Nike, Inc. v. Kasky (02-575), Georgia v. Ashcroft (02-182), Wiggins v. Smith (02-311) and order list

July 1, 2003 Supreme Court Update

Greetings Court fans!
Ok, three decisions to go, so let's get to it.
First, in a big "non-decision," the Court dismissed Nike, Inc. v. Kasky (02-575) as improvidently granted. In shorthand, the case was "digged." This is the "oops" resolution -- there is some jurisdictional problem with the case that should have been noticed earlier, but wasn't. Now that they've noticed it, they can't decide the case. It generally means that someone (read: a clerk, or several clerks) didn't spend enough time evaluating potential problems with the case at the cert stage. Of course, the Justices are ultimately responsible for their decision to grant cert, but trust me, it's still not a good thing if you, as the clerk responsible for the case at the cert stage, failed to flag a jurisdictional problem with the case. Ordinarily, the Court doesn't say anything about why they digged a case; it just comes out as an order stating that the case has been dismissed. With this case, however, there were 3 opinions on the resolution, so while we know nothing about how they would have resolved the merits, we have a hint of the jurisdictional problems with the case. (With no opinion on the merits, and no majority opinion, I'll be brief.)
As you may recall, a few years ago, Nike received a bunch of bad press when labor organizations claimed that it abused and mistreated workers at its foreign plants. When Nike responded to this press with a variety of public statements (all denying the allegations), an individual in California sued the company for unfair and deceptive practices under California's Unfair Competition Law. Nike claimed that its statements were protected by the First Amendment, and the Court had agreed to resolve that issue. In a 6-3 vote, the Court dismissed Nike's case as improvidently granted. Stevens (joined by Ginsburg, and by Souter in part) concurred in the dismissal. According to Stevens, the dismissal was proper because (1) the state court judgment under review was not a "final decision" subject to review, (2) neither party had standing to invoke the Court's jurisdiction, and (3) the Court's tradition of not deciding constitutional questions until absolutely necessary counseled against review in this case. Breyer (and O'Connor) disagreed with these conclusions, and would have heard the case on the merits. Kennedy dissented separately to indicate that he did not agree with dismissing the case, but did not join Breyer's opinion or explain why he thought Stevens' analysis was wrong.
In the next opinion, Georgia v. Ashcroft (02-182), the Court announced standards for the analysis of claims under Section 5 of the Voting Rights Act. Section 5 requires certain jurisdictions, including Georgia, to submit any new voting practice or procedure for federal "preclearance" to ensure that the change "does not have the purpose or effect of denying or abridging the right to vote on account of race or color." The Court has long interpreted this language to allow preclearance only when the change would not lead to "retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise" as compared to the prior, or benchmark, voting practice. But if you're the Department of Justice or a district court charged with "preclearance" responsibilities, how do you know whether a change leads to retrogression in the "effective exercise of the electoral franchise"? The Court answered this question in this case about the validity of Georgia's 2001 state senate redistricting plan. (The Court also held that the standard federal rules governing intervention of parties apply to preclearance actions, but that's just an aside.) Here are a few of the highlights on how to make preclearance decisions: (1) the fact that a plan complies with Section 2 of the Voting Rights Act is not dispositive; (2) the retrogression inquiry must be made on a statewide, as opposed to district-by-district, basis; (3) the inquiry must look at all relevant circumstances, such as the ability of minority voters to elect the candidate of their choice, the extent of the minority group's opportunity to participate in the political process, and the feasibility of creating a nonretrogressive plan. This last point is especially complex because states are free to make a variety of choices about how best to achieve non-retrogression. (The opinion runs through a lot of the options open to states. If you're really interested in Voting Rights law, this is a significant opinion on the topic, but otherwise, I'd skip it.) Here, the lower court failed to consider all these relevant factors, so the Court remanded for further proceedings, but not before suggesting that Georgia's plan should have been precleared. I would have mentioned at the outset that O'Connor wrote the opinion, but if you follow voting rights law at all, you probably already guessed that. (A voting rights case? That turns on the totality of the circumstances? Must be an O'Connor opinion.) Rehnquist, Scalia, Kennedy, and Thomas joined in her opinion. Kennedy wrote separately to suggest that he thinks the Court should consider the "discord and inconsistency" between Sections 2 and 5 of the Voting Rights Act in an appropriate case. Thomas wrote separately to emphasize that he joins the Court's opinion because it is consistent with prior Section 5 cases. Souter dissented, joined by Stevens, Ginsburg, and Breyer. He thinks the majority opinion effectively guts Section 5 by unmooring the inquiry from any practical or administrative understanding of minority influence. Under his view of Section 5, the state failed to meet its burden of showing non-retrogression, so he would affirm the lower court's decision denying preclearance.
And finally, I turn briefly to Wiggins v. Smith (02-311), a death penalty case in which the Court held that Wiggins was denied the effective assistance of counsel during the sentencing phase of his trial. Wiggins was found guilty of murder in a bench trial, and at the sentencing phase of his trial, his lawyers elected to focus on the argument that he was not "principally" responsible for the crime instead of offering a mitigation case that focused on his life history. Wiggins was sentenced to death. In post-conviction proceedings, Wiggins argued that his lawyers were constitutionally ineffective because they failed to adequately investigate and present evidence of his dysfunctional family background and life history: alcoholic/abusive/negligent mother, sexual abuse in multiple foster homes, and sexual abuse in a Job Corps program. The state courts denied post-conviction relief, but a federal district court granted him habeas relief. The Fourth Circuit reversed that decision, but the Supreme Court disagreed with the Fourth Circuit's analysis and thus granted Wiggins habeas relief. The central issue for the Court (opinion by O'Connor, joined by Rehnquist, Stevens, Kennedy, Souter, Ginsburg and Breyer) was whether counsel had conducted an adequate investigation of Wiggins' background to support their decision not to present a mitigation case. In a thorough review of the evidence available to counsel at the time, the Court concluded that the investigation was indeed constitutionally inadequate. Moreover, this failure prejudiced Wiggins' defense. (Under the standards for ineffective assistance of counsel claims, the petitioner must show both that his counsel's performance was deficient and that the deficiency prejudiced the petitioner.) Scalia dissented, joined by Thomas. Scalia disagrees with the Court's view of the evidence, and contends that the Court misapplied the very strict standards for habeas relief in federal courts.
Well, that's it for opinions from this Term. (The campaign finance cases will be heard September 8, but the decision probably won't issue until later in the fall.) But we're not done yet, because there are still two order lists to tell you about. . .

The Court has granted cert in the following cases:
1. United States v. Galletti (02-1389): A tax case with the following question: In order to enforce derivative liability of partners for tax debts of their partnership, must the US make separate assessment of taxes owed by partnership against each of the partners directly?
2. Nixon v. Missouri Municipal League (02-1238) (and related cases): This case will review an 8th Circuit decision on a provision of the 1996 Telecommunications Act. Specifically, the Court will consider whether Section 253(a) of that Act preempts a state law that prohibits municipalities from providing telecommunications services.
3. Tennessee v. Lane (02-1667): This case presents issues similar to those that the Court was to hear in a case this year that was ultimately dismissed when the petitioner decided not to go forward with the case. Specifically, this case will be about whether Congress validly abrogated state sovereign immunity under Title II of the ADA.
4. Combes, Texas v. East Rio Hondo Water Supply (02-1577): A Voting Rights Act case: Whether the East Rio Hondo Water Supply Corp. is a covered jurisdiction under Section 5 of the Voting Rights Act, and whether summary judgment was appropriate in this case.
5. Vieth v. Jubelirer (02-1580): Another elections law case. The lower court held that partisan gerrymandering in redrawing congressional district lines does not violate the equal protection clause in the absence of facts indicating that the people complaining about the redistricting have been shut out of the process. The Court will review this decision.
6. Yates v. Henton (02-458): This is an ERISA case with the following question: Can a 100 shareholder of corporate employer, partner or sole proprietor qualify as a participant in an employee benefit plan sponsored by an employer in which other nonspouse employees participate, and thus be entitled to enforce restrictions against alienation contained in Section 206(d) of ERISA and Section 401(a)(13) of the Internal Revenue Code?
7. Household Credit Services v. Pfennig (02-857): In this case, the Court will consider the following question: Whether the Sixth Circuit improperly substituted its interpretation of the Truth in Lending Act for that of the Federal Reserve when it invalidated an important provision of Regulation Z.
8. Doe v. Chao (02-1377): This is a case under the federal Privacy Act: Whether an individual who has suffered "adverse effect" as a result of an agency's "intentional or willful" violation of the Privacy Act must also prove that he has suffered "actual damages" to be entitled to the minimum statutory damages available under the Act.
9. South Florida Water Management v. Miccosukee Tribe (02-626): This is a Clean Water Act case. The Court limited its grant of cert to the following question: Does pumping of water by a state water management agency that adds nothing to the water being pumped constitute the addition of a pollutant from a point source triggering the need for a permit under the Clean Water Act?
Well, with the usual caveat about the campaign finance case, that's about it for October Term 2002. For anyone still reading, let me close with two personal notes. First, with the close of June, we at Wiggin & Dana say farewell to Mark Kravitz, the head of our appellate practice group, and one of the finest appellate lawyers in the country. Mark was recently confirmed by the U.S. Senate to be a federal judge in the United States District Court for the District of Connecticut. The President's phenomenally good judgment in selecting Mark for the bench is a gain for the federal bench and for the people of Connecticut, but a loss for those of us who worked with him at W&D. Mark is an outstanding lawyer and a wonderful mentor. He will be a spectacular judge, but we will miss him greatly. (For a press release about Aaron Bayer, the new head of our group, see the attached link:
Second, I would like to thank all of you for reading and supporting these updates throughout this Term. I have enjoyed the updates, and hope that you have as well -- or at the very least that you've found something useful in them. I'll be back to cover OT 2003, and of course, if anything develops over the summer, I'll be sure to keep you posted. Until then, feel free to email me with questions about the Court or pending cases. Thanks for reading!
From the Appellate Practice Group at Wiggin & Dana.
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