Locke v. Davey (02-1315), United States Postal Service v. Flamingo Industries (USA) Ltd. (02-1290), Muhammad v. Close (02-9065) and Banks v. Dretke (02-8286)

February 25, 2004 Supreme Court Update

Greetings Court fans!
As expected, the Court celebrated the end of its winter recess by handing down opinions -- 8 in the last two days. On the theory that you won't want to read about 8 opinions at once (and that I won't be able to stay awake for that long!), I'll break up the summaries into two emails, beginning with today's cases. So, let's get started. . .

I'll begin with the big news of the day, Locke v. Davey (02-1315), in which the Court held that a state may exclude theology students from a state scholarship program without violating the Free Exercise Clause. Washington established a scholarship program that provides limited funds to gifted students for college education. Qualified students may receive the scholarship funds so long as they are enrolled in an eligible institution and are not pursuing a degree in theology. Davey qualified for the scholarship and attended an eligible institution but was a theology major and so could not receive the scholarship. Davey claimed that this violated the Free Exercise Clause and the Ninth Circuit agreed. Today, in a classic Chief opinion (i.e., short, skimpy on the analysis), the Court reversed. (Everyone but Scalia and Thomas joined the Chief.)

The Chief began by noting the tension between the "Religion Clauses" of the Constitution, but also noting that "there is room for play in the joints" between the two clauses. This case is about that "play." There is no doubt, according to the Chief, that Washington could give scholarship funds to theology majors; the only question is whether it may deny them funding to serve its interest in avoiding even the indirect funding of religious instruction. Davey argued for a negative answer to this question, contending that the law is presumptively unconstitutional because it is not facially neutral with respect to religion. The Chief would not extend this principle to this case, noting that the state's disfavor of religion -- to the extent it can be called disfavor -- imposes no sanctions or significant penalties on religion. Students do not have to choose between their religious beliefs and a government benefits. The state merely chose not to fund a particular category of instruction. The Chief further rejects the suggestion that because the scholarship funds training for all secular professions it must fund training for religious professions. Training for religious professions and training for secular professions are not fungible, and religion holds a unique place in the United States constitution, something that cannot be said for other professions. Washington's interest in not funding religious training is "scarcely novel," but rather is an interest dating back to the founding of the country.

Scalia (joined by Thomas) dissented. According to Scalia, when the state makes a public benefit generally available, and then withholds that benefit from some individuals solely on the basis of religion (precisely what Washington did here), it violates the Free Exercise Clause. The most interesting part of his dissent are the last paragraphs where he trains unusually pointed barbs at the Chief (he usually saves these types of barbs for O'Connor). Scalia claims that the majority opinion is part of the "modern popular culture" hostility toward deep religious conviction. "In an era," says Scalia, "when the Court is so quick to come to the aid of other disfavored groups, see Romer v. Evans, its indifference in this case [towards people with deep religious conviction], which involves a form of discrimination to which the Constitution actually speaks, is exceptional." This opinion, continues Scalia, is just the first step down the road to becoming France -- a country that has proposed banning religious attire from schools. (Thomas also wrote a separate dissent to note that the study of "theology" does not necessarily implicate religious devotion or faith. Ok. Thanks.)

Next we have United States Postal Service v. Flamingo Industries (USA) Ltd. (02-1290). In this case, a unanimous Court (opinion by Kennedy) holds that the postal service is not a "person" subject to antitrust liability. There's not much else to say. (In my quest to find something interesting about the case, this bit of trivia is all I found: The postmaster general was a member of the President's cabinet until 1971.) If you're still reading, here's a brief rundown of the analysis: The relevant statute waives sovereign immunity for the post office, but the substantive provisions of the antitrust laws do not apply to the post office, an independent establishment of the federal government. This is true because the United States is not a "person" under the antitrust laws as the Court held in 1941. Although Congress subsequently amended the law to allow the United States to sue for antitrust violations, it did not alter the definition of "person" and thus did not alter the basic proposition that the United States may not be a defendant in an antitrust suit. That's it. Fun case. Moving on.

In Muhammad v. Close (02-9065), the Court issued a per curiam opinion, a somewhat unusual disposition for an argued case that is resolved on the merits, but justified by the straightforward resolution of this case. When a prisoner wants to challenge the validity of his confinement, he files a habeas petition, but if he wants to challenge the circumstances of his confinement, he files suit under 42 USC 1983. In 1994, in Heck v. Humphrey , the Court made clear that a prisoner may not file a 1983 action based on allegations that would undermine the validity of his underlying conviction without first invalidating that conviction through appropriate state or federal habeas procedures. In this case, Muhammed (prisoner) claimed that Close (prison official) had charged him with "Threatening Behavior" in retaliation for prior lawsuits. The Court of Appeals held that Muhammed could not proceed with this claim until he had favorably challenged his conviction (for "Insolence") arising out of the incident, relying on circuit precedent holding that Heck applies to all suits challenging prison disciplinary proceedings. The Supreme Court reversed, noting that such a rule is inappropriate. Muhammed's case does not challenge the validity of his underlying conviction and thus the Heck rule does not apply. Muhammed should be able to go forward with his 1983 suit for retaliation.

Turning now to cases from Tuesday . . .

Banks v. Dretke (02-8286) is a death penalty case that came to the Court when it stayed Banks' execution just hours before the scheduled event. Prior to Banks' trial on capital murder charges, the state told his attorney that it would provide him with all the discovery to which he was entitled. Despite this representation (and despite Brady, which requires the state to turn over material, exculpatory evidence), the state withheld evidence that would have allowed Banks to discredit 2 key prosecution witnesses. Specifically, the state didn't disclose that one witness (Farr) was a paid police informant or that another witness's testimony (Cook) had been intensively coached by prosecutors and law enforcement officers. Compounding these failures, the state allowed both witnesses to testify at trial -- untruthfully -- on these very topics. Fast forward through Banks' conviction, death sentence, and three state post-conviction proceedings to his federal habeas petition. In the course of litigating this petition, Banks finally uncovered evidence to support his claim that the state had failed to turn over Brady material on both Farr and Cook. The district court granted a writ of habeas corpus with respect to Banks' death sentence, finding that the failure to disclose Farr's informant status undermined the reliability of that sentence. The court refused to disturb the conviction, however, finding that Banks had not properly pleaded a Brady claim with respect to his claims about Cook. According to the district court, Banks should have moved to amend his habeas petition once he uncovered evidence that Cook had been coached, and his failure to so move doomed his claim. In an unpublished per curiam opinion, the Fifth Circuit reversed the grant of habeas on the sentence, and refused to grant a certificate of appealability (i.e., rejected the appeal) on the Cook Brady claim.

In an opinion by Ginsburg (for everyone but Thomas and Scalia) the Supreme Court reversed on both issues. Beginning with the Farr claim, the Court noted that the merits of the Brady claim overlapped with the question whether Banks could pursue that claim even though he had not developed it in state court. Specifically, Banks had to show "cause" and "prejudice" to establish his Brady claim. The Court had no problem finding "cause": (1) the state knew of, but failed to reveal, Farr's informant status, (2) before trial, the state affirmatively represented that it would disclose all Brady material, and (3) in state post-conviction proceedings, the state confirmed this representation by denying that Farr was an informant. Moreover, the state let Farr testify at trial -- obviously untruthfully -- that he was not an informant. The state tried to overcome a finding of cause by arguing that Banks should have been more diligent in trying to find out whether Farr was an informant. (At oral argument, the state actually said that with respect to Brady material, "the prosecution can lie and conceal and the prisoner still has the burden . . . to discover the evidence." Quite a statement from an attorney for the government.) Ginsburg quickly rejected this argument, noting that it is not tenable "in a system constitutionally bound to accord defendants due process." After finding cause, Ginsburg moved on to the prejudice issue. The question here is whether the suppressed evidence could reasonably be taken to put the case in such a different light as to undermine confidence in the verdict. Here, the Court answered that question in the affirmative. In sum: Banks had no criminal record, Farr's testimony was critical to the prosecution's case for the death penalty, and the fact that he was a paid informant would have significantly undermined his testimony.

After resolving the Brady claim based on Farr, Ginsburg turned to the Cook Brady claim. The lower courts had rejected this claim because Banks had failed to amend his habeas petition to include it once he uncovered evidence to support it. Banks argued that the claim should have been treated as if raised in the pleadings under Civil Procedure Rule 15(b) because it was presented to the district court in an evidentiary hearing. The Supreme Court found this argument convincing and so held that the Fifth Circuit should have granted a certificate of appealability on this claim.

Thomas and Scalia concurred in part and dissented in part. They joined the resolution of the Cook claim, but dissented from the resolution of the Farr claim because they concluded that Banks had failed to demonstrate any prejudice from the nondisclosure of Farr's informant status.

That's all for tonight. Until later, thanks for reading.


From the Appellate Practice Group at Wiggin and Dana.
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