel. Itis that choice, and not skill indefending, that obliges the state torespect the right of self-representa-tion. That choice must be knowing,voluntary, and competent. Godinezteaches that the standard for com-petency to waive counsel is thesame as for competency to stand tri-al. Godinez affirms Faretta. Itapplies to the choice to waive coun-sel for trial or to plead guilty or forsentencing.

Edwards also differs with Indiana onthe function of trials. Criminal tri-als, Edwards urges, are not contestsof persuasion. He challenges theassertion that a defendant must tryto persuade the fact finder. Theadversary system offers the defen-dant a full opportunity to test thestrength of the state’s case. Thechoice to deploy the tools of legalpersuasion to the extent he is ableto, is the defendant’s. It is up to thedefendant to decide to exercise trialrights that may or may not advancethe values of fairness and reliability.Even with the assistance of standbycounsel, the pro se defendantremains in charge of the case.Courts have experience dealing withthese situations and with the diffi-culties that arise when a defendantundertakes to represent himselfwith or without the assistance ofstandby counsel. The interest in afair trial should not be used as areason to deny an accused the rightof self-representation.

Indeed, Edwards argues that courts are well equipped to dealwith the issues surrounding self-representation. Edwards points out that courts can terminate self-representation when the defendantabuses the right and standby coun-sel can be appointed to aid theaccused if and when he requests

assistance or to take over in theevent that termination of the self-representation is required. Underthese circumstances, standby coun-sel helps preserve the core value ofmaintaining the defendant’s controlover the case and also helps sustainthe jury’s view that the defendant isrepresenting himself.

Edwards argues that the applicationof a “coherent communication capac-ity” standard as urged by Indianacould result in denying the right toself-representation to the inarticulate,to nonnative speakers, and to thosewith low verbal skills. Such anapproach could eviscerate the rightto self-representation guaranteed byFaretta. Indeed, in his own case,Edwards points out, the trial courtmade no findings regarding hiscapacity for self-representation andthere were no expert reports or testi-mony regarding his capacity tocoherently communicate. He allegesthat the only information consideredwas his pretreatment mental condi-tion. Edwards points out that a reportproduced after he had received med-ical care and dated June 2004 refer-enced coherent thought processes,good attention, no evidence of delu-sions or hallucinations, and goodcommunication. Accordingly,Edwards urges the Court to acknowl-edge that his mental capacity wassuch to justify both a finding of com-petency to stand trial and competen-cy to represent himself.

SIGNIFICANCEIn its petition before the U.S.Supreme Court, the state of Indianadefined the issue in this case aswhether, under the SixthAmendment, states may adopt ahigher standard for measuring com-petency to represent oneself at trialthan for measuring competency tostand trial. As the Supreme Court ofIndiana recognized, however,Godinez v. Moran explicitly heldthat a person who is competent to


stand trial is also competent to waivecounsel and to go to trial or pleadguilty without counsel’s assistance.

In Godinez, the defendant hadrecently attempted suicide and wason four different types of medica-tion. The court accepted his guiltyplea after waiver of counsel, and atsentencing, he was sentenced todeath. He told the judge he was dis-charging his attorney and wanted toplead guilty to avoid the presenta-tion of mitigation evidence. Thecriminal defendant’s ability todefend himself “has no bearingupon his competence to choose selfrepresentation,” wrote JusticeThomas for a majority of the Court.The Court rejected a standard ofcapacity to make a reasoned choiceto waive counsel in order to pleadguilty or go to trial representingoneself. A state need only showcompetency as established accord-ing to the Dusky standard and thatthe waiver was knowing and volun-tary. No other standard would apply.The majority of the Godinez Courtrejected the concept of more thanone standard of competence appliedaccording to the context or purposeof the proceeding.

The state argues that Godinez, indictum, left states free to adopt ahigher standard of competency indetermining waiver of counsel thanthe Dusky standard and asserts fur-ther that the proposed standard ofdenying a right to self-representationto competent defendants who can-not coherently communicate andpresent a “lucid defense” is consis-tent with Faretta.

Yet, the Indiana Supreme Court didnot rest its decision on state consti-tutional grounds:

Edwards makes no separate argu-ment under the IndianaConstitution. Because we con-clude that Edwards had a rightunder the Federal Constitution to

proceed pro se, whether he alsoenjoys the right under theIndiana Constitution is academic,and we do not address the issue.Edwards v. State, 866 N.E. 2d252, 255 (2007)

Indiana argues that the dilemmaposed by the Edwards case—unlikethe Faretta grand theft case or eventhe Godinez case involving a guiltyplea and a capital sentencing—isthe apparent risk that this certi-fied—competent-to-stand-trialdefendant will be unable, due to hismental defects, to communicatecoherently with the jury and beunable to take advantage of theassistance of standby counsel’sadvice. The trial could become dis-rupted, even farcical, in spite of theinherent authority of the trial courtto control the trial proceedings. TheState of Indiana raises questions asto whether such a trial could be fairto the defendant or to the commu-nity and whether any verdictobtained as a result of such a trialcan be trusted. According toIndiana, Faretta’s case was different.Faretta may have lacked the techni-cal legal skill of a lawyer, but he wasconsidered literate, competent, andunderstanding by the SupremeCourt at the time.

This record shows a defendant whowas declared competent to stand tri-al but who allegedly remained inco-herent, unfocused, and perhapseven delusional. In Edwards’s case,a judge concluded that even thoughhe had been found to be competentto stand trial, the judge believedthat because of Edwards’s history ofserious mental illness, his previousadmission in his first trial that heneeded the assistance of counsel,and the judge’s own experience, thejudge would not allow him to repre-sent himself at trial.

The Indiana Supreme Court thenheld that because the trial judgebelieved that Edwards was not capa-

ble of representing himself at trial,the judge further concluded hecould not knowingly and voluntarilywaive his right to counsel.

Thus the question is: Will theSupreme Court repeat in this case,what it has said before: That a crimi-nal defendant’s ability to defend him-self “has no bearing upon his compe-tence to choose self-representation?”Or will the Court give trial courts theoption, in weighing a request to pro-ceed pro se, to consider a defen-dant’s competence to present hiscase at trial, and to deny the right ofself-representation to defendantswho they believe cannot coherentlycommunicate?

ATTORNEYS FOR THE

PARTIESFor the State of Indiana (ThomasM. Fisher (317) 232-6255)

For Ahmad Edwards (Mart T.Stancil (202) 775-4520)

AMICUS BRIEFSIn Support of the State of Indiana

Criminal Justice LegalFoundation (Kent S. Scheidegger(916) 446-0345)

Ohio and 18 Other States(William Porter Marshall (614) 466-8980)

United States (Paul D. Clement(202) 514-2217

American Bar Association(William H Neukom (312) 988-5000)

In Support of Neither Party National Association of Criminal

Defense Lawyers (Kevin Paul Martin(617) 570-1000)

American Psychiatric Associationand the American Academy ofPsychiatry and the Law (Richard G.Taranto (202) 775-0184)

261

A T T O R N E Y F E E S

May a Prevailing Party Be Awarded “Attorney Fees” for

Paralegal Services?by Jay E. Grenig

After a government

contractor submitted an

application under the

Equal Access to Justice

Act for reimbursement

of fees and expenses,

including for paralegal

services, the Department

of Transportation Board

of Contract Appeals

reimbursed the

contractor for paralegal

services at the cost to

the attorney and not

the market rate. The

contractor appealed

the amount of

reimbursement.

Jay E. Grenig is a professor of lawat Marquette University Law

School in Milwaukee, Wisconsin.He is co-author of Electronic

Discovery and RecordsManagement. Professor Grenig

can be reached at [email protected] or (262) 646-3324.

RICHLIN SECURITY SERVICE CO. V.CHERTOFF, SECRETARY OF

HOMELAND SECURITY

DOCKET NO. 06-1717


FROM: THE FEDERAL CIRCUIT

ISSUEUnder the Equal Access to JusticeAct, are paralegal services “attorneyfees” compensable at market ratessubject to statutory caps or are they“other expenses” compensable atthe rate of the cost to the attorney?

FACTSRichlin Security Service Company,a government contractor, agreed toprovide guard services for detaineesat the Los Angeles InternationalAirport. As the result of a mutualmistake, the contracts misclassifiedRichlin’s employees as “Guard I”rather than “Guard II” for purposesof the wage classification scheme ofthe Service Contract Act (41 U.S.C.§ 351 et seq.) The error resulted inan underpayment of Richlin’semployees.

In February 1995, the Departmentof Labor determined Richlin’semployees were entitled to backwages. Richlin then filed a claimagainst the government for morethan $1.5 million in back wages andassociated taxes on the ground that

the original contract price shouldhave been higher to account for theincreased wages and associatedcosts. The contracting officer deniedRichlin’s claim, and Richlinappealed to the Department ofTransportation Board of ContractAppeals. The government resistedreformation of the contract anddefended the subsequent appeals onthe ground that Richlin bore therisk of misclassifying its employees.

After a series of appeals to theTransportation Board and the U.S.Court of Appeals for the FederalCircuit, the board awarded Richlinthe amount of the additional wages,payroll taxes, and workers compen-sation premiums that Richlin wasrequired to pay. Richlin Sec. Serv.Co., 02-2 BCA ¶ 31,876, 2002 WL1042294 (DOTCAB 2002). TheFederal Circuit affirmed the board’sdecision. Richlin Sec. Serv. Co. v.Ridge, 99 Fed. Appx. 906 (Fed. Cir.2004).

Richlin then submitted a timelyapplication for reimbursement ofattorney’s fees, expenses, and costs

262


Case at a

Glance

Case at a

Glance


to the board pursuant to the EqualAccess to Justice Act (EAJA) for thetime its lawyers and paralegalsspent over nine years before theboard. The board determined thatRichlin was a prevailing party andthat the government’s position onthe merits was not substantially jus-tified. The board then awardedRichlin approximately $50,000 forwork done by Richlin’s lawyers.

The board did not award Richlinfees at the $50 to $95 per hour mar-ket rates for paralegal servicescharged to Richlin over the courseof the proceedings, however. Theboard determined that the EAJAdoes not “expressly provide for thereimbursement of paralegal servicesat the market rate.” The board ruledthat paralegal services were reim-bursable only at the attorney’s cost,even if the paralegal time was billedto the client at hourly market ratesin the relevant legal market and notat the attorney’s cost as an out-of-pocket expense. Taking judicialnotice of paralegal salaries in theWashington, D.C., area, the boardawarded Richlin $35 per hour as the“reasonable cost to the [law] firm.”The board awarded Richlin approxi-mately $10,600, representing 300hours of compensable paralegaltime.

A divided panel of the FederalCircuit affirmed the board’s deter-mination. Richlin Security ServiceCo. v. Chertoff, 472 F.3d 1370 (Fed.Cir. 2006) (rehearing en bancdenied). The Federal Circuit statedthat if fees for paralegal serviceswere “attorney fees,” then in light ofthe cap on attorney fees, law firmcharges for paralegal services wouldbe fully recoverable while chargesfor attorney services would not,leading to the overuse of paralegals.

Richlin’s petition for certiorari wasaccepted by the Supreme Court.128 S.Ct. 613 (2007).

CASE ANALYSISThe Equal Access to Justice Act (5U.S.C. § 504) authorizes an awardof fees and other expenses to cer-tain parties who prevail against theUnited States in court or in adver-sary administrative proceedings.The EAJA provides, in pertinentpart:

(a)(1) An agency that conductsan adversary adjudication shallaward, to a prevailing party …fees and other expenses incurredby that party in connection withthat proceeding, unless the adju-dicative officer of the agencyfinds that the position of theagency was substantially justifiedor that special circumstancesmake an award unjust.

***

(b)(1) For the purposes of thissection—(A) “fees and other expenses”includes the reasonable expensesof expert witnesses, the reason-able cost of any study, analysis,engineering report, test, or pro-ject which is found by the agencyto be necessary for the prepara-tion of the party’s case, and rea-sonable attorney or agent fees.(The amount of fees awardedunder this section shall be basedupon prevailing market rates forthe kind and quality of the ser-vices furnished, except that (i) noexpert witness shall be compen-sated at a rate in excess of thehighest rate of compensation forexpert witnesses paid by theagency involved, and (ii) attorneyor agent fees shall not be award-ed in excess of $125 per hourunless the agency determines byregulation that an increase in thecost of living or a special factor,such as the limited availability ofqualified attorneys or agents forthe proceedings involved justifiesa higher fee.

Relying on Missouri v. Jenkins, 491U.S. 274 (1989) (involving the CivilRights Attorney’s Fees Awards Actof 1976—42 U.S.C. § 1988), Richlinargues that fees incurred for para-legal services are compensable atmarket rates under the EAJA. Hepoints out that paralegal servicesare considered to be “attorney’sfees” under the Civil RightsAttorney’s Fees Awards Act and arecompensable at market rates if theyare billed separately on that basis inthe relevant legal community.

Richlin reasons that the Court’sdetermination in Jenkins applies tothe EAJA because “attorney’s fees”under section 1988 and “attorneyfees” under the EAJA are nearlyidentical terms. The petitioner saysthat Congress’s use of the same orsimilar terms ordinarily should beaccorded the same meaning statuteto statute. Richlin contends the leg-islative history indicates thatCongress would not have expectedthat market-rate recovery for para-legal services would result inoveruse of paralegals in comparisonto the higher-priced lawyers forwhom they work. Richlin declaresthat limiting reimbursement forparalegal services to the law firm’scost, as the Federal Circuit held,would drive up the cost of litigationfor clients.

The government responds thatJenkins does not support Richlin’sposition. It explains that Jenkinsinvolved the interpretation of a dif-ferent fee-shifting statute with mate-rially different language. The gov-ernment points out that, except fora narrow category of court “costs,”42 U.S.C. § 1988 (the statute atissue in Jenkins) authorizes reim-bursement of prevailing civil rightsplaintiffs only for “attorney’s fees.”In the EAJA, however, the govern-ment says Congress provided forreimbursement of a second statu-


263


tory category—“other expenses”—in addition to “attorney fees.” Thegovernment argues that this secondcategory fundamentally changes theanalysis.

According to the respondent, inJenkins the Court’s task was todefine the term “attorney’s fees,”and paralegal expenses were eitherencompassed in that term or unre-coverable. The government stressesthat, in this case, by contrast, para-legal expenses can be recovered,and the Court’s task is to decidewhich statutory category encom-passes paralegal expenses.

In addition, the government arguesthe canon of construction that simi-lar words should normally be con-strued similarly does not mean thatJenkins should be extended to theEAJA context. The respondentargues that the canon readily yieldswhen, as in this case, it is reason-able to conclude from variations instatutory text and context that thewords were intended to embrace dif-ferent meanings. The governmentsays the Supreme Court has con-strued virtually identical language infee-shifting statutes differently whenthe policy considerations and legisla-tive history underlying the statutespointed to different outcomes.

The government claims the EAJA’slegislative history underscores thatCongress intended the term “attor-ney fees” and the cap on such fees toapply “only to the compensation oflawyers” themselves and not to othercosts connected with their represen-tation of parties. The respondentsays Congress made that intent plainin the process of reenacting theEAJA in 1985. It points out that theSenate Report on reenactmentexplained that attorneys’ out-of-pocket expenses should be compen-sated under EAJA as other expensesand that “paralegal time” should bereimbursed in that manner “at cost.”

Pointing out that the EAJA providesfor reimbursement for “fees andother expenses” to prevailing par-ties, the government explains that“fees” are categorized as attorney,agent, and expert witness fees, thereimbursement of which is limitedto prevailing market rates subject toa statutory ceiling for each category.The government argues that the leg-islative history of the EAJA demon-strates that paralegal expenses are“other expenses” reimbursable atcost, and not “attorney fees.”

The petitioner, Richlin, argues theFederal Circuit erred in maintainingthat Jenkins is inapplicable becauseof the EAJA’s adjustable dollar-per-hour cap on attorney rates. Richlindisagrees with the Federal Circuit’sstatement that if fees for paralegalservices were “attorney fees,” lawfirm charges for paralegal serviceswould be fully recoverable whilecharges for attorney services wouldnot, leading to the overuse of para-legals and undermining Jenkins’sefficiency rationale.

According to Richlin, the FederalCircuit’s view is misguided for ahost of reasons. Richlin asserts thatwhen the EAJA was enacted andreenacted in 1980 and 1985, respec-tively, market rates for most or alllawyers practicing in most locationswere at or below the EAJA cap.Therefore, Richlin declares,Congress would not have expectedmarket-rate recovery for paralegalservices to result in “overuse” ofparalegals in comparison to thehigher-priced lawyers for whomthey work. Richlin argues that limit-ing reimbursement for paralegal ser-vices to the law firm’s cost wouldimproperly drive up the cost of liti-gation for clients—the people thatEAJA was intended to benefit.

The government responds that themost “natural” reading of “attorneyfees in 5 U.S.C. § 504 provides com-

pensation for an attorney’s timespent representing a party in litiga-tion. According to the respondent,“[i]n common parlance, ‘attorneyfees’ do not mean ‘paralegal’ expens-es.” The government says that inter-pretation is bolstered by the sur-rounding text. It claims the EAJA’sbroader category of “other ex-penses” naturally captures costsassociated with an attorney’s repre-sentation of a party, but that thosecosts are not themselves “attorneyfees.” While expenses for paralegalassistance are not readily embracedby the phrase “attorney fees,” thegovernment contends they fall com-fortably into the EAJA’s second andrelated category of reimbursable“other expenses.”

Richlin says this is exactly the argu-ment that the Supreme Courtrejected in Jenkins. The petitioneremphasizes that the Court inJenkins found “self-evident” theproposition that the statutory term“attorney’s fees” includes the workof paralegals “and [all] others whoselabor contributes to the work prod-uct for which attorney bills herclient.”

The government asserts, however,that other provisions of the EAJAconfirm that “attorney fees” do notinclude paralegal expenses. Whilethe EAJA requires that attorney feesbe calculated based on prevailingmarket rates, the government pointsout that Congress also imposed astatutory ceiling on the amount of “attorney fees” that may beawarded. The respondent says thatCongress set the cap based on thebilling rates of attorneys and not therates of paralegals, which were dra-matically lower. The governmenttherefore observes that whenCongress set the cap at $75 and lat-er increased it to $125, the ceilingcapped “attorney fees” at a levelbelow that of many attorneysnationwide. The government rea-


sons that Congress’s decision to useattorneys’ charged rates subject tocaps and its failure to impose anyanalogous caps on paralegals’ ratesstrongly suggests Congress thoughtparalegal charges would be treatedas expenses (subject to the “cap” oftheir actual cost).

According to Richlin, treating para-legal services as compensable at thecost of those services is at odds withthe judicial understanding of theEAJA, under which cost-basedawards generally are for out-of-pocket expenses charged by third-party vendors. As examples, Richlincites items such as travel costs andlong-distance phone calls.

The government argues that com-pensating paralegal expenses as“attorney fees” would result inEAJA awards for paralegal time thatare disproportionately high relativeto the fees that can be recovered forordinary attorney work (becauseparalegal rates are generally muchlower than those of attorneys) andwould permit attorneys to recoverparalegal expenses that are near orequal to the awards given for thetime of even extraordinarily experi-enced attorneys. To the extent thatlitigation against the government isinformed by the availability of EAJAfees, the government declares thatthis anomaly could “distort the nor-mal allocation of work” by encour-aging attorneys to shift work toparalegals (where they can recoverthe full amount of, or at least agreater proportion of, their normalhourly rates) and thus “result in aless efficient performance of legalservices.”

Even if it were appropriate underthe EAJA to reimburse paralegalexpenses at “cost,” Richlin saysreimbursement should be based onthe cost incurred by the client, notby the lawyer. Richlin stresses thatit is clients—not lawyers—whose

interests EAJA seeks to protect. Thepetitioner argues that basing theclient’s reimbursement for paralegalservices on what it costs the lawyerto employ the paralegal leaves theclient with a cost bearing no rationalrelationship to the costs faced by theclient or the EAJA’s purposes.

The government responds that theSupreme Court should reject peti-tioner’s argument that, even if para-legal time is not compensated as“attorney fees” and are “otherexpenses” under the EAJA, “otherexpenses” should be reimbursed atthe market rate paid by the client,not at the cost of the attorney. Thegovernment contends the petition-er’s argument is not fairly includedin the question presented, was notpressed or passed upon below, andtherefore is not properly before theCourt. The government argues theEAJA specifically provides thatattorney, agent, and expert witness“fees” are to be awarded at prevail-ing market rates but makes no simi-lar provision for “other expenses.”

If there were any doubt as to theproper construction of “attorneyfees,” the government argues, thecanon of construction that “thescope of waivers of sovereign immu-nity should be narrowly construedin favor of the sovereign” compelsthe conclusion that paralegalexpenses are not a type of “attorneyfees” within the meaning of theEAJA. The government says nothingin the EAJA’s text requires a con-trary result, particularly because the EAJA’s provision of “otherexpenses” aptly captures paralegalexpenses necessary for the prepara-tion of a party’s case.

SIGNIFICANCEThe Supreme Court is called uponto resolve a dispute between theFederal Circuit and four other cir-cuits. Disagreeing with the FederalCircuit, four circuits have held that

a prevailing party may be awardedattorney fees for paralegal services.See Role Models America, Inc. v.Brownlee, 353 F.3d 962, 974 (D.C.Cir. 2004); Hyatt v. Barnhart, 315F.3d 239, 255 (4th Cir. 2002); Millerv. Alamo, 983 F.2d 856, 862 (8thCir. 1993) (interpreting similar lan-guage in 26 U.S.C. § 7430); Jean v.Nelson, 863 F.2d 759, 778 (11th Cir.1988), aff’d on other grounds subnom. Immigration & NaturalizationServ. v. Jean, 496 U.S. 154 (1990).Given the frequency with whichattorney fee questions arise underthe EAJA, resolving this split ofauthority will provide a greaterdegree of clarity and consistency.

Amicus curiae suggest that a deci-sion affirming the Federal Circuitwould reduce the use of paralegalsin administrative proceedings,increasing the costs for clients. Theamici also assert that a decisionaffirming the Federal Circuit wouldprolong administrative proceedingsand result in time-consuming hear-ings to determine appropriate reim-bursement rates.

The government suggests that com-pensating paralegal expenses asattorney fees would result in EAJAawards for paralegal time dispropor-tionately high relative to the feesthat can be recovered for ordinaryattorney work (because paralegalrates are generally much lower thanthose of attorneys). The governmentsays this would permit attorneys torecover paralegal expenses that arenear or equal to the awards givenfor the time of even extraordinarilyexperienced attorneys. To theextent that litigation against thegovernment is informed by theavailability of EAJA fees, the govern-ment asserts that anomaly could“distort the normal allocation ofwork” by encouraging attorneys toshift work to paralegals (where theycan recover the full amount of, or atleast a greater proportion of, their

265



normal hourly rates) and thus“result in a less efficient perfor-mance of legal services.”

ATTORNEYS FOR THE

PARTIESFor Petitioner Richlin SecurityService Co. (Brian Wolfman (202)588-1000)

For Respondent Michael Chertoff,Secretary of Homeland Security(Paul D. Clement (202) 514-2217)

AMICUS BRIEFSIn Support of Petitioner RichlinSecurity Service Co.

National Association of LegalAssistants, Paralyzed Veterans ofAmerica, and the NationalOrganization of Social SecurityClaimants’ Representatives (AmyHowe (202) 237-7543)

This appeal involves

an interpleader action

brought to settle

ownership of assets

misappropriated by

Ferdinand Marcos when

he was president of the

Republic of the

Philippines. The assets

are claimed both by the

Republic and by a class

of private judgment

creditors of the Marcos

estate. The Republic was

dismissed from the action

on sovereign immunity

grounds, but the action

continued in the absence

of the Republic and its

Presidential Commission

on Good Government.

I N T E R N A T I O N A L L A W

When May a Government Challenge a Decision That an

Action Can Proceed in Its Absence?by Jay E. Grenig

ISSUEMay a district court award propertyclaimed by a foreign governmenteven when that government isabsent from the litigation by virtue of its invocation of sovereignimmunity?

FACTSThis litigation is part of an ongoingdispute between the government ofthe Republic of the Philippines andcreditors of the estate of FerdinandE. Marcos over assets Marcosallegedly secreted from the govern-ment while he was president of thePhilippines. In 1972, Marcos trans-ferred approximately $2 million toArelma, S.A., a Panamanian stockcorporation. Arelma invested thefunds with Merrill Lynch, Pierce,Fenner & Smith in New York. By2000 that investment had grown toapproximately $35 million. Theshares of Arelma, a Panamaniancorporation, are held in escrow bythe Philippine National Bank pend-ing an ownership determination bythe Philippine courts.

After Marcos was deposed frompower in 1986, President CorazonAquino created the PresidentialCommission on Good Government(PCGG), an agency charged withrecovering assets of the republicwrongfully acquired by Marcos whilehe was in office. In July 2000, thePCGG asked Merrill Lynch to turnover the Arelma assets to thePhilippine National Bank. ThePCGG proposed the bank act as anescrow agent and hold the assetspending a ruling in theSandiganbayan, a Philippine anti-corruption court, on whether theassets belonged to the Republic orto the Marcos estate.

Merrill Lynch denied the request,apparently because of the existenceof other claimants, and instead filedan interpleader action in the U.S.District Court for the District ofHawaii seeking to resolve conflictingclaims to the Arelma assets. Thecomplaint named as defendants sev-eral possible claimants including theRepublic, the PCGG, PhilippineNational Bank, Arelma, the estate of


267


Case at a

Glance

Case at a

GlanceJay E. Grenig is a professor of law

at Marquette University LawSchool in Milwaukee, Wisconsin.

He is co-author of ElectronicDiscovery And Records

Management. Prof. Grenig can bereached at [email protected]

or (262) 646-3324.

REPUBLIC OF THE PHILIPPINES

ET AL. V. MARIANO J. PIMENTEL

ET AL.DOCKET NO. 06-1204.


FROM: THE NINTH CIRCUIT


Roger Roxas, the Golden BudhaCorporation, and Mariano J.Pimentel. The Roxas estate andGolden Budha asserted claims onthe basis of judgments obtained instate courts.

The estate of Roger Roxas and theGolden Budha Corporation havesimilar interests. Roxas worked as alocksmith in Baguio City, thePhilippines. He was also an amateurtreasure hunter. In 1961, Roxas meta man who claimed that his fatherhad been in the Japanese army andhad drawn a map identifying thelocation of the legendary“Yamashita Treasure.” (There is dis-agreement whether the YamashitaTreasure ever existed.) The treasurepurportedly consisted of booty plun-dered from various Southeast Asiancountries during World War II byJapanese troops and allegedlyburied in the Philippines during thefinal battle for the islands to keep itout of the hands of the Americans.(General Yamashita, also known as“the Tiger of Malaya,” was executedfor war crimes after World War II.)

Roxas organized a group of partnersand laborers to search for the trea-sure and obtained a permit for thatpurpose from Judge Pio Marcos, arelative of Ferdinand. Judge Marcosinformed Roxas that, in accordancewith Philippine law, a 30 percentshare of any discovered treasurewould have to be paid to the government.

Roxas’s group claimed to have founda network of tunnels. After severalweeks spent digging and exploringthe tunnels, his group discovered a10-foot thick concrete enclosure inthe floor of the tunnel. In 1971, thegroup broke through the enclosure.Inside, Roxas discovered a gold-colored Buddha statue, which heestimated to be about three feet inheight. The statue was extremelyheavy and required 10 men to trans-

port it to the surface using a chainblock hoist, ropes, and rolling logs.

On April 5, 1971, men purporting tobe from two Philippine nationalsecurity agencies forced their wayinto Roxas’s home. They took thetreasure and told Roxas that Marcoshad ordered the confiscation. Roxaswas later tortured and imprisoned.After he filed suit in Hawaii, a juryawarded $22 billion in compensato-ry damages and interest for a totalaward of over $40 billion. The jurydid not award punitive damages. OnNovember 17, 1998, the HawaiiSupreme Court reversed $22 billionof the judgment and returned thematter to the trial court for arecomputation of the damages.Roxas claimed the Arelma assetsboth as a creditor of Marcos and onthe basis that the $2 million used byMarcos to set up the Merrill Lynchaccount were most probably derivedfrom the Yamashita Treasure andcan be traced to the property stolenfrom Roxas.

Pimentel is the representative of9,539 persons who brought suitagainst Marcos after his fall frompower. In 1996 he won a judgmentagainst Marcos’s estate of nearly $2billion. Hilao v. Estate of Marcos,103 F.3d 767 (9th Cir.1996).Pimentel had been arrested twoweeks after the declaration of mar-tial law in the Republic in 1972. Hewas held in detention centers forfour out of the next six years. Onhis trip home from his final deten-tion, the military kidnapped him.They beat him with rifles, breakinghis teeth, an arm and a leg and dis-locating his ribs. They then tookhim to a remote sugarcane field,buried him up to his neck, and lefthim for dead.

The Republic and the PCGG arguedthat they were entitled to sovereignimmunity under the ForeignSovereign Immunities Act (28 U.S.C.

§ 1604). They also argued that theirunavailability because of sovereignimmunity required dismissal of theaction against them. Pimentel alsomoved to dismiss the Republic andthe PCGG from the suit, claimingthey were not “real parties in inter-est” as required by the Federal Rulesof Civil Procedure.

On December 20, 2001, the districtcourt granted Pimentel’s motion todismiss the Republic and the PCGG.The court concluded that they werenot real parties in interest and thatthey were neither necessary norindispensable parties because theyhad no enforceable claim to theArelma assets. The court declined to decide any issue of sovereignimmunity.

On appeal, the Ninth Circuitreversed the district court, holdingthat since the Republic and thePCGG were immune from suitunder the Foreign SovereignImmunity Act, the district courtshould have granted their motion todismiss them on that ground.Because of that immunity, the NinthCircuit said the district court hadno authority to inquire into themerits of their claim. The NinthCircuit also determined that theRepublic and the PCGG were “nec-essary” parties under Rule 19(a) ofthe Federal Rules of Civil Procedurewho should participate in the action“if feasible” because they have aclaim to the assets at issue in thelitigation. The Ninth Circuit orderedthat the litigation be stayed pendingresolution of litigation in thePhilippines regarding ownership ofthe Arelma assets. In re Republic ofthe Philippines, 309 F.3d 1143 (9thCir. 2002).

The matter was then returned tothe district court for further pro-ceedings. The district court dis-solved the stay and ruled that theRepublic and the PCGG, because


they had been dismissed on sover-eign immunity grounds, were notindispensable parties within themeaning of Rule 19(b) of theFederal Rules of Civil Procedure.The district court found it would beunjust to prevent the “Class ofHuman Rights Victims,” personstortured, summarily executed, and“disappeared,” from receiving theproceeds of the Arelma account atMerrill Lynch to partially satisfytheir judgment. However, it foundthat Golden Budha and the estate ofRoxas had not proved that theassets in the Merrill Lynch accountderived from assets allegedly stolenfrom them. The court concludedthat Pimentel and the Class ofHuman Rights Victims were entitledto the entirety of the interpleadedassets. Merrill Lynch, Pierce,Fenner & Smith Inc. v. Arelma,Inc., 2004 WL 5326929 (D. Hawaii2004).

The Republic and the PCGGappealed the decision. They main-tained that they were indispensableparties because the Arelma assetswere acquired by Marcos illegallyand never lawfully belonged to himbut rather from the beginning of hisacquisition they belonged to theRepublic. The Ninth Circuit foundthat the Republic and the PCGGwere necessary parties because theyclaim “an interest relating to thesubject to the action and [are] sosituated that the disposition of theaction in [their] absence may (i) asa practical matter impair or impede[their] ability to protect that inter-est or (ii) leave any of the personsalready parties subject to a substan-tial risk of incurring double, multi-ple, or otherwise inconsistent oblig-ations by reason of [their] claimedinterest.”

Recognizing that Federal Rule ofCivil Procedure 19(b) distinguishesbetween “necessary” and “indis-pensable parties,” the court

explained that indispensability mustmeet a higher standard than neces-sity. The court concluded that theRepublic and the PCGG were notindispensible parties and affirmedthe district court. Merrill Lynch,Pierce, Fenner & Smith, Inc. v. ENCCorp., 464 F.3d 885 (9th Cir. 2006).

The Republic, the PCGG, thePhilippine National Bank, andArelma asked the Supreme Court toreview the Ninth Circuit’s decision.The Supreme Court granted certio-rari on December 3, 2007. In addi-tion to the issue posed by the peti-tion for certiorari, the SupremeCourt directed the parties to briefand argue the following question:

Whether the Republic of thePhilippines (Republic) and itsPresidential Commission onGood Government (PCGG), hav-ing been dismissed from theinterpleader action based ontheir successful assertion of for-eign immunity, had the right toappeal the district court’s deter-mination that they were notindispensable parties underFederal Rule of Civil Procedure19(b); and whether the Republicand its PCGG have the right toseek this Court’s review of thecourt of appeals’s opinion affirm-ing the district court.

CASE ANALYSISWhile the history of this litigationinvolves tales of hidden treasure,torture, and kidnapping, the casebefore the Supreme Court concernsprocedural issues.

The underlying action in this case isan interpleader action. “Interpleader”is a procedure in which a personholding a fund or stake against whichtwo or more persons have claims thatcannot both be satisfied out of thevalue of the stake may compel theadverse claimants to litigate theirclaims to the stake in a single suit

that will determine who gets what.Interpleader seeks to avoid double ormultiple litigation of the same basiccontroversy and affords protectionagainst inconsistency of results thatmight impose unfair liability.

Interpleader prevents the stakehold-er from being obliged to determineat its peril which claimant has thebetter claim, and when the stake-holder has no interest in the fund,forces the claimants to contest whatessentially is a controversy betweenthem without embroiling the stake-holder in the litigation over the mer-its of their respective claims. Even ifthe stakeholder denies liability, inwhole or in part, to one or more ofthe claimants, interpleader still pro-tects the stakeholder from the vexa-tion of multiple suits and the possi-bility of multiple liabilities thatcould result from adverse determina-tions in different courts. The devicealso can be used to protect theclaimants by bringing them togetherin one action and reaching an equi-table division of a limited fund.

In this action, Merrill Lynch is thestakeholder and the claims includethose of the Republic, its PCGG, theBank, Arelma, the estate of RogerRoxas, the Golden BudhaCorporation, and the class of per-sons represented by Pimentel. Thestake is the approximately $35 mil-lion held by Merrill Lynch.

While the Republic and the PCGGwere named as defendants in theinterpleader action, they were dis-missed from the action as a result oftheir assertion of sovereign immuni-ty. They now claim that, under Rule19 of the Federal Rules of CivilProcedure, the interpleader actioncannot proceed in their absencebecause they are necessary andindispensable parties.

Normally a plaintiff, including aplaintiff in an interpleader action,


269


has the right to decide who shall bethe parties to its lawsuit. This rightis defined by the rights of others,however. The interests of a non-party who cannot be joined must be considered.

Rule 19 is intended to protect theinterests of absent persons as wellas those already before the courtfrom multiple litigation or inconsis-tent judicial determinations. While acourt may not bind absent personsor those who do not have a legallysufficient connection or sharedinterest with the actual parties, thenonparty’s claim or defense may beimpaired as a practical matter.Provident Tradesmens Bank &Trust Co. v. Patterson, 390 U.S. 102(1968). The focus of Rule 19 is onthe interest of the courts and thepublic in complete, consistent, andefficient settlement of controversies.

The objection to the failure of aplaintiff to join a party under Rule 19may be made by a motion to dismiss.However, the court will not dismissunless the suit cannot continue with-out the absent parties under Rule19(b). The burden is on the personmaking the motion to dismiss toshow that the absent party is indis-pensable and that the action shouldtherefore be dismissed.

Rule 19(a) defines those personswho should be joined as parties tothe action. These parties are some-times characterized as “necessary”or “indispensable.” Rule 19(a) isapplicable when nonjoinder wouldhave either of the following effects.First, it would prevent completerelief from being accorded amongthose who are parties to the actionor, second, the absentee “claims aninterest relating to the subject mat-ter of the action and is so situated”that the nonparty’s absence fromthe action will have a prejudicialeffect on that person’s ability to pro-tect that interest or will “leave anyof the persons already parties sub-

ject to a substantial risk of incurringdouble, multiple, or otherwiseinconsistent obligations.”

The decision regarding whether a particular nonparty must bejoined under Rule 19(a) is made interms of the general policies ofavoiding multiple litigation, provid-ing the parties with complete andeffective relief in a single action,and protecting the absent personsfrom the possible prejudicial effectof deciding the case without them.Consideration of what other alterna-tives are available to the litigantsmust also be given.

If one or more of the tests in Rule19(a) are met, the second sentenceof the Rule 19(a) requires that, ifthe nonparty has not been joined,the court must order that the per-son be made a party. Difficultiesarise when joinder of an absent par-ty is not feasible. When joinder ofsomeone described in Rule 19(a) isnot feasible, such as where theabsent person has sovereign immu-nity, the court must examine thefour considerations described inRule 19(b) to determine whetherthe action may go forward in thenonparty’s absence or must be dis-missed, “the absent person beingthus regarded as indispensable.”

When it is not feasible to join some-one described in Rule 19(a), Rule19(b) directs the court to determine“whether in equity and good con-science the action should proceedamong the parties before it, orshould be dismissed.” Under Rule19(b), the court also must evaluatethe degree of actual prejudice to thenonparty as opposed to the theoreti-cal possibility that injury will occur.Whether a particular nonpartydescribed in Rule 19(a) will beregarded as indispensable dependsto a considerable degree on the cir-cumstances of each case.

Rule 19(b) enumerates four factorsthat must be given attention by the

court. (These factors are not mutu-ally exclusive and are not the onlyconsiderations that may be takeninto account in a particular case.)

The first factor is the extent towhich adverse consequences mayresult from proceeding without theabsentee. This factor emphasizesthe need to protect absent personsfrom litigation that might adverselyaffect their interests in the subjectmatter of the action, includinginconsistent judgments, and theneed to protect those who are par-ties from the threat of multipleactions.

The second factor is whether thecourt has any way to minimize thepossible adverse consequences tothe absentee. This requires the courtto make a fact-specific analysis.

The third factor is whether a judg-ment rendered in the person’sabsence will be adequate. This fac-tor recognizes the public’s interestin efficient and final disposition oflegal disputes.

The fourth factor provided by Rule19(b) is whether the plaintiff willhave an adequate remedy if theaction is dismissed for nonjoinder ofthe absentee. Dismissal will not be ahardship when a plaintiff is able tobring the action in another federalor state court. However, there maynot always be an alternative forumin which all interested parties canbe joined.

With respect to the question ofwhether the Rule 19 issue is proper-ly before the Supreme Court, thepetitioners contend that it wasproperly before the Ninth Court andtherefore is properly before theSupreme Court. Petitioners say thatthe Philippine National Bank andArelma had an unquestioned rightto appeal and seek certiorari. Whenthey did, petitioners argue that the


Supreme Court became obligated toapply Rule 19(b) so as to protectthe absent party, who had no oppor-tunity to plead and prove its inter-est in the lower courts.

Pimentel argues that Arelma andthe bank lack standing to raise theissue of the Republic’s indispensabil-ity on appeal because they nolonger challenge the lower courts’rulings that they are not entitled tothe disputed assets, and thus theyhave no further direct interest inthe outcome of this litigation.

In addition, the petitioners assertthat the Republic had the right toappeal the Rule 19 question on itsown. The petitioners note that theRepublic was named a party to thislitigation and that while a party itrequested the relief it is seekingnow on appeal and by certiorari.Under the circumstances of thiscase, petitioners contend the appealsimply permits the Republic to con-tinue pursuing the relief it request-ed before its technical dismissalfrom the suit.

Pimentel, however, argues that theRepublic does not have the power toappeal the judgment. According toPimentel, the Republic made thestrategic determination to withdrawfrom this interpleader action, and itchose not to intervene in the trialproceeding even after the trial judgeruled that it was not an indispensableparty. Pimentel points out that theRepublic is not bound in any way bythe rulings made by the lower courtsduring the course of the interpleaderprocedure. It is Pimentel’s positionthat allowing the Republic to appealat this point would be contrary to thecore principle that only parties (orthose that intervene) can appeal, andallowing the appeal would disrupt theorderly conduct of litigation.

With respect to the merits of thiscase, petitioners argue that the case

should be dismissed under Rule19(b). They assert that the sover-eign immunity of an absent party isa substantive factor that is com-pelling and requires dismissal of theaction. According to the petitioners,permitting the suit to proceed in theRepublic’s absence would overrideits immunity as a practical matter,effectively depriving the Republic ofassets it claims under Philippine lawand coercing it to participate in thelitigation.

Apart from the question of immuni-ty, the petitioners say the NinthCircuit’s analysis misapplied theequitable considerations that bearon indispensability under Rule 19.The petitioners claim the judgmentsubstantially impaired theRepublic’s interest in the Arelmaassets. They reason that the NinthCircuit’s belief that the Republicwould not prevail if it brought suitto recover those assets is both legal-ly immaterial and wrong on its ownterms. The petitioners state that thejudgment could not possibly bestructured to protect the Republic’sinterest.

Disagreeing with the petitioners,Pimentel argues that in determiningthat the Republic was not an indis-pensable party to the interpleaderthe lower courts followed the lan-guage of Rule 19(b) and theSupreme Court’s guidance inProvident Tradesmens Bank &Trust Co. v. Patterson, 390 U.S. 102(1968). He says the courts’ deci-sions, made after weighing all rele-vant factors under the standard ofequity and good conscience, werenot an abuse of discretion.

Pimentel points out that theRepublic has participated actively inlitigation in U.S. courts regardingpurported Marcos assets withoutpreviously asserting sovereignimmunity in those actions. Pimentelsays the Republic has known about

the Arelma assets since at least1986 and notes that it sought theassistance of a U.S. court to freezethose assets in 1987. Pimentelstresses that prior to the entry ofthe interpleader judgment, theRepublic never made any effortwhatsoever to establish its claim toownership of these assets, in eithera Philippine or a U.S. court.

Pimentel points out that the lowercourts concluded the assets wereowned by Marcos and determinedthe Class of Human Rights Victimswas entitled to these assets. Heargues that since the Republic madethe strategic decision to withdrawfrom the interpleader, it should bebound by the consequences of itsdecision.

The petitioners argue that the judg-ment could not possibly be struc-tured to protect the Republic’s inter-est. They also argue the judgment isnot adequate because it wholly dis-counts the Republic’s claim and doesnot, even in the Ninth Circuit’s ownview, completely resolve the Arelmadispute. The petitioners contendthere is no need for an alternativeremedy because resolution of thePimentel class claim should occurafter ownership of the Arelma assetsis settled in the Philippines andbecause the unavailability of a forumis a consequence of the Republic’ssovereign immunity.

Pimentel responds that the NinthCircuit has determined that if theinterpleader proceeding is dis-missed, the members of the Classwill have no forum within thePhilippines open to their claims.Additionally, Pimentel notes thatthe Ninth Circuit found that a pro-ceeding against Merrill Lynch inNew York would merely raise thesame question of indispensability.

The respondent goes on to say thatthe Class of Human Rights Victims

(Continued on 2)

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has tried to pursue collection effortsin the Philippine courts but hasbeen stymied in its efforts. Pimentelalso notes that the United NationsHuman Rights Committee has ruledexplicitly that the failure of thePhilippine courts to permit collec-tion efforts constitutes a violation ofthe obligations of the Philippinesunder Article 2(3) of the Inter-national Covenant on Civil andPolitical Rights.

Petitioners, however, declare thatentry of judgment in this case wouldeffectively preclude the Republicfrom recovering assets stolen by itsformer president, short-circuitinglitigation now pending in thePhilippine courts and interferingwith one of the Republic’s essentialinterests.

Pimentel counters that theRepublic’s effort to dismiss theinterpleader at this point is not sup-ported by any evidence or offer ofproof substantiating its contentionthat it is the legitimate owner of theassets. If the Supreme Court were todismiss the interpleader action,Pimentel suggests its ruling wouldallow any foreign governmentalbody to block any interpleader orany other proceeding brought byany judgment creditor to collect itsjudgment merely by asserting aclaim to the assets in question with-out having to present any evidenceto substantiate its claim.

Petitioners conclude that continua-tion of this litigation threatens todisrupt broader international coop-eration in combating official corrup-tion, causing friction in the UnitedStates’ relationship with importantallies.

Pimentel claims no significant nega-tive foreign policy consequences willfollow if the U.S. courts apply logicallegal principles to determine owner-ship of assets long held in the

United States. He asserts that thepetitioners have not addressed theinconsistency between their presentcontentions and the position theRepublic expressed in its amicuscuriae brief filed in 1987, whichstated “without hesitation or reser-vation that its foreign relations withthe United States will not beadversely affected if these humanrights claims are heard in U.S.courts.”

Pimentel concedes that the courtsmust give careful consideration toforeign policy concerns raised by for-eign governments. However, he saysthe need to defer to such concerns isminimal when the courts possessjurisdiction over the assets at issueand the matter concerns proceduralissues related to the courts’ manage-ment of their dockets.

SIGNIFICANCEThe petitioners assert that this is acase of exceptional practical anddoctrinal importance. By announc-ing a rule permitting the award ofproperty claimed by a foreign gov-ernment, even when that govern-ment is absent from the litigation byvirtue of its invocation of immunity,the petitioners contend the NinthCircuit’s decision undercuts thevital interests served by the doc-trine of foreign sovereign immunity,threatening to cause considerablefriction in the relations of theUnited States with other nations.

Although recognizing that the pre-sent case involves a foreign govern-ment and international issues,Pimentel says the case is essentiallya case involving judicial procedure.He claims the petitioners are advo-cating for a rule that would totallyprevent courts from adjudicatingdisputes over assets, because theyassert the right to block any suchadjudication merely by claiming thedisputed assets, without having to

present any evidence to substantiatetheir claim.

ATTORNEYS FOR THE

PARTIESFor Petitioner Republic of thePhilippines et al. (Stephen V.Bomse (415) 772-6000)

For Respondent Mariano J.Pimentel et al. (Robert A. Swift(202) 887-1500)

AMICUS BRIEFSIn Support of Petitioner Republicof the Philippines

United States of America (Paul D.Clements (202) 514-2217)

In Support of Respondent MarianoJ. Pimentel

Philippine Human Rights Groups(Mark S. Davis (808) 524-7500)

Professors of International Law(William J. Aceves (619) 525-1413)

In Support of Neither partyMerrill Lynch, Pierce, Fenner &

Smith (Daniel A. McLaughlin (212)839-5300)

Ahmed Ressam lied to

customs agents about his

identity and citizenship

(a felony) when entering

the United States with

explosives hidden in his

car. Can he be prosecuted

for the federal crime of

carrying explosives

during the commission

of a felony when the

carrying of the explosives

was not done in

furtherance of the

underlying felony?

C R I M I N A L L A W

Does the Crime of Carrying an Explosive During a Felony Require the Carrying to Be Related to the Felony?

by Mark A. Cohen

Section 844(h)(2) of Title 18 of theUnited States Code prescribes amandatory 10-year period of impris-onment for any person who “carriesan explosive during the commissionof any felony which may be prose-cuted in a court of the UnitedStates.”

ISSUEDoes Section 844(h)(2) require thatthe explosive be carried “in relationto” the underlying felony?

FACTSRespondent Ahmed Ressam enteredthe United States from Canada bycar ferry at Port Angeles,Washington, on Dec. 14, 1999.When he was contacted by custominspectors, Ressam provided falseinformation regarding his identityand citizenship. His demeanoraroused suspicion, and he wasreferred for secondary inspection.His car was searched, and discov-ered hidden within the trunk werethe components of a bomb, includ-ing explosives, detonators, timingdevices, and other items. Ressamwas arrested and the government

launched an intensive investigation.On Feb. 14, 2001, Ressam wascharged in a nine-count indictment.

The centerpiece count in the indict-ment was for conspiracy to commitan act of terrorism in violation ofU.S.C. § 2332b(a)(B). The govern-ment alleged that Ressam wasinvolved in an al Quaeda-sponsoredplot to detonate an explosive at theLos Angeles International Airportaround the time of the millennium.The government also brought a vari-ety of other counts relating to theexplosives and the false statementsmade to the custom agents. Thejury convicted on all nine counts.

The count now at issue before theU.S. Supreme Court is the charge ofcarrying an explosive during thecommission of a felony in violationof Section 844(h)(2) of Title 18 ofthe United States Code. The govern-ment chose Ressam’s false state-ment to the customs agent as theunderlying felony to support theSection 844(h)(2) charge. In federaldistrict court, Ressam unsuccessful-ly moved for a judgment of acquittalon that count, arguing that there


273


Case at a

Glance

Case at a

GlanceMinneapolis attorney Mark A.Cohen is the editor-in-chief

of Minnesota Lawyer. He can be reached at

[email protected] or (612) 484-1531.

UNITED STATES V. RESSAM

DOCKET NO. 07-455




was no possible evidence that wouldsupport a finding that his carryingof the explosives facilitated the falsestatement. The federal district courtjudge denied the motion and sub-mitted the count to the jury, whichconvicted. Section 844(h)(2) pre-scribes a mandatory 10-year term ofimprisonment for violators.

The Ninth Circuit vacated the con-viction on the charge of carrying anexplosive during the commission ofa felony. In so ruling, the court said,“the government offered no evi-dence that Ressam’s carrying theexplosives in any way facilitated hisfalsifying the customs declarationform.” The court went on to say,“[I]t is not enough for the govern-ment to prove that Ressam liedbecause he was smuggling explo-sives in the trunk of his car. Rather,the government must demonstratethat the explosives aided the com-mission of the underlying felony insome way.”

Certiorari was sought and grantedon the question of whether Section844(h)(2) requires a relation or con-nection between the underlyingfelony and the carried explosives.

CASE ANALYSISThe provision at the heart of thiscase—Section 844(h)—imposes amandatory 10-year prison sentenceon a person who: (1) uses fire or anexplosive to commit any felonywhich may be prosecuted in a courtof the United States; (2) carries anexplosive during the commission ofany felony that may be prosecutedin a court of the United States.

In vacating the conviction on thecarrying an explosive charge, themajority of a divided Ninth Circuitsaid it was “constrained” by its ear-lier ruling in United States v.Stewart, 779 F.2d 538 (9th Cir.1985). Stewart involved 18 U.S.C. § 924(c)(2), which at the time of

the defendant’s conduct had pro-scribed “carr[ying] a firearm unlaw-fully during the commission of anyfelony.” Shortly before the NinthCircuit’s ruling in Stewart, Congressamended the law, deleting the word“unlawfully” and adding “and inrelation to” after “during.” TheStewart court found that the legisla-tive history revealed that Congresshad intended to require a relation-ship between the firearm and theunderlying crime.

Relying on the Stewart court’s con-struction of the firearm statute, theNinth Circuit in the present casefound that Stewart required theconclusion that Section 844(h)(2)“necessarily has a relational ele-ment as well.” The government tono avail pointed out that, post-Stewart, Congress had taken theword “unlawfully” out of Section844(h)(2) without adding the “andin relation to” language it addedinto the firearm statute. The NinthCircuit concluded that there wasnonetheless an implicit relationalelement in Section 844(h)(2).

In arguing against the NinthCircuit’s interpretation, the govern-ment relies primarily on the plaintext of Section 844(h)(2), which hasno relationship language, and on thelegislative history of the statute,which is devoid of any mention of arelationship requirement. The gov-ernment’s argument has an appeal-ing simplicity to it. As the govern-ment points out, Congress couldhave added an explicit relationshiprequirement in Section 844(h)(2) asit did with the firearm statute, butdid not do so.

The respondent, on the other hand,argues that the broadness of Section844(h)(2) without the relationshiprequirement demonstrates thatCongress must have intended therequirement. The statute has a broaddefinition of explosive—which

includes lawful substances such asgasoline and fertilizer—and a largeclass of qualifying underlying offens-es—any felony that may be prosecut-ed in a federal court. The word “car-ries” in the statute is also susceptibleto a very broad interpretation.

“The practical consequence of read-ing the statute without a relation-ship [requirement] is that individu-als lawfully carrying explosives inconnection to their work or hob-bies, who happen simultaneously tocommit unrelated possession andstatus offenses, are subject to thesame mandatory minimum ten-yearsentence enhancement as thosewho carry explosives to aid thecommission of a felony,” the respon-dent points out in his brief.

The respondent goes on to arguethat Congress could not haveintended such a result, and that“common sense” dictates that arelationship requirement is presentwithin the statute.

SIGNIFICANCEThis is an interesting case in that itpotentially has extremely broadimplications in a limited area of thelaw—cases involving explosivedevices and substances. The expan-sive definition of what constitutesan “explosive” under the statute,however, makes those ramificationsmuch greater than would otherwisebe the case.

If the government’s argument pre-vails, an individual could be chargedunder Section 844(h)(2)—and facea minimum of 10 years in prison—ifhe or she commits any felony at allwhile he or she happens to be inpossession of a substance that quali-fies as an explosive. Under thebroad statutory language, this couldinclude gasoline, cleaning solvents,or fertilizer for that matter. Forexample, the National Association ofCriminal Defense Lawyers posits the


case of a Mexican domestic workerwho lies when crossing the borderto go to a job in California, telling acustoms officer she is taking a shortvacation. If she has cleaning fluidsin her car that qualify as an “explo-sive,” she might be charged withcarrying explosives during a felonyand sentenced to a decade in federalprison. Likewise, a farmer with toomuch fertilizer in his truck when hemakes a false statement to a federalofficial might find himself doing 10years for committing a felony withexplosives, the criminal defenselawyers group points out.

For its part, the government pointsout that whatever hypotheticalswith absurd consequences Ressamand his amicus might offer, there isno doubt that in his case the explo-sives were part of his terrorist plot.The government also observes that,“an explosive is a relatively unusualitem for an individual to be carry-ing, and the number of situations inwhich there is a fully innocentexplanation for doing so is smallerstill.”

Unmentioned in the government’sbrief—but likely part of the thinkingprocess in pursuing this charge sovigorously in this particular case—isthat a ruling in the government’sfavor would give it a potent tool inits arsenal for the War on Terror. Inthis case, the government couldhave used one of numerous countsmore closely related to the bombingplot as the predicate felony andavoided the issue implicated by thiscase altogether. Instead, the govern-ment hitched the carrying explosivecharge to the false statement to acustom officer count. Thus, in acase where it has extremely strongfacts—a provable terror plot—thegovernment has the chance to makethe case for a principle that wouldhelp it prevail in cases in which theevidence of a terror plot is muchweaker. If the Supreme Court puts

its imprimatur on the government’sargument, all the government wouldhave to do to get a suspected terrordefendant in prison for 10 yearswould be to show he had an explo-sive and that he committed anyfelony-level offense. Such a toolwould be particularly useful at bor-ders, where it can almost be pre-sumed a bad actor would lie abouthis identity, status, and/or posses-sion of contraband.

ATTORNEYS FOR THE

PARTIESFor Petitioner United States (PaulD. Clement (202) 514-2217)

For Respondent Ahmed Ressam(Thomas W. Hillier II (206) 553-1100)

AMICUS BRIEFSIn Support of Respondent AhmedRessam

National Association of CriminalDefense Lawyers (Donald B. Ayer(202) 879-3900)

275

T A X A T I O N

When Is a Transfer Exempt from Stamp Taxes Because It Is “Under a Plan Confirmed Under” the Bankruptcy Law?

by Morgan L. Holcomb

States cannot impose

stamp taxes on transfers

occurring under

confirmed bankruptcy

plans. What is required

to qualify for the

exemption? In particular,

is there a temporal

requirement? That is,

does the transfer have to

happen after the plan has

been confirmed, or will a

transfer qualify so long as

it has some “nexus” with

a plan that eventually is

confirmed? The Supreme

Court likely will answer

these questions in this

case in which Florida

seeks about $40,000 in

stamp taxes from

Piccadilly Cafeterias.

Morgan L. Holcomb is a visitingassistant professor at the

University of Minnesota LawSchool where she teaches, amongother things, state and local tax.

She can be reached [email protected] or

612-625-3533.

FLORIDA DEPARTMENT OF REVENUE

V. PICCADILLY CAFETERIAS, INC. DOCKET NO. 07-312


FROM: THE ELEVENTH CIRCUIT

When a Florida taxpayer transfersproperty, the taxpayer is obliged toremit a small percentage of the val-ue of that transfer to the state—that tax is called a “stamp tax” and is required by Florida Statute § 201.02(1) (2007) (imposing a taxon “deeds, instruments, or writingswhereby any lands, tenements, orother real property, or any interesttherein, shall be granted, assigned,transferred or otherwise conveyedto, or vested in” a purchaser). Moststates and many localities imposesimilar stamp taxes. Typically, thetax is a small percentage of the val-ue of the transferred asset—forexample, in this case, the rate is 70cents on each $100 of considera-tion. Stamp taxes are usuallyimposed at the time of sale (orrecording) and typically are owedregardless of whether the taxpayermade money on the sale.

Although usually a very small partof the value of the asset transferred,stamp taxes constitute an importantrevenue stream for states. See, e.g.,Brief of Amici Curiae International

City/County ManagementAssociation, et al. at 3.

Federal bankruptcy law providesthat taxpayers who would otherwiseowe a stamp tax on a particular saleor transfer are exempt from that taxfor sales or transfers that occur“under a plan confirmed under sec-tion 1129.” 11 U.S.C. § 1146(a)(note that Congress renumbered thestatute in 2005—this language waspreviously at 11 U.S.C. § 1146(c);this article will refer to 1146(a)).This exemption from taxation isimportant to many bankruptcydebtors because it can entice pur-chasers to bid on properties andultimately fetches a better price fordebtors’ properties.

This case turns on just how muchrelief from taxation Congressintended to provide via § 1146(a).As explained below, the State ofFlorida argues that the relief is nar-row, and the respondent PiccadillyCafeterias, Inc., argues for a broaderunderstanding of congressionalintent.

276


Case at a

Glance

Case at a

Glance


ISSUEAre transfers of assets that occurprior to the actual confirmation of aplan in bankruptcy transfers ‘undera plan confirmed under section1129’ such that those transfers mayqualify for the exemption fromstamp taxes found at 11 U.S.C. § 1146(a) of the Bankruptcy Code?

FACTSBegun in Baton Rouge, Louisiana,over 60 years ago, PiccadillyCafeterias serve favorites such ascarrot soufflé, fried chicken, andlemon ice box pie. The Cafeteriashave multiple locations, predomi-nantly in the southeastern UnitedStates, and have become somethingof a southern institution. Piccadilly’ssales began a decline around 2000,and the company was forced toclose many restaurants but at thesame time remained obligated tocontinue payments on numerousleases. In 2003, Piccadilly could notmeet two critical obligations: pay-ments on a significant installmentnote and contributions to itsdefined-benefit plan. In response tothese pressures, Piccadilly decidedto market and sell the company.

Eventually, Chapter 11 bankruptcyfactored into Piccadilly’s plans. Butprior to filing for bankruptcy,Piccadilly marketed and in factfound a buyer for its assets.Piccadilly and Piccadilly AcquisitionCorp. (PAC) negotiated that PACwould pay $54 million forPiccadilly’s assets. Part of the bar-gain, however, was that during thebankruptcy proceedings, PAC’s bidwould be subject to higher bids inbankruptcy. The parties executedan asset purchase agreement onOctober 28, 2003.

The day after the purchase agree-ment was executed, Piccadilly filed apetition with the bankruptcy courtfor bankruptcy protection under

Chapter 11 of the Bankruptcy Code.Piccadilly’s ultimate goal was toeffectuate a going-concern sale as aform of reorganization. To this end,Piccadilly asked the bankruptcycourt to permit the sale of its assets“out of the ordinary course of busi-ness.” Included in this request was arequest to approve the sale for $54million and to approve the competi-tive bidding process for a final saleto a higher bidder. At the same time,Piccadilly asked for application of § 1146(a) so that the eventual salewould not be subject to stamp taxes.

The auction was successful in gen-erating a higher bid, and anotherbidder, Piccadilly Investment (PI),submitted a high bid of $80 million.(Piccadilly’s debts were approxi-mately $160 million.) In February of2004, the bankruptcy courtapproved this sale to PI and alsoexpressly ordered that the sale befree and clear of all encumbrances,including the Florida stamp tax.

Florida took issue with this finalcomponent of the bankruptcycourt’s order and objected to theapproval of the sale free and clear ofall claims and encumbrances.Florida also objected to the eventualconfirmation of the plan and filed acomplaint with the bankruptcycourt, asserting its right to collectthe stamp tax.

The sale closed on March 16, 2004,and Piccadilly filed a plan of liquida-tion in Chapter 11 on March 26,2004 (an amended plan was filed onJuly 31, 2004). Piccadilly success-fully moved for summary judgmenton the stamp tax issue in the bank-ruptcy court. The district courtaffirmed the bankruptcy court, find-ing that Congress intended to pro-vide relief to bankruptcy debtorsand that such relief should notdepend on whether a sale happensimmediately before or just afterconfirmation.

Florida appealed the case to theEleventh Circuit, which held, in anopinion opening a circuit split, that§ 1146(a) provides relief from stamptaxes when a transfer occurs “undera plan” regardless of when that planis confirmed. Beginning with thepremise that § 1146(a) is ambigu-ous, the Eleventh Circuit relied ontools of statutory interpretation,including an inquiry into congres-sional intent, to come to its conclu-sion that Piccadilly fell within theambit of § 1146(a). The EleventhCircuit noted that Congress couldhave inserted a temporal restriction,but chose not to do so in § 1146(a).The circuit also reflected that whiletax exemptions are to be construednarrowly, a narrow construction of § 1146(a) would actually underminecongressional intent. Practical con-siderations also factored into theEleventh Circuit’s analysis: Thecourt reasoned that a debtor mighthave to close a sale as a condition toconfirmation. For that reason, prin-ciples of “horizontal equity” dictatethat some pre-confirmation salesought to qualify for the relief provid-ed by § 1146(a). In other words,there is no compelling reason to taxa sale happening just before a con-firmation if that same sale, had itoccurred just after confirmation,would be exempt from the stamptax.

Neither the district court nor theEleventh Circuit articulated a precise standard for when a pre-confirmation sale should qualify forthe exemption. The court of appealsdetermined that the issue was notbefore the Court, since Florida hadargued for a blanket prohibition onapplication of § 1146(a) to any pre-confirmation sale. Although declin-ing to articulate a precise standard,both courts (the district court andthe Eleventh Circuit) predicted thatfor the protections of § 1146(a) toapply, there must be “some nexus


277


between the pre-confirmation saleand the confirmed plan.”

Florida’s petition for certiorari wasgranted, and the case is set for argu-ment on March 26.

CASE ANALYSISThe State of Florida argues that § 1146(a) is not ambiguous, and thatall the courts need do is follow theplain language of the code provision.In particular, § 1146(a) provides that

(a) The issuance, transfer, orexchange of a security, or themaking or delivery of an instru-ment of transfer under a planconfirmed under section 1129 ofthis title, may not be taxed underany law imposing a stamp tax orsimilar tax.

11 U.S.C. § 1146(a) (emphasisadded).

This language, Florida argues, oughtto be the starting point, as well asthe ending point, since it is clear.Florida takes the position that theemphasized language above—“undera plan confirmed”—means thattransfers must be made after a planis actually confirmed by the bank-ruptcy court: “It cannot be fairlysaid that a transfer made prior tothe date of plan confirmation … canbe under the authority of, or gov-erned or subject to, a plan that didnot even exist at the time of thetransfer.”

The Eleventh Circuit’s more expan-sive reading is therefore erroneous,according to Florida, because such areading “expand[s] the exemptionin such a boundless way that it canapply to virtually any transaction ina bankruptcy proceeding. …” Sucha broad reading renders the lan-guage statutory “under a plan con-firmed” meaningless.

Florida bolsters its plain meaningargument by referring to the “order-

ly sequence of events” that a plainreading envisions: “a confirmedreorganization plan … from whichauthorized property transfers arethen made to which the statutorytax exemption then becomes applic-able.” Florida is even able to pointto the verb tenses used in the sec-tion to support its argument. (SeeFlorida’s brief at page 14 for itsamusing “baked bean” and “finishedwork” analogy.)

Piccadilly points, however, to theambiguity that it sees in the statute.Piccadilly, emphasizing the ambigui-ty of the word “under,” suggests thattransfers that occur “under a plan”do not necessarily have to occurprior to the plan being confirmed,so long as those transfers are subor-dinate to or inferior to a plan that iseventually confirmed. The variabili-ty of the word “under” renders thetext ambiguous if read alone;Piccadilly suggests, however, thatthe ambiguity is compounded when§ 1146(a) is considered in context.In particular, Congress did notinsert a clear temporal limitation inthis section, even though it has fre-quently done so in other sections ofthe Code.

Both parties then turn to canons ofconstruction and policy to bolstertheir arguments. Florida proposesthat even if the Court finds someambiguity in the plain language of § 1146(a), settled principles ofstatutory interpretation indicatethat the state should nonethelessprevail. Piccadilly, for its part, isable to marshal canons of construc-tion in defense of its arguments as well.

Florida first points out that the ThirdCircuit (In re Hechinger InvestmentCo. of Delaware, Inc., 335 F.3d 243(3d Cir. 2003)) and Fourth Circuit(In re NVR L.P., 189 F.3d 442 (4thCir. 1999)) read the statute morenarrowly. Both circuits would haverequired Piccadilly to pay the Florida

stamp tax. After the decisions fromthe Third and Fourth Circuits,Congress amended § 1146(a), butonly renumbered the statute.Congress did not express disagree-ment with the Third and FourthCircuits, and this fact, Florida’s argu-ment suggests, supports the notionthat Congress has acquiesced in themore narrow interpretation.

Florida points also to the axiom thatthe Supreme Court prefers thatCongress clearly express its inten-tion to exempt a taxpayer from statetax obligations. Congress mustspeak in plain terms when providingsuch exemptions. Since this plainlanguage is missing from § 1146(a),Florida suggests the EleventhCircuit’s decision should bereversed. Adding to this argument isFlorida’s contention that no federalinterest is furthered by reading thestatute in the Eleventh Circuit’sbroad manner.

Piccadilly counters with the princi-ple that remedial statutes should beliberally construed. It emphasizesthat Florida is trying to jump thequeue—that is, to put its claim forstamp tax liability ahead of theclaims of almost ever other creditor.Piccadilly cautions that the Courtshould be hesitant to allow states toput priority on their claims overthose of other creditors. Finally,Piccadilly marshals the reasons thatthe Court should disregard onecanon of construction on whichFlorida relies—the canon thatstatutes granting tax exemptionsshould be strictly construed. Here,Piccadilly says that canon shouldnot be followed because Congressclearly intended to grant an exemp-tion—the only question is howextensive that exemption should be.Piccadilly claims that, in cases suchas this, the canon is not useful andshould be disregarded.

Florida argues that the EleventhCircuit’s interpretation is impracti-


cal and creates a morass in state taxadministration. In particular, withno temporal restriction, a sale thatoccurs months, or even years,before a plan is confirmed has thepotential to be exempted fromstamp taxes. This possibility putsstates in the unenviable position ofhaving to escrow state tax revenueto ensure that funds would be avail-able to refund stamp taxes to adebtor who eventually qualifies for § 1146(a) relief.

Finally, Florida points to the policyrationale supporting its appeal. Inparticular, Florida suggests that theEleventh Circuit’s interpretation willallow debtors to game Chapter 11and benefit from windfalls thatCongress did not intend.

Piccadilly argues that in fact, thepurpose of the Bankruptcy Code isbetter served by the EleventhCircuit’s reading. A fundamentalpurpose of Chapter 11, Piccadillypoints out, is facilitating reorganiza-tion. Characterizing stamp taxes as“a tax on the bankruptcy processitself,” Piccadilly suggests thatCongress in fact enacted section1146(a) to “unfetter the dispositionof property in Chapter 11 contexts.”Reading the statute as permittingstamp taxes on sales that occur twominutes before a plan is confirmed,while exempting stamp taxes onsales that occur two minutes after aplan is confirmed, leads to anabsurd result and cannot be whatCongress intended.

Piccadilly also chastises Florida forsuggesting that confirmation is a tal-ismanic event. The Code, Piccadillysays, contemplates a plan as a workin progress—modifications are permitted both pre- and post-confirmation, and even the terms ofa confirmed plan may be alteredunder the statutory scheme.Because of this integration,Piccadilly argues the better readingof the statute is to allow for stamp

tax exemption so long as the trans-fer is instrumental to a confirmedplan, regardless of whether thetransfer happens before or after theconfirmation.

SIGNIFICANCEThe most immediate significance ofthe Court’s decision in this case willbe the elimination of a bewilderingcircuit split. Its resolution also hasimportant ramifications for debtorsand the states alike. Florida notes,toward the end of its brief, thatFlorida and other states anticipatethis stamp tax exemption questionto come up with some frequency inthe next few years, as great num-bers of real estate ventures invokebankruptcy protection. Dependingon how the Court’s analysis pro-ceeds, the opinion could involve adelicate balancing of questions ofstate-federal comity, andCongressional intent. The justiceswill almost certainly wrestle withthe statutory interpretation issue.

Deference to state taxing authoritiescounsels a narrower reading of“under a plan” and, concomitantly,the reversal of the Eleventh Circuit.This interest in state taxing authori-ty and autonomy is no trifling mat-ter. Indeed, the Court has long rec-ognized the state’s fundamentalinterest in its taxing authority.Similarly, the Court’s respect forstate-federal comity, which it hasreiterated in recent opinions, weighson the “reversal” side of the equa-tion. The narrower reading couldalso be the more practical reading.Several commentators, including afederal bankruptcy judge, have not-ed that the Eleventh Circuit’s read-ing paves the way for “mischief” inthe form of debtors overusing theexemption. See Honorable Nancy C.Dreher, Eleventh Circuit Parts withthe Third and Fourth Circuits andHolds that the § 1146(c) Exemptionfrom State Stamp Tax Applies toPreconfirmation Sales, BankruptcyService Current Awareness Alert(June 2007).

On the other hand, affirming theEleventh Circuit would arguablyserve to effectuate the intent ofCongress in enacting the BankruptcyCode. Congress appeared to want togive debtors relief from stamp taxes,at least in some circumstances. Ifthe Court affirms the EleventhCircuit, it will also give bankruptcyjudges an additional tool when itcomes to fixing often already com-plicated bankrupt estates. This addi-tional option could prove useful infurthering the goal and purpose ofthe Bankruptcy Code.

Regardless of how the Court comesdown, debtors, lower courts, and thestates no doubt will benefit from asettled rule. And absent the Courtdismissing the case or the even rar-er phenomenon of “affirming by anequally divided court” (see theCourt’s recent ruling in Warner-Lambert), more certainty is onething the debtors and state revenuedepartments can count on getting.

ATTORNEYS FOR THE

PARTIESFor Petitioner Florida Departmentof Revenue (Scott D. Makar (850)414-3639)

For Respondent PiccadillyCafeterias, Inc. (G. Eric BrunstadJr. (860) 240-2717)

AMICUS BRIEFSIn Support of Petitioner FloridaDepartment of Revenue

Illinois, et al. (Michael A. Scodro(312) 814-3698)

International City/CountyManagement, et al. (Richard Ruda(202) 434-4850)

In Support of RespondentPiccadilly Cafeterias, Inc.

Professors Richard Aaron et al.(Richard Lieb (718) 990-6624)

279

E L E C T I O N L A W

Does the Voting Rights Act Require Preclearance Before Abandoning a Practice

Declared Invalid by a State Court? by Vikram David Amar and Kristy Erin Young

Section 5 of the federal

Voting Rights Act

requires covered

jurisdictions, including

Alabama, to obtain

preclearance from federal

authorities before

enacting or administering

changes to voting

procedures. The Supreme

Court of Alabama found a

state statute invalid on

state constitutional

grounds and the governor

sought to administer

voting practices in

accordance with this

judgment without

preclearance. The federal

district court held that

preclearance of the new

procedures was in

fact required.

Vikram David Amar is a professorand Kristy Erin Young is a student

at the UC Davis School of Law.Professor Amar can be reached at

[email protected] or (530) 752-8808. Ms. Young can be reached at

[email protected].

RILEY V. KENNEDY ET AL.DOCKET NO. 07-77


FROM: THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE

DISTRICT OF ALABAMA

The Voting Rights Act of 1965 wasenacted by Congress in response tothis country’s long history of racialdiscrimination in voting practicesand the resulting disenfranchise-ment of minority communities. Thepreclearance provisions of Section 5of the act specifically responded tostate and local circumvention ofjudicial mandates for reform. Inmany states, including Alabama,state and local officials would adoptnew discriminatory practices assoon as others had been adjudicatedunconstitutional and enjoined.

Section 5 requires covered jurisdic-tions, such as Alabama, to obtainadministrative or judicial preclear-ance before enacting or administer-ing changes in voting practices. Inorder to obtain this preclearance,the covered jurisdiction must showthat the proposed change “neitherhas the purpose nor will have theeffect of denying or abridging theright to vote on account of race orcolor” or membership in a languageminority group.

Those citizens who are affected by avoting practice that has not been

precleared may bring a “coveragelawsuit” before a local three-judgedistrict court. Appeals from thatpanel’s decision are made directly tothe Supreme Court.

ISSUESWas the appeal to the U.S. SupremeCourt in this case timely filed byAlabama Gov. Riley following finaljudgment by the U.S. District Court?

When a state court declares a pre-cleared voting practice invalid basedon its state constitution, is the cov-ered jurisdiction required to seekpreclearance under Section 5 of theVoting Rights Act before abandoningthat practice?

FACTSEach county in Alabama is governedby county commissions empoweredby general (state) and local laws.This case requires the SupremeCourt to determine the applicabilityof a small subset of those laws—those resolving the filling of com-mission vacancies. The history ofvacancy laws reaches back to 1868,

280


Case at a

Glance

Case at a

Glance


when Alabama’s ReconstructionLegislature adopted a general lawvesting appointment power in thegovernor for any potential vacancyon county commissions. However,after the state adopted single-member districts in Mobile Countyin 1965, and in so doing created onemajority African American district,the issue of vacancy appointmentstook on new importance.

In 1985, the legislature adopted alocal law applicable to MobileCounty providing for county com-mission vacancies to be filled onlythrough special elections. This lawwas precleared by the Departmentof Justice and went into effect onJune 17, 1985.

In 1987, a voter, Willie Stokes,sought to prevent implementation ofthis law when the commission seatin the majority African Americandistrict became vacant. His claim,adjudicated as Stokes v. Noonan,alleged that the planned special elec-tion required by the 1985 law violat-ed Section 105 of the AlabamaConstitution, which provides that no“local law … shall be enacted in anycase which is provided for by thegeneral law.” After the state trialcourt rejected this constitutionalargument, the case was appealed tothe Alabama Supreme Court. Stokesrequested a stay pending appeal, butthat request was denied and the spe-cial election went forward. After theelection, the Alabama SupremeCourt reversed, finding the 1985local law was indeed violative ofSection 105 of the state constitution.Thus, the Alabama Supreme Courtstruck down the special electionrequirement and reaffirmed the gov-ernor’s appointment authority. Nopreclearance was sought at that time.

Then, in 2004, the Alabama legisla-ture amended the general law toprovide that vacancies on countycommissions be filled by gubernato-

rial appointment “[u]nless a locallaw authorizes a special election.”Alabama did receive federal admin-istrative preclearance for this 2004change.

In 2005, the election of a new mayorin Mobile left a vacancy on thecounty commission. Uncertain as towhether the requirements of the1985 special election procedure stillgoverned Mobile County, or whethergubernatorial appointment rulesapplied, Gov. Riley announced hisintention to appoint a candidate tothe vacant seat. Three voters whowere also state legislators (YvonneKennedy, James Buskey, andWiilliam Clark), brought suit in statecourt. They claimed that a specialelection was required to fill thevacancy due to the 1985 local lawcombined with the 2004 general law.The trial court agreed with theclaimants and ordered a special elec-tion. Gov. Riley appealed to theAlabama Supreme Court. In Riley v.Kennedy, the Alabama SupremeCourt held that the 2004 general lawwas prospective only and did notrevive any local laws enacted priorto 2004. Therefore, the 1985 locallaw was not in effect and a specialelection was not needed to fill a seatvacated on the Mobile CountyCommission. Following this holding,Gov. Riley, without seeking preclear-ance for his action, appointed JuanChastang to fill the vacancy.

Reacting to this appointment, thevoters brought a coverage lawsuitunder Section 5 in the U.S. DistrictCourt seeking a declaratory judg-ment that Gov. Riley “lack[ed] thepower to appoint a person to fill avacancy on the Mobile CountyCommission unless and until thedefendant obtains preclearance.”The voters also sought specificinjunctions to prevent Gov. Rileyfrom formally appointing a personto fill the vacancy and requiring thegovernor to obtain preclearance.

After a full hearing, a three-judgepanel of the district court found thatthe change from special election togubernatorial appointment did fallunder the Section 5 preclearancerequirement. The district court con-ducted the three-step analysis articu-lated in City of Lockhart v. UnitedStates, which examines “(1) whethera Section 5 change occurred; (2) ifso, whether preclearance wasobtained; and (3) if not, what reme-dy should follow.” The second issueof preclearance was undisputed inthis case, since the governor conced-ed that he did not obtain preclear-ance in 1987 after the special elec-tion provision was invalidated understate law. In analyzing the first issue,the court compared the new votingpractice of gubernatorial appoint-ment with the established baseline,which is determined by identifyingthe “most recent practice that isboth precleared and in force andeffect.” The court used the specialelection held in 1987 as the baselinefrom which to evaluate any changes.The court reasoned that, althoughthe statute requiring a special elec-tion was subsequently ruled uncon-stitutional, the baseline is deter-mined “without regard for [its] legali-ty under state law.”

The court then turned to the ques-tion of identifying an appropriateremedy. In this regard, the votersnoted the potential disruption thatcould result if an injunction forcedChastang to vacate his appointment.Instead, they urged the court toenter an order that would give thestate 90 days to obtain preclear-ance, at which time the court wouldhave the option to revisit the reme-dy issue. The court entered judg-ment to this effect on August 18,2006, with direction to the clerk tomark such as the “final judgment.”

Thereafter, the state unsuccessfullysought administrative preclearance.In evaluating preclearance, federal


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authorities conduct a “retrogres-sion” analysis to determine whetherthe proposed practice has the pur-pose or effect of “denying or abridg-ing the right to vote on account ofrace or color.” The Department ofJustice found that “[t]he transfer ofelectoral power effected by [thereturn of gubernatorial appoint-ment] appears to diminish theopportunity of minority voters toelect a representative of theirchoice.” Thus, it refused to grantpreclearance.

In March 2007, due to the state’sinability to obtain preclearance, thevoters requested that the districtcourt order a special election. OnMay 1, 2007, the district court vacat-ed Chastang’s appointment. Followinga denial of a motion to stay the orderto vacate, Gov. Riley appealed to theSupreme Court on May 18.

CASE ANALYSISOn direct appeal to the U.S.Supreme Court, Gov. Riley asks thejustices to reverse the districtcourt’s decision to require preclear-ance of certain voting practices. Themain arguments can be divided intotwo parts: (1) jurisdiction and (2)whether gubernatorial appointmentof commission vacancies was achange in voting practice requiringpreclearance in accordance withSection 5 of the Voting Rights Act.

JurisdictionThe initial issue requiring resolutionis whether the governor timely filedhis appeal within 60 days followingfinal judgment as required by lawbefore the Supreme Court can exer-cise jurisdiction. Determining thedate of the final judgment is deter-minative on this point. Gov. Rileyargues that the May 1, 2007, deci-sion to vacate Chastang’s appoint-ment was the final judgment, whichplaces his May 18, 2007, appeal wellwithin the 60-day window. The vot-ers contend that the August 18,

2006, order requiring the state toobtain preclearance stood as thefinal judgment for this appeal sincethe state is challenging the preclear-ance requirement and not the orderto vacate Chastang’s appointment.

Governor Riley contends that theappellees’ jurisdictional argument isfundamentally flawed. First, hepoints out that the voters argue afinal judgment is “one which endsthe litigation on the merits andleaves nothing for the court to dobut execute the judgment.”However, the August 2006 orderspecifically left the third prong ofthe Lockhart test, the remedy ques-tion, unresolved. The court retainedthe ability to revisit the case forfinal resolution if the state wasunable to obtain preclearance.Second, he gives no weight to thedistrict court’s labeling of its August2006 order as a “final judgment”because such a label is “jurisdiction-ally irrelevant.” Third, he contendsthat the appellees’ position wouldplace substantial burdens on theCourt. Since the Department ofJustice preclears voting practices 99percent of the time, the governorargues that it would be more effica-cious to seek preclearance thanwaste judicial resources by requir-ing an immediate appeal.

The voters believe that the August2006 order stood as the final judg-ment, which places the governor’sappeal filed 9 months later wellbeyond the permissible deadline.First, the appellees argue that theorder allowing the state to seek pre-clearance was a remedy in and ofitself. Further remedy considerations,they argue, were purely hypotheticaland would arise only if the statefailed to obtain preclearance. Second,the “plain language of the judgmentindicates its finality,” as reflected bythe award of costs against Gov. Rileyand the directive to docket the judg-ment as final.

Third, they contend that “subse-quent remedial orders do not revivethe time for appealing an underlyingfinal judgment.” The clock does notbegin anew unless the court altersits previous decision on a substan-tive matter or resolves an ambiguityfrom an earlier decision. The May2007 remedial order, they conclude,did not change the substance of theAugust 2006 order but merely reme-died the governor’s refusal toremove Chastang following thestate’s inability to obtain preclear-ance for the voting practice that puthim in office. Lastly, the votersargue that the governor’s jurisdic-tional theory would undermine theeffectiveness of Section 5. Theyurge that if decisions are not consid-ered final judgments until all possi-ble relief is awarded, then trialcourts would enter more severeremedies at the outset or coveredjurisdictions would “have an incen-tive to restart the clock by continu-ing to violate Section 5 until thecoverage court is impelled to orderadditional relief.”

Preclearance RequirementThe other issue demanding Courtresolution is whether the abandon-ment of special elections for guber-natorial appointment constituted achange in voting practice subject toSection 5 preclearance require-ments. First, Gov. Riley argues thatthere is no support for interpretingSection 5 to require preclearance ofchanges in voting practices broughtabout by state supreme court man-dates. Since the district court’s deci-sion to the contrary has profoundfederalism implications, as discussedbelow, the governor believes someclear indication is required to ensureCongress intended such a result.

In his analysis of whether such aclear indication has ever beenexpressed, Gov. Riley looks first tothe text of Section 5. Here, he arguesthat Section 5’s text, which requires


preclearance of practices “differentfrom that in force of effect onNovember 1, 1964,” undermines thedistrict court’s conclusion sincegubernatorial appointment was thepractice used at that time. Moreover,he points to a lack of demonstrablecongressional intent, indicating thatCongress was not concerned withjudicial mandates but rather “States’efforts to alter voting practices bystatute or administrative acts.”Lastly, he contends that no SupremeCourt precedent supports the districtcourt’s decision. Specifically, Gov.Riley urges that the district courtdecision is directly contrary to theCourt’s decision in Abrams v.Johnson, which prohibits Section 5from being used to “freeze in place”an “unconstitutional” practice.Appellant further notes that the twocases upon which the district courtprincipally relied were distinguish-able from the present case becauseneither involved a state supremecourt’s determination of state law andneither addressed baseline votingpractices put into effect after 1964.

Second, the governor details thefederalism concerns implicated byfederal preclearance of state judicialmandates. Most importantly, thespecter of such preclearance “stripsstate courts of their authority todecide pure state-law questions”and creates a “federalism-and-separation-of-powers double-whammy” by subjecting statesupreme court decisions to potentialveto by non-lawyer federal execu-tive officials. The interpretation alsoimplicates the so-called anti-com-mandeering constitutional principlebecause it requires states to main-tain practices that violate state law.Furthermore, since there is norecord that Congress was concernedwith state judicial decisions, thisreading of Section 5 could render itless than “congruent and propor-tional,” and thus unconstitutional.

Third, the governor argues that thelower court’s interpretation is“unworkable and unnecessary.” Inpractical terms, he argues, the dis-trict court’s approach would subjectevery state court decision regardingvoting practices to potential chal-lenge and would “risk destabilizingthe decisional law of all sixteenSection 5 jurisdictions.”Furthermore, other options withinthe Voting Rights Act providerecourse to plaintiffs claiming dis-criminatory voting practices render-ing the lower court’s “unprecedentedreading of Section 5” unnecessary.

Fourth, the appellant argues thatthe trial court applied the incorrectbaseline in conducting the firstprong of the Lockhart analysis,which determines whether a Section5 change occurred. The governorasserts that, under Young v.Fordice, a “temporary misapplica-tion” of state law is not consideredto have been “in force or effect” andthus never becomes a part of theSection 5 baseline, even if that prac-tice was precleared. The 1987 spe-cial election occurred in the midstof litigation and the law authorizingit was later invalidated because ofinconsistencies with state law. Assuch, Gov. Riley contends the 1987special election should be regardedas a “temporary misapplication”irrelevant to determining the base-line. Thus, gubernatorial appoint-ments would be the baseline, rendering any preclearance unnecessary in this case.

Conversely, the voters argue thatchanging election practices fromspecial election to gubernatorialappointment does require Section 5preclearance. First, the appelleescontend that this change fallssquarely within Section 5’s preclear-ance requirement. As stated in Allenv. State Bd. of Elections, 393 U.S.544 (1969), the change of an“important county officer” from an

elected to appointed position affectsthe “power of a citizen’s vote.” Thistype of change, the Court stated,“could be made without a discrimi-natory purpose or effect; however,the purpose of Section 5 was to sub-mit such changes to scrutiny.” Theappellees cite another case, and theDepartment of Justice’s regulationsitself, which mandate that changesfrom election to appointment gener-ally require preclearance.

Second, the voters do not believejudicial involvement renders pre-clearance unnecessary because suchan interpretation of Section 5 isinconsistent with its plain languageand its subsequent interpretation bythe Supreme Court. Section 5 clear-ly states that “whenever” a coveredjurisdiction attempts to change“any” voting practice, it must obtainpreclearance. As the Court previ-ously determined, “whenever”means “[a]t any or all times that; inany or every instance which” andthe word “any” has an “expansive”meaning without any limiting inter-pretation. Appellees also cite severalSupreme Court cases that affirmthat Section 5 mandates preclear-ance for voting changes, includingsome that were in fact required byorder of a state court.

Third, the voters contend that nei-ther historical nor logical analysissupports the governor’s arguments.The appellees initially point to thehistorical instances of state courtsinterfering with the voting rights ofminority citizens, actions that leddirectly to Section 5’s enactment.They further argue that interpretingan exemption for changes mandatedby judicial decision would create “aloophole in the statute the size of amountain.” In addition, they suggestthat requiring preclearance forchanges prompted by state courtdecisions would not bring anychange to normal practice, sincestates have been submitting these

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types of changes for preclearanceever since the passage of the VotingRights Act.

Fourth, the appellees summarilyreject the governor’s contention thatno preclearance was necessarybecause there was no change in vot-ing practice. The voters emphasizethat a new baseline is created whena covered jurisdiction implements anew, precleared practice, includingany changes that “return[] to a pri-or practice or procedure.” Sincelocal law required the use of specialelections to fill vacancies, and sincea special election actually occurred,the voters argue that the specialelection was “the system actually in effect” and thus provided the relevant baseline.

Lastly, the voters reject the federal-ism arguments pressed by the gov-ernor. Recognizing that Section 5simply constrains some state policychoices, they assert that “Section 5was intended to halt actual retro-gression in minority voting strengthwithout regard for the legality understate law of the practices already ineffect.” Thus, laws, even if theyhave been repealed or renderedinconsistent with state constitu-tions, must remain until a replace-ment can be precleared. Gov. Riley’sargument regarding the anti-commandeering principle is similar-ly unconvincing because the con-cept applies only to federal attemptsto influence state’s regulation of pri-vate parties, not to federal govern-ment’s regulation of state activities,such as voting practices.

SIGNIFICANCEThis case marks the first opportuni-ty for the Supreme Court to addresskey provisions of the Voting RightsAct since its high-profile reautho-rization in 2006. In addition, it pro-vides an occasion to clarify theextent to which the law applies to

judicial actions as distinct fromdecisions by state legislative andexecutive bodies. Although the hold-ing in this case could have substan-tial implications on the landmarkcivil rights legislation, the Court hasthe opportunity to rule narrowly aswell.

The Court could decide this casepurely on jurisdictional grounds. Asexplained above, there is disagree-ment over whether Gov. Riley fileda timely appeal. If the Court findsthat the appeal in this case was notsubmitted within the required 60-day window, then the Court will notbe forced to wade into the diceywaters of federalism and votingpractices.

On the other hand, the Court couldaddress significant voting rightsissues, although the depth of itsinquiry is still within its control.The Court could affirm the lowercourt’s holding, or it might reversethe decision on several differentmerits grounds. By examining onlyperipheral issues of the VotingRights Act, the Court could reverseby clarifying the “baseline” inquiryused to determine whether Section5 applies. While the district courtused the 1985 statute requiring spe-cial elections as the baseline, theSupreme Court could hold that theactual baseline ought to be the 2004statute allowing for gubernatorialappointment, absent local specialelection requirements. Amici AbigailThernstrom and StephanThernstrom argue in their brief thatthe 2004 statute should be the base-line because it represents the mostrecent precleared statute in forceand effect. Under this analysis, nochange would have occurred whenGov. Riley appointed Chastang tothe commission vacancy and theSection 5 preclearance requirementwould not be triggered.

However, the Court also couldretain the district court’s method ofbaseline analysis but hold that thefederalism concerns implicated inthis case are far too great to permitaffirmance of the decision. Giventhe Supreme Court’s recent sensitiv-ity to state sovereignty concerns, itmight hold that requiring federaladministrative review for state judi-cial mandates on purely state lawissues offends the balance of powerthat federalism demands. In sodoing, the Court also could reasonthat allowing this type of federaloversight would violate the “congru-ence and proportionality” doctrinebecause the subsequent reach of theVoting Rights Act would be dispro-portionate to the threats Congressintended to address with the legisla-tion. As amicus American CivilLiberties Union argues, this analy-sis, if embraced, could seriouslyundermine the Voting Rights Actand, at the very least, put the efficacy of Section 5 in peril.

ATTORNEYS FOR THE

PARTIESFor Appellant Bob Riley, Governorof Alabama (Kevin C. Newsom(205) 521-8000)

For Appellees Yvonne Kennedy etal. (Edward Still (205) 320-2882)

AMICUS BRIEFSIn Support of Appellant Bob Riley,Governor of Alabama

Abigail Thernstrom and StephanThernstrom (Keith A. Noreika (202)662-6000)

Florida et al. (Gene C. Schaerr(202) 282-5000)

Former State Court JusticesCharles Fried and Thomas R.Phillips (H. ChristopherBartolomucci (202) 637-5810)

Project on Fair Representation(Bert W. Rein (202) 719-7000)


In Support of Appellees YvonneKennedy et al.

American Civil Liberties Union,et al. (Laughlin McDonald (404)523-2721)

Lawyers’ Committee for CivilRights Under Law (Jonathan E.Nuechterlein (202) 663-6000)

NAACP Legal Defense &Educational Fund, Inc. (Debo P.Adegbile (212) 965-2200)

In Support of Appellees YvonneKennedy et al. in part

United States (Paul D. Clement,Solicitor General (202) 514-2217)

285

S I X T H A M E N D M E N T

When Have “Adversary Judicial Proceedings” Commenced so as to Trigger a

Criminal Defendant’s Right to Counsel?by Kathy Swedlow

The petitioner in this

case was arrested and

brought before a

magistrate judge who

informed him of the

accusation against him,

found probable cause that

he had committed the

offense based on a police

officer’s sworn affidavit,

and committed him to

jail pending trial or the

posting of bail. The

Supreme Court granted

certiorari to determine

whether the Fifth Circuit

correctly held that

adversary judicial

proceedings nevertheless

had not commenced,

and petitioner’s Sixth

Amendment rights had

not attached, because no

prosecutor was involved

in petitioner’s arrest

or appearance before

the magistrate.

Kathy Swedlow is an associate professor at the Thomas M. CooleyLaw School in Lansing, Michigan.

She can be reached [email protected] or

(517) 371-5140.

ROTHGERY V. GILLESPIE

COUNTY, TEXAS

DOCKET NO. 07-440


FROM: THE FIFTH CIRCUIT

As presented in the certiorari peti-tion, and as granted by the Court, thequestion presented in this case is:

The Sixth Amendment right tocounsel attaches when “adversaryjudicial proceedings have beeninitiated.” Kirby v. Illinois, 406U.S. 682, 688 (1972). This Courthas held that when a defendant isarrested, “arraigned on [anarrest] warrant before a judge,”and “committed by the court toconfinement,” “[t]here can be nodoubt … that judicial proceedingsha[ve] been initiated.” Brewer v.Williams, 430 U.S. 387, 399(1977).

In this case, petitioner was arrest-ed and brought before a magis-trate judge who informed peti-tioner of the accusation againsthim, found probable cause that hehad committed the offense basedon a police officer’s sworn affi-davit, and committed him to jailpending trial or the posting ofbail. The question presented iswhether the Fifth Circuit correct-ly held—in a decision that con-flicts with those of other federalcourts of appeals and state courtsof last resort—that adversary

judicial proceedings neverthelesshad not commenced, and peti-tioner’s Sixth Amendment rightshad not attached, because noprosecutor was involved in peti-tioner’s arrest or appearancebefore the magistrate.

ISSUEDid the Fifth Circuit correctly holdthat adversary judicial proceedingshad not commenced, and petition-er’s Sixth Amendment rights hadnot attached, because no prosecutorwas involved in petitioner’s arrest orappearance before the magistrate?

FACTSOn July 15, 2002, Walter Rothgerywas arrested in Texas without a war-rant for being a felon in possession ofa firearm. The arresting officersbelieved that Rothgery had a felonyrecord in California; in fact, he hadno prior felony convictions. He hadbeen previously arrested and chargedwith a crime in California, but due tocompletion of a diversion program,the charges had been dismissed.Shortly after his Texas arrest,Rothgery submitted a written requestfor counsel, the first of many.

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Case at a

Glance

Case at a

Glance


After spending the night in jail,Rothgery was brought before a mag-istrate in accordance with article15.17 of the Texas Code of CriminalProcedure. At the subsequent hear-ing, the magistrate was presentedwith the “Affidavit of ProbableCause,” which set forth the accusa-tion against Rothgery. That affidavit,prepared by the arresting officer,“charge[d]” that Rothgery was afelon in possession of a weapon.Pursuant to article 15.17, the magis-trate informed Rothgery that he hadbeen “accused” of the crime inquestion, that he had a right tocounsel, and that an attorney wouldbe appointed if he could afford toretain one. In response, Rothgerymade a second request for counsel,but was informed that if he wantedto go through with a bail hearingthat morning, he would have towaive counsel for the purposes ofthe hearing. Rothgery agreed; themagistrate’s notes reflect thatRothgery’s waiver was temporaryand not for all purposes. Bail wasset at $5,000; the surety bond post-ed by Rothgery’s wife stated that hehad been “charged by complaintduly filed in the Justice of the PeaceCourt,” and was signed by a deputysheriff. The next day, Rothgery wasreleased.

After his release, Rothgery madeseveral telephone calls to theGillespie County Jail to inquireabout his request for counsel. Afterbeing told that his request could notbe found, Rothgery submitted athird written request for counsel.“Unbeknowst to Rothgery, GillespieCounty followed a policy of notappointing counsel for indigentdefendants released on bond untilafter their first court appearance fol-lowing information or indictment.”

On January 17, 2003, Rothgery wasindicted by grand jury for being afelon in possession of a firearm. Dueto the indictment, Rothgery’s bail

was increased. After being re-arrested, Rothgery was againbrought before the magistrate,where he made a fourth request forcounsel. Because Rothgery hadrecently lost his job, he was unableto post bail. After three days at thecounty jail, Rothgery was trans-ferred to another jail, and made afifth request for counsel.

On January 23, Rothgery’s requestwas granted and counsel wasappointed. The attorney was able tohave Rothgery’s bail reduced andsecure his release. The attorney wasalso able to establish that Rothgerydid not have a criminal record inCalifornia, and the charges againsthim were dropped. However,Rothgery spent approximately threeweeks in jail from the time of hissecond post-indictment arrest to thetime his bail was lowered and hewas released.

Rothgery then filed a civil rightsaction against Gillespie County,alleging that his Sixth Amendmentright to counsel had attached at theconclusion of the July 16 hearingand that the county’s failure to pro-vide counsel deprived him of hiscivil rights. The district court grant-ed the county’s motion for summaryjudgment, ruling that the hearingdid not trigger Rothgery’s SixthAmendment right to counsel.Rothgery v. Gillespie County, 413 F.Supp.2d 806 (W.D.Tx. 2006).

On appeal, the Fifth Circuitaffirmed. Rothgery v. GillespieCounty, 491 F.3d 293 (5th Cir.2007). In its opinion, the court rea-soned that Rothgery’s SixthAmendment rights had not attachedbecause of the lack of “prosecutorialawareness or involvement” at theJuly 16 hearing. Although the FifthCircuit noted Rothgery’s argumentthat prior Court precedent—Michigan v. Jackson, 475 U.S. 625(1986) and Brewer v. Williams, 430

U.S. 387 (1977)—had “twice foundadversary judicial proceedings tohave been initiated without men-tioning whether prosecutors wereinvolved,” it distinguished thosecases on two bases. First, the courtnoted that neither Jackson norBrewer discussed prosecutorialinvolvement, and so it could notaccept Rothgery’s claim that thelack of prosecutorial involvementwas irrelevant to the SixthAmendment issue. Second, thecourt explained that Jackson andBrewer had involved actual“arraignments,” one of the types ofproceedings the Court had specifi-cally mentioned as triggering theSixth Amendment right. Rothgery,491 F.3d at 298.

The Supreme Court granted certio-rari on December 3, 2007.

CASE ANALYSISThe Sixth Amendment right tocounsel applies to all “criticalstages” of a criminal proceeding thatoccur “at or after the initiation ofadversary judicial criminal proceed-ings.” Kirby v. Illinois, 406 U.S.682, 689 (1972). Such proceedingsare initiated “by way of formalcharge, preliminary hearing, indict-ment, information, or arraignment.”Id.; see also Michigan v. Jackson,475 U.S. 625, 629 (1986) (“arraign-ment signals ‘the initiation of adver-sary judicial proceedings’ and thusthe attachment of the SixthAmendment”); Brewer v. Williams,430 U.S. 387, 398 (1977)(“Whatever else it may mean, theright to counsel granted by theSixth and Fourteenth Amendmentsmeans at least that a person is enti-tled to the help of a lawyer at orafter the time that judicial proceed-ings have been initiated againsthim…”).

In this case, the issue is straightfor-ward: whether or not Rothgery’s


287


Article 15.17 hearing initiated crim-inal proceedings against him, so asto trigger the commencement of hisSixth Amendment right to counsel.In support of his argument that hisrights did attach, Rothgery makesthree main points. First, he con-tends that—regardless of the title ofthe proceeding or the nomenclatureused—Texas’s Article 15.17 hearingis the functional equivalent of thetype of proceedings the Court hasconsistently held to mark the com-mencement of adversarial proceed-ings. Second, he claims that theFifth Circuit’s “prosecutorial aware-ness or involvement” test cannot bereconciled with the Court’s priorprecedent. Finally, he argues thatthe test is “unworkable and threat-ens to impose serious hardship onindigent defendants.”

Rothgery traces the Court’s SixthAmendment cases, arguing that theattachment of the Sixth Amendmentright “turns not on a State’s charac-terization of the proceedings thedefendant is required to undergo,but on the very fact that judicialproceedings have commenced, plac-ing the defendant in an adversarialrelationship with the State. …” InRothgery’s view, such proceedingsare marked by the presence of twobasic factors: the defendant’s appear-ance before a judge “who informshim of the accusation against him”and who “requires him to remain injail or post bail to ensure thatanswers that accusation.” And, sincethe judge in an Article 15.17 hearingis statutorily obligated to do justthat, Rothgery claims that the hear-ing is indistinguishable from thoseproceedings the Court has previous-ly held to trigger the SixthAmendment right. See Kirby, 406U.S. at 689 (“formal charge, prelimi-nary hearing, indictment, informa-tion, or arraignment”).

Rothgery also contends that theabsence of prosecutorial awarenessor involvement—a determinative

factor for the Fifth Circuit—is irrel-evant in making this assessment,noting that the Court expresslyrejected similar arguments inJackson. That case involved twounrelated Michigan convictionswhere defendants requested counselat their individual arraignments.Post-arraignment, and prior to beinggiven the opportunity to consultwith counsel, the defendants wereinterrogated and each confessed tohis respective crime. The stateargued that in spite of being calledan “arraignment,” the arraignmentdidn’t trigger the Sixth Amendmentbecause the presiding judge lacked“jurisdiction to enter a convictionagainst defendant by plea or other-wise,” Brief for Petitioner, Michiganv. Bladel, No, 84-1539 at 25.Instead, the state claimed that theright would attach at the later-convened preliminary hearing,where the judge would have suchjurisdiction. The Court rejected thestate’s claims as “untenable,”Jackson, 472 U.S. at 630 n.3, hold-ing instead that the key point intime is when a formal accusationhas been made and the “suspect hasbecome [the] accused …” Id. at 632(internal quotations omitted).

In support of his second claim,Rothgery relies heavily on Jacksonand Williams, 430 U.S. 387 (1977),cases in which the Court ruled thatadversary proceedings begin at thetime of arraignment. Both caseswere discussed by the Fifth Circuitbelow and rejected in favor of the“prosecutorial awareness or involve-ment” test set forth in Lomax andMcGee. Rothgery argues that fact orextent of prosecutorial involvementwas not essential to the holding ineither case; instead, Rothgery con-tends that the critical issue in eachwas that “the defendant had madean initial appearance before a court,which committed him to confine-ment to ensure he answered theaccusation against him.”

Finally, Rothgery asserts that theFifth Circuit’s “prosecutorial aware-ness or involvement” test will beproblematic in practice, and willcreate hardships for indigent defen-dants, especially those who areinnocent. Rothgery claims that theFifth Circuit’s test will require case-by-case factual determinations as tothe extent of prosecutorial involve-ment, which will require evidentiaryhearings. These evidentiary hear-ings—convened to determinewhether the right to counsel hasattached or not—will necessarilyhave to be conducted without coun-sel (because no right has yetattached), creating an injustice tothe pro se defendant who is unableto conduct the hearing himself. In astate such as Texas, where feloniesare charged by grand jury indict-ment, indigent defendants will haveto wait in jail that much longer untilthe “prosecutorial awareness orinvolvement” hearing is convened,which will frustrate the administra-tion of justice, especially for inno-cent defendants.

For its part, the state does not (andcannot) disagree with the basicnotion that the Sixth Amendmentright attaches at the commence-ment of adversary judicial criminalproceedings. Instead, the state con-tends that Rothgery has miscon-strued the meaning and importanceof the Article 15.17 hearing, andthat it is not what Rothgery pur-ports it to be.

In the state’s view, the Article 15.17hearing is simply a probable causehearing, constitutionally requiredbecause Rothgery was arrested with-out a warrant. See Gerstein v. Pugh,420 U.S. 103 (1975) (requiringprompt post-arrest judicial determi-nation of probable cause when sus-pect is arrested without a warrant).Gerstein hearings are not consid-ered critical stages of the proceed-ings, and therefore there is no SixthAmendment right to the appoint-


ment of counsel. And, because theTexas Constitution requires thatfelonies be charged by grand juryindictment (unless waived by thedefendant), the state argues thatnothing in the Article 15.17 hearingcan be construed as commencingadversarial proceedings, because theresult of the hearing is not that acriminal charge is lodged, butinstead that a determination thatthe defendant be held for latercharging.

The state also offers four reasonswhy the Article 15.17 hearing is dis-tinguishable from an arraignment.First, falling back on the explana-tion that there is no role for theprosecutor at the hearing, it assertsthat it is “impossible” for the stateto commit itself to prosecute at thehearing. Because the charging deci-sion belongs to the prosecutor, thestate contends that in the prosecu-tor’s absence, the Article 15.17 can-not mark the beginning of adversaryproceedings. Second, it claims that“the adverse positions of the Stateand the suspect have not solidifiedat the point” of an Article 15.17hearing, because “the precise natureof the charges to be filed could wellremain unclear.” In other words, thestate appears to claim that becauseother non-felony charges againstRothgery remained possible evenafter the hearing, it cannot be seenas the beginning point for the SixthAmendment right. Third, the stateclaims that the Article 15.17 hear-ing is “primarily an administrativematter,” where Rothgery stood infront of a “little glass window, filledout forms, and listened to the mag-istrate…;” no witnesses were pre-sented, and there were no “risks …to any rights of the suspect affectinga fair trial.” Fourth, and related tothe third point, the state notes thatthe Article 15.17 hearing did notsubject Rothgery to “a positionwhere his lack of legal knowledgecould have any prejudicial effect on

his right to a fair trial, should heeventually formally be tried.”

Finally, the state insists thatRothgery has offered an unworkableand impractical rule, insofar as itwould require appointment of coun-sel at Gerstein hearings and would“open the door to further extensionseven to the time of arrest.” Thestate claims that involvement ofcounsel at the stage proposed byRothgery would “inspire significantamounts of vexatious litigation,”interfere with legitimate lawenforcement investigations, increasefederal habeas corpus filings, and“impose substantial costs on localgovernments responsible forappointing counsel.”

SIGNIFICANCEWhat is the importance of an Article15.17 hearing? Is it, as Rothgerycontends, “identical in every way”to the proceedings in Brewer andJackson? Or is it more like aGerstein hearing, convened todetermine whether an arrest wasproper and to simply provide“administrative” information to thearrestee? The answer may likely fallsomeplace in between: Certainly, asRothgery notes, a person subjectedto such a proceeding might believehe is being charged with a crime,given the use of that word on docu-ments related to the hearing. On theother hand, the state convincinglyargues that, in a jurisdiction wherefelony charges are lodged by indict-ment or information, a police offi-cer’s post-arrest affidavit of probablecause more resembles a Gerstein-like document than a charginginstrument. In either event, theprosecutor’s involvement, or lackthereof, is likely not the key to thiscase, as the Court’s prior decisionson this issue have focused on thecharacter of the proceedings, andnot the particular involvement ofspecific actors.

ATTORNEYS FOR THE

PARTIESFor Petitioner Walter AllenRothgery (Seth P. Waxman (202)663-6000)

For Respondent Gillespie County(Gregory S. Coleman (512) 533-0150)

AMICUS BRIEFSIn Support of Petitioner WalterAllen Rothgery

American Bar Association(William H. Neukom (312) 988-5000)

Brennan Center for Justice, et al.(Anthony J. Franze (202) 942-5000)

National Association of CriminalDefense Lawyers (Ian HeathGershengorn (202) 639-6000)

Twenty-Four Professors of Law(Christopher J. Wright (202) 730-1300)

In Support of Respondent GillespieCounty

State of Texas et al. (TexasSolicitor General R. Ted Cruz (512)936-1700)

Texas Association of Countiesand Texas District and CountyAttorneys Association (Alan KeithCurry (713) 755-5826)

289

S E N T E N C I N G

When Can a Mandatory Sentence Be Imposed Under Federal Law for a

Prior Felony Conviction?by Patrick J. Egan

This case asks the Court

to determine whether a

state drug offense that is

punishable by more than

one year of imprisonment

must also be classified as

a “felony” under state

law in order to qualify as

a “felony drug offense”

for purposes of the

recidivist sentencing

provisions in federal law.

Patrick J. Egan is a partner and co-chair of the White Collar

Compliance and DefenseDepartment at Fox Rothschild LLP.

He is adjunct professor of trialadvocacy at The Temple University

James Beasley School of Law. Mr. Egan can be reached [email protected]

or (215) 299-2825.

BURGESS V. UNITED STATES

DOCKET NO. 06-11429


FROM: THE FOURTH CIRCUIT

ISSUESDoes the term “felony drug offense”as used in the federal statute requir-ing imposition of an enhancedmandatory minimum 20 years’imprisonment sentence when drugoffender has a “prior conviction fora felony drug offense” require thatthe prior conviction be both a“felony” and “felony drug offense,”as those terms are defined in thestatute?

Does the statute require impositionof a minimum 20-year sentenceonly if the prior drug conviction isboth punishable by more than oneyear in prison and characterized asa felony by controlling law, or is thecharacterization of the prior convic-tion as less than a felony under con-trolling law irrelevant?

Is the statute sufficiently ambiguousto implicate the rule of lenity?When the court finds that a criminalstatute is ambiguous, must it thenturn to rule of lenity to resolveambiguity? Are mandatory mini-

mum sentences particularly suscep-tible to the rule of lenity?

FACTSIn October 2002, Keith Burgessoffered to sell cocaine to a DrugEnforcement Agency confidentialsource. Eventually Burgess providedthe confidential source with 240.3grams of cocaine base in exchangefor $2,000. Burgess was arrestedshortly thereafter.

Following his arrest, Burgess agreedto cooperate with the government.He eventually pleaded guilty to con-spiracy to possess with the intent todistribute and conspiracy to distrib-ute 50 or more grams of cocainebase, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846.

Burgess had previously been convict-ed, in 2002, of possession of a smallamount of cocaine in violation ofSouth Carolina Code § 44-53-370(d)(1), an offense that is definedas a misdemeanor but is punishableby up to two years of imprisonment.The South Carolina court sentencedBurgess to a one-year suspended sen-tence, with two years of probationand 50 hours of community service.

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Case at a

Glance

Case at a

Glance


At Burgess’s federal sentencing, thegovernment requested that the dis-trict court apply the sentencingenhancement for those previouslyconvicted of felony drug offenses.That provision provides that adefendant who commits certain fed-eral drug offenses after a prior con-viction for a felony drug offense hasbecome final shall be subject to amandatory minimum sentence of 20years imprisonment. The govern-ment argued that petitioner’s priorSouth Carolina conviction constitut-ed a “prior felony drug offense.”Burgess argued that the state’s clas-sification of his prior offense as amisdemeanor precluded the courtfrom treating it as a “felony drugoffense” under the federal enhance-ment provision.

The sentencing court determinedthat Burgess was subject to thestatutory 20-year mandatory mini-mum sentence because his SouthCarolina cocaine offense qualified asa “felony drug offense.” The courtdetermined that the statute requiresan enhancement if an offender hadpreviously committed a “felony drugoffense,” and the statute specificallydefines “felony drug offense” as anoffense that is punishable by a termof imprisonment of one year ormore under a law that prohibitsconduct relating to illegal drugs.Because possession of cocaine was adrug offense punishable underSouth Carolina law by up to twoyears of imprisonment, the courtdetermined that Burgess had com-mitted a “felony drug offense” andthe sentence enhancement there-fore applied. The district courtrejected Burgess’s argument that,because a different provision in thesame statute defines a “felony” asan offense “classified by applicableFederal or State law as a felony,”and South Carolina law categorizedBurgess’s prior offense as a misde-meanor, his prior offense was not a“felony drug offense.”

The court then granted the govern-ment’s motion for a downwarddeparture based on Burgess’ cooper-ation, and sentenced Burgess to 156months of imprisonment, to be fol-lowed by 10 years of supervisedrelease.

Burgess appealed to the U.S. Courtof Appeals for the Fourth Circuit,which affirmed the judgment of thedistrict court. The court acknowl-edged that the particular section ofthe statute does not define whatconstitutes a “felony” offense forpurposes of triggering its 20-yearmandatory minimum. It also foundthat the definition section of thestatute provides two definitionsthat, on their face, are applicable.But the court of appeals decidedthat because the term “felony drugoffense” is specifically defined inone section and the section in ques-tion uses that term, the logical,commonsense way to interpret“felony drug offense” in the applica-ble section is by reference to thatdefinition alone.

Burgess had argued that, becausethe statute was subject to two sepa-rate interpretations, the court’s rul-ing would conflict with the rule oflenity, which requires that a crimi-nal statute that is subject to twointerpretations must be interpretedin favor of the accused. The courtconcluded that the rule of lenityhad no application here because itfound the ambiguity insufficient toinvoke that rule. Burgess filed a prose petition for certiorari, which theSupreme Court granted.

CASE ANALYSISThe Controlled Substances Act pro-vides for a mandatory minimumsentence of 20 years for any defen-dant who engages in certain pro-scribed conduct after having been previously convicted of a“felony drug offense.” 21 U.S.C. § 841(b)(1)(A). At issue in this case

is whether to apply the definition of“felony” provided in 21 U.S.C. § 802(13) or the definition of“felony drug offense” provided in 21U.S.C. § 802(44). “Felony” isdefined as any federal or stateoffense classified by applicable fed-eral or state law as a felony. “Felonydrug offense” is defined as anoffense that is punishable by impris-onment for more than one yearunder any law of the United Statesor of a state or foreign country thatprohibits or restricts conduct relat-ing to narcotic drugs. The definitionof felony existed in the statute atthe time that Congress added theterm “felony drug offense.” At issueis whether Congress intended theterm “felony drug offense” toinclude the previously existing defi-nition of felony or not.

The circuit courts of appeals havenow split over this question. Theruling in the Burgess case conflictswith the D.C. Circuit’s ruling inUnited States v. West, 393 F.3d1302 (D.C. Cir. 2005). In that casethe D.C. Circuit held that the priorconviction must be both classifiedas a felony under state law and meetthe definition of felony drug offenseprovided in 21 U.S.C. § 802(44).

In addition to arguing that the lan-guage that triggers the mandatoryminimum should include the defini-tion of felony, Burgess also arguesthat the ambiguity created by thecompeting definitions implicates the“rule of lenity.” The rule of lenityprovides that if a criminal statute iscapable of two plausible construc-tions and one is more severe thanthe other, the more lenient interpre-tation must be applied. The rule oflenity, although rarely invoked, isapplicable in all criminal contexts.Burgess argues that strict applica-tion of the rule of lenity is especiallyappropriate in the context ofmandatory minimum sentencing,because mandatory sentences


291


change the traditional allocation ofsentencing authority among the leg-islative and judicial branches of gov-ernment and because of the dracon-ian effect of mandatory sentences.

The government argues thatBurgess’s prior conviction qualifiesas a “felony drug offense” because itwas punishable by imprisonment formore than one year under a statelaw that prohibits or restricts con-duct relating to controlled sub-stances. It maintains that the plaintext of the statute defines a “felonydrug offense” as a drug offense pun-ishable by more than one year ofimprisonment, regardless of how itis classified under state law. In thegovernment’s view the trigger for asentence enhancement underSection 841(b)(1)(A) is a “felonydrug offense,” and Congress provid-ed a clear definition of that exactterm in Section 802(44).

Burgess argues that the term “felonydrug offense” incorporates the pre-viously established definition of“felony.” In support, Burgessinvokes traditional statutory inter-pretation and congressional intent.Burgess argues that the lower courtwas wrong in its conclusion that thetwo definitions conflict and thuswrong to conclude that the newerdefinition should displace the defini-tion of “felony” because it is moreprecisely tailored to the triggeringstatute. He argues that the draftinghistory of the Act, long-standingdoctrine disfavoring repeals byimplication, and the underlying pur-poses of the statute all point to theconclusion that Congress intendedthe newer definition to incorporatethe older, allowing both definitionsto be read together. This argumentis supported by the fact thatCongress would be unlikely to dra-matically expand the coverage of asevere mandatory-minimum sen-tencing provision through “conform-

ing amendments,” particularly whenthere is no mention of any suchintent in the legislative history.

The government argues that itsinterpretation of the triggering sec-tion is more correct because it isinternally consistent with theControlled Substance Act (CSA) asa whole. It argues that the definitionof “felony drug offense” appliesthroughout the CSA. Many provi-sions in the CSA provide for anenhanced sentence if the offenderhas previously been convicted of a“felony drug offense.” Rather thanredefine the term “felony drugoffense” in each such provision, it argues, Congress defined the term once and then used identicallanguage in each sentence-enhancement provision to referencethat definition. Of course, this argu-ment invites the obvious counterthat each time the term is used itincorporates the term “felony,”which had previously been enactedand which was not abrogated by theinclusion of the term “felony drugoffense.”

It is against this backdrop that theSupreme Court may consider theapplication of the rule of lenity tothe case. If the Court decides thatthe statute is sufficiently ambigu-ous, Burgess has argued that itshould apply the rule of lenity. Therule of lenity is an ancient legalprinciple. It has its roots in theEnglish common law, where allcrimes were capital crimes, and wasoften applied to avoid an unjust sen-tence. It provides that a criminalstatute subject to two plausible con-structions, one harsher than theother, must be resolved in favor oflenity. In other words, as in base-ball, ties go to the runner—and inthis instance the runner is theaccused. Burgess argues thatCongress is fully cognizant of therule of lenity and is thus aware that

when it intends to make previouslyinnocent conduct criminal, orincrease the penalty for previouslyillegal conduct, it must make thatintention plain. Because Congressfailed to distinguish the definition of“felony” from the definition of“felony drug offense” the triggeringstatute is ambiguous and the rule oflenity must apply.

On the other hand, the govern-ment’s argument does not reach therule of lenity. It argues, as it must,that the statute is clear and there isno reason to even consider the ruleof lenity. The amicus brief filed inthis case by the NationalAssociation of Criminal DefenseLawyers and Families AgainstMandatory Minimums provides athorough and interesting history ofthe rule of lenity, discussing how itwas applied to avoid draconian sen-tences in early English law. In theirbrief, the amici argue that applica-tion of the rule of lenity is particu-larly appropriate with respect tomandatory minimum sentencingprovisions, such as the triggeringstatute in this case. Analogizingbetween the genesis and purpose ofthe rule in the ancient Englishstatutes and in the context ofmandatory minimums, they arguethat because mandatory minimumsrequire a harsher punishment thanmight otherwise be imposed afterjudicial consideration of a particularcase and are contrary to the usualrules, they should be subject to therule of lenity. Applying the rule oflenity to mandatory minimums vin-dicates the underlying bases of therule not only in consideration of theimposition of harsh punishmentwithout due notice, but also as itrelates to the separation of powers.A mandatory minimum sentence,with its serious consequences forindividual liberty, should beimposed only when Congress hasspoken clearly.


SIGNIFICANCEAlthough the provision at issue inthis case is only applicable to thoseindividuals who have a prior convic-tion for a drug offense that is notclassified as a felony but carries amaximum term of more than oneyear, the issues that are being con-sidered by the Court have broaderimplications. Underlying whatappears to be a hyper-technicalargument that will affect a limitednumber of similarly situated defen-dants are major policy considera-tions in the government’s never-ending and always ongoing “war ondrugs.” The government posits thatCongress’s decision to define a“felony drug offense” as a drugoffense punishable by more thanone year of imprisonment serves theimportant purposes of authorizingenhanced sentences to punish anddeter repeat drug offenders, whilebringing a measure of uniformity tothose sentences by basing them onauthorized terms of imprisonmentrather than on the peculiarities ofhow they are classified under thelaw of the punishing jurisdiction.This argument belies the fact thatprosecutors are vested with theauthority and discretion to seek themandatory sentences, thus shiftingthe determination of uniform appli-cation from the judicial to the exec-utive branch. Moreover the imposi-tion of a mandatory sentence oftenresults in enormous extensions ofguideline range sentences foroffenders who, like Burgess, have arelatively insignificant prior drugconviction.

Burgess, on the other hand, arguesthat Congress would not haveintended to encompass minor drugpossession offenses within “felonydrug offenses.” Underlying his argu-ment is the policy considerationinherent in promulgation of sub-stantial mandatory prison sentencesfor what amount to nonviolent

crimes. Clearly, if Congress intendsto pass a law that imposes dracon-ian mandatory sentences and thatshifts the balance of power in deter-mining those sentences from thejudicial branch to the executive, itshould at least do so in clear, unam-biguous language. This argumentneglects to consider that in the past30 years, Congress has repeatedlypassed legislation that both calledfor very lengthy sentences and shift-ed the balance of power to the exec-utive, in many cases with anappearance of little forethought oreven full consideration. One obviousexample is the Feeney Amendment,which passed as a rider on anappropriations bill but severelyrestricted the authority of sentenc-ing courts to depart from the sen-tencing guidelines.

The Supreme Court has indicatedan increasing interest in issuesrelated to due process and federalsentencing. Burgess provides anoth-er opportunity for the Court to beheard on the implications of legisla-tion that shifts sentencing authorityfrom the judicial to the executivebranch. It will be interesting toreview the resulting opinions todetermine how broadly or narrowlythe Court rules on these issues. Ifand how the Court determines theapplication of the rule of lenity tothe case could have particular sig-nificance in future litigation.

ATTORNEYS FOR THE

PARTIESFor Petitioner Keith Lavon Burgess(Jeffrey L. Fisher (650) 724-7081)

For Respondent United States (PaulD. Clement, Solicitor General (202)514-2217)

AMICUS BRIEFSIn Support of Petitioner KeithLavon Burgess

National Association of CriminalDefense Lawyers and FamiliesAgainst Mandatory Minimums(Kevin B. Huff (202) 326-7900)

293

H A B E A S C O R P U S

Can a U.S. Court Hear the Habeas Petition Filed by a U.S. Citizen

Detained in Iraq by the U.S. Military?by Elizabeth B. Wydra

In these consolidated

cases, the Court has

agreed to review the

government’s assertion

that its participation in a

multinational force—

even a coalition force

dominated and led by

U.S. forces—precludes

U.S. citizens detained by

the U.S. military from

filing habeas petitions

in the United States.

Elizabeth B. Wydra is an attorneyspecializing in appellate litigation

at Quinn Emanuel Urquhart Oliver& Hedges, LLP in San Francisco.

She can be reached at [email protected]

or (415) 830-4079.

MUNAF V. GEREN

AND

GEREN V. OMAR

DOCKET NO. 06-1666 AND

NO. 07-394 (CONSOLIDATED)


FROM: THE DISTRICT OF

COLUMBIA CIRCUIT

ISSUESDo U.S. courts have jurisdiction tohear the habeas petition of a U.S.citizen detained abroad by the U.S.military acting as part of a multina-tional force?

If jurisdiction exists, may U.S.courts issue injunctions to preservethat jurisdiction?

FACTSThe Supreme Court has consolidat-ed the cases of Shawqi Omar andMohammad Munaf, both U.S. citi-zens detained in Iraq for crimesallegedly committed in that country.

Shawqi Omar, now 46 years old,was born in Kuwait and first cameto the United States when he was17. After studying in the UnitedStates, he became a citizen in 1986.He is married to a U.S. citizen andhas six U.S.-citizen children. Omareventually settled in Minnesota,where he served in the MinnesotaNational Guard.

In 2002, Omar, a fluent Arabicspeaker, traveled to Iraq in the

hope, he says, of being employed bythe U.S.-led reconstruction effort inIraq. On October 29, 2004, U.S. sol-diers operating as part of the“Multinational Force-Iraq” (MNF-I)arrested Omar in his Baghdadhome. The United States allegesthat Omar was harboring an Iraqiinsurgent and four JordanianJihadist fighters; the governmentalso alleges that Omar had severalweapons and explosive-makingmaterials in his home at the time ofthe raid. Omar claims that he wasbeaten severely in the presence ofhis young son upon his capture byU.S. soldiers, and maintains hisinnocence. Since he was taken intocustody by U.S. soldiers over threeyears ago, he has remained in thecustody of the U.S. military prisonsin Iraq. He is currently detained atCamp Cropper, a U.S. military facili-ty outside Baghdad Airport.

After he was captured, a three-member MNF-I tribunal conducted ahearing and determined that Omarwas an enemy combatant and a

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Case at a

Glance

Case at a

Glance


“security internee” based on the tri-bunal’s determination that he poseda threat to Iraq’s security and thathe had committed hostile, warlikeacts. The MNF-I decided that Omarshould be referred to the Iraqicourts for investigation and criminalprosecution for alleged crimes com-mitted in Iraq.

With the assistance of the U.S.Consul in Baghdad, Omar’s wifelearned that her husband was beingdetained by the U.S. military. In2005, Omar’s wife and his adult sonfiled this habeas petition on hisbehalf, naming as respondentsOmar’s immediate custodian, theU.S. military officer in command ofthe military prison where Omar isdetained, as well as his ultimatecustodian, the Secretary of theArmy. The habeas petition allegedthat Omar’s detention violates theDue Process Clause of theConstitution and sought either hisrelease or an order requiring thegovernment to show just cause forhis continued detention. Omar alsosought a preliminary injunction tobar his transfer to Iraqi custodyuntil the U.S. courts had an oppor-tunity to adjudicate the merits ofhis habeas petition.

After learning that Omar was to bepresented to an Iraqi court, hiscounsel moved for a temporaryrestraining order preventing Omar’stransfer to Iraqi custody until thedistrict court adjudicated the meritsof his habeas petition. Omar soughtto prevent the U.S. military fromtransferring him to Iraqi custody,first, because such a transfer wouldprevent him from challenging thelegality of his detention by U.S.authorities, and, second, because hebelieved that he faced a strong like-lihood of torture by Iraqi agents,particularly because he is a SunniMuslim. On February 3, 2006, thedistrict court granted a temporaryrestraining order to preserve the

status quo and allow additionalbriefing, and ultimately issued apreliminary injunction temporarilybarring Omar’s transfer from U.S. toIraqi custody. Omar v. Harvey, 416F. Supp. 2d 19 (D.D.C. 2006).

The government appealed to theU.S. Court of Appeals for the D.C.Circuit, which affirmed the districtcourt. Omar v. Harvey, 479 F.3d 1(D.C. Cir. 2007). The court unani-mously found that the district courthad jurisdiction to hear Omar’shabeas petition, with Judge Browndissenting from the court’s affir-mance of the preliminary injunc-tion. While the majority upheld theinjunction as a means of preservingthe district court’s habeas jurisdic-tion, the dissent argued that U.S.courts could not issue an injunctionthat prevented Iraq from taking cus-tody of a person apprehended forcrimes allegedly committed in thatcountry. In addition, the dissentnoted that such an injunction wouldinterfere with the executivebranch’s ability to act in conjunc-tion with other sovereigns in inter-national affairs, and specifically, to“prosecute the war [in Iraq] effi-ciently.” The D.C. Circuit deniedrehearing en banc, and the govern-ment petitioned for certiorari in theSupreme Court.

Like Omar, Mohammed Munaf is aU.S. citizen. He emigrated fromBaghdad in 1980, first settling inRomania. He lived in Romania for10 years, during which time he mar-ried. Munaf and his wife moved toNew York in 1990 and he became acitizen in 2000. The Munafs havethree young U.S.-citizen children.

In March 2005, three Romanianjournalists asked Munaf to serve astheir translator in Iraq. Soon aftertheir arrival in Iraq, the group waskidnapped by Iraqi jihadists. Thekidnappers demanded a ransom andimmediate withdrawal of Romanian

troops in Iraq in return for the cap-tives’ safe release. After nearly twomonths in captivity, the group wasreleased to the Romanian Embassyin Baghdad. As a U.S. citizen, Munafrequested that he be taken to theU.S. Embassy in Baghdad. Once hearrived, U.S. military personnelarrested him and transported him toCamp Cropper, where he remains indetention.

After more than a year of detention,Munaf’s sister filed a habeas petitionon his behalf. Several weeks afterhis habeas petition was filed,Munaf’s counsel learned that he wasto be tried for a civilian crime by anIraqi court and would be transferredto Iraqi custody if convicted. LikeOmar, Munaf sought a temporaryrestraining order to preserve thestatus quo in order to allow the U.S.District Court to consider his caseon the merits. Also like Omar,Munaf, who is Sunni Muslim, fearedtorture if he was transferred intoIraqi custody.

Before the district court ruled onMunaf’s motion for a temporaryrestraining order, the U.S. militarypresented Munaf to the CentralCriminal Court of Iraq to facecharges related to his alleged role inthe kidnapping of the Romanianjournalists with whom he had beentraveling. Because he was accusedof kidnapping Romanian citizens,the Iraqi court required a formalcomplaint by the Romanian govern-ment. An officer from the U.S. CoastGuard appeared in the Iraqi courtand stated that he had been autho-rized by the Romanian Embassy tomake the necessary complaintagainst Munaf (the Romanian gov-ernment has subsequently deniedthat it authorized the U.S. officer tospeak on its behalf). Munaf had con-fessed to his complicity in the kid-napping plot, but claimed at his trialthat his confession had been


295


coerced. Munaf was convicted bythe Iraqi court and sentenced todeath.

Munaf notified the U.S. DistrictCourt of his conviction and sen-tence, after which the district courtdismissed the case for lack of juris-diction. He appealed to the D.C.Circuit, which affirmed the dis-missal. The panel majority foundthat Munaf’s criminal conviction bythe Iraqi court distinguished hiscase from Omar’s, and precludedthe exercise of habeas jurisdictionin the U.S. courts. Judge Randolph,concurring in the judgment, wouldhave found jurisdiction in light ofthe fact that Munaf is a U.S. citizenheld by U.S. forces overseas.However, Judge Randolph wouldhave denied the habeas petition onthe merits because a sovereignnation has the prerogative to punishillegal acts committed within itsborders, absent consent to relin-quish that authority.

The D.C. Circuit stayed the man-date of its decision, allowing Munafto remain in U.S. custody during thependency of his appeal to theSupreme Court.

CASE ANALYSISWhile this case touches upon manycomplex legal and political con-cerns, the government’s primaryargument against habeas jurisdic-tion is quite simple: Because theU.S. military is in Iraq as part of amultinational force authorized bythe United Nations, any persondetained by the U.S. military in Iraqis not, in fact, “in custody under or by color of the authority of the United States” as required by the habeas statute, 28 U.S.C. § 2241(c)(1), but rather under thecustody and control of the multina-tional force in Iraq (MNF-I).

To support this argument, the gov-ernment relies on the World War II-

era case of Hirota v. MacArthur,338 U.S. 197 (1948). In Hirota,Japanese citizens detained in Japanby the Allied Powers, which wereunder the command of GeneralMacArthur, filed a habeas petitiondirectly with the U.S. SupremeCourt. The Hirota petitioners werein Allied custody pursuant to theirconviction by the InternationalMilitary Tribunal for the Far East, acourt established by GeneralMacArthur under authority from theFar East Commission. In a per curi-am opinion comprised of only a fewsentences, the Supreme Court foundthat because the tribunal that con-victed and sentenced the petitionerswas not a tribunal of the UnitedStates, the Supreme Court had nopower to adjudicate habeas petitionschallenging the proceedings. Thegovernment now uses Hirota toshow that the source of the authori-ty for detaining the petitioners—andnot their citizenship or the fact thattheir immediate custodian is theU.S. military—is controlling.Accordingly, because the U.S. mili-tary is detaining Omar and Munafunder the U.N. authority establish-ing the multinational force in Iraq,the U.S. courts lack jurisdiction tohear their habeas petitions.

Omar and Munaf dispute this read-ing of Hirota, asserting that the gov-ernment makes too much of far toolittle. First, in Hamdi v. Rumsfeld,542 U.S. 507 (2004), a plurality ofthe Supreme Court allowed thehabeas petition of a U.S. citizen ini-tially detained in Afghanistan to beheard, without discussing the factthat the U.S. military is also in thatcountry as part of a coalition force.If the United States’s involvement ina multinational military force wasdispositive of habeas jurisdiction insuch cases, it is surprising that theissue did not arise in Hamdi. Inaddition, the Court’s Hirota rulinglikely stemmed from its own pecu-liar lack of jurisdiction because the

Supreme Court had neither originalnor appellate jurisdiction to hearthe case. That is, there was no origi-nal jurisdiction in Hirota becauseArticle III of the Constitutionrequires that cases first filed in theSupreme Court affect ambassadors,public ministers, or consuls, orinvolve a state as a party; there wasno appellate jurisdiction in Hirotabecause the lower court in that casewas a foreign tribunal. Finally, how-ever, even if Hirota did apply tohabeas petitions filed by U.S. citi-zens in the appropriate U.S. DistrictCourts, Omar and Munaf argue thatthe Hirota petitioners challengedthe creation and proceedings of theJapanese tribunal. While such a col-lateral challenge to a foreign pro-ceeding is not within the scope ofhabeas, Omar and Munaf are chal-lenging the legality of their deten-tion by their own government, aclaim that lies in the heartland ofhabeas protection.

By distinguishing between a Hirota-like challenge to the proceedings ofa foreign tribunal and their ownchallenge to detention by agents ofthe U.S. executive branch, Omarand Munaf also attempt to deflatethe government’s argument that thepreliminary injunction issued toprotect the habeas jurisdiction ofthe district court improperly inter-feres with the sovereign right of Iraqto apprehend and prosecute individ-uals who have committed illegalacts within that nation’s borders. Tosupport this argument, the govern-ment relies on Wilson v. Girard,354 U.S. 524 (1957), in which theSupreme Court set aside an injunc-tion against the transfer of a U.S.soldier in Japan who was to facecharges stemming from a shootingin Japan. The Court explained thelong-standing rule that “a sovereignnation has exclusive jurisdiction topunish offenses against its lawscommitted within its borders, unlessit expressly or impliedly consents to


surrender its jurisdiction.” Wilson,354 U.S. at 529.

In response, Omar and Munaf notethat they are not seeking to inter-fere with Iraqi proceedings. Instead,they are challenging the legality oftheir detention by the U.S. militaryprior to any Iraqi proceedings tak-ing place (in Munaf’s case, of course,the military allowed his transfer tothe Iraqi courts while his habeaspetition was pending). Issuing atemporary injunction against trans-fer to another nation’s custodymerely preserves the status quolong enough for the district court toconsider the merits of the habeaspetition. By noting that the injunc-tion at issue in this case is onlytemporary, Omar and Munaf seek topostpone consideration of the gov-ernment’s complaint that anyinjunction against the transfer orsharing of information about thedetainee with Iraqi authoritieswould hinder the executive’s abilityto interact with other nations andmanage the war in Iraq effectively.

The government, however, arguesthat even this temporary injunc-tion—and indeed, the assertion ofhabeas jurisdiction in the firstplace—violates principles of separa-tion of powers. In addition to theexecutive’s inherent power to con-duct the external affairs of thenation, Congress authorized thepresident “to use the Armed Forcesof the United States as he deter-mines to be necessary and appropri-ate in order to … enforce all rele-vant United Nations SecurityCouncil resolutions regarding Iraq.”Authorization for Use of MilitaryForce Against Iraq Resolution of2002, Pub. L. No. 107-243, section3(a). Under this authority, the exec-utive agreed to participate in themultinational force in Iraq as estab-lished by various U.N. resolutions.This multinational force thenentered into an agreement with Iraq

to hold detainees that were referredfor investigation and prosecutionbefore the Iraqi courts during thosejudicial proceedings. The govern-ment argues that allowing habeasjurisdiction and injunctions such asthe one issued in this case by thedistrict court would thwart theexecutive’s ability to enter intointernational coalitions and abideby its agreements.

Omar and Munaf counter with theirown separation of powers concerns.First, they note that the Great Writof habeas corpus exists precisely tolimit the executive’s ability to detainpersons and has been read expan-sively to allow fulsome questioningof the legality of executive deten-tion. Allowing the executive to con-trol the availability of habeas byessentially contracting around thewrit in international agreementswould violate the spirit if not theletter of habeas law. Second, to theextent habeas jurisdiction may belimited, it is Congress’s prerogativeto suspend the writ. The govern-ment’s argument would give theexecutive the ability to suspendhabeas rights for U.S. citizensdetained by U.S. authorities so longas the executive has done so pur-suant to a multinational charter.Accordingly, Omar and Munaf statethat it is the executive that isattempting to usurp judicial and leg-islative powers in a context inwhich the unfettered authority ofthe executive is expressly limited.

While the parties also argue aboutthe likelihood of torture in Iraqicustody, the exigencies of wartime,and the nuances of internationalextradition law, whether the Courtfinds habeas jurisdiction will likelydepend on whether the Court takesa formalistic or pragmatic view ofthe habeas statute’s requirementthat a petitioner be under the cus-tody or control of the United States.Omar and Munaf urge the Court to

read the habeas statute functionallyand remain true to the Great Writ’shistory as a means of breaking bar-riers of form to curtail abuses ofexecutive power. The government,on the other hand, adheres to a lit-eral reading of the statutory textand a formal definition of the role ofU.S. forces in Iraq. Whicheverapproach the Court uses, it willresult in further definition of therights of detainees abroad to chal-lenge their detention and shape bat-tlefield protections for this andfuture conflicts.

SIGNIFICANCEThis case is the latest SupremeCourt case to test the boundaries ofhabeas protection for individualsdetained by the U.S. armed forcesabroad. Since U.S. military actioncommenced in Iraq andAfghanistan, the Supreme Court hasdetermined that U.S. citizensdetained as “enemy combatants”have the right to file habeas peti-tions in U.S. courts, Hamdi v.Rumsfeld (2004); that habeas pro-tections reach non-U.S. citizensdetained at the U.S. military base inGuantanamo Bay, Cuba, Rasul v.Bush (2004); and that the executivebranch could not set up militarycommissions instead of allowingGuantanamo detainees access to theprotections offered by the U.S. judi-cial system, Hamdan v. Rumsfeld(2006). The case presenting thequestion of whether Congress maydeny Guantanamo detainees labeled“enemy combatants” the right tofile a habeas petition in U.S. courtswas argued in December 2007 andis currently pending. Boumediene v.Bush, Al-Odah v. United States(consolidated).

The government’s argument in thiscase that its participation in amultinational force—even a coali-tion force dominated and led byU.S. forces—precludes U.S. citizens


297


detained by the U.S. military fromfiling habeas petitions in the UnitedStates appears to be unprecedentedin the recent habeas cases to reachthe Court. If this argument is suc-cessful, it would remove habeas pro-tection from nearly all individualsdetained by the U.S. military inIraq, and could possibly do so fordetainees in Afghanistan, where theU.S. military is acting in combina-tion with coalition and NATOforces. Even beyond the immediatebattlegrounds of Iraq andAfghanistan, the Court’s decisionwhether to take a formalisticapproach to “custody and control”could have far-reaching effects asmultinational forces are increasinglyused in conflict zones. Moreover, asthe amicus curiae brief of theAssociated Press and other journal-ists indicate, removing the ability ofU.S. citizens to pursue claims ofwrongful imprisonment by U.S.-ledcoalition forces could have a chillingeffect on the ability of U.S. citizensto provide news coverage and vitalinformation on wars and interna-tional conflicts. To pose a hypotheti-cal extreme, if the government’sargument is accepted, a journalistimprisoned by her own governmentagents based on a case of mistakenidentity would have no recourse toU.S. courts and could face the possi-bility of torture, at the hands of for-eign authorities, like Omar andMunaf, or even a death sentence,like Munaf.

More generally, the outcome of thiscase will indicate whether theRoberts Court is inclined to readhabeas protections broadly, as theCourt has historically done, orwhether the Court will instead takea turn and read the habeas statutemore narrowly. Chief JusticeRoberts recused himself from theHamdan case, since he had votedwith the unanimous D.C. Circuitpanel against Hamdan while he was

still a circuit court judge. If theChief Justice were to vote withJustices Scalia, Thomas, and Alito,who dissented in varying degreesfrom the other “war on terror”habeas cases, and convince JusticeKennedy to join, a majority couldemerge in favor of denying habeasrights to military detainees.

One way in which this case willlikely not be significant is withrespect to the doctrine of staredecisis. The government argues thatHirota is controlling and the Courtshould adhere to stare decisis prin-ciples regarding the proper respectfor precedent and refuse to overturnit. However, as argued by Omar andMunaf, as well as several of theiramici curiae, there are key distinc-tions between this case and Hirotasuch that it is unlikely that theCourt would need to squarely over-rule Hirota in order to find in favorof habeas jurisdiction in this case.

On a final note, the Iraqi Court ofCassation recently overturned theconviction and sentence for peti-tioner Munaf, who, at the time ofbriefing, was facing execution by theIraqi courts if he were transferred toIraqi custody. While it is unclearprecisely how this action will affectthe pending case, the courts belowcited Munaf’s conviction by the Iraqicourt as a factor that distinguisheshis case from Omar’s. At the veryleast, the order overturning his Iraqiconviction will render him on equalfooting with Omar for purposes ofthe legal issues relevant to thisappeal.

ATTORNEYS FOR THE

PARTIESFor the Petitioner MohammadMunaf et al. in 06-1666 (JosephMargulies (312) 503-0890)

For the Respondent Pete Geren,Secretary of the Army et al. in 06-1666 (Paul D. Clement, SolicitorGeneral (202) 514-2217)

For the Petitioner Pete Geren,Secretary of the Army et al. in 07-394 (Paul D. Clement, SolicitorGeneral (202) 514-2217)

For Respondents Sandra K. Omarand Ahmed S. Omar, as NextFriends of Shawqi Ahmad Omar in07-394 (Joseph Margulies (312)503-0890)

AMICUS BRIEFSIn Support of PetitionerMohammad Munaf et al. in 06-1666 and Respondents Sandra K.Omar and Ahmed S. Omar, as NextFriends of Shawqi Ahmad Omar in07-394

American Bar Association(William H. Neukom (312) 988-5000)

Associated Press et al. (Paul M.Smith (202) 639-6000)

Constitution Project andRutherford Institute (Christopher T.Handman (202) 637-5719)

Former U.S. Diplomats andSecurity Specialists (Harold HongjuKoh (203) 432-1660)

M. Cherif Bassiouni and OtherInternational Law Professors(Richard M. Zuckerman (212) 398-5213)

National Institute of MilitaryJustice (Daniel S. Floyd (213) 229-7000)

Non-Governmental Organizations(John J. Gibbons (973) 596-4500)

Professors of Constitutional Law,and the Federal Courts (Daniel FKolb (212) 450-4000)

On the one hand, the

National Labor Relations

Act prohibits employers

from engaging in certain

coercive practices with

respect to employees’

union organizing efforts.

On the other hand,

however, the Act also

allows a broad range

of noncoercive employer

speech about

unionization. Now the

Court must decide

whether the NLRA

preempts a California law

that prohibits employers

who receive state funds

and grants from using

those funds to assist,

promote, or deter union

organization. The Court

could also determine

whether this state law

violates the First

Amendment.

P R E E M P T I O N

Can California Prohibit Employers from Using State Funds to Engage in Speech About Employee Unionizing?

by David L. Hudson

ISSUEIs the State of California’s regulationof noncoercive employer speechabout union organizing preemptedby federal labor law?

FACTSIn 2000, then-California governorGray Davis signed into law AB 1889,in part to prohibit “an employerfrom using state funds and facilitiesfor the purpose of influencingemployees to support or opposeunionization.” The law prohibitsemployers who receive $10,000 ormore in grant or program funds fromusing such state money to “assist,promote, or deter union organizing.”

The petitioners in this case are agroup of employer associations andbusinesses, led by titular plaintiffChamber of Commerce, who filed afederal lawsuit seeking declaratoryand injunctive relief against AB1889. They contended that the law

was preempted by federal labor lawexpressed in the National LaborRelations Act (NLRA). They alsoclaimed that the California lawunconstitutionally limited employ-ers’ speech in violation of the FirstAmendment. In their complaint, thepetitioners argued that the law dis-criminated on the basis of contentby allowing speech that promotesunionization but burdening expres-sion that disfavors unionization.

The complaint named the then-stateattorney general Bill Lockyear andother state officials as defendants.Two labor union groups—theCalifornia Labor Federation and theAmerican Federation of Labor andCongress of Industrial Organizations—intervened. Both the state officialsand the labor unions are respon-dents in this case.

In September 2002, U.S. DistrictCourt Judge Gary L. Taylor grantedsummary judgment to the petition-ers, reasoning that AB 1889 was sub-ject to federal preemption. “AB 1889is preempted because it regulatesemployer speech about union orga-nizing under specified circumstances,even though Congress intended free


299


Case at a

Glance

Case at a

GlanceDavid L. Hudson is a First

Amendment scholar at the FirstAmendment Center. He teaches

First Amendment law at NashvilleSchool of Law and Vanderbilt Law

School. He is the author of The Rehnquist Court:

Understanding Its Legacy and Impact (Praeger 2006)

and The Handy Supreme CourtAnswer Book (Visible Ink Press

2007). He can be reached at [email protected]

or (615) 727-1342.

CHAMBER OF COMMERCE ET AL. V.BROWN, JR., ET AL.

DOCKET NO. 06-939




debate,” he wrote in Chamber ofCommerce v. Lockyear, 225 F.Supp.2d 1199 (C.D. Cal. 2002).

On appeal, a three-judge panel ini-tially affirmed the district court butthen withdrew its opinion after apetition for panel rehearing.Chamber of Commerce v. Lockyear,364 F.3d 1154 (9th Cir. 2004), with-drawn and reh’g granted, 408 F.3d590 (9th Cir. 2005). The panel thenissued another opinion that againfound preemption. Chamber ofCommerce v. Lockyear, 435 F.3d999 (9th Cir. 2006).

However, the Ninth Circuit granteda petition for en banc review of thepanel decision and reached theopposite conclusion in Chamber ofCommerce v. Lockyear, 463 F.3d1076 (9th Cir. 2006). The en banccourt determined in its September2006 opinion that “the mechanismCalifornia has employed to preserveits neutrality in labor disputes doesnot affect an employer’s ability touse its own funds in connectionwith union organizing activities.”

The respondents filed a petition forwrit of certiorari, which was grantedon November 20, 2007.

CASE ANALYSISPreemption occurs when a state lawconflicts with federal law orintrudes into an area governed byfederal law. An important legal prin-ciple that draws its impetus fromthe Supremacy Clause of the U.S.Constitution, under the preemptiondoctrine, federal laws generallytrump conflicting state laws.

There are two basic types of preemp-tion: (1) express preemption and (2)implied preemption. Express pre-emption occurs when a federal lawexplicitly states that federal law pre-empts or overrides state law.Sometimes federal legislation willcontain a specific preemption provi-sion. The other type of preemption isimplied preemption. This occurswhen state and federal law conflict,

when state law impedes a federalobjective, and when federal law“occupies the field” in a certain area.

Express preemption is not at play inthis case because the NLRA doesnot contain a preemption provision.Thus, the parties argue over variousstrands of implied preemption law,particularly the applicability ofSupreme Court decisions concern-ing the “occupy the field” area ofimplied preemption.

There are two lines of implied pre-emption at play in this case, knownas Machinists preemption andGarmon preemption. Both arenamed after U.S. Supreme Courtdecisions—Lodge 76, Int’l Ass’n ofMachinists v. Wisc. EmploymentRelations Comm’n, 427 U.S. 132(1976), and San Diego BuildingTrades Council v. Garmon, 359 U.S.236 (1959). Machinists preemptionpreempts state legislation regulatingconduct that Congress intended toremain unregulated. Garmon pre-emption preempts state legislationregulating activity that is protectedor prohibited—or arguably protectedor prohibited—by the NLRA.

Machinist Preemption Petitioners contend that the Courtshould find Machinist preemptionin this case because the Californialaw targets and regulates activity—in this case employer speech aboutunionization—that is controlled bythe federal National Labor RelationsAct. The state law is preemptedunder Machinists, petitioners say,because it regulates employerspeech that Congress intended to beleft unregulated.

According to this line of reasoning,the NLRA allows most employerspeech about union organization—so long as it does not cross the lineinto coercive speech. The Californialaw, on the other hand, regulates thevery type of employer speech thatthe U.S. Congress intended to beunregulated—noncoercive employerspeech about union organizing.

The respondents counter that AB1889 does not prohibit employersfrom using their own funds to speakabout unionization. “AB 1889 doesnot regulate employer speech,” writethe state-respondents in their brief.“AB 1889 simply bars employersfrom using state funds to bankrollsuch speech.” They reiterate thatthe California law “only requiresthat the employer use its own fundsto pay for the expenses incurred inengaging in such activities.”

Meanwhile, the “labor-respondents”emphasize that several federalstatutes contain similar provisionsthat prohibit employers from usingfederal government money to assistor resist union organization:Congress’s adoption of these restric-tions on the use of federal grant andprogram funds to “assist, promote,or deter union organizing” showsthat the existence of such restric-tions is not inconsistent withnational labor policy.

Garmon Preemption The petitioners argue that the Courtalso should find Garmon preemp-tion in this case, because theCalifornia law regulates employerspeech—and the very type ofemployer speech that Section 8(c)of the NLRA explicitly protects.They point out that Section 8(c) ofthe NLRA allows employer speechabout unionization if the employerspeech “contains no threat ofreprisal or force or promise of bene-fit.” In other words, Section 8(c)protects noncoercive employerspeech informing employees aboutthe dangers or benefits of unioniza-tion. According to petitioners,California AB 1889 therefore seeksto disallow employer speech that isspecifically allowed by the NLRA.

Respondents and their amicicounter that there is much employ-er speech that is neither protectednor prohibited by the NLRA. Theypoint out that a broad reading ofGarmon preemption could doom


any state or local legislation impact-ing labor law.

First Amendment Arguments The U.S. Supreme Court may welldispose of this case on preemptiongrounds alone. However, the enbanc Ninth Circuit decision alsodealt with the petitioners’ FirstAmendment claims. While devotingmost of their analysis to the pre-emption question, the petitioners’brief also claims that AB 1889impermissibly burdens speech andforces employer neutrality on mat-ters of unionization.

A more forceful First Amendmentargument is advanced by some ofthe amici in support of petitioner,including the Cato Institute, whichargues that the California law repre-sents a violation of the unconstitu-tional conditions doctrine. This doc-trine provides that the governmentmay not condition employers’receipt and use of state funds ontheir renunciation of their FirstAmendment rights. The instituteexplains that the California law“denies employers the privilege ben-efit of contracting with the state ifthey will not limit their speech in aparticular way.”

The respondents also devote most oftheir brief to the preemption issuesbut they may well argue before theCourt that the law does not violatethe First Amendment becauseemployers remain free to expresswhatever views they want aboutunionization—as long as they usetheir own funds. They will likelyargue that the California legisla-ture’s decision not to subsidize theexercise of a fundamental right doesnot infringe that right. In otherwords, the government is not bur-dening speech merely because itdoesn’t subsidize it. The respon-dents also may attempt to justifythe law—at least by analogy—to thegovernment speech doctrine, whichessentially allows the government tocraft its own messages free from tra-ditional First Amendment scrutiny.

In Rust v. Sullivan, 500 U.S. 173(1991), for example, the Courtupheld a federal program thatrequired grantees of federal moniesfor family planning services to notmention abortion as a healthchoice. Though not initially cast asa government speech decision,many have since cited Rust for theprinciple that when the governmentchooses to fund a program, it canestablish its own message withouthaving to also fund or subsidize acompeting message. Therefore, theargument would go, the state ofCalifornia can pass a law advancingits message that employers shouldremain neutral in the unionizationdebate without being held to violatethe First Amendment.

SIGNIFICANCEThis case affords the Court theopportunity to resolve a circuit spliton whether the National LaborRelations Act preempts state lawsthat interfere with or burden nonco-ercive employer speech aboutunionization. In a case raising simi-lar issues, the Second Circuit inHealthcare Ass’n of New York v.Pataki, 471 F.3d 87 (2nd Cir. 2006),reached a conclusion different fromthat reached by the Ninth Circuit inthis case. The Court’s decision alsomight clarify the different lines ofcase law dealing with preemption.Some lower court cases seem toconflate the Machinist and Garmonpreemption cases, while othersdon’t, and the Court could offerguidance on the relationshipbetween these two lines of cases.

The case is also significant becausesimilar legislation has been proposedin at least 15 other states and somelarger municipalities might considerenacting ordinances that are similarto the California state law.

Finally, if the Court tackles the FirstAmendment issues, it could providesome much-needed guidance on thenebulous and relatively new govern-ment speech doctrine, a doctrinethat seemingly has confused and

confounded many lower courtsacross the country—or at least hasled to inconsistent results.

ATTORNEYS FOR THEPARTIES

For Petitioner Chamber ofCommerce of the United States etal. (Willis J. Goldsmith (212) 326-3649)

For Respondent Edmund G.Brown, Jr., Attorney General ofCalifornia et al. (Angela Sierra(213) 620-6312)

For Respondent AmericanFederation of Labor and Congressof Industrial Organizations and theCalifornia Labor Federation (ScottA. Kronland (415) 421-7151)

AMICUS BRIEFSIn Support of Petitioner Chamberof Commerce of the United Stateset al.

American Hospital Association(F. Curt Kirschner Jr. (415) 984-8700)

Associated Builders andContractors, Inc., et al. (MauriceBaskin (202) 344-4823)

Cato Institute (Ilya Shapiro (202)842-0200)

Healthcare Association of NewYork State, Inc., et al. (Jeffrey J.Sherrin (518) 462-5601)

National Right to Work LegalDefense Foundation, Inc., et al.(Glenn M. Taubman (703) 321-8510)

United States (Paul D. Clement,Solicitor General (202) 514-2217)

In Support of RespondentsEdmund G. Brown, Jr., AttorneyGeneral of California, et al.

AARP, et al. (Amy Howe (301)941-1913)

New York, et al. (Barbara D.Underwood (212) 416-8016)

301


A

lpha

beti

cal I

ndex

Alp

habe

tica

l Ind

ex

Ali v. Federal Bureau of Prisons et al.— 52

Allison Engine Company, Inc., et al. v.United States ex rel. Sanders et al. — 222

Baze et al. v. Rees et al. — 160

Board of Education of the City SchoolDistrict of the City of New York v. TomF. ex rel. Gilbert F. — 8

Boulware v. United States — 156

Boumediene v. Bush andAl Odah v. United States — 126

Burgess v. United States — 290

CBOCS West, Inc. v. Humphries — 204

Chamber of Commerce et al. v. Brown,Jr., et al. — 299

Commonwealth of Virginia v. Moore — 144

Crawford et al. v. Marion CountyElection Board et al. and IndianaDemocratic Party et al. v. Rokita et al.— 149

CSX Transportation, Inc. v. GeorgiaState Board of Equalization — 64

Cuellar v. United States of America — 227

Dada v. Mukasey — 166

Danforth v. Minnesota — 60

Department of Revenue v. Davis andDavis — 67

District of Columbia et al. v. Heller — 252

Exxon Shipping Co. et al. v. Baker et al. — 213

Federal Express Corporation v.Holowecki et al. — 56

303American Bar Association

Alphabetical Index

Alphabetical Index

Florida Department of Revenue v.Piccadilly Cafeterias, Inc. — 276

Gall v. United States and Kimbrough v.United States — 24

Gomez-Perez v. Potter — 210

Gonzalez v. United States — 189

Hall Street Associates, L.L.C. v. Mattel,Inc. — 81

Indiana v. Edwards — 257

John R. Sand & Gravel Company v.United States — 76

Kentucky Retirement Systems v. EEOC— 186

Klein & Co. Futures, Inc. v. Board ofTrade of the City of New York, et al. — 90

Knight v. Commissioner — 100

LaRue v. DeWolff, Boberg & Associates,Inc. — 122

Logan v. United States of America— 86

Mead Westvaco Corporation v. IllinoisDepartment of Revenue — 176

Medellín v. Texas — 13

Morgan Stanley Capital Group Inc. v.Public Utility District No. 1 et al. andAmerican Electric Power ServiceCorporation et al. v. Public UtilityDistrict No. 1 et al. — 218

Munaf v. Geren and Geren v. Omar— 294

New Jersey v. Delaware — 118

New York State Board of Elections etal. v. Torres et al. — 34

Preston v. Ferrer — 180

Quanta Computer v. LG Electronics— 171

Republic of the Philippines et al. v.Mariano J. Pimentel et al. — 267

Richlin Security Service Co. v.Chertoff, Secretary of HomelandSecurity — 262

Riegel v. Medtronic, Inc. — 113

Riley v. Kennedy et al. — 280

Rothgery v. Gillespie County, Texas — 286

Rowe v. New Hampshire MotorTransport Association — 110

Snyder v. Louisiana — 103

Sprint/United Management Co. v.Mendelsohn — 134

Stoneridge Investment Partners, LLCv. Scientific-Atlanta, Inc. et al. — 38

United States v. Clintwood ElkhornMining Company et al. — 248

United States v. Ressam — 273

United States v. Rodriquez and Begay v. United States — 194

United States v. Santos et al. — 29

United States v. Williams — 72

Washington State Grange v.Washington State Republican Party etal. and Washington v. WashingtonState Republican Party et al. — 18

Warner-Lambert Co., LLC, et al. v.Kent et al. — 232

Watson v. United States — 4


A

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Alp

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Alphabetical Index

Alphabetical Index


Su

bjec

t In

dex

Subj

ect

Inde

x

ADMINISTRATIVE LAW

Morgan Stanley Capital Group Inc. v.Public Utility District No. 1 et al. andAmerican Electric Power ServiceCorporation et al. v. Public UtilityDistrict No. 1 et al. — 218

AGE DISCRIMINATION

Gomez-Perez v. Potter — 210

ARBITRATION

Hall Street Associates, L.L.C. v. Mattel,Inc. — 81

Preston v. Ferrer — 180

ATTORNEY FEES

Richlin Security Service Co. v.Chertoff, Secretary of HomelandSecurity — 262

CAPITAL PUNISHMENT

Baze et al. v. Rees et al. — 160

COMMODITIES TRADING

Klein & Co. Futures, Inc. v. Board ofTrade of the City of New York, et al. — 90

CRIMINAL LAW

Gonzalez v. United States — 189

United States v. Ressam — 273

United States v. Santos et al. — 29

Watson v. United States — 4

CRIMINAL PROCEDURE

Cuellar v. United States of America — 227

Danforth v. Minnesota — 60

Snyder v. Louisiana — 103

ELECTION LAW

Riley v. Kennedy et al. — 280

EMPLOYMENT LAW

CBOCS West, Inc. v. Humphries — 204

Federal Express Corporation v.Holowecki et al. — 56

Kentucky Retirement Systems v. EEOC— 186

Sprint/United Management Co. v.Mendelsohn — 134

ENEMY COMBATANTS

Boumediene v. Bush andAl Odah v. United States — 126


Subject IndexSubject Index

ERISALaRue v. DeWolff, Boberg &Associates, Inc. — 122

FALSE CLAIMS ACT

Allison Engine Company, Inc., et al. v.United States ex rel. Sanders et al. — 222

FEDERAL COURTS

John R. Sand & Gravel Company v.United States — 76

FIRST AMENDMENT

New York State Board of Elections etal. v. Torres et al. — 34

United States v. Williams — 72

Washington State Grange v.Washington State Republican Party etal. and Washington v. WashingtonState Republican Party et al. — 18

FOURTH AMENDMENT

Commonwealth of Virginia v. Moore — 144

HABEAS CORPUS

Munaf v. Geren and Geren v. Omar— 294

IMMIGRATION LAW

Dada v. Mukasey — 166

INTERNATIONAL LAW

Medellín v. Texas — 13

Republic of the Philippines et al. v.Mariano J. Pimentel et al. — 267

INTERSTATE BOUNDARIES

New Jersey v. Delaware — 118

MARITIME LAW

Exxon Shipping Co. et al. v. Bakeret al. — 213

MEDICAL DEVICES

Riegel v. Medtronic, Inc. — 113

MOTOR CARRIERS

Rowe v. New Hampshire MotorTransport Association — 110

PATENT LAW

Quanta Computer v. LG Electronics— 171

PREEMPTION

Chamber of Commerce et al. v.Brown, Jr., et al. — 299

PRISONERS’ RIGHTS

Ali v. Federal Bureau of Prisons et al.— 52

PRODUCT LIABILITY

Warner-Lambert Co., LLC, et al. v.Kent et al. — 232

SECOND AMENDMENT

District of Columbia et al. v. Heller — 252

SECURITIES LAW

Stoneridge Investment Partners, LLCv. Scientific-Atlanta, Inc. et al. — 38

SENTENCING

Burgess v. United States — 290

Gall v. United States and Kimbroughv. United States — 24

Logan v. United States of America— 86

United States v. Rodriquez and Begayv. United States — 194

SIXTH AMENDMENT

Indiana v. Edwards — 257

Rothgery v. Gillespie County, Texas —286

SPECIAL EDUCATION

Board of Education of the City SchoolDistrict of the City of New York v. TomF. ex rel. Gilbert F. — 8

TAXATION

Boulware v. United States — 156

CSX Transportation, Inc. v. GeorgiaState Board of Equalization — 64

Department of Revenue v. Davis andDavis — 67

Florida Department of Revenue v.Piccadilly Cafeterias, Inc. — 276

Knight v. Commissioner — 100

MeadWestvaco Corporation v. IllinoisDepartment of Revenue — 176

United States v. Clintwood ElkhornMining Company et al. — 248

VOTING PROCEDURES

Crawford et al. v. Marion CountyElection Board et al. and IndianaDemocratic Party et al. v. Rokita et al.— 149


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Burdens/standards of proof —As a general matter, the party in alawsuit asserting a claim or defensehas the burden of presenting evi-dence that establishes the claim ordefense. This is known as the burden of proof.

There are three burdens ofproof. From the least to the mostdemanding, they are the prepon-derance-of-the-evidence burden ofproof; the clear-and-convincingburden of proof; and the beyond-a-reasonable-doubt burden of proof.The first two burdens can apply ineither criminal or civil cases, whilethe third applies only in criminalcases and then only to the prosecution.

There are no ready definitionsfor these burdens. There are, how-ever, working definitions. Underthe preponderance standard, theparty with the burden of proof isrequired to come forward withcredible evidence establishing thata claim or defense is more likelytrue than not. Under the clear-and-convincing standard, the partywith the burden of proof is expect-ed to present evidence establishingthat the claim or defense is quitelikely true. Under the beyond-a-reasonable-doubt standard, theprosecution must present such evidence of the defendant’s guiltthat a reasonable person would not hesitate to find the defendantguilty. See Victor v. Nebraska, 114 S. Ct. 1239 (1994).

Class action lawsuit — As a gener-al rule, a class action lawsuit isone in which one or several namedindividuals sue for themselves andothers believed to have sustainedinjuries or losses similar to thosesustained by the named plaintiffs,but who, at the time the case isfiled, are unknown both as to theiridentities and their actual num-bers. In order for a plaintiff’s law-suit to be given class action status,the named plaintiff must show that(1) the class is so large as to makeit impracticable to specify eachand every plaintiff by name, (2) there exist questions of law or

fact common to all members of theplaintiff class, (3) the claims of thenamed plaintiffs are representativeof the claims of the unnamed plaintiffs, and (4) the named plain-tiffs can fairly and adequately rep-resent the interests of the entireplaintiff class. (Note: Less commonis the class action lawsuit in whichthe class is composed of namedand unnamed defendants or inwhich both the plaintiff’s and the defendant’s side of the caseconstitute a class.)

Collateral review (see also habeascorpus) — Collateral review is thecriminal law’s fail-safe mechanism.It is intended to ensure that a con-viction and sentence satisfy therequirements imposed by law, constitutional and statutory. As itsname suggests, collateral reviewlooks at a convicted defendant’s tri-al and in some cases the sentenc-ing proceeding; it is not, however, asecond trial. As a general rule, col-lateral review is limited to issues of law.

To be eligible for collateralreview, the petitioning party mustbe in custody at the time theprocess begins. Typically but notnecessarily, custody means impris-onment. For those convicted ofstate-law crimes, collateral reviewis available under state law and fed-eral law, the latter in the form of apetition for a writ of habeas corpus.As a general rule, state-law peti-tioners must exhaust all avenues ofcollateral review under state lawbefore filing a federal habeas corpus petition. For federal-lawpetitioners, federal habeas corpusreview is available after certainpost-conviction avenues such as amotion to vacate a conviction orsentence have been exhausted.

For both state-law and federal-law petitioners, federal habeas cor-pus review begins in a trial-levelcourt but, in the collateral-reviewcontext, the trial court functions asa reviewing court. However, if thefederal habeas corpus petitioner isunsuccessful in habeas court, he orshe is permitted, within limiting

procedural rules, to seek furtherreview of the habeas court’s decision in the appropriate inter-mediate federal appeals court and,if unsuccessful there, in theSupreme Court.

Damages — In law, damages meansmoney given to a party whose legalinterests have been injured. Whilethere are several types of damagesthat can be given to an injured par-ty, two of the most prominenttypes are compensatory damagesand punitive damages.

An award of compensatorydamages is a sum of moneyintended to make the injured partywhole, insofar as this is possible.An award of punitive damages isintended to punish the wrongdoerin order to deter future wrongdoing.Usually, punitive damages go to theinjured party and are over andabove any award of compensatorydamages. However, in some states,a portion of any punitive damagesaward goes to the state treasury.

Direct review — In American crim-inal law, a defendant is tried once,but the trial itself can be reviewedmany times by many appellatecourts. One channel of review iscalled direct review because it isinitiated by a first appeal as a mat-ter of statutory right. Direct reviewalso is wide-ranging review becausethe convicted defendant is permit-ted to raise all procedurally properissues regarding the trial court’sdisposition of his or her case —including issues of law, issues offact, and issues concerning the trialjudge’s use of discretion.

If the first appeal is resolvedagainst the convicted defendant,appellate rules permit the defen-dant to seek discretionary reviewby still higher courts, generally bythe highest court of the convictingstate and then by the United StatesSupreme Court. (In federal crimi-nal cases, the convicted defendant’sinitial appeal as a matter of right isto a circuit court of appeals andthen as a matter of discretion tothe Supreme Court.) If these courts

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decline to hear the defendant’s caseor hear the case but decide againstthe defendant, or if the defendantdefaults on his or her right to seekdiscretionary review, the directreview process ends and it is saidthat the defendant’s conviction andsentence are final. At this point,the only avenue of relief from aconviction or sentence — retrial,resentencing, or outright release —is collateral review, defined above.

Discovery — Discovery is a pretrial device in which each partyto a lawsuit seeks information fromthe other party as well as from non-parties believed to have knowledgerelevant to the issues in the case.The plaintiff seeks informationthrough discovery to make his orher case; the defendant seeks information to support any defenses that may be available.

Diversity — This term is usedwhenever a federal court has juris-diction over a case that does notinvolve a question of federal law.While there are several types ofdiversity jurisdiction, the mostcommon type has two require-ments: (1) the plaintiff and thedefendant are residents of differentstates; (2) the dollar amount of the dispute between the parties is atleast $75,000, exclusive of interestand costs.

En banc — The term literallymeans “full bench.” Cases in thefederal circuit courts of appeals aretypically heard and decided bypanels of three judges who aredrawn from all the judges in thatcircuit. In rare instances, the courtmay subsequently agree to havethe case reargued, this time infront of more or all of the judgesfrom that circuit.

Habeas corpus — Under the feder-al habeas corpus statute, 28 U.S.C.§ 2254 (1994), a person held instate/local custody who believesthat his or her custody violates federal law — typically, theConstitution — may challenge thatcustody by filing a petition for a

writ (i.e., an order) of habeas cor-pus in federal district court. If thepetitioner wins, he or she must bereleased or retried, at the option ofthe prosecuting authority.

Per curiam opinion — This termliterally means “the opinion of thecourt,” the Supreme Court or anyappellate court. Because the opinionis the court’s opinion, there is noindication of which justice/judgewrote it.

Plurality opinion — This termdenotes an opinion of the UnitedStates Supreme Court in whichthere is no majority opinion; thatis, fewer than a bare majority offive justices were able to agree onthe legal basis for the Court’saction in affirming, reversing, orvacating a lower court decision.

In some cases, the Court’s opinion can be a partial pluralityopinion. A partial plurality opinionis one in which at least one part of the opinion represents the viewsof four or fewer Justices. For anexample of a partial plurality opin-ion, see Hubbard v. United States, 115 S. Ct. 1754 (1995) (Parts IVand V, a plurality of three Justices;Parts I, II, III, and VI, a majority ofsix Justices).

Preemption — Under theSupremacy Clause, U.S. CONST. art.VI, § 2, federal law — whetherbased on the Constitution, astatute, or a treaty — takes prece-dence over state or local law on thesame matter. In other words, if federal law addresses a matter,either expressly or by implication,it trumps and renders unenforce-able any state or local law on thematter.

Qualified immunity — Qualifiedimmunity is a defense that can beraised by a government employeewhenever there is uncertaintyabout the lawfulness or unlawful-ness of certain actions taken by theemployee, actions claimed by theplaintiff to be unlawful. A govern-ment employee can avoid a trialunder this defense if the employee

can show that, at the time of thecomplained-of action, he or shecould not have known that it violated the law.

Strict scrutiny — Strict scrutiny isa searching level of judicial reviewapplied to governmental actions — federal, state, and local — challenged as unconstitutional.Strict scrutiny requires the governmental actor to show that it had a compelling reason to take the challenged action and thatthe action taken goes no furtherthan necessary — is narrowly tailored — to advance the citedcompelling reason.

Summary judgment — This is thename of a procedural device avail-able to either party to a civil lawsuitthat enables one or the other partyto win without a trial. A party seek-ing summary judgment is entitled toa judgment in its favor if there is nogenuine dispute about the pertinentfacts, and, based on those undisput-ed facts, the law compels a judgmentfor the party who has asked for afavorable ruling.

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PREVIEW of United States Supreme Court Cases offers comprehensive, accurate, unbiased, and timely information, from argument to decision, for each Supreme Court Term.

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ISSN 0363-0048

Alternative DisputeResolution/Special EducationJay E. Grenig

Marquette University Law SchoolMilwaukee, WI(414) 288-5377

BankruptcyJohn P. Hennigan Jr.

St. John’s University School of LawJamaica, NY(718) 990-6613

Civil Procedure/Federal CourtsLinda Mullenix

University of Texas School of LawAustin, TX(512) 471-0179

Mary Phelan D’IsaThomas M. Cooley Law SchoolLansing, MI(517) 371-5140

Commercial LawRalph C. Anzivino

Marquette UniversityLaw SchoolMilwaukee, WI(414) 288-5365

Constitutional LawThomas E. Baker

Florida International UniversityCollege of LawMiami, FL(305) 348-8342

Douglas W. KmiecPepperdine University School of LawMalibu, CA(310) 506-4255

Copyrights/TrademarksHugh C. Hansen

Fordham UniversitySchool of LawNew York, NY(212) 636-6854

Criminal ProcedureAlan Raphael

Loyola University Chicago School of LawChicago, IL(312) 915-7140

Michael KayeWashburn University Topeka, KS(785) 231-1010 (ext. 1191)

Death PenaltyKathy Swedlow

Thomas M. Cooley Law SchoolLansing, MI(517) 371-5140

First AmendmentDavid Hudson

First Amendment CenterVanderbilt UniversityNashville, TN(615) 727-1342

Bernard JamesPepperdine UniversitySchool of LawMalibu, CA(310) 456-4611

Fourth AmendmentLisa Halushka

Thomas M. Cooley Law SchoolAuburn Hills, MI(248) 751-7800 (ext. 7753)

Health LawElliott B. Pollack

Pullman & Comley, LLCHartford, CT(860) 424-4340

Immigration LawMichael G. Heyman

The John Marshall Law SchoolChicago, IL(312) 427-2737 (ext. 382)

Indian RightsNell Jessup Newton

UC Hastings College of the LawSan Francisco, CA(415) 565-4700

Labor LawBarbara J. Fick

Notre Dame Law SchoolNotre Dame, IN(219) 631-5864

Prisoners’ RightsLynn S. Branham

St. Louis University Schoolof LawSt. Louis, MO(314) 977-2766

Taxation (Federal)Paul B. Stephan

University of VirginiaSchool of LawCharlottesville, VA(804) 924-7098

Taxation (State/Local)Ferdinand P. Schoettle

University of MinnesotaLaw School Minneapolis, MN (612) 625-6047

Water RightsRobert H. Abrams

Florida A&M UniversityCollege of LawOrlando, FL(407) 254-4001

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