CBOCS West, Inc. v. Humphries (06-1431), Gomez-Perez v. Potter (06-1321), Riley v. Kennedy (07-77), Gonzalez v. United States (06-11612) and United States v. Rodriguez (06-1646)

June 2, 2008 Supreme Court Update

Greetings, Court fans!
We have much to report, including two retaliation decisions, a Voting Rights Act case, and two criminal decisions. We'll get right to it.
It was no mistake that the Court's retaliation decisions were released on the same day. In CBOCS West, Inc. v. Humphries (06-1431), the Court, led by Justice Breyer, found that 42 U.S.C. § 1981, guaranteeing all persons "the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens," encompassed retaliation claims. The Court's analysis did not begin with the text (as the dissent was quick to point out); this was a case driven by stare decisis. So we must delve a little into that precedent. Section 1981 was passed just after the Civil War, along with section 1982, a similarly-worded provision dealing with property rights. In Sullivan v. Little Hunting Park, Inc. (1969), the Court considered a claim under section 1982 by a white man, Sullivan, who leased property to a black man, Freeman. Sullivan also attempted to assign to Freeman a membership share in a corporation that permitted the owner to use a private park, but the corporation refused the transfer due to Freeman's race. When Sullivan protested, the corporation expelled him. Sullivan sued and the Court permitted the claim to go forward, finding that Sullivan might be the only "effective adversary" of the restrictive covenant and that permitting the corporation to punish Sullivan for trying to protect Freeman's rights would provide "impetus to the perpetuation of racial restrictions on property." Decades later, in Jackson v. Birmingham Board of Education (2005), the Court found that the broad antidiscrimination language in Title IX encompassed retaliation claims even though it didn't mention them specifically. Jackson relied heavily on Sullivan, which the Court concluded "interpreted a general prohibition on racial discrimination [in section 1982] to cover retaliation. . . ." Jackson thus cemented the view that Sullivan recognized retaliation claims under section 1982 – it was not just a standing case. Since sections 1981 and 1982 were passed at the same time, used nearly identical language and had been interpreted alike by the courts (except for one brief run of cases since superseded by Congress), stare decisis weighed heavily in favor of interpreting section 1981 as encompassing retaliation claims. Particularly relevant for future cases was the majority's statement that even though the Court's approach to statutory interpretation emphasizes the text (a/k/a the "plain meaning" approach) more that it did in the past, "[p]rinciples of stare decisis . . . demand respect for precedent whether judicial methods of interpretation change or stay the same."
Justice Thomas, joined by Scalia, dissented. For them, section 1981 clearly covers discrimination based on who you are – status-based discrimination. Retaliation is logically distinct because it is based on what you do (complain) – conduct based discrimination. Statutory interpretation should begin (and possibly end!) with the text and there is no language suggesting that Congress intended to encompass retaliation claims when it enacted section 1981. Rejecting the majority's interpretation of Sullivan, the dissent argued that Sullivan was a standing case – in which a third party, Sullivan, was permitted to raise claims belonging to Freeman. The claims though, depended on proving that Freeman was discriminated against based on race, not just that Sullivan protested and was punished. Thus, Sullivan was still a race discrimination case, not a retaliation case, so Jackson was wrongly decided and should be reversed. Finally, the dissenters accused the majority of hiding behind a flawed "figleaf" of stare decisis, where the principle was simply inapplicable. The Court had never before interpreted section 1981 to encompass retaliation claims (thus there was no binding precedent) and even if Sullivan had interpreted section 1982 as covering such claims (which the dissenters believed it did not), there was no requirement to extend that incorrect decision to section 1981.
Following on the heals of CBOCS, Gomez-Perez v. Potter (06-1321) required the Court to decide whether the federal-sector provision of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a(a), encompassed claims based on retaliation. Once again, the Court found that it did, but this time the majority failed to convince the Chief, who dissented along with Thomas and Scalia. Section 633 provides that "[a]ll personnel decisions . . . shall be free from any discrimination based on age." Alito led the majority in concluding that this broad language encompassed claims of retaliation based on the filing of an age discrimination complaint. The Court again relied heavily on Sullivan and Jackson, finding that section 633 had similar language and a similar remedial purpose to the statutes addressed in those cases. In addition, like Title IX, which the Court construed in Jackson, section 633 was passed shortly after the Sullivan decision and Congress likely understood that decision to mean that broad antidiscrimination language was adequate to encompass retaliation claims without a more specific provision. Reaching a bit further than it did in CBOCS, the Court appeared to recognize retaliation claims as a branch of discrimination claims rather than as analytically separate, stating: "The Jackson dissent strenuously argued that a claim of retaliation is conceptually different from a claim of discrimination . . . but that view did not prevail." (At which point, the majority happily trotted out quotes from government briefs in other cases, including Jackson, arguing that retaliation was a form of intentional discrimination based on protected status.) The Court then rejected the First Circuit's attempt to distinguish Jackson on the basis that section 633a(a) of the ADEA includes an express private right of action, while Title IX does not. The Appellate Court had found that since the right of action under Title IX was judicially implied, it was more malleable. As Justice Alito explained, however, the substantive right is created by the language of the statute – the procedural mechanism for enforcement is a separate matter and cannot expand or narrow the right Congress has created. The Court also rejected Potter's principle argument that the structure of the ADEA cut against recognizing a retaliation claim. The private sector provision of the ADEA contains a distinct retaliation right, explicitly set forth in the statute – thus, respondent argued, Congress knew how to create a retaliation cause of action and chose not to include one in the federal sector provision. The Court was not convinced since the provisions were not enacted at the same time, and were not worded in a similar manner, with section 633a(a) containing a broader, more general, antidiscrimination provision, while the private sector provision spelled out particular prohibited acts. Finally, the Court found that it was pure speculation that Congress intended to deal with retaliation claims via an administrative framework created by the Civil Service Commission.
The Chief authored the primary dissent, in which Thomas and Scalia joined as to all but Part 1. For the Chief, the determination of whether a broad antidiscrimination provision encompasses retaliation claims must be made on a case-by-case basis (this was where he lost Thomas and Scalia). Here, he found that the structure (particularly Congress's choice to expressly include such a provision in the private sector provision), legislative history, and preexisting administrative framework for addressing federal retaliation claims all cut against interpreting section 633a(a) to include retaliation claims. Thomas, joined by Scalia, separately dissented to note their belief that Jackson was just wrong.
Moving on from retaliation, we come to Riley v. Kennedy (07-77), where the Court concluded 7-2 that the Voting Rights Act of 1965 ("VRA") did not require Alabama to obtain "preclearance" before reinstating the practice of gubernatorial appointment to fill midterm vacancies on the Mobile County Commission, after a law providing for special elections was declared unconstitutional by the Alabama Supreme Court. The VRA was designed to abolish racial discrimination, requiring states to discard literacy or other tests (potent discriminatory tools) as prerequisites to voting. The VRA also required covered jurisdictions to "lock" their pre-VRA voting practices into place (lest states concoct creative new ways to racially discriminate), requiring preclearance from the District Court for the District of Columbia or DOJ before a state could "enact or seek to administer" any change in its practices affecting voting – ensuring that over time, voting systems would become more inclusive, not less. Pre-VRA, Alabama law required that midterm vacancies on county commissions be filled by gubernatorial appointment. In 1985, the Alabama legislature passed (and DOJ precleared) a law unique to Mobile County providing that midterm vacancies would be filled by special election. When the first vacancy occurred in 1987, Stokes, a Mobile County voter, sued, contending that the 1985 law violated Alabama's constitution. Stokes failed to stop the election (which a guy named Jones won), but a year later Alabama's Supreme Court found that the 1985 law violated Alabama's prohibition on passing "local" laws covering part of the state where a general law already existed. Alabama's governor quickly "appointed" Jones to remove any perceived illegitimacy from his service. In 2004, the Alabama legislature amended its general law to allow for special elections under local law. A year later, Jones (yep – that one) was elected Mayor of Mobile and a midterm vacancy arose once more. Litigation ensued when Mobile County voters and legislators, including Kennedy, claimed that the 2004 amendment revived the 1985 law providing for special elections. The Alabama Supreme Court disagreed, finding the 2004 amendment was prospective only, and the Governor promptly appointed a replacement. A day later, Kennedy filed suit in district court claiming that the appointment violated the VRA because the preexisting voting practice had been via special election and any departure from that practice (even if it had violated Alabama law) required preclearance. The district court vacated the appointment, and a direct appeal to the high Court followed.
Justice Ginsburg led the majority in concluding that gubernatorial appointment did not violate the VRA. Under the case law, it was clear that the status quo voting practice (the practice by which any change is measured) is what is actually in effect, whether or not that practice is "valid" under state law. (For example, if state law provides for proportional representation, but one county has been using a winner take-all-system for decades, a change to election based on proportional representation in that county – even though required by state law – would require VRA preclearance.) Kennedy argued that the voting practice in "force or effect" in Mobile County was the special election system that had been used in Jones' 1987 election and, regardless of the legality of that practice under state law, any departure from it required VRA preclearance (which DOJ declined to provide since gubernatorial appointment would shift power from the minority voters of District 1 to a governor elected by the entire state). The Court disagreed, finding that the unique facts of the case (i.e.: don't give this precedent too much weight) required a different result. For the majority, the critical distinction was that Stokes challenged the 1985 law at the first opportunity, and that election proceeded under "the shadow" of litigation and the law was ultimately overturned. Under these facts, the law should be viewed as void ab initio – it never existed; it never changed the status quo from gubernatorial appointment; and there was thus no need for preclearance. Justice Stevens, joined by Justice Souter, dissented. For them, the 1985 Act requiring special elections was in "force or effect" because it was enacted and actually used for the 1987 election. That the Act violated state law and was invalidated by the state's highest court was of no matter under the VRA, which applies equally to changes in voting practices required by judicial decision. Since gubernatorial appointment did not pass preclearance, return to that method violated the VRA.
Now, on to the criminal cases (you civil practitioners can pat yourselves on the back for having read this far and skip to the end with no guilt). In Gonzalez v. United States (06-11612), the Court held that the Federal Magistrates Act ("FMA"), 28 U.S.C. § 636(b), permits magistrate judges to preside over jury selection in felony trials without express consent by the defendant personally where counsel for both parties have consented. Justice Kennedy penned the majority opinion, which was joined by all but Justice Scalia, who concurred in the judgment only, and Justice Thomas, who dissented. The FMA lists a number of functions that district courts can delegate to magistrate judges, including conducting of misdemeanor criminal trials and civil trials where the parties consent. The FMA also includes a catch-all that allowing "such additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U.S.C. § 636(b)(3). In Gomez v. United States, the Court had held that magistrate judges could not supervise voir dire if a party objected, but in Peretz v. United States, the Court concluded that magistrate judge supervision of voir dire was permissible if all parties consent. The issue here was whether consent by counsel, rather than by a defendant himself on the record or in writing, was required. The Court acknowledged that some rights (i.e., the right to a trial rather than to plead guilty) must be waived by the defendant personally. However, the Court has only required personal waiver where the right at issue is truly fundamental. The supervision of voir dire is a tactical decision best suited to an attorney's judgment – just as the Court has permitted a defense attorney to waive his client's speedy trial rights without requiring personal consent because of the practical need for attorneys to be able to manage scheduling issues.
Both Justice Scalia and Justice Thomas rejected the dichotomy drawn by the majority between fundamental rights and tactical decisions – but reached entirely opposing results. On the one hand, Scalia joined the Court's judgment but not its reasoning. For him, defense counsel is the defendant's agent and can always (except where a law requires otherwise) consent on his client's behalf. On the other hand, Thomas dissented, explaining that all decisions, even the decision to plead guilty rather than go to trial, are tactical and require attorney expertise, so the "sufficiently fundamental" inquiry is misplaced. Here, the FMA requires express, on the record, consent by a defendant personally before he can be tried for a misdemeanor crime before a magistrate. In light of that, Thomas would regard it as error to imbue the catch-all with the power to delegate voir dire in a felony trial to a magistrate merely upon consent by counsel.
Finally, in United States v. Rodriguez (06-1646), the Court addressed the definition of "serious drug offense" under the Armed Career Criminal Act ("ACCA"), which provides a minimum fifteen-year sentence for a defendant convicted of, among other things, a felon in possession charge and has three prior convictions for, among other things, a violent felony or "serious drug offense." A state drug-trafficking offense qualifies as a "serious drug offense" if it is punishable by imprisonment for a maximum term of ten years or more. Rodriguez was convicted as a felon in possession, and the government sought to apply ACCA, arguing that Rodriguez had two California convictions for burglary (which no one disputed qualified as violent felonies) and three Washington convictions for delivery of a controlled substance. While Washington's maximum punishment for a first-time conviction for delivery of a controlled substance was five years, each subsequent conviction was punishable by up to ten years due to "recidivism enhancements." Thus, the government argued that at least two of Rodriguez's drug convictions qualified. The Court agreed. As Justice Alito explained, it would make no sense to conclude that the "maximum term prescribed by law" for Rodriguez's drug crimes was only five years when he could have been sentenced to ten under Washington's recidivist enhancement. And recidivism does have bear on the seriousness of Rodriguez's offenses because it portends a greater risk of future danger. The Court also rejected Rodriguez's argument that it will be hard for federal courts to determine which state court convictions qualify as "serious drug offenses" because they will be forced to enter into a quagmire of tricky state sentencing issues. Not so claimed the majority – the maximum sentence likely would appear somewhere in the record and, if it did not, then the government probably couldn't obtain the enhanced ACCA penalty anyway. Finally, the Court found that including state statutory recidivist enhancements to find the "maximum penalty prescribed by law" for ACCA purposes did not require the use of complex mandatory state guidelines systems that effectively cap maximum sentences – solving another potential practical problem with the Court's approach. Even where guidelines are ostensibly mandatory, they typically allow a trial court to depart upwards if sufficient reasons exist.
Justice Souter, joined by Stevens and Ginsburg, dissented. While they found the majority's interpretation plausible, the ACCA's "maximum penalty" language was ambiguous and should be construed narrowly to cover only the maximum sentence allowable based on the "bare offense." It makes good sense to distinguish between the elements that constitute the "bare offense" and additional offender-based characteristics that are relevant in sentencing (such as criminal history, possession of a firearm, etc.). The Court adopts perhaps the most anti-defendant path, calculating the sentencing range for "an imaginary offender who meets statutory conditions for altering the basic sentence, but is artificially stripped of any characteristics that trigger a guideline rule also ‘prescribed by law.'" And the practical problems with the Court's approach can't be easily swept aside. Federal courts will be forced to address a thicket of state-law sentencing issues and it is no answer that if the maximum doesn't appear in the record, the government likely won't prevail. That answer will yield a system under which two similarly situated defendants receive entirely different sentences based on what information made it into the record. Thus, the dissenters would consider only the maximum sentence for the bare offense in determining whether ACCA applied.
With that, we leave you until next week.
Kim & Ken

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