Hollingsworth v. Perry (09A648), NRG Power Marketing, LLC et al. v. Maine Public Utilities Commission et al. (08-764), McDaniel v. Brown (08-559) and Smith v. Spisak (08-724)

January 20, 2010 Supreme Court Update

Greetings, Court fans!

We're catching up on the Court's four decisions issued last week – two civil and two habeas. I'll start with the civil cases, including a highly divided per curiam decision blocking broadcasting of a California trial regarding the constitutionality of Proposition 8 (the ballot initiative that amended California's constitution to bar same sex marriage), and a nearly unanimous decision regarding the scope of the Mobile-Sierra doctrine (if you have no idea what that is, you might want to skip that one).

Hollingsworth v. Perry (09A648) is the Proposition 8 case, in which plaintiffs claim that prohibiting same-sex marriage violates the Equal Protection and Due Process clauses of the United States Constitution. California elected not to defend Proposition 8; so intervenors who supported the Proposition took over as defendants. But we're not dealing with the substantive issues . . . yet. The Court was only considering an application to stay the district court's order allowing the trial (which began January 11th) to be broadcast live to certain federal courthouses. Splitting 5-4, along the standard conservative/liberal divide, the Court stayed the order, explaining that it appeared that the district court did not follow proper procedures in amending its Local Rule 77-3, which previously had banned the recording or broadcast of court proceedings. 28 U.S.C. § 2071(b) requires that a district court provide "appropriate public notice and an opportunity to comment" when amending its rules. The Court found that standard unmet here.

The trial judge first raised the possibility of broadcasting the trial in September and gave the parties the opportunity to present their views. The defendant intervenors objected, arguing that broadcasting the trial might impair their ability to present witnesses, since some supporters of Proposition 8 had been subject to threats. On December 17, 2009, the Ninth Circuit Judicial Counsel adopted a pilot program allowing district courts to experiment with broadcasting on a trial basis. Five days later, the district court announced on its website that it had amended its Local Rule 77-3 to allow participation in the program. The defendant intervenors objected to the amendment, arguing that any revision of the Ninth Circuit's or district court's rules required sufficient notice and a comment period. On December 31, 2009, the district court revised its website to state that it was proposing a change to Local Rule 77-3 and that any comments should be submitted by January 8, 2010. But on January 4th, the Court reversed courses again, stating that Local Rule 77-3 was amended effective December 22, 2009 to allow participation in the pilot program pursuant to the "immediate need" provision of 28 U.S.C. §2071(e). On January 6th, the trial judge concluded that he would recommend allowing live broadcast of the Proposition 8 trial to courthouses in a handful of other cities. The chief circuit judge approved this recommendation, prompting the defendant intervenors to file the present application to stay the order pending resolution of forthcoming petitions for writs of certiorari and/or mandamus.

Five members of the Court agreed with the applicants and granted the stay. They felt the district court and Ninth Circuit had manipulated the rules process in order to allow broadcasting of the Proposition 8 trial, which they felt was a particularly inappropriate test case given its notoriety and the evidence that witnesses in favor of Proposition 8 might be subject to threats or harassment. This latter conclusion led them to find that irreparable harm would be done if a stay was not granted since any damage done by allowing the broadcast could not be undone in an appeal. Justice Breyer, joined by Justices Stevens, Ginsburg and Sotomayor dissented. As to the facts, Breyer pointed out that the Ninth Circuit had been considering loosening up the restrictions on the cameras in the courts since 2007, so the process was not manufactured for this case. Additionally, the district court's rule amendment was properly considered a conforming amendment to bring the Local Rule in line with the new Ninth Circuit pilot program, and thus did not require notice and comment. Moreover, even if notice and comment were required, the requirement was satisfied. The parties were allowed to comment months before the order was issued and though the public comment period was brief, the court received 138,574 comments, all but 32 of which favored the broadcasting pilot program. The dissenters also didn't buy the idea that witnesses in favor of Proposition 8 would be dissuaded from testifying, pointing out that all of the proposed witnesses had made high-profile public appearances regarding Proposition 8. Finally, the dissenters complained that the Court had failed to consider the public's interest in watching a trial that could affect everyone. In the view of the dissent, the high standards for a stay simply were not met.

Next up, in NRG Power Marketing, LLC et al. v. Maine Public Utilities Commision et al. (08-674), the Court held that the Mobile-Sierra doctrine –which requires the Federal Energy Regulatory Commission ("FERC") to presume that rates established in freely negotiated wholesale energy contracts are "just and reasonable'" under the Federal Power Act ("FPA") – applies regardless of whether the rates are being challenged by one of the contracting parties or by a non-contracting party, such as a state utility commission. The Mobile-Sierra presumption may be overcome only if FERC concludes that the contract seriously harms the public interest. The doctrine was first developed in two cases in which wholesale energy sellers had agreed to low rates by contract and attempted to unilaterally increase the rates by filing new tariffs. The Court concluded that such sellers could not get out of their contractual bargains merely by demonstrating that the rates would not yield a fair return. Instead, they would be required to show that the contract rate seriously harms the public interest (e.g., that rates are so low that the utility would not be able to function). Just two terms ago, in Morgan Stanley Capital Group, Inc. v. Public Util. Dist. No. 1 of Snohomish City (2008), the Court expanded the Mobile-Sierra doctrine to challenges by buyers of wholesale energy, emphasizing the critical stabilizing force contracts have in the energy market. In an opinion by Justice Ginsburg (joined by all of the Justices other than Stevens), the Court extended Mobile-Sierra one step further – to non-contracting parties challenging a rate, including members of the public or a state utility commission. The rationale remains the same: contracts play a key stabilizing role in energy markets that require stability to function. The Mobile-Sierra doctrine is not a departure from the "just and unreasonable" standard under FPA – instead it is an application of that standard in the context of contract. Therefore, it should be generally applicable to any rate challenger.

Justice Stevens, the lone dissenter, vigorously disagreed. In his view, the FPA was aimed at protecting consumers. The Mobile-Sierra doctrine made sense when applied to sellers who had agreed to low rates. Consumers benefited from these low rates unless they were so low as to jeopardize production. But expanding the doctrine to buyers or third parties is unwarranted because such expansion is not consumer protective.

Let's turn now to the habeas cases. In McDaniel v. Brown (08-559), the respondent was convicted of the rape of a 9 year old girl. The victim was unable to conclusively identify her assailant (variously suggesting it might be defendant or his brother), and some of the evidence at trial did not inculpate the respondent. The State's expert testified, however, that DNA evidence matched the respondent's, and that the probability that another person from the general population would share the same DNA was only 1 in 3,000,000. The State's expert also testified that the probability that one or more of the respondent's brothers (who lived in the same trailer park as the respondent and victim) would share the same DNA with another was 1 in 6,500. In his federal habeas petition, the respondent submitted for the first time an expert report that opined that the State's expert had (1) committed the so-called "prosecutor's fallacy" by equating the 1 in 3,000,000 chance that someone else would have the same DNA as the respondent, with the suggestion that there was only a .000033% chance that the respondent was innocent, and (2) underestimated the probability of a DNA match between the respondent and one of his two brothers. Under the Supreme Court's 1979 decision in Jackson v. Virginia, a prisoner is entitled to habeas relief if a federal judge finds that "upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Relying on the respondent's new report, the district court set aside the "unreliable DNA testimony" and granted his petition for relief, on the ground that, without the DNA evidence, a reasonable doubt would have existed in the mind of any rational trier of fact under Jackson. The Ninth Circuit affirmed.

The Supreme Court reversed in a per curiam decision. The Court first held that the Ninth Circuit erred in applying Jackson – which asks whether the jury acted in a rational manner based on all the evidence before it, not whether any evidence was improperly admitted – to the respondent's petition. Further, even if it had been appropriate for the Ninth Circuit to consider the respondent's expert report, which was never before the trial court, it was error for the Ninth Circuit to exclude the prosecution's DNA evidence from consideration in its entirety (as this evidence was still highly probative of guilt, even accepting defendant's new expert report as accurate), and to fail to review the non-DNA evidence in the light most favorable to the prosecution. The Court also rejected the respondent's last-minute attempt to recast his argument as a due process claim based on the improper admission of the DNA evidence. Justice Thomas, joined by Justice Scalia, wrote a concurring opinion. They would have simply barred consideration of the respondent's expert report because it was not part of the trial evidence, without opining, as the other justices did, on whether the report in conjunction with the other evidence provided sufficient support for the jury's decision to convict.

Finally, in Smith v. Spisak (08-724), the respondent was convicted of three murders and two attempted murders in 1982. At trial, defense counsel had pursued an insanity defense, and put the respondent on the stand, where he admitted to the crimes and claimed that he did so as an admirer and follower of Adolf Hitler. In the penalty phase, defense counsel's closing argument emphasized the gruesome nature of the killings and the respondent's threats to continue his crimes, in a perhaps misguided attempt to persuade the jury that the respondent, even if not legally insane, was so mentally ill that he should not be executed. The jury sentenced the respondent to death. After a long procedural history, including an earlier trip to the Supreme Court, the case presented questions regarding (1) whether the jury instructions at the penalty phase were unconstitutional, and (2) whether the respondent was significantly harmed by his counsel's allegedly inadequate closing argument.

With regard to the jury instructions, in Mills v. Maryland, the Supreme Court held that it was unconstitutional to instruct jurors that they could not find a particular circumstance to be mitigating unless all 12 jurors agreed that the mitigating circumstance had been proven. Here, the judge instructed, inter alia, that "If all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstance in each separate count outweighs the mitigating factors, then you must return that finding to the court." For each count, the jury had to complete either a form stating, "We the jury in this case…do find beyond a reasonable doubt that the aggravating circumstance . . . was sufficient to outweigh the mitigating factors present in this case," or a form stating that the aggravating factors were not sufficient to outweigh the mitigating factors. The respondent argued, and the Sixth Circuit agreed, that these instructions violated Mills. The Supreme Court, led by Justice Breyer, disagreed. The Court found that the trial judge properly instructed the jury to consider all mitigating factors, and did not tell the jury that they must determine the existence of each factor unanimously. The Court also rejected an argument that the jury instructions had unconstitutionally required the jury to unanimously reject a death sentence before considering other sentencing alternatives, holding that the parties and courts below had failed to identify a "clearly established Federal law" to that effect.

With regard to counsel's closing argument, which the Court assumed arguendo was ineffective, the Court held that there was no "reasonable probability" that a better closing argument would have made a significant difference, where the defendant's own testimony admitting to, and apparently relishing in, the crimes –as well as three defense experts' testimony that the respondent suffered from mental illness – was still fresh in the jurors' minds.

Justice Stevens wrote separately to concur in part and concur in the judgment. Justice Stevens believed that the jury instructions had impermissibly required the jury to unanimously reject a death sentence before considering other options, in violation of Supreme Court precedent that the parties and courts below had failed to cite. Justice Stevens also concluded (as opposed to assuming) that defense counsel's closing argument was inadequate, and was in fact "so outrageous that it would have rightly subjected a prosecutor to charges of misconduct." In the end, though, Justice Stevens agreed with the Court that, even with these errors, there was no reasonable probability of a different outcome in this case.

To break things up, I will bring you last week's cert grants and other orders in a separate Update, along with this week's opinions (5 issued yesterday and today!) and orders.


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