Johnson v. California (03-636), Smith v. Massachusetts (03-8661) and Stewart v. Dutra Construction Co. (03-814)

February 23, 2005 Supreme Court Update

Greetings, Court fans, and welcome back from the long recess!

The Court returned yesterday, and so far we have three opinions and a few cert grants. Today, the Court issued its decision in Johnson v. California (03-636), in which a 5-3 majority (no Chief) held that the California prison system's race-based initial cell assignment policy must satisfy strict scrutiny. For the first 60 days of incarceration, each new or recently transferred male inmate is assigned a cellmate based predominantly on race. No other aspects of prison life are segregated, and after 60 days inmates can request their own cellmates or else receive assignments based on individualized review. California justified this policy on the grounds that its prisons are overwhelmed by race-based gang violence and that this initial segregation period is necessary to protect inmates and corrections officials. Johnson, an inmate since 1987, challenged the policy under the Equal Protection Clause. The District Court granted summary judgment for the state on qualified immunity grounds, and the Ninth Circuit affirmed. Applying the "reasonable relationship" test from Turner v. Safley, 482 U.S. 78 (1987), in which the Court upheld restrictions on inmate marriages and correspondence, the Ninth Circuit held that the policy was reasonably related to the legitimate penological objective of prison safety.

The Court, led by Justice O'Connor (joined by Kennedy, Souter, Ginsburg and Breyer) reversed and remanded for strict scrutiny review. Citing, among other cases, the Michigan affirmative action cases from two terms ago, Grutter v. Bollinger, 539 U.S. 306 (2003), the majority noted that "all racial classifications" must be narrowly tailored to further a compelling interest. It refused to adopt Turner's deferential standard, which has never been applied to racial classifications. In addition, the Court relied on Lee v. Washington, 390 U.S. 333 (1968), a per curiam opinion striking down Alabama's segregated prison system, for the proposition that a heightened standard of review applies to prison segregation. Moreover, Turner's "reasonable relationship" test applies only to restrictions on rights that are "inconsistent with proper incarceration." Here, the Fourteenth Amendment's ban on discrimination is entirely consistent with prison administration and bolsters the legitimacy of the system (this portion of the opinion notes a number of reasons why California's policy might undermine its stated objective). Finally, under Turner, rank discrimination would be too easy to defend and prison officials arguably could segregate all aspects of prison life. The Court concluded by noting that strict scrutiny is not a death knell for the policy: prisons are dangerous places, prison safety is a compelling interest, and California will simply have to show that its policy is narrowly tailored. In a separate concurrence, Justice Ginsburg (joined by Souter) wrote that strict scrutiny should not apply to racial classifications used to redress past discrimination, but she agreed with its application to "stereotypical" classifications like California's.

Justices Stevens and Thomas wrote wildly divergent dissents. Stevens would remand the case on the issue of qualified immunity, but he would find the policy unconstitutional regardless of the standard of review. California offered no evidence to support the need for a "blunderbuss policy" that ignores the circumstances particular to individual inmates (especially transferees, whose prison records are available for review). Further, there was no evidence in the record of interracial violence between cellmates or of gang recruitment during the first 60 days of incarceration. Stevens also noted that without individualized review, California risks housing together inmates of the same race who belong to rival gangs.

Justice Thomas, joined by Scalia, would have upheld the policy under Turner: "The Constitution has always demanded less within the prison walls," and he would defer to prison officials on matters of safety. Thomas first noted the limited nature of the initial segregation period and the dangers inherent in housing inmates in tightly confined, hard-to-police double cells. He further noted that Turner adopted a "unitary, deferential standard for reviewing prisoners' constitutional claims" and that the Court had adhered to that standard until today, even in cases involving First Amendment and due process rights. He categorically rejected the majority's reliance on Lee v. Washington, a one-paragraph opinion that upheld a general rule that wholesale segregation in prisons is unconstitutional but also recognized that officials can "allow[] for the necessities of prison security." Contrary to the view of the majority, Lee simply did not speak to the standard of review. Applying Turner, Thomas would uphold the policy because it is reasonably related to the legitimate penological objective of safety and there are no obvious alternatives.

Yesterday, in Smith v. Massachusetts (03-8661), the Court held that double jeopardy precludes a trial court from reconsidering a mid-trial dismissal of one count of an indictment after the defendant has begun putting on evidence, unless there is a clear preexisting rule that the dismissal is not a final ruling. Among other things, Smith was charged with unlawful possession of a firearm, which required proof that he possessed a weapon with a barrel under 16 inches in length. The State's only evidence was the victim's testimony that Smith shot him with a "pistol" or "revolver" that "appeared to be a .32 or a .38." At the close of the prosecution's case, the trial court granted Smith's motion to dismiss this count, and Smith began his defense of the remaining counts against him. Before closing arguments that same day, the State moved the trial court to reconsider its ruling based on authority holding that testimony regarding the type of gun used could be sufficient to establish the length of its barrel. The trial court reversed its prior ruling, and the jury ultimately convicted Smith on the firearm count.

The case resulted in a 5-4 decision, and created very strange bedfellows. Justice Scalia authored the majority opinion (joined by Stevens, O'Connor, Souter and Thomas), while Justice Ginsburg drafted the dissent (in which Kennedy, Breyer and the Chief joined). The majority focused on a technical parsing of a state procedural statute (not surprising given the author), as well as the potential practical problems that could result if double jeopardy did not attach to a mid-trial dismissal – mainly, that a defendant, relying on the dismissal of one count, would choose to present a defense that would inure to his detriment if the count were later resurrected (e.g., admitting conduct consistent with guilt as to the dismissed count). In contrast, the dissent focused on the particular facts of Smith's case. Smith's defense was not affected by the court's ruling, and its reconsideration of its prior legal error caused him no prejudice. To this, the majority responded that prejudice is irrelevant: "[T]the Double Jeopardy Clause has never required prejudice beyond the very exposure to a second jeopardy."

In the second opinion from yesterday, Stewart v. Dutra Construction Co. (03-814), the Court (minus the Chief) unanimously held that a dredge qualifies as a "vessel" under the Longshore and Harbor Workers' Compensation Act ("LHWCA"). Now we can all breathe more easily. The case involved Dutra's Super Scoop, "the world's largest dredge," which was digging a trench in Boston Harbor. Stewart was injured when the Super Scoop collided with one of its floating scows (used to store "scooped" sediment from the ocean floor). He sued Dutra under the LHWCA, which authorizes negligence suits against the owners of "vessels." Dutra argued that the Super Scoop was not a "vessel" because its primary use was not for transportation. The Court, led by Justice Thomas, disagreed, holding that a "vessel" is a "watercraft practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment." Nineteenth-century American courts regarded dredges as "vessels," and the statute did not deviate from this understanding. Dutra used the Super Scoop to move equipment and workers over water, so it was, in fact, a "vessel."

In addition to issuing these opinions, yesterday the Court also granted cert in several cases:

Gonzalez v. Oregon (04-623): Whether the Attorney General has permissibly construed the Controlled Substances Act, 21 U.S.C. § 801 et seq., and its implementing regulations to prohibit the distribution of federally controlled substances for the purpose of facilitating an individual's suicide, regardless of a state law purporting to authorize such distribution.

Schaffer v. Weast (04-698): Under the Individuals with Disabilities Education Act, when parents of a disabled child and a local school district reach an impasse over the child's individualized education program, either side has a right to bring the dispute to an administrative hearing officer for resolution. At the hearing, which side has the burden of poof – the parents or the school district?

IBP, Inc. v. Alvarez (03-1238), and Tum v. Barber Foods, Inc. (04-66): The Court consolidated these cases and will consider the following questions: (1) Whether walking that occurs (a) between compensable clothes-changing time and the time employees arrive at or depart from their actual work stations, or (b) to and from stations where required safety equipment is distributed, constitutes non-compensable "walking . . . to and from the actual place of performance of the principal activity" with the meaning of the Fair Labor Standards Act and the Portal-to-Portal Act? (2) Do employees have a right to compensation for time they must spend waiting at required safety equipment distribution stations?

That's all for now. Until next time, 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