Fellers v. United States (02-6320), Lamie v. United States Trustee (02-693) and order list

January 26, 2004 Supreme Court Update

Greetings Court fans!

Hi everyone! Two opinions today, both rather uncontroversial, and an order list. I'll begin with the opinions.

In Fellers v. United States (02-6320), a unanimous Court (opinion by O'Connor) held that police violated Fellers' Sixth Amendment rights when they "deliberately elicited" statements from him outside the presence of counsel after he was indicted. After a grand jury indicted Fellers on drug charges, police went to his home to arrest him. They told him that he had been indicted, that they had come to arrest him, and that they were there to gather information about his involvement in a drug distribution ring. With this background, Fellers made several incriminating statements. (This is one of those things I guess you have to be a criminal to understand, but why do so many people make incriminating statements to the police?) Later, after police transported him to jail and read him his Miranda rights, he repeated his incriminating statements. The Eight Circuit rejected Fellers' attempt to suppress the statements, holding that the police had not "interrogated" Fellers and so there was no constitutional violation. The Supreme Court reversed. O'Connor noted that this is a case about the Sixth Amendment right to counsel, not the Fifth Amendment, and so the custodial-interrogation standard used by the Eighth Circuit is inapplicable. The question under the Sixth Amendment is whether the police "deliberately elicited" statements from Fellers without counsel present after he had been indicted. Here, there was no question that the police met the standard and thus the statements he made at his home should have been suppressed. Ah, but what to do about the subsequent statements at the jail, you ask. Well, I wish I could tell you, but the Court punted. It refused to decide whether the statements would be admissible under the rationale of Elstad (if they were made after knowing and voluntary waiver of right to counsel notwithstanding earlier police violation of Sixth Amendment standards), leaving that question to the lower courts to decide in the first instance. Lame ending if you ask me. Couldn't they just decide the issue?

The second opinion, Lamie v. United States Trustee (02-693), is about the award of attorneys' fees in bankruptcy proceedings. For those still reading after that introductory sentence, I'll do my best to make it interesting, but this could be hard. At the very least, I'll make it short. In 1994, Congress amended the bankruptcy code by, as relevant here, changing the standards for the award of attorneys' fees. Under prior law, courts could award to "a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title or to the debtor's attorney" reasonable compensation for services rendered by such "trustee, examiner, professional person, or attorney." The 1994 amendment to this language eliminated the first reference to an attorney (defeating the parallel structure of the earlier language) and also introduced a grammatical error (they left out an "or"). In other words, under the new law, a court may award to "a trustee, an examiner, a professional person employed under section 327 or 1103" reasonable compensation for services rendered by the "trustee, examiner, professional person or attorney." What to make of these changes?

Basically, the Court (Kennedy for everyone but Stevens) holds that the statute should be interpreted as written. Fees may only be awarded to attorneys for services rendered to the extent they are payments to a professional person employed under section 327. To reach this conclusion, Kennedy begins with the basic proposition that a statute is not ambiguous just because it is awkward and ungrammatical. It can be interpreted logically and so should be interpreted logically. The fact that the use of the word attorney is now surplusage (because the phrase "professional person" includes attorneys) does not produce an ambiguity because the preference for avoiding surplusage constructions is not absolute. Moreover, the plain meaning of the words does not produce an absurd result, and Lamie's interpretation would require adding words to the statute, something that the Court doesn't like to do. Kennedy closes the opinion by emphasizing that a review of the legislative history creates "more confusion than clarity." He goes through the legislative history and finds support for both sides of the question thus demonstrating the "difficulty of relying on legislative history . . .and the advantage of our determination to rest our holding on the statutory text." (Scalia doesn't join this section of the opinion.) Stevens concurs in the judgment, noting that because there appears to be a scrivener's error, he would look at legislative history. He believes a review of the history supports the Court's conclusion and so he concurs. (Breyer and Souter join his opinion, but also joined Kennedy's.)

That's it on the opinions, so I'll close with news from the order list. First, the Court granted cert in Roper v. Simmons (03-633) to decide whether the execution of defendants who were juveniles when they committed their crimes is barred by the Eighth Amendment. That should be an interesting case. Second, the Court asked the Solicitor General to file a brief expressing the views of the United States on a patent question: Does the interim settlement of patent infringement litigation, in which alleged infringer, for consideration, agrees to keep its product off market until claim of infringement is resolved, constitute a per se violation of the Sherman Act, irrespective of validity of claim of infringement or reasonableness of interim settlement? The case is Andrx Pharmaceuticals v. Kroger Co. (03-779).

That's all for tonight. Stay warm, and thanks for reading!

Sandy


From the Appellate Practice Group at Wiggin and Dana.
For more information, contact Sandy Glover, Aaron Bayer or Jeff Babbin
at 203-498-4400, or visit our website at
www.wiggin.com.