Arthur Andersen LLP v. United States (04-368), Cutter v. Wilkinson (03-9877), Tory v. Cochran (03-1488) and order list

May 31, 2005 Supreme Court Update

Greetings, Court Fans!
The Court issued three opinions today, plus one cert grant.
First, the headline-grabbing case of the day, Arthur Andersen LLP v. United States (04-368), in which the Court unanimously set aside Andersen's conviction for destroying documents related to the Enron debacle. As set forth in the Chief's opinion for the Court, the basic facts are that after Andersen learned that Enron was in serious trouble, a number of Andersen partners and an in-house counsel reminded Andersen personnel to comply with Andersen's document retention policy. The policy provided for a central file that "should contain only that information which is relevant to supporting our work," thus calling for the destruction of other documents (but also calling for the preservation of documents in the event of litigation or a subpoena). In October 2001, when the SEC was informally investigating Enron but had not yet subpoenaed Andersen's records, Andersen employees shredded large numbers of documents. Based on the managerial reminders about the document retention policy, the Government indicted Andersen under 18 USC 1512(b)(2)(A)-(B), which imposes criminal penalties on anyone who "knowingly uses intimidation or physical force, threatens, or corruptly persuades another person . . . with intent to . . . cause or induce any person to . . . to withhold testimony or withhold a record, document, or other object, from an official proceeding." The jury convicted Andersen based on the District Court's instructions that it should convict Andersen for "corrupt persuasion" if it found that Andersen intended to "subvert, undermine or impede" the SEC's investigation. At the Government's request, the court omitted language from the Fifth Circuit's pattern jury instructions that defined "corruptly" as "knowingly and dishonestly." The court also told the jury that it could convict even if Andersen honestly believed that its conduct was lawful. The Fifth Circuit affirmed the conviction, holding that the jury instructions properly conveyed the meaning of "corruptly persuades" and that the jury did not need to find any consciousness of wrongdoing on Andersen's part.
The Court reversed unanimously, in an opinion that focused on the consciousness-of-guilt issue. The government argued that although the statute used the term "knowingly" in front of the list of proscribed activities, the word modified only "uses intimidation or force," not "corruptly persuades" further down in the list, because Congress would not employ "such an inelegant formulation as ‘knowingly . . . corruptly persuades.'" The Court disagreed, noting its "[l]ong experience" with Congress' inelegance, and concluding that the statute's "most natural" reading was that "knowingly" modified the whole list. As a result, "[o]nly persons conscious of wrongdoing can be said to ‘knowingly . . . corruptly persuade.'" The District Court's instructions, by dropping language requiring dishonesty, diluted the meaning of "corruptly" so that it covered innocent conduct (earlier in the opinion, the Chief cited the example, among others, of a mother who suggests that her son invoke his Fifth Amendment rights with the police -- she's technically impeding an investigation, but not dishonestly or wrongfully). The District Court also wrongly led the jury to believe that it did not have to link the "persuasion" to destroy documents to a particular "official proceeding" -- one cannot be a "knowingly corrupt persuader" if he does not seek to subvert some particular proceeding. So the conviction is reversed and the case is remanded, presumably for a new trial if the Government deems it worth the effort to retry a company that has effectively suffered the death penalty. This case definitely falls into the category of "moral victory only" for Andersen.
In Cutter v. Wilkinson (03-9877), the Court unanimously rejected a facial Establishment Clause challenge to the institutionalized-person provision of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). RLUIPA provides: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the burden furthers "a compelling governmental interest" and is accomplished by the "least restrictive means." Current and former inmates of Ohio prisons -- a mix of Satanists, Wiccans, Norse Heathenists, and followers of the Church of Jesus Christ Christian (white supremacists) -- sued the Ohio Department of Rehabilitation and Correction and prison officials, claiming, among other things, that defendants violated their rights under RLUIPA by retaliating against them for exercising "nonmainstream religions" and by denying them the same rights and opportunities afforded to inmates worshipping "mainstream" religions. Defendants moved to dismiss, arguing that the institutionalized-person provision of RLUIPA improperly advanced religion in violation of the Establishment Clause. The trial court denied defendants' motion to dismiss, but the Sixth Circuit reversed, concluding that RLUIPA violated the Establishment Clause because it afforded greater protection to religious rights than other constitutionally protected rights and because it might encourage prisoners to become religious in order to enjoy greater rights.
Reversing, the Court, led by Justice Ginsburg, explained that there is "room for play in the joints" between the Free Exercise and Establishment Clauses, allowing the government to accommodate religion without unlawfully fostering it. Here, two factors weighed heavily against defendants' attack on RLUIPA. First, RLUIPA requires courts to consider government interests such as security concerns. Second, RLUIPA does not differentiate among bona fide faiths and confers "no privileged status" on any religious group. It is important to note that Ohio's challenge to RLUIPA was a facial challenge and the Court's decision does not rule out an as-applied challenge at some point in the future. Justice Thomas wrote separately to emphasize his historical understanding of the clause as a federalism provision: The Establishment Clause restrained the federal government from interfering with state establishment of religion. While RLUIPA concerns religion, it does not concern the "establishment" of religion (i.e., "coercion of religious orthodoxy and financial support by force of law and threat of penalty") and therefore does not violate the Establishment Clause.
The Court also issued a short opinion in Tory v. Cochran (03-1488). After finding that Ulysses Tory had repeatedly defamed Johnnie Cochran (yes, that's Johnnie Cochran of "if the glove doesn't fit, you must acquit" fame) in an effort to extort money, a California trial court permanently enjoined Tory from making statements about Cochran's law firm in any public forum. The Court took the case to decide "[w]hether a permanent injunction as a remedy in a defamation action, preventing all future speech about an admitted public figure, violates the First Amendment," but Cochran died before the Court could decide the matter. As a result, the majority, led by Justice Breyer, concluded that, while the case was not moot -- the injunction was arguably still in effect -- it would be "unwise" for the Court to opine on the question presented. However, Cochran's death had negated the underlying rationale for the injunction (Tory could no longer extort funds from Cochran), and the Court found that the injunction was now an overly broad, unjustified prior restraint on speech. On remand, interested parties might request a different, more narrowly tailored injunction. Justices Thomas and Scalia dissented as they would have dismissed cert as improvidently granted once Cochran passed away.
The Court's order list granted cert in one new case, Kansas v. Marsh (04-1170). The question presented in the petition was: "Does it violate the Constitution for a state capital-sentencing statute to provide for the imposition of the death penalty when the sentencing jury determines that the mitigating and aggravating evidence is in equipoise?" The Court accepted that question and added two more of its own: (1) "Does this Court have jurisdiction to review the judgment of the Kansas Supreme Court under 28 USC 1257, as construed by Cox Broadcasting Corp. v. Cohn (1975)?"; and (2) "Was the Kansas Supreme Court's judgment adequately supported by a ground independent of federal law?"
Finally, we should correct a misstatement in last week's summary of Medellin v. Dretke (04-5928): The United States has not withdrawn from the Vienna Convention on Consular Relations, but only from its Optional Protocol consenting to the jurisdiction of the International Court of Justice over alleged violations of the Convention.
Until next week, thanks for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400.