Northern Insurance Co. v. Chatham County (04-1618), Day v. McDonough (04-1324), and Salinas v. United States (05-8400)

April 27, 2006 Supreme Court Update

Greetings, Court fans!
The Court hit us with one opinion Monday, two more on Tuesday and another two today, so we'll break up the update this week to spare your eyes and get right to it.
Northern Insurance Co. v. Chatham County (04-1618) brought a not-very-surprising unanimous decision, authored by Justice Thomas, holding that a county does not have sovereign immunity from suit unless it qualifies as an "arm of the state." Chatham County, Georgia operated a drawbridge that failed and fell on a boat. It acknowledged that it didn't have "Eleventh Amendment immunity" (conceding that it was not an "arm of the state"), but claimed there was "residual immunity" at common law where it exercised power delegated by the state. Bound by prior precedent, the district court granted summary judgment for the county, and the Eleventh Circuit affirmed. Reversing, Justice Thomas explained that "Eleventh Amendment immunity" is a misnomer: The Amendment did not create state immunity but merely recognized its existence before ratification of the Constitution. Given that "preratification sovereignty" is the source of state immunity from suit, it follows that only states and arms of states possess that immunity and there is no "residual immunity" of which to speak. Since Chatham County admitted it didn't qualify as an arm of the state, there was nothing more to decide. Further, the Court found that there was no admiralty exception to the rule that counties generally are subject to suit.
Unlike Chatham County, Day v. McDonough (04-1324), split the Court 5-4, but it's unlikely to keep you awake at night. In yet another case dealing with the one-year time limit for filing a federal habeas corpus petition under the Antiterrorism and Effective Death Penalty Act (AEDPA), the Court, led by Justice Ginsberg, found that a district court could (but wasn't required to) raise the time-bar issue sua sponte if the state mistakenly failed to do so. Under AEDPA, a prisoner has one year from the date his conviction becomes final to file a federal habeas petition, but this time limit is tolled if a state petition for post-conviction relief is pending. Day waited 353 days to file a state post-conviction petition, and then another 36 days from the date his state petition was denied on appeal to file his federal habeas – all together, that's 388 untolled days (assuming that the 90 days in which Day could have sought cert to challenge the denial of state post-conviction relief should not be included as tolled time under AEDPA – a question the Court did not address in this case, but on which it granted cert in Lawrence v. Florida just last month). The state incorrectly calculated the untolled days at 352 and mistakenly stated that the petition was timely in its answer. Recognizing the miscalculation, the district court invited the parties to respond as why the petition should not be dismissed. On appeal, Day claimed that the district court should not have raised the issue sua sponte since timeliness is waived if not raised as a defense.
The majority held that the district court acted properly. While a trial court certainly isn't required to help out the state, it also isn't required to ignore an obvious defect. The Court recognized, though, that a state could intentionally waive a statute of limitations defect and such waiver could not be overridden by the court. Here though, the waiver was not knowing but rather the obvious result of a numerical miscalculation. Justice Stevens, along with Breyer, dissented because they would have delayed judgment on the case until the Court decided Lawrence, which would determine substantively whether Day's petition was timely or untimely. Finally, Justice Scalia, joined by Thomas and Breyer, dissented. In their view, a trial court should not suggest dismissal based on timeliness sua sponte. However, they would allow a trial court to raise the issue and permit the state to amend its answer to set forth the time-bar defense. Hence, a difference in opinion (and an interesting assortment of dissenters), but likely not a difference in outcomes.
On Monday, in Salinas v. United States (05-8400), the Court held per curiam that simple possession of controlled substances (i.e., having a baggie of pot for your own use) does not constitute a "controlled substances offense" under section 4B1.1(a) of the Sentencing Guidelines, since that section defines a controlled substances offense as requiring possession with intent to manufacture, import, export, distribute or dispense.
There were no cert grants on Monday's order list, but the Court did ask for the SG's views on Microsoft Corp. v. AT&T Corp. (05-1056), which asks whether digital software code may be considered a "component of a patented invention" within the meaning of 35 U.S.C. § 271(f)(1) and, if so, whether copies of such code made in a foreign country are "supplied . . . from the United States" – thus subjecting the supplier to liability for patent infringement.
Until tomorrow, thanks for reading!
Kim & Ken
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