Berghius v. Thompkins (08-1470), Carr v. United States (08-1301), Samantar v. Yousuf (08-1555) and Alabama v. North Carolina (Orig. 132)

June 9, 2010 Supreme Court Update

Greetings, Court fans!

The summer deluge continues. This Update will cover four decisions: Berghius v. Thompkins (08-1470), holding that a suspect must speak-up in order to invoke his right to remain silent; Carr v. United States (08-1301), finding that the Sex Offender Registration and Notification Act's registration requirements for convicted sex offenders who travel between states do not apply to offenders who travelled before the statute's effective date; Samantar v. Yousuf (08-1555), concluding that the Foreign Sovereign Immunities Act does not govern claims of immunity by foreign officials; and Alabama v. North Carolina (Orig. 132), an original jurisdiction case involving a spat between states over the construction of a low-level radioactive waste facility. I'll be honest, unless you are faced with one of these precise issues, you could probably skip most of these (other than Berghius) without missing much sleep.

In Berghius v. Thompkins, Thompkins was arrested and interrogated in connection with a drive-by shooting. The detective questioning Thompkins read him his Miranda rights from a written form, and asked Thompkins to sign the form to indicate his understanding. Thompkins refused to sign and the record was not clear as to whether he gave a verbal indication that he understood. For the next 2 hours and 45 minutes, Thompkins remained largely silent as the detective interrogated him. He did not say he wanted to remain silent, that he did not want to talk to the police, or that he wanted an attorney. As the detective later described it, Thompkins remained sullen and verbally uncommunicative in the face of a "very, very one-sided" interrogation. As the third hour of interrogation was drawing to a close, the detective made a breakthrough. "[Detective] Helgert asked Thompkins, 'Do you believe in God?' Thompkins made eye contact with Helgert and said 'Yes,' as his eyes 'well[ed] up with tears.' Helgert asked, 'Do you pray to God?' Thompkins said 'Yes.' Helgert asked, 'Do you pray to God to forgive you for shooting that boy down?' Thompkins answered 'Yes' and looked away. Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later." Upon being charged for the crime, Thompkins moved to suppress his statements, on the ground that he had invoked the right to remain silent, and his inculpatory statements were involuntary. The suppression motion was denied, and the denial was upheld on appeal to the Michigan Court of Appeals, which ruled that Thompkins had not invoked his right to remain silent and had waived it. The Michigan Supreme Court denied discretionary review. On petition for writ of habeas corpus, the district court found that the Michigan Court of Appeals' determinations were not unreasonable, but the Sixth Circuit reversed, finding that the state court was unreasonable in finding an implied waiver given Thompkins' persistent silence for nearly three hours.

The Court disagreed, in a 5-4 decision along classic conservative/liberal lines. Justice Kennedy wrote for the majority. First, the Court rejected Thompkins' argument that he had invoked his right to remain silent by refusing to sign the Miranda form and remaining silent for an extended period. Noting its earlier decision in Davis v. United States (1994) that a suspect must affirmatively invoke the right to counsel, the Court saw no principled reason to adopt a different standard with regard to the right to remain silent. Next, the Court found that Thompkins understood and waived his right to remain silent when he answered the detective's questions at the 2 hour 45 minute mark. Miranda, the Court held, "does not impose a formalistic waiver procedure that a suspect must follow to relinquish [Miranda] rights." The fact that Thompkins did not speak for almost three hours after receiving a Miranda warning did not alter the conclusion that when he did speak, he waived, because Miranda does not require police to rewarn suspects from time to time. And the fact that the detective's question referred to Thompkins' religious beliefs did not render his statements involuntary. Quoting an earlier case: "The Fifth Amendment privilege is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion." The Court went out of its way to hold that the Michigan court's decision rejecting Thompkins' Miranda claim was not only reasonable under the deferential AEDPA standard of review, but "correct under de novo review" as well. (On the other, less hot-button, issue Thompkins had raised below, regarding whether his counsel provided ineffective assistance by failing to request a limiting instruction on how the jury could consider the outcome of a co-conspirator's trial, the Court found that Thompkins could not show prejudice under a de novo standard, much less a deferential AEDPA standard, given other evidence against him, to wit: identification by a surviving victim, a photograph from a surveillance camera, his confession to a friend, and evidence that he tried to destroy evidence.)

The dissent, led by Justice Sotomayor, did not agree that the government had established that Thompkins had knowingly and intelligently waived his right to remain silent by giving three one word answers to the detective's questions about God, after refusing to sign a written waiver and remaining almost entirely silent for 2 hours and 45 minutes. In the dissent's view, the Michigan court's unreasonable finding as to waiver was sufficient grounds for habeas relief – separate and apart from whether Thompkins "invoked" the right. If it were necessary to consider Thompkins' argument that he implicitly invoked his right to remain silent through his silence, the dissent conceded that the Michigan court's application of the Court's precedent was not objectively unreasonable under AEDPA's deferential standard of review. But the dissent vehemently disagreed with the Court's decision to go beyond the AEDPA realm to hold that suspects must affirmatively invoke their right to remain silent to terminate police questioning. Requiring suspects to unambiguously invoke their right to remain silent "counterintuitively, requires them to speak."

We turn next to a dispute over application of the Sex Offender Registration and Notification Act (SONRA), which was enacted in 2006. Section 2250 of SONRA makes it a criminal offense for any person who is required to register under SONRA and "travels in interstate or foreign commerce" to knowingly fail to register or update a registration. The defendant in Carr v. United States was released on probation in Alabama after conviction for a sex offense in 2004. Carr registered as a sex offender in Alabama, but did not register in Indiana when he relocated later that year. After Carr came to the attention of law enforcement for other reasons in 2007, he was indicted for violating SONRA's registration requirements. He argued that his prosecution violated the Ex Post Facto Clause because he had traveled to Indiana prior to SONRA's effective date. His case was eventually consolidated in the Seventh Circuit with that of a similarly situated defendant, who argued that § 2250, by its terms, does not apply to persons whose interstate travel predated SONRA. The Seventh Circuit rejected that argument, and further held that SONRA could apply to preenactment travel without violating the Ex Post Facto Clause so long as the defendant had had a "reasonable time" to register after SONRA took effect. A 6-3 majority of the Court, led by Justice Sotomayor, reversed, holding that § 2250 of SONRA, by its terms, does not apply to persons who traveled prior to SONRA's effective date. The Court based its decision primarily on Congress' use of the present tense word "travels," which refers to present or future, but not past, conduct. Notably, neither the Government nor the dissent had identified a single instance in which the Court had construed a present-tense verb in a criminal statute to reach preenactment conduct. Further, because the first and third elements of the offense, that a person was required to register under SONRA, and failed to register, could only apply to events after SONRA's enactment, it made sense that the second element, interstate travel, also applied only to travel after SONRA's enactment. In response to the dissent's concern that the majority's interpretation of § 2250 would undermine one of SONRA's main purposes, to address the problem of "missing" sex offenders, the Court observed that SONRA addresses the problem in its other provisions. Finally, the Court saw nothing in the legislative history to suggest that Congress intended to reach preenactment travel. Justice Scalia wrote a separate opinion concurring in all parts of the opinion except for the parts referencing legislative history, and concurring in the judgment. (For more on Justice Scalia's continued stand against legislative history, continue on to the discussion of Samantar.)

Justice Alito, joined by Justices Thomas and Ginsburg, dissented. The dissenters questioned the Court's reliance on the the present tense word "travels" to mean postenactment conduct, given that modern legislative drafting conventions call for laws to be written in the present tense, to speak as of any date on which they are read, rather than as of when drafted, enacted, or put into effect. With the understanding that § 2250 speaks as of the time when the first act necessary for conviction is committed (i.e., the underlying conviction for a sex offense, which triggers the requirement to register under SONRA), and assuming that SONRA reaches underlying convictions predating SONRA's enactment (Congress delegated this determination to the Attorney General, and the Attorney General subsequently issued an interim rule providing that SONRA applies to preenactment convictions), then it makes sense that the statute would refer to all subsequent events -- including preenactment travel -- in the present tense. For the dissenters, the majority's interpretation "le[d] to a result that ma[de] no sense." The dissenters juxtaposed two hypothetical cases involving sex offenders who moved to new states and failed to register under SONRA. One traveled before SONRA, and one traveled after SONRA, but both left their first states with no method of monitoring them, and entered new states that received no notice of their entry. The dissenters saw no reason why Congress would have wanted to treat these two cases differently.

Next, in Samantar v. Yousuf, the Court held that the Foreign Sovereign Immunities Act (FSIA) does not apply to an official of a foreign state sued in his individual capacity. Immunity for these defendants is instead governed by common law. Plaintiffs are natives of Somalia, who claimed that they or their families were tortured and killed between 1980 and 1990, during which time defendant Samantar served initially as the First Vice President and Minister of Defense of Somalia and later as the Prime Minister of Somalia. Plaintiffs claimed that Salmantar (now a resident of Virginia) was responsible for the torture and killings and sought damages from Salmantar in his individual capacity. Salmantar claimed that he was immune from suit under the FSIA. The district court stayed the case to allow the State Department to provide its view, but when two years went by with no response (they must be terribly busy), the district court eventually reinstated the case and then dismissed for lack of subject matter jurisdiction based on the FSIA. The Fourth Circuit reversed, concluding that the FSIA does not apply to individual agents of a government.

The Court agreed, in an opinion drafted by Justice Stevens and joined in most respects by nearly everyone (we'll get to the minor exceptions later). Prior to FSIA, a common law of foreign sovereign immunity had developed, under which first a request was made by the foreign sovereign to the State Department for a "suggestion of immunity." If the State Department made the suggestion, the court declined jurisdiction. If the State Department did not act, the court made an independent determination of immunity. Before 1952, the State Department requested immunity in all actions against foreign sovereigns. After that date, the State Department adopted a more restrictive approach, under which it would suggest immunity only in suits involving a foreign sovereign's public acts and not for commercial acts by a foreign state. Notwithstanding this stated policy, the State Department was sometimes swayed by political considerations not to follow it. FSIA was adopted to codify the restrictive policy and remove the decision on foreign sovereign immunity from the political realm – transferring primary responsibility for these determinations from the State Department to the courts. FSIA provides that a "foreign state" shall be "immune from suit" except as provided in the Act. "Foreign state" is defined to include "a political subdivision of a foreign state or an agency or instrumentality of a foreign state," and "agency or instrumentality" is further defined as an "entity" that possesses three characteristics, including being a "separate legal person," and an "organ" of the state." For the Court, these textual clues all evidenced an intent not to include individual officials within the definition of a foreign state. Justice Stevens also pointed to legislative history that, in his view, supported the Court's interpretation.

Unless you have a FSIA case, the legislative history debate is probably the most interesting part of this decision. Stevens, in one of last opinions for the Court, uses snippets of legislative history throughout the decision and includes a footnote staking out his position on legislative history's use going forward: "Our precedents demonstrate that the Court's practice of utilizing legislative history reaches well into the past. We expect that the practice will likewise reach well into the future." Several of the Justices who don't quite buy this reacted with different degrees of skepticism. Alito filed a concurring opinion to note that he found the cites to legislative history "of little if any value here" – but taking no position as to the general value of legislative history. Thomas, concurred in part and concurred in the judgment, because he declined to join the portions of the opinion that referred to legislative history. Scalia, not surprisingly, went the farthest, concurring only in the judgment because he was really upset about the Court's use of legislative history and the fact that it was sprinkled throughout the opinion, which did not allow him to simply decline to join one discrete part.

We move on now to an original jurisdiction case involving a dispute between states. If nothing else, Alabama v. North Carolina, reveals just how expensive and difficult it can be to deal with radioactive waste. In conjunction with a national effort to establish regional radioactive waste disposal facilities, Alabama, Florida, Georgia, Mississippi, North Carolina and South Carolina entered into the Southeast Interstate Low-Level Radioactive Waste Management Compact (the "Compact"). The Compact established a Commission, which had authority to, among other things, designate a host State for development of a new regional disposal facility – thus obviating the "not in my backyard" problem. The Compact envisioned that each State would eventually take its turn in 20 year intervals to play the (unenviable) role of host. The Compact required the designated host state to take "appropriate steps to ensure that an application for a license to construct and operate a [low level radioactive waste facility] is filed with and issued by the appropriate authority."

The Commission selected North Carolina as the first host State in 1986. Shortly thereafter, North Carolina requested funds from the Commission to assist with the costs of licensing and building a facility. The Commission agreed and over the years that followed paid almost $80M to North Carolina, which also invested $34M of its own funds. Notwithstanding this incredible outlay of funds, by the mid-1990s, North Carolina remained many years and millions of dollars away from obtaining a license. In 1997, the Commission told North Carolina that it would not be able to provide any additional funds and North Carolina responded that it would be unable to move forward with the project. In 1999, Florida and Tennessee filed a complaint with the Commission seeking monetary sanctions against North Carolina for failing to take "appropriate steps" to obtain the license. Shortly thereafter, North Carolina withdrew from the Compact. Several months later, the Commission found that North Carolina had failed to fulfill its obligations under the Compact and sanctioned North Carolina – ordering it to repay the $80M and ordering other monetary sanctions. North Carolina, having withdrawn from the Compact, did not participate in these proceedings and did not comply with the order. In 2003, the Supreme Court granted Alabama, Florida, Tennessee, Virginia and the Commission ("plaintiffs") leave to file a bill of complaint against North Carolina in the Court under its original jurisdiction. Plaintiffs sued for (1) violation of their rights under the Compact; (2) breach of contract, (3) unjust enrichment; (4) promissory estoppel; and (5) money had and received.

Not ones to get their hands dirty, the Justices handed the case off to a Special Master, who eventually issued a preliminary report recommending granting North Carolina's motion to dismiss any claims seeking enforcement of the Commission's monetary damages award (primarily Counts I and 2); denying North Carolina's motion to dismiss Counts II-IV (as additional proceedings would be needed on those counts); and denying without prejudice North Carolina's motion to dismiss the Commission's claims on sovereign immunity grounds. The Court affirmed, in an opinion by Justice Scalia. First, the Court held that the Compact, by its terms, did not authorize the Commission to impose monetary damages as a sanction. The text of the Compact suggested that the Commission had authority only to suspend or revoke a State's membership in the Compact – not to enter a monetary award. Second, because the Compact did not make the Commission the sole arbiter of disputes arising under the Compact, the Court was not bound by (and would give no deference to) the Commission's determination that North Carolina had breached the Compact. Third, the Court found that North Carolina did not breach its obligation to take "appropriate steps" to obtain a license because the course of dealings between the parties revealed that North Carolina was not expected to bear sole financial responsibility for the costs necessary to obtain a license and to construct the facility. Thus, when the funding dried up, no further steps were "appropriate." Fourth, North Carolina did not breach any obligation of good faith and fair dealing by withdrawing from the Compact after the claim was filed because it had an unconditional right to withdraw. Finally, the Court denied North Carolina's exceptions to the portions of the Special Master's ruling leaving for a later day the determination of plaintiffs' equitable claims in Counts III-V and North Carolina's motion to dismiss the Commission's claim based on sovereign immunity, concluding with respect to the latter issue, that sovereign immunity concerns might not be implicated if the Commission's participation was limited to representing the rights of the other parties to the Compact and asserting purely duplicative remedies.

Justice Kennedy, who was joined by Justice Sotomayor, authored an opinion concurring in the judgment and in all but Section IIE of the Court's opinion, which contained the Court's analysis regarding whether North Carolina breached its duty of good faith and fair dealing by withdrawing from the Compact. Kennedy and Sotomayor agreed that North Carolina did not do so, but were concerned that the Court's analysis relied in part on the fact that a compact ratified by Congress is a federal law; thus provisions cannot be added via Court interpretation. For Kennedy and Sotomayor, compacts are indeed different from other types of legislation and bear the hallmarks of a contract. Therefore, different evidence may be relevant in construing a compact than would be relevant in construing a typical statute. The Chief, joined by Justice Thomas, concurred in part and dissented in part. The Chief argued that the Commission's claims should be dismissed based on sovereign immunity – the Commission ought not be allowed to piggyback its claims into the case on the backs of the states' claims. Sovereign immunity is immunity from suit, not just from the burdens of litigation and additional remedial relief. Therefore, the Commission's claims should have been dismissed. (Of course, the majority's decision did not finally settle this issue. It simply left it open for further proceedings before the Special Master.) The Chief also joined Justice Breyer's opinion, concurring in part and dissenting in part. While Breyer agreed that the Commission did not have authority to issue a damages sanction against North Carolina, he would conclude that North Carolina did violate the Compact by abandoning its efforts toward building a facility and withdrawing from the Compact. In Breyer's view, the Compact envisioned that the host State would bear the cost of building a facility and then would reap the financial rewards from the facility, and that this burden would rotate. The Compact explicitly stated that the Commission had no financial responsibility. Therefore, though the Commission may have voluntarily funded the project, this did not relieve North Carolina of its obligation to fund the facility to completion.

I'll be back with more decisions and orders soon.


From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400