October 7
Kahler v. Kansas
No. 18-6135, Kan.
Preview by Michael Fischer, Online Editor
In response to several high-profile cases wherein defendants were found not guilty by reason of insanity, the State of Kansas passed legislation in 1995 which effectively abolished the insanity defense for criminal defendants. Thirteen years later, Kraig Kahler was experiencing numerous marital issues with his wife and began suffering from depression and obsessive compulsive disorder. Refusing to take the medicine prescribed by his psychiatrist as directed, Kahler became increasingly abusive towards his wife and she later filed for divorce. The situation tragically came to a violent head in November 2009 when Kahler shot and killed his wife, her grandmother, and his two teenage daughters. At his trial, a defense expert testified that due to his mental illness, Kahler had lost control and could not have rationally made the decision to kill his family. In accordance with Kansas law, the trial judge instructed the jury that they could only consider Kahler’s mental illness in determining whether he intended to kill his family. Thereafter, the jury found him guilty and Kahler was sentenced to death.
Kahler’s conviction was upheld by the Kansas Supreme Court. He subsequently appealed to the United States Supreme Court which granted certiorari in March 2019. The question before the Court is whether Kansas’s mens rea approach to insanity violates the Eighth or Fourteenth Amendment.
In his brief, Kahler argues that abolishing the insanity defense violates the Due Process Clause of the Fourteenth Amendment because it is a legal protection deeply rooted in the common law of the United States. See Petitioner’s Reply Brief at 1–4, Kahler v. Kansas, No. 18-6135 (U.S. filed Aug. 30, 2019). Additionally, he asserts that while the Due Process Clause does not require any particular insanity test, Kansas’s abandonment of the moral culpability standard is unsupported by the modern mens rea regime. Id. at 12–13. Finally, Kahler argues that abolishing the insanity defense violates the Eighth Amendment’s ban on cruel and unusual punishment because it serves no justification for punishment to impose criminal penalties on people who cannot be deterred, are not morally culpable, and require rehabilitation outside of the criminal justice system. Id. at 18–20.
Kansas counters that abolishing the insanity defense does not violate the Due Process Clause since it is not deeply rooted in the history and tradition of the nation. See Brief for Respondent at 18, Kahler v. Kansas, No. 18-6135 (U.S. filed Aug. 2, 2019). This, Kansas contends, is due to the fact that the traditional Anglo-American approaches to insanity have varied over time and because there remains profound disagreement over how to implement the test. Id. at 18–34. The State further argues that it “reasonably determined” that individuals who voluntarily commit a crime are blameworthy, even if they do not believe that the act was morally wrong. Id. at 40. Lastly, Kansas asserts the State’s mens rea standard does not constitute cruel and unusual punishment since the Eighth Amendment does not “constrain the substance of state criminal liability.” Id. at 47.
Peter v. Nantkwest Inc.
No. 18-801, Fed. Cir.
Preview by Sean Lowry, Online Editor*
The question presented in NantKwest is: whether the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. § 145 encompasses the personnel expenses the U.S. Patent and Trademark Office (“PTO”) incurs when its employees, including attorneys, defend the agency in § 145 patent grant litigation.
An applicant for a patent has two options for challenging the PTO’s denial of a patent grant: (1) appeal the decision directly to the U.S. Court of Appeals for the Federal Circuit pursuant to 35 U.S.C. § 141, or (2) file a civil action against the Director of the PTO in federal district court pursuant to 35 U.S.C. § 145. Applicants typically choose the § 145 route because the district court reviews the record de novo, which allows them to introduce new evidence to support their claims. However, this choice comes at a cost. Section 145 requires applicants to pay all the expenses of the proceedings, both incurred by their counsel and the PTO. Over the years, courts have interpreted § 145 to cover expenses such as: printing expenses, counsel’s deposition travel expenses, court reporter fees, and money paid to expert witnesses.
In 2013, though, the PTO filed a motion to recover approximately $79,000 in attorneys’ and paralegals’ fees against NantKwest in a § 145 case (the total amount of expenses the PTO attempted to recover, including the $79,000, was approximately $112,000). The district court denied the PTO’s motion for those attorneys’ and paralegals’ expenses based on the “American Rule,” where parties typically pay their respective litigation costs. On appeal, a divided panel of the Federal Circuit reversed, holding that the American Rule applies unless “the statute itself ‘specific[ally]’ and ‘explicit[ly]’ authorizes an award of fees . . . .” NantKwest, Inc. v. Matal, 860 F.3d 1352, 1356 (Fed. Cir. 2017). The Federal Circuit cited decisions by the Second and Fourth Circuits, which have found that attorneys’ fees are “expenses of the proceedings,” and secondary sources, like dictionary definitions and treatises, to conclude that § 145 covers the types of costs the PTO sought to recover. Upon an en banc hearing, though, the Federal Circuit vacated the panel’s opinion, and held that the American Rule applied in this case because the language was not totally unambiguous. NantKwest, Inc. v. Iancu, 898 F.3d 1177 (Fed. Cir. 2018).
The PTO’s policy decision to recover expenses for its attorneys’ fees has not gone unnoticed by amici. Several associations representing intellectual property owners and lawyers’ bars have filed briefs in support of NantKwest, arguing that the PTO’s approach raises the financial bar to § 145 litigation and discourages meritorious claims.
*Sean Lowry is a 3LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.
Ramos v. Louisiana
No. 18-5924, La. Ct. App.
Preview by Michael Fischer, Online Editor
In November 2014, a New Orleans police officer found a woman later identified as Trinece Fedison stabbed to death in a trashcan outside of a church. A witness later told police that he had seen Evangelisto Ramos with the victim the night of the murder. When Ramos was brought in for questioning, he admitted that he and Ms. Fedison engaged in consensual sex on multiple occasions, including the night she was killed. DNA belonging to Ramos was also discovered on the trash can where the victim’s body had be found. Despite his assertions of innocence, Ramos was indicted by a grand jury on one count of second-degree murder. Following his trial, ten of twelve jurors voted to convict Ramos and he was sentenced to life in prison without parole. Under Louisiana law, the agreement of ten jurors is sufficient to find a defendant guilty.
Ramos appealed but his conviction was upheld by a Louisiana appellate court and the Louisiana Supreme Court denied review of his case. The question before the United States Supreme Court is whether the Fourteenth Amendment fully incorporates against the states the Sixth Amendment’s guarantee of a unanimous verdict. When first enacted, the Court interpreted the Bill of Rights as applying only to the federal government. Through the process known as “incorporation,” however, the Court began ruling that many of the Amendments in the Bill of Rights applied to the states by operation of the Due Process Clause of the Fourteenth Amendment.
On appeal, Ramos argues that the Sixth Amendment requires a unanimous verdict to convict a defendant of a non-petty offense and that this requirement applies to the states through the Fourteenth Amendment. Reply Brief for Petitioner at 2, 17, Ramos v. Louisiana, No. 18-5924 (U.S. filed Sept. 6, 2019). In support of his contention, Ramos states that the Court has repeatedly determined that the common law preceding the Jury Trial Clause makes clear that a unanimous verdict is required for conviction. Id. at 2, 6–11. Additionally, Ramos argues that because the Jury Trial Clause requires a unanimous verdict in federal trials, it also requires a unanimous verdict in state trials since the Court’s due process incorporation jurisprudence holds that there can be “no daylight” between the way in which the amendments apply to the federal government and the states. Id. at 17.
The State of Louisiana argues that the Sixth Amendment’s Jury Trial Clause does not require a unanimous jury for criminal convictions since the Court has previously held that not “every feature of the jury as it existed at common law was . . . necessarily included in the Constitution.” Brief of Respondent at 11–13, Ramos v. Louisiana, No. 18-5924 (U.S. filed Aug. 16, 2019) (quoting Williams v. Florida, 399 U.S. 78, 91 (1970)). As a result, the State argues, there is nothing to incorporate against the states. Id. at 43. Finally, the State argues that there is no special justification for abandoning the Court’s precedent permitting convictions by a non-unanimous vote and that any such change would result in “significant practical problems” for the states. Id. at 10, 46.
Some Justices, primarily Justice Gorsuch, have expressed skepticism about continuing to litigate incorporation issues in the modern era. This case will serve as an indicator of whether the Court is willing to continue finding that the few remaining unincorporated protections in the Bill of Rights apply to the states. Last term, the Court decided in Timbs v. Indiana, 139 S. Ct. 682 (2019) that the Eighth Amendment’s prohibition on excessive fines was in fact one of those protections.
October 8
Bostock v. Clayton County, Georgia
No. 17-1618, 8th Cir.
Preview by Michael Fischer, Online Editor
During Gerald Bostock’s decade-long career as a child welfare services coordinator he received positive performance evaluations and many accolades. However, in 2013 he joined a gay recreational softball league which led to criticism by his fellow coworkers. During a meeting with Bostock’s supervisor, some of Bostock’s coworkers made disparaging remarks about his sexual orientation. Shortly thereafter, Bostock was informed that the county would be conducting an internal audit of the program funds for which he was responsible. Bostock was subsequently fired for “conduct unbecoming of a county employee.” Brief for Petitioner at 6, Bostock v. Clayton Cnty., No. 17-1618 (U.S. filed June 26, 2019).
Following his termination, Bostock filed a discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”) and filed suit against Clayton County alleging discrimination based on his sexual orientation. According to Bostock, the county had fired him for being gay in violation of Title VII of the Civil Rights Act of 1964. The district court dismissed Bostock’s complaint after it found that his interpretation of Title VII was contrary to circuit precedent. On appeal, the United States Court of Appeals for the Eleventh Circuit affirmed the district court’s holding, agreeing that according to circuit precedent, Title VII does not prohibit discrimination of the basis of sexual orientation. See Bostock v. Clayton Cnty. Bd. of Comm’rs, 723 Fed. Appx. 964, 964 (11th Cir. 2018) (citing Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017)). Bostock subsequently appealed to the United States Supreme Court, which granted certiorari and consolidated his case with a case bearing similar facts.
The question before the Court is whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, encompasses discrimination based on an individual’s sexual orientation.
Bostock argues that because it cannot be defined without reference to their sex, a person’s sexual orientation is a sex-based classification that Title VII was meant to protect. See Reply Brief for Petitioner at 3, Bostock v. Clayton Cnty., No. 17-1618 (U.S. filed Sept. 10, 2019). Additionally, Bostock contends that sex is not an ambiguous term and that the Court has interpreted the sex discrimination provision expansively to include forms of discrimination not mentioned in the statute. Id. at 4. He further argues that the Court’s precedent demonstrates that sexual orientation discrimination is both associational discrimination and “but for” sex discrimination. Id. at 5, 9. Lastly, Bostock asserts that the statutory history of Title VII requires it to be interpreted broadly to encompass sexual orientation discrimination. Id. at 12, 13.
In response, Clayton County argues that the term “sex,” as used in Title VII, prohibits discrimination only on the basis of gender since terms that are not defined in a statute should be given their contemporary and common meaning at the time the statute was enacted. See Brief for Respondent at 10, Bostock v. Clayton Cnty., No. 17-1618 (U.S. filed Aug. 16, 2019). According to Clayton County, the common meaning of “sex” in 1964 was the characteristic of being either a male or a female. Id. at 12, 13. Furthermore, Clayton County states that the Court has never interpreted Title VII’s prohibition against sex discrimination contrary to the original meaning of sex. Id. at 17. Clayton County also asserts that employment decisions based on sexual orientation are not made because of sex and do not favor one sex over the other because sex and sexual orientation are two distinct terms. Id. at 31, 32. Finally, it argues that Congress did not enact a prohibition in Title VII against discrimination based on sexual orientation through the “subtle device of prohibiting sex discrimination.” Id. at 44.
R.G. & G.R. Harris Funeral Homes Inc. v. EEOC
No. 18-107, 6th Cir.
Preview by Boseul (Jenny) Jeong, Online Editor
This case is about whether Title VII protects transgender people. The respondent, a biological male at birth, was fired by the petitioner after sending a letter to the petitioner explaining a decision to transition and dress like female employees. There was no question about the respondent’s ability to work and the petitioner specifically mentioned that the reason for the firing was the respondent’s decision to act and dress as female. The petitioner maintained disparate dress codes and policies for males and females, and also had single-sex restrooms at his business.
After the respondent filed an Equal Employment Opportunity Commission (“EEOC”) complaint, the EEOC filed a suit against the petitioner. The district court held that there is no inherent violation of Title VII by transgender discrimination, but there was a discrimination based on a sex stereotype. Yet, the district court ultimately granted summary judgement for the petitioner, giving him an exception under the Religious Freedom Restoration Act. The Sixth Circuit reversed this decision unanimously. The petitioner filed a petition for certiorari, and was granted it for the limited question of whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
The respondents argue that the petitioner fired respondent for “(1) having a male sex assigned at birth and (2) living openly as a woman.” Brief for Respondent Aimee Stephens at 20, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, No. 18-107 (U.S. filed June 26, 2019). Because the petitioner would not have fired someone born female for identifying and living openly as a woman, this is sex discrimination under City of L.A., Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978), respondents argue. Additionally, the statute only requires the sex to be a motivating factor and thus the Court does not need to decide whether “sex” includes gender identity for the purposes of Title VII. See 42 U.S.C. § 2000e-2(m) (2018). The respondents also noted that (1) finding discrimination against transgender people not covered by Title VII might lead to an inconsistent result undermining Title VII protection as a whole, (2) there is no express ban on including transgender discrimination and (3) the text should dictate the meaning of the statute regardless of whether a specific application was contemplated at the time of enactment.
The petitioner’s approach is drastically different. The petitioner argues that the firing was due to a dress code violation and there was no sex discrimination. According to petitioner, “sex discrimination meant differential treatment based on a person’s biological sex, something fixed and objectively ascertained based on chromosomes and reproductive anatomy. It occurs when employers favor men over women, or vice versa, because of their sex.” Brief for the Petitioner at 2, R.G. & G.R. Harris Funeral Homes, No. 18-107 (U.S. filed Aug. 16, 2019). The petitioner argues that the proper comparator in this case is a transgender male who was born a biological female, not a biological female wanting to dress as a female. Then the petitioner goes on to argue that affirming this decision will result in undesirable outcomes such as (1) prohibition on employers’ maintaining of “sex-specific privacy in overnight facilities, showers, restrooms, and locker rooms,” (2) denial of women and girls’ “fair opportunities to compete in sports, to ascend to the winner’s podium, and to receive critical scholarships,” and (3) “damage to the constitutional separation of powers.” Id. at 4.
This case will be argued after Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda, which call for inclusion of sexual orientation under the protection of Title VII, and are drawing a lot of attention.
October 15
Financial Oversight Board v. Aurelius Investment
No. 18-1334, 1st Cir.
Preview by Sean Lowry, Online Editor*
In a set of consolidated cases, the Court will determine whether appointments to a congressionally designed fiscal oversight board for Puerto Rico are subject to the Constitution’s Appointments Clause.
In 2016, Congress enacted The Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”) as part of measures to address the territory’s fiscal crisis. A key feature of PROMESA was the establishment of the Financial Oversight and Management Board for Puerto Rico (the “Board”), which holds broad powers to manage the territory’s debt, finances, and budget. Since enactment of PROMESA, the Board has prosecuted debt restructurings representing over $100 billion in claims.
The litigants in these consolidated cases represent a small portion of the broad categories of stakeholders in the Board’s decisions: hedge funds (like Aurelius Investment, LLC), municipal bond insurers, a labor organization that represents employees of the territory-owned power authority, and the federal government.
At the heart of these consolidated cases is PROMESA’s process for filling the Board with seven voting members. PROMESA provides that six of the seven Board members shall be selected by the President from the lists provided by House and Senate leadership, with PROMESA allowing the President to select the seventh member at their sole discretion. Senatorial advice and consent is not required if the President makes the appointment from one of the aforementioned lists. After enactment of PROMESA, President Obama selected six members from the House and Senate lists. Thus, Senate did not provide its “advice and consent” (vote) on any of the Board members after the President selected them.
The First Circuit found that this process violated the procedure in the Constitution’s Appointments Clause, which provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States” U.S. Const. art II, § 2, cl. 2. Based on analysis of a long lineage of case law, the First Circuit found that the Board members wielded powers making them “Officers of the United States,” and that Congress’s broad powers over regulating the U.S. territories set forth in Section 3, Article IV of the Constitution did not override the specific requirements of the Appointments Clause.
In its petition for certiorari, counsel for the Board focuses on the Article IV argument. Specifically, the argument is that case law supports the notion that Congress’s power to regulate the territories is plenary and that the members of the Board are not “Officers of the United States,” partly because PROMESA situates the Board within the territorial government of Puerto Rico. Counsel for Aurelius primarily urges the Court to affirm the holdings of the First Circuit.
*Sean Lowry is a 3LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.
October 16
Kansas v. Garcia
No. 17-834, Kan.
Preview by Sean Lowry, Online Editor*
In Kansas, the Court will examine whether the Immigration Reform and Control Act (“IRCA”) preempts states from using any information entered on or appended to a federal Form I-9, which is used for verifying the identity and employment authorization of individuals hired in the United States, for the prosecution of a state crime.
Ramiro Enriquez Garcia was charged with a state count of identity theft after local police discovered that he used the Social Security number of another individual when he applied for employment as a restaurant cook. At trial, Garcia’s counsel tried to block prosecutors from using his W-4 federal tax holding form as evidence, as he had transferred information from his I-9 to his W-4. The trial judge denied Garcia’s motion, and he was convicted. Garcia’s lawyers appealed his case up to the Kansas Supreme Court.
In a split decision, the Kansas Supreme Court ruled in favor of Mr. Garcia—holding that IRCA preempted state law based on statutory language prohibiting the use of “any information contained in or appended” to federal immigration forms for any “purposes other than” enforcement of enumerated federal offenses. 8 U.S.C. § 1324a(b)(5) (2018). Thus, the use of the information contained in the I-9 forms for the prosecution of a Kansas crime was a violation of federal law. Although the court’s opinion labels this as “express preemption,” State v. Garcia, 306 Kan. 1113, 1130–31 (2017), a concurring opinion notes that analysis underlying the court’s opinion seems to fall more into the grey area of implied preemption, Id. at 1132 (Luckert, J., concurring). According to that concurring opinion, though, Congress’s comprehensive statutory scheme prevents states from occupying the “field” governing employment of undocumented individuals and would undermine federal policy discretion towards the enforcement of such provisions. Id. at 1136–37.
In their briefs to the Court, the parties discuss complex issues of textual analysis of statutes and preemption doctrine. In short, Kansas argues that its Supreme Court read § 1324a(b)(5) too restrictively, as the state ultimately did not rely on the I-9 form itself when prosecuting Mr. Garcia. Counsel for Mr. Garcia makes statutory analysis arguments similar to those made in the Kansas Supreme Court’s opinion, and implied preemption arguments similar to those made in the Kansas Supreme Court’s concurrence. In addition to the federal law claims, Kansas argues that the decision below upsets the constitutional balance of federalism by effectively limiting state police powers. Mr. Garcia’s counsel urges the Court to not address this issue, as the Petitioner did not raise it in the proceedings below.
*Sean Lowry is a 3LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.
Rotkiske v. Klemm
No. 18-328, 3d Cir.
Preview by Boseul (Jenny) Jeong, Online Editor
In this case, the Court is asked to answer a statutory interpretation question. A recent Third Circuit decision created a circuit split on whether the “discovery rule” applies to toll the one-year statute of limitations under the Fair Debt Collection Practices Act (“FDCPA”). The petitioner is arguing that a “’discovery rule’—an equitable doctrine, which either delays the commencement of, or suspends the running of, the applicable statute of limitations—applies to the FDCPA.” Brief for Petitioner at 13, Rotkiske v. Klemm, No. 18-328 (U.S. filed May 13, 2019).
The respondent, a third-party debt collector, commenced an action in 2009 which resulted in a default judgement against the petitioner. The petitioner alleges that he was unaware of this judgement. According to him, he found out about the judgement in September 2014 and filed a timely lawsuit in June 2015. According to the text of the FDCPA, the lawsuit must be filed “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d) (2018). The petitioner argues the statute of limitations should run from the date of discovery (“discovery rule”) and the respondent argues that it should run from the date of occurrence (“occurrence rule”).
The petitioner argues that adopting the “discovery rule” is consistent with the purpose of the FDCPA which was enacted to “‘eliminate’ widespread misconduct by third-party debt collectors” and protect “blamelessly ignorant” debtors. Brief for Petitioner at 11, Rotkiske v. Klemm, No. 18-328 (U.S. filed May 13, 2019). Additionally, the Court had released decisions where it allowed the statute of limitations to run at the time of discovery for equity reasons around the time of the FDCPA enactment. The petitioner argues that this would have alerted the legislatures and they would have taken that into account in drafting the statute.
On the contrary, the respondent focuses on the plain text of the statute (which states the “occurrence rule”) and the purpose of the statute of limitations. He emphasized the societal benefits of timely debt collection. He additionally made a distinction between the “discovery rule” and “equitable tolling.” He noted that albeit their effects are the same, they are different concepts and with different standards. Furthermore, the petitioner only raised a question of the “discovery rule,” not equitable tolling, and thus waived the argument. The respondent also cast doubts on the petitioner’s alleged unawareness of the default judgement.
We shall see how the Court will interpret this statute.
Mathena v. Malvo
No. 18-217, 4th Cir.
Preview by Boseul (Jenny) Jeong, Online Editor
In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court ruled that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at 465. Then in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court announced that Miller has a retroactive effect on collateral review of cases. Mathena v. Malvo concerns the scope of these Supreme Court decisions.
The defendant in this case was sentenced to life without parole before Miller was decided. Upon the review of the defendant’s entitlement to a habeas petition in light of Miller and Montgomery, the district court vacated previous sentences and ordered a resentencing without considering whether the penalty system of Virginia, where the defendant was convicted, was mandatory or discretionary. The Fourth Circuit subsequently affirmed the district court’s decision based on the reasoning that a discretionary life-without-parole sentence on a juvenile homicide offender violates Miller unless the court first establishes permanent incorrigibility.
The main contention in this case is over the meaning of Miller: whether it applies to discretionary life-without-parole sentences. The petitioner argues that based upon Miller and Montgomery’s use of the term “mandatory” and other words that have a similar meaning, the scope of the decision is limited to mandatory sentences. The petitioner additionally argued that the case should have been decided upon the retroactivity only and the question of actual rights should have been asked separately. The respondent on the other hand argues that Miller requires “actual” consideration of youth in sentencing and this “discretionary” sentencing still violates Miller.
Quite a few amicus briefs were filed for this case. For example, fifteen states (Indiana, Alabama, Arkansas, Florida, Georgia, Idaho, Louisiana, Montana, Nebraska, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wyoming) filed a brief for the petitioner calling for states’ sovereign governance over their sentencing practice. The United States also filed a brief in support of the petitioner. One brief by a victim’s assistance group filed for the respondent argued that the lower court’s decision violated victims’ rights by retraumatizing them.
The Supreme Court’s decision may reshape the Eighth Amendment.
