The Opening of the 2013 Supreme Court Term

Monday, October 7th is the first Monday in October, the traditional beginning of the 2013-2014 Supreme Court term. Coming off the previous term with their rulings on affirmative action, gay marriage and voting rights, this term the Court is going to wade again into some controversial areas. Affirmative action, campaign finance, religion, abortion, Presidential appointment powers, regulatory powers of the EPA, and fair housing laws are all topics of cases this year. Last term, the Court heard 75 cases and have thus far granted appeals in a little over 40 for the upcoming term. There is still room for more cases on the docket. This entry will deal with the cases whose oral argument will be heard in October.

Monday October 7th- Madigan vs. Levin: Under the Age Discrimination in Employment Act (ADEA), plaintiffs are required to follow through on an appeals process set forth in that act. However, its applicability to government workers is questioned. Here, Harvey Levin, an assistant in the Illinois attorney general’s office claims he was fired because of his age and gender (he was replaced by a younger female). In similar cases, other circuits have determined that the claim is best handled under ADEA, not under the Constitution’s Equal Protection Clause. The Seventh Circuit decided otherwise which is likely why the Supreme Court took the case- to resolve the differences of opinion between circuits. Somewhat complicating this whole issue is a recent brief which, in my opinion, correctly argues that the case is not ripe for the Supreme Court. Before the District Court could even hear testimony, a pre-trial appeal to the 7th Circuit occurred. Thus, it may be that there is no claim here at all which would clearly make the Supreme Court’s interjection into the case moot.

Monday October 7th- Chadbourne and Parke, LLC vs. Troice: This case asks whether state-level class action suits involving securities fraud are allowable when those alleged misrepresentations are covered under federal law. A recent trend in Supreme Court jurisdiction which has outraged some liberals has been to limit the breadth and scope of class actions lawsuits. However, often these complaints compete with the equally liberal view of federal preemption when it comes to lawsuits. Should the Court decide against these state level actions on preemption grounds, expect the liberal community to denounce the Court as shutting the courthouse door on the “little guy.”

Tuesday October 8th- McCutcheon vs. FEC– This case is too big and too controversial to discuss here. Instead, it will be covered shortly in a series of articles from this author which involves campaign finance. Suffice to say, this has the potential to make a liberal’s head explode, especially in light of Citizens United.

Tuesday, October 8th- Burt vs. Titlow: One of the biggest areas of litigation involving criminal law is the concept of ineffective counsel. Here, the Court has said that the mere provision of counsel does not absolve a state of their constitutional obligation to provide counsel if that counsel is ineffective. Most of the subsequent cases have dealt with what exactly determines when a counsel is “ineffective.” Obviously, simply losing a case is not grounds in and of itself. Yet, losing defendants often do just that. In this case, a plea bargain was involved. The defendant now asserts that he would have accepted the plea bargain because his lawyer was ineffective and that the lawyer allowed his assertion of innocence to proceed at the original trial. The lower Michigan court actually sided with the defendant. Generally speaking, under AEDPA (the Anti-Terrorism and Effective Death Penalty Act), state courts are given greater deference in carrying out appeals in capital cases. The Sixth Circuit overturned the Michigan courts and the question is whether proper deference was given to the state court. To the law-and-order crowd, this idea of deference has been a boon in sentencing violent criminals to death or long sentences and has cut the appeals in federal courts. However, deference works both ways sometimes and sometimes the law-and-order crowd comes up short.

Wednesday, October 9th- United States vs. Woods: a very complicated tax fraud case that will only interest tax lawyers.

Wednesday, October 9th- Atlantic Marine Construction vs. District Court: This is a court jurisdictional issue. Atlantic Marine Construction entered into a contract with J-Crew, a Texas company, to perform work in Norfolk, Virginia. The contract specified that any lawsuits would be litigated in the District Court for Eastern Virginia. J-Crew, however, sought to change the venue to the District Court of Western Texas using the argument that the bulk of the alleged breaches occurred in Texas. Atlantic Marine is not asking that the suit be stopped or decided, only where the case should be heard. This seems pretty clear cut given the wording of the original contractual clauses.

Tuesday, October 15th- Schuette vs. Coalition to Defend Affirmative Action: This is the second controversial case of October and involves affirmative action and the rights of states. It will be dealt with in detail in a separate entry as its outcome could have serious implications on affirmative action and/or the rights of state governments.

Tuesday, October 15th- DaimlerChrysler vs. Bauman: First, this is not a case about product liability. This is a case involving the Alien Torts Statute, a law that dates back to the First Congress. Bauman, among others, brought suit against DaimlerChrysler Argentina for alleged human rights abuses by their Director of Security at a plant in Argentina. They brought suit in the District Court of Northern California under the rubric that DaimlerChrysler had subsidiaries in California and therefore the United States court system could be used as a vehicle to bring these claims. Originally dismissed, the Ninth Circuit overruled the District Court reasoning that because DaimlerChrysler’s operations in California were pervasive, the District Court could exercise personal jurisdiction over the case. This will be the first test of last term’s landmark Kiobel decision and in light of that decision- because there are parallels- it is hard to see how the Ninth Circuit’s decision could be upheld.

Tuesday, October 15th- Heimeshoff vs. Hartford Life: This is a case of statutory interpretation as to when the statute of limitations begins to accrue on an claim under ERISA, a retirement security law. There are some similarities to the Ledbetter case here which involved unequal pay for women and when cases can be brought. In this instance, it involves a pension and a decision for Hartford Life will likely bring out liberals howling that the Court ignored the rights of the retired/elderly. However, like Ledbetter, Congress can simply fix the wording of ERISA much as they fixed the wording in the Ledbetter case.

Wednesday, October 16th- Kansas vs. Cheever: This is a criminal law case regarding the introduction of expert testimony on behalf of the prosecution. Scott Cheever was arrested and convicted for the shooting of a law enforcement officer in Kansas. His defense was one of diminished capacity due the short and long-term use of methamphetamine. To rebut the defense’s assertions, the prosecution introduced their own expert. At issue is basically at what point does “expert testimony” cease to be “expert.” The appeals courts ruled against the prosecution in that the testimony of the state’s expert violated Cheever’s Fifth Amendment rights against self-incrimination based on comments Cheever made to that expert during their interview. This appears like a serious twisting of the Fifth Amendment where Cheever wants his cake, wants to eat it, and then wants another dessert. If one claims an insanity defense and offers testimony to buttress that defense, they opened the doors to examination by a state expert. What is at issue here is the testimony of the state’s expert who noted that Cheever, during the interview, showed no signs of remorse or depression over shooting the officer. Instead, he talked incessantly about how meth had overtaken his life and hurt his family and friends. Those comments, the defense contends, although not held to any degree of confidentiality, nevertheless should not have even been introduced as evidence since the purpose of the examination was to determine if Cheever was an habitual user of methamphetamine and if that use diminished his capacity to know right from wrong when he pulled the trigger and shot the officer. In short, they are arguing for the introduction of testimony that only supports the insanity defense. If the Supreme Court rules in favor of Cheever, it would surely upset the balance regarding insanity defenses where state experts would have to leave out the important specifics of interviews that allowed them to reach the whole conclusion. A jury, like anybody, is better equipped to make informed decisions and pass judgments with more information. Sometimes that may work to the advantage of a defendant, but sometimes not. To ignore voluntary statements made to a state expert simply restricts that information and tilts the discussion and argument in favor of the defendant hiding behind the Fifth Amendment. While it is true that one is innocent until proven guilty, Cheever’s guilt in shooting the officer is not in question. Only the reasons for that guilt are in question.

Wednesday, October 16th- Kaley vs. United States: It is well-established law that the government can freeze the assets of defendants in a criminal or civil case before a trial. This can occur even if those assets are the only means by which a defendant can obtain and retain effective counsel. This has been established since 1989 in two companion cases that year. However, left unanswered is whether these actions violate the Due Process Clause under the Fifth and Sixth Amendments, a question left open in a footnote in the case of United States vs. Monsanto. At issue here is whether the Kaleys are entitled to a pretrial adversarial hearing to determine if probable cause exists for the original charges. One cannot be indicted but for probable cause. In effect, the Kaleys are using the footnote in the Monsanto case to argue their case before the case can be heard by a jury or a plea agreement arranged. Like Cheever in Kansas, they are hiding behind the Fifth and Sixth Amendments using an original argument. Should the Court determine any merit to their constitutional claims, it would open the floodgates to pretrial hearings whenever any asset is seized. Imagine that: people using ill-gotten gains to defend themselves. The Kaleys are accused of reselling Johnson and Johnson prescription medical devices on the “gray market,” making a personal profit, then laundering the money. Imagine if this extended to ill-gotten gains from drug dealers or Mafia dons. In effect, the assets are frozen, not forfeited. They are, in effect, in limbo. If the Kaleys are found innocent of their crimes, the assets are unfrozen. If they plea bargain, they are unfrozen to the extent of that settlement. The Fifth and Sixth Amendments entitle a criminal defendant to effective counsel, not to one necessarily of their personal choosing or within their financial means.