In the opening month of the Supreme Court’s October 2015 term, there is no question as to the importance of providing a clear direction in criminal justice and procedure for all fifty states to follow. Of the ten arguments heard this month, a full half concern elements of criminal law or procedure — of which four implicate the Eighth Amendment. Among these is Montgomery v. Louisiana, which over 1,000 prison inmates across the country are anxiously monitoring to see if their mandatory life-without-parole sentences might be revisited. They may have to wait for a federal case, though, before the Justices reach the merits of whether their 2012 decision holding such sentences for minors unconstitutional applied retroactively.
Of the criminal justice cases, all but Ocasio v. United States stem from state high court decisions. Nonetheless, it may be Ocasio, in which the Court interprets a key federal conspiracy statute, that holds the greatest ramifications for future trials.
The remaining five arguments cover a range of topics, from the vulnerability of foreign nations in domestic courts to federal preemption. Foremost among these is Campbell-Ewald v. Gomez, in which the Court will determine whether companies can effectively block class action suits by offering to settle with the named plaintiff for the maximum amount recoverable, making that plaintiff’s individual claim moot. This case could have staggering implications for future class actions and the companies that would like to avoid them.
What follows is On the Docket’s survey of the Supreme Court’s October calendar. For each case, we’ve summarized the facts of the dispute, the laws at issue, and how the outcome could impact the future of the United States and its citizens. Read on to learn about the cases before they are decided, and don’t forget to check back when the opinions are delivered for late-breaking, detailed analysis from many of the most brilliant legal minds alive today.
October 5, 2015
OBB Personenverkehr v. Sachs
No. 13-1067; 9th Cir.
It’s typically pretty tough to haul a nation’s government into the courts of another country due to a legal doctrine called “sovereign immunity.” That concept was put to the test, though, in the first argument of the Supreme Court’s new fall term, and the representatives of several foreign nations have warned that the outcome just might start a jurisdictional arms race.
OBB Personenverkehr v. Sachs arises from a rather gruesome episode, though precisely when the incident began is a matter of contention. In March 2007, American Carol Sachs used the internet to purchase a rail pass for her upcoming trip to Europe. The pass was sold by Rail Pass Experts, a Massachusetts company who stated through disclaimer that they were “merely an intermediary of the carriers in Europe and assum[ed] no liability resulting from the transport.” The following month, Sachs fell onto the tracks in Austria while attempting to use the pass to board a train. Her legs were badly crushed by a moving locomotive, necessitating a double-amputation. Sachs filed suit in federal court in her home state of California, alleging negligence on the part of the train operator. The district court proceeded to dismiss her case finding that as a state-owned railroad, OBB Personenverkehr was protected by the Foreign Sovereign Immunity Act (FSIA).
Passed in 1976, FSIA protects foreign governments from most suits in U.S. Courts. There is, however, a narrow exception for legal action “based upon a commercial activity carried on in the United States by the foreign state.” Sitting en banc, the 9th Circuit reversed the district court’s dismissal, holding that because OBB had sold tickets through a domestic agent to U.S. citizens, its actions amounted to the sort of commercial activity the Act leaves unprotected.
Sachs faces an uphill battle convincing the Supreme Court that the 9th Circuit made the right call. Even if she successfully shows that OBB’s selling the pass through Rail Pass Experts was the type of commercial activity referenced in the statute, she is in the unenviable position of demonstrating that her case is “based on” that activity. As Amy Howe of SCOTUSblog observed in her analysis of the argument, the Justices paid little attention to the first half of the question during the hearing, a portent she views as favorable to OBB.
Perhaps the most interesting arguments in the case come not from the litigants, but rather a set of amicus curae. In its friend of the court brief, the International Rail Transport Committee trade group cautioned that should Sachs prevail, other governments and treaty organization may respond by relaxing their own immunity standards, potentially subjecting the U.S. to suit in foreign courts. Adding some credence to this claim, the governments of Switzerland and the Netherlands filed their own advisory briefs, warning that a ruling for Sachs may undermine basic principles of jurisdiction and international relations.
Hawkins v. Community Bank of Raymond
No. 14-520; 8th Cir.
Hawkins involves a twist on a landmark civil rights bill: does legislation designed to protect access to credit also shield married people from being held responsible for each other’s debt? Passed in the mid-1970s, The Equal Credit Opportunity Act (ECOA) made it unlawful for lenders to discriminate against credit applicants on the basis of marital status, among other traits. In promulgating rules to implement the ECOA, the Federal Reserve issued the unassumingly titled Regulation B, which made it illegal for banks to require a “spousal guarantee” as a condition for a loan. The spousal guarantee was a holdover from less progressive times, when a woman’s property and credit were seen as an extension of her husband’s holdings. If a woman took out a loan, it naturally followed that her husband would be held responsible if she were unable to pay it back. Hence, many view Regulation B as an attempt at updating outdated attitudes and ensuring unmarried women had equal access to credit.
Fast-forward a generation to when the Community Bank of Raymond made a business loan to PHC, a real-estate developer owned by two men named Gary Hawkins and Chris Patterson. Notwithstanding Regulation B’s prohibition, the bank required the men’s wives, Valerie Hawkins and Janice Patterson, to guarantee their husbands’ business debt. Later, when a dispute over the loan arose between PHC and the bank, the lender came after the wives for repayment. Valerie and Janice brought suit, claiming that their guarantees are invalid because the bank’s requirement violated Regulation B.
Here’s the problem: strictly speaking, the provision of the ECOA that authorized the Federal Reserve to pass Regulation B prohibits discrimination against applicants for credit, not guarantors. Thus, the two women are not protected by the statute and have no standing to bring a lawsuit under it, the Bank of Raymond argues. Valerie and Janice (as well as the federal government, who filed an amicus brief in support of the women’s right to sue) respond that “applicant” should be given an expansive reading in this context to include all those that become liable to repay a loan. Ronald Mann of SCOTUSblog noted in his analysis of oral arguments that the Justices seemed skeptical of this line of reasoning, struggling to find examples, first in financial trade usage and then in the English language at large, of guarantors being referred to as applicants.
October 6, 2015
Ocasio v. United States
No. 14-361; 4th Cir.
Sameul Ocasio, a police officer with the Baltimore Police Department, was charged for accepting bribes, formally known as extortion by a public official under the federal Hobbs Act. In this case, Ocasio allegedly accepted kickbacks from the Mejia brothers, owners of an auto body repair shop, for directing victims of car accidents towards their shop. Ocasio was convicted on three counts of extortion under the Hobbs Act. If the Justices deny Ocasio’s reasoning, it will lead to a much simpler reason-based interpretation of the Hobbs Act in future cases.
The issue on appeal stems from the Ocasio’s conviction to conspire to commit Hobbs Act extortion. The Hobbs Act dictates that someone convicted under the statute must obtain property “from another”, and a conspiracy requires an agreement to commit an offense. Ocasio’s argues that “from another” should be read to mean someone outside of the conspiracy, and since the Mejia brothers were party to the conspiracy, there was no conspiracy to commit the crime as written in the Hobbs Act. Therefore, he contends, there is no “unity of purpose” in the conspiracy as required by American Tobacco Co. v. United States.
Rory Little remarked in his argument analysis that the Justices seemed remarkably in agreement while rejecting Ocasio’s argument. While Justice Breyer characterized the issue as being a “simple argument” with a “simple answer,” Justice Kagan elaborated just a few minutes into Ocasio’s lawyer’s argument, noting that by shifting perspective, it seemed clear that the words “from another” make no difference and that Ocasio committed every element of the substantive offense, which the Mejia brothers agreed to do, thereby leading to a conspiracy.
DIRECTTV, Inc. v. Imburgia
No. 14-462; Cal. Ct. App.
If Imburgia can be said to represent a fundamental legal precept, it’s that the Supreme Court doesn’t like having to repeat itself. The case is the latest salvo in a long-running battle between the Court and the state of California over the enforceability of arbitration clauses. To place the dispute in context, we have to look back to 2005 when the California Supreme Court decided Discover Bank v. Superior Court. Like many large companies at the time, Discover incorporated a clause in its boiler plate service agreement requiring that all disputes arising from the contract be settled in individualized arbitration, not class-based arbitration. In Discover Bank, the California Supreme Court held that contract provisions barring class-based arbitration were unconscionable, and thus unenforceable.
In due time, the U.S. Supreme Court overruled Discover Bank in AT&T Mobility v. Concepcion. By a 5-4 vote, a closely divided Court held that Congress preempted all state laws that interfered with arbitration when it passed the Federal Arbitration Act.
Imburgia involves a contract that the plaintiff first entered into after the Discover Bank decision, but prior to AT&T Mobility. DirectTV, conscious of the adverse California ruling, qualified the bar on class arbitration in its contract by stating that “if the law of your state would find this agreement to dispense with class arbitration procedures unenforceable, then this entire [arbitration provision] is unenforceable.” With AT&T Mobility having put this concern to rest, one would assume that such a qualification would now stand moot. Yet a California Appeals Court seized upon it in the present case as grounds not to enforce the arbitration clause. The Discovery Bank decision, they reasoned, might still be considered California state law, despite courts being enjoined from applying it by the preempting federal law. The contract was therefore ambiguous and should be interpreted against the interest of its drafter, DirectTV.
Suffice it to say, the U.S. Supreme Court is unlikely to be convinced by this creative circumvention of their precedent. As Ronald Mann of SCOTUSblog observed, even Justice Breyer, author of the dissent in AT&T Mobility, was miffed by the gall of the Appeals Court. “…I think it’s extremely important,” he remarked from the bench, “that we be pretty firm on saying you can’t run around our decisions, even if they’re decisions that I disagreed with.”
October 7, 2015
Kansas v. Gleason
(Grouped with Kansas v. Carr)
No. 14-449; 14-450; 14-452; Kan.
Between the actions of three men, seven individuals are dead in the state of Kansas. Brothers Jonathan and Reginald Carr went on a crime spree encompassing rape, robberies, and murder that left five dead and a sixth critically injured. A third defendant, Sidney Gleason, conspired to rob and stab an elderly man, and when he believed a woman had helped the police in their investigation, he killed her and her boyfriend. The death penalty was given to all three defendants, and then the Kansas Supreme Court overturned the decision on procedural and Constitutional grounds. These are the situations before this term’s first eighth amendment hearing. Should the Justices accept the positions put forth by the inmates, the procedures surrounding jury instructions and sentencing hearings might be changed throughout criminal proceedings nationwide.
Kansas v. Gleason and Kansas v. Carr (the brothers’ cases consolidated) were argued as companion cases on the first of the two issues presented to the court on October 7: jury instructions concerning mitigating factors in consideration of the death penalty. An aggravating factor is a state-determined fact or circumstance that makes the death penalty potentially applicable; conversely, a mitigating factor is any evidence that would prompt a sentence other than the death penalty. In Kansas, the jury is explicitly instructed that any aggravating factors must meet the burden of proof of “beyond a reasonable doubt.” However, the instructions are silent on the burden for mitigating factors. The inmates argue that this lack of specificity might have lead jurors to fail to consider mitigating factors that they didn’t believe met the difficult burden of proof. Kansas counters by saying that the Eighth Amendment does not require such a specific instruction, and that furthermore there is an additional jury instruction given that requires the jury to evaluate all evidence that might be in favor of the inmate and against the death penalty.
The second issue presented during the later half of the arguments related to the Carr brothers’ sentencing hearing. The brothers’ capital sentencing hearing was tried in a single trial before the same jury, which they contest violates the Eighth Amendment’s requirements for individualized sentencing. In attempts to save his own life during his portion of the sentencing proceedings, Jonathan portrayed his older brother Reginald as having a corruptive influence on him. Reginald argues that the jury hearing this argument would adversely impact the determination they made regarding his death sentence. Jonathan argues that being sentenced at the same time as his older brother, who was by his own expert’s admission a sociopath, prejudiced the jury while making the determination for Jonathan’s sentence.
As Amy Howe observed in her analysis of the arguments, the Justices did not seem particularly sympathetic to the pleas of the inmates on either issue. Justice Kagan, Justice Ginsburg, and Justice Alito all seemed skeptical that there would be any confusion on the jury instruction issue. Furthermore, the Justices appeared unconvinced that a separate sentencing hearing would have had any difference on the outcome. Reiterating the benefits of joint sentencing hearings, the Justices emphasized the negative impact that inconsistent verdicts could have and the advantages of being the later sentencing hearing. While an overturn of Gleason’s vacated death penalty might end the proceedings for him, what will happen to the Carr brothers remains an issue to be monitored. The Kansas Supreme Court also ruled on a Sixth Amendment issue that could cause the brothers to have a new sentencing hearing, regardless of the decision issued by the Supreme Court after the oral arguments.
October 13, 2015
Montgomery v. Louisiana
No. 14-280; La.
Henry Montgomery was given a mandatory life-without-parole sentence for the 1963 murder of a deputy sheriff of East Baton Rouge, Louisiana. The murder took place when Montgomery was seventeen years old, and he has now spent fifty years behind bars based on a sentencing decision today would be considered unconstitutional. If the Justices reach the merits of this case and decide in Montgomery’s favor, it could lead to overturned sentences for him and over a thousand other inmates with mandatory life-without-parole sentences given to them when they were minors.
In the 2012 decision of Miller v. Alabama, the Supreme Court held that mandatory life sentences for individuals convicted of murders under the age of eighteen were typically unconstitutional under the Eighth Amendment’s ban on cruel and unusual punishment, and should be rare and only considered on an individualized basis. However, the Court was silent on the issue of retroactivity. The ability for Miller to be applied to Montgomery’s case is dependent on the Court’s 1989 decision of Teague v. Lane, in which the Court declared two instances of where a new rule could apply retroactively, including if it is a substantive rule that limits the kind of punishment that can be imposed or conduct that can be treated as criminal. Montgomery’s argument is that the rule is substantive and can be applied retroactively, whereas Louisiana argues that the rule is procedural and is not eligible for retroactive application.
Before reaching the merits of the retroactivity issue, the Court will first determine if it has jurisdiction to hear the case. Because both sides agree that the Court does have jurisdiction, a Court-appointed attorney began arguments by speaking for fifteen minutes against the jurisdiction of the Court. The expanded seventy-five minute hearing then proceeded with 15-mintue arguments each from Montgomery’s attorney and a deputy U.S. Solicitor General supporting Montgomery, concluding with a thirty-minute argument by Louisiana’s lawyer.
As noted by Lyle Denniston in SCOTUSBlog’s analysis of the argument, the Justices seemed more concerned with whether they could decide the case, rather than how they would decide it. Several of the Justices seemed convinced by the argument of the Court-appointed attorney, Richard Bernstein, that they should wait to consider this issue until it arises from a federal court. When the lawyer for Louisiana attempted to move on from the jurisdictional issue to the substantive merits of retroactivity, Justice Breyer interrupted with a question steering the discussion back towards the jurisdictional issue. While both Montgomery and Louisiana’s lawyers urged the court’s ruling on the merits, the fact that there is a federal case already pending review, somewhat ironically also out of Louisiana, may move the Justices to wait on the merits until their jurisdiction to review the case is securely grounded.
Hurst v. Florida
No. 14-7505; Fla.
Forty-nine out of fifty states require a jury to make a unanimous decision in order to issue a death sentence in a capital punishment case. The sole outlier is Florida, a state that requires jury unanimity for shoplifting cases, but not the death sentence. Under Florida law, a jury’s decision does not only have be just a simple majority, but it is only an advisory opinion to the judge who will make the final determination. A decision by the Justices in favor of Hurst would reshape this state’s outlying rule.
Timoth Lee Hurst was convicted of the 1998 murder of a co-worker at Popeyes restaurant in Pensacola, Florida when he was nineteen years old. Even though his lawyers claimed that he had a history of mental health issues and had no prior crimes on his record, he was given the death sentence based on a recommendation from a jury who was split, 7-5. In order to issue a death sentence, a jury must find at least one aggravating factor to be present. An aggravating factor is a fact that makes the death penalty potentially applicable. The jury then weighs the aggravating and mitigating factors, on which they do not have to agree, and issues a recommendation to the judge. The judge then makes the final determination of whether or not to issue the death sentence, with no duty to follow any of the jury’s recommendations.
In the nearly forty years since the Supreme Court reinstated the death penalty, it has attempted to enhance the role of the jury in criminal courts. A key precedent at issue in this case is Ring v. Arizona, in which the Court held that juries, not judges, should make determinations of fact to support death sentences. As noted by Lyle Denniston in SCTOSUBlog’s argument analysis, Florida’s solicitor general, Allen Winsor, argued that Florida’s procedure did satisfy the ruling because it was the jury who made the threshold determination that the defendant was eligible for the death penalty. The Justices, however, were not convinced. Both the liberal and conservative justices alike questioned Mr. Winsor about whether or not the jury understood the lack of weight their opinion would hold, ultimately criticizing the fact that the ultimate determination is left with the judge.
October 14, 2015
Campbell-Ewald v. Gomez
No. 14-857; 9th Cir.
What started as an annoying marketing gimmick may lead to a major shift of the American legal system by severely limiting when a plaintiff can sustain a class-action law suit. In Campbell-Ewald, the Court will consider when exactly a claim becomes moot and just how far sovereign immunity reaches. The case arises out of a violation of the Telephone Consumer Protection Act (TCPA), a bill passed in 1991 that made illegal many of the more unpopular tactics employed by telemarketers. The defendant, Campbell-Ewald, is a marketing firm that contracted with the U.S. Navy to advertise its recruitment efforts. Against the Navy’s instructions, Campbell-Ewald sent out a number of unsolicited text messages on the military’s behalf, a clear violation of TCPA. One of the recipients, Jose Gomez, sued Campbell-Ewald on behalf of all those who had received the text messages. Before the case could be certified as a class-action, though, Campbell-Ewald made an offer to settle with Gomez for three times the maximum amount recoverable under the statute. When Gomez rejected the offer, Campbell-Ewald moved to dismiss the case, asserting that Gomez’s claim was now moot.
Article III of the U.S. Constitution gives federal courts the authority to hear “cases and controversies.” Throughout American history, courts have interpreted this to limit their authority to only those instances where there exists an actual dispute that can be solved by a remedy that is within a court’s power to grant. Thus, Campbell-Ewald argues, Gomez should not be allowed to bring his case just for the sake of having it adjudicated.
There’s just one problem: two years ago, the Supreme Court held in a case called Genesis HealthCare Corp. v. Symczyk that a plaintiff with a moot claim cannot carry on a class-action lawsuit on behalf of the other members of the class. Gomez contends that, if his claim is considered moot because of his refusal to settle, it means that a company can avoid class action lawsuits by making such an offer to each new plaintiff as soon as the individual is named, expending only a fraction of the amount owed to the entire class.
A second wrinkle derives from the Navy’s involvement. At trial, the judge denied Campbell-Ewald’s motion to dismiss on mootness grounds, but declared Campbell-Ewald immune to suit because the action took place during the course of fulfilling a contract with the United States. The theory stems from a pre-World War II case called Yearsley v. W.A. Ross Construction Co, in which the Court found that a contractor working on a public works project for the federal government could not be sued under state law. To prevail on these grounds, Campbell-Ewald will have to first show that the distinction between a state and federal claim isn’t material to whether a contractor should be held immune. Then the company will have to demonstrate that it didn’t vitiate whatever claim to immunity it had by disobeying the Navy’s express instructions not to send unsolicited text messages.
Ronald Mann of SCOTUSblog provides a spoiler that this second question is unlikely to come into play, as neither side addressed the issue during oral argument. Where the Justices will fall on the question of mootness, however, is anyone’s guess, with questioning revealing a closely divided Court.
FERC v. Energy Power Supply Association
(Coupled with EnerNOC, Inc. v. Electric Power Supply Association)
No. 14-840; D.C. Cir.
Has the Federal Energy Regulation Commission (FERC) intruded on State’s rights by offering rebates to retail electric customers? That’s the question at issue in two cases before the Supreme Court, consolidated into a single October 14 hearing. The disputes arise from the Commission’s role in so called pay-to-abstain plans, and the decision may affect both the stability of the country’s power grid and the price consumers pay on their monthly bill.
To understand the controversy, it’s necessary to have some familiarity with how electricity gets from its point of origin to end-level consumers, as well as where regulatory authority falls at each step of the journey. Through FERC, the federal government has traditionally been responsible for production and transmission, which typically involved commerce across state lines. State regulators, in turn, were responsible for distribution to the final customers in the homes and businesses within their jurisdiction. Though this framework has become increasingly muddled in recent years as electrical grids have grown more interconnected across the country and beyond, FERC’s authority is still limited to wholesale markets.
Pay-to-abstain plans involve payments made to users of electricity to abstain from consuming during times of peak demand. As a business tactic, the technique has proven effective in leveling out prices, and it has the added benefit of decreasing the odds of grid failure. In fact, the practice is successful enough that throughout the last decade, Congress has passed a series of bills instructing FERC to develop a nationwide pay-to-abstain plan. In 2011, FERC did just that by releasing its “Order No. 745,” establishing an auction system that featured “demand response” payments. But, much to the shock of local electric companies and state regulators, these auctions were open to retail customers.
The states and local utilities maintain that FERC has crossed the boundary of its authority by manipulating retail level supply, and thus retail level prices. FERC, in turn, argues that the Federal Power Act grants it authority over “any practice” that affects wholesale rates. Each side’s arguments are steeped in the complexities of administrative law and energy economics, but the contention boils down to whether a meaningful distinction between wholesale and retail can be articulated in today’s energy markets, and if so, where that line may be drawn.
According to Lyle Denniston of SCOTUSblog, the deciding factor in the case may not be what was said during the argument, but who was missing from the bench. Justice Samuel Alito chose to recuse himself from the case, leading many to speculate that he may have stock holdings that could create a conflict of interest. In his absence, the remaining Justices appeared equally divided, raising the possibility of a rare tie-vote in the highest court in the land. In the event of such an impasse, no opinion would be issued, and the federal appeals court’s decision against FERC would be left undisturbed.
Post authored by On the Docket Fellows, Spencer McCandless and Talya Bobick.
