Polar Tankers, Inc. v. City of Valdez (08-310), Atlantic Sounding Co., Inc. v. Townsend (08-214) and District Attorney's Office v. Osborne (08-6)

July 13, 2009 Supreme Court Update

Greetings, Court fans!
This will be my final Update of the Term and will bring you summaries of the following cases: Polar Tankers, Inc. v. City of Valdez (08-310), involving a constitutional challenge to a tax on vessels; Atlantic Sounding Co., Inc. v. Townsend (08-214), addressing the availability of punitive damages in a maritime action by a seaman for "maintenance and cure"; and District Attorney's Office v. Osborne (08-6), considering whether a criminal defendant has a constitutional right to obtain DNA evidence after conviction in an attempt to exonerate himself. After this, I will be back one last time to bring you my thoughts on the Term, as well a handy compilation of the Term's cases – which we've come to call the "Term in Review."
Polar Tankers, Inc. v. City of Valdez, addressed the relatively obscure "Tonnage Clause" of the Constitution, which forbids a State from "lay[ing] any Duty of Tonnage" without the consent of Congress. (For those of you who weren't around at the Framing of the Constitution, a "duty of tonnage" apparently referred to a fee imposed upon a ship that varied based upon the internal capacity of the vessel (i.e., its carrying capacity)). At issue here was an ordinance enacted by the city of Valdez, Alaska imposing a personal property tax on the value of "'[b]oats and vessels of at least 95 feet in length' that regularly travel to the City, are kept or used within the City, or which annually take on at least $1 million worth of cargo or engage in other business transactions of comparable value in the City." The practical effect of this ordinance was to tax oil tankers, and little else. The question for the Court was whether this "property" tax was actually a "duty of tonnage," prohibited by the Constitution. Seven of the Justices concluded that it was – but for somewhat different reasons.
Justice Breyer, joined by the unlikely grouping of Scalia, Kennedy, Ginsburg and Alito, authored an opinion for the Court as to Parts I, II-A, and II-B-I and an opinion for a 4-Justice plurality as to Part II-B-2. As Breyer explained, the purpose of the Tonnage Clause, and the sister provision forbidding States from "lay[ing] any Imposts or Duties on Imports or Exports" was to prevent States with convenient ports from placing other States at an economic disadvantage by effectively "'tax[ing] the consumption of their neighbors.'" To ensure that this purpose could not be circumvented, the Court had consistently interpreted the Tonnage Clause as prohibiting any tax or duty, regardless of its label, "'which operate[d] to impose a charge for the privilege of entering, trading in, or lying in a port.'" Valdez's tax met this definition. Since it taxed any ship that took on at least $1M in cargo, it effectively taxed every oil tanker that entered the Valdez port, even once – thus taxing the very privilege of entering or lying in port. The plurality (now minus Alito) went on to explain that Valdez's tax was not a valid "property tax" that would escape the Tonnage Clause's prohibition because it did not tax vessels in the same manner as other personal property. Instead, large ships were singled out for taxation while similar businesses and property were not taxed. Therefore, Valdez's tax was invalid. The Chief, joined by Justice Thomas, would have gone a step further. They would conclude that a State can never tax a vessel belonging to a citizen of another State, even if the tax is a neutral tax applicable to all like property. Finally, Justice Stevens, joined by Souter dissented. In their view, Valdez's tax was not an indirect tax based on carrying capacity, but a valid and neutral property tax based on the value of the ship. The dissenters also underscored the practical need for such taxes given that the individuals on petitioner's ships increased the population of Valdez by a whopping 10 .
In another case of odd bedfellows, Justice Thomas joined the so-called "liberal" Justices to form the majority in Atlantic Sounding Co., Inc. v. Townsend, where the Court held that punitive damages were an available remedy in a maritime claim by a seaman for "maintenance and cure." When Townsend fell and injured himself while working on a tugboat, the tugboat owners refused to provide him maintenance and cure (i.e., "food, lodging, and medical services") and instead brought suit seeking a declaration that they had no such obligation. Townsend filed his own suit under the Jones Act and general maritime law, and also asserted a counterclaim in the declaratory judgment action seeking punitive damages for the willful refusal to provide maintenance and cure. The tugboat owners moved to dismiss, but the district court denied the motion, finding that punitive damages were available. The Eleventh Circuit affirmed, as did the Court. In quintessential Thomas fashion, the Court's opinion could have come straight from a history textbook. The Court first explained that punitive damages had long been available at common law, including in federal maritime law claims. And the Court found evidence (from a handful of very old cases) that punitive damages had been available for claims involving a ship owner's willful withholding of maintenance and cure. The only question then was whether the Jones Act changed that. The Court concluded it did not. Congress enacted the Jones Act in order to extend the claims available to seamen, not to eliminate pre-existing ones. Since the right of maintenance and cure was already well-established prior to the Jones Act, including the general right to punitive damages, the Jones Act had no effect on it. Justice Alito, joined by the Chief, Kennedy and Scalia, dissented. In their view, there was scant historical evidence to demonstrate that punitive damages were available in maintenance and cure actions. Thus, like any common law court, the Court needed to determine what the law should be. Given that the Jones Act did not allow for punitive damages, the dissent felt the better approach was to similarly limit the remedies for a common law maintenance and cure claim to create a uniform body of law.
The Court got back to business as usual in District Attorney's Office v. Osborne (08-6), splitting 5-4 along traditional lines (with the conservatives on top) to hold that a convicted defendant does not have a Constitutional right to post-conviction DNA testing of evidence introduced against him at trial. Osborne, to put it mildly, was not a very sympathetic test case: He was convicted of kidnapping, assault and sexual assault. The victim was raped, beaten with an axe handle, shot in the head and left for dead. Miraculously, she survived and identified Osborne as one of her assailants. DNA testing of a condom found at the crime scene excluded two other suspects and included Osborne. The DNA test run by the State was not very precise, but Osborne's trial counsel made a tactical decision not to request more sophisticated DNA testing available at the time because she feared it might further incriminate her client. After his conviction and appeal, Osborne brought suit in federal court under 42 U.S.C. § 1983, claiming a due process right to access the DNA evidence to subject it (at his own expense) to a new, even more sophisticated type of DNA testing, that was not available at the time of trial. The district court entered summary judgment in favor of Osborne finding a limited right to the testing sought. The Ninth Circuit affirmed, relying on the State's constitutional duty to disclose exculpatory evidence under Brady v. Maryland and holding that the Due Process Clause required not only pre-trial disclosure by the State, but post-conviction disclosure and access to this evidence given its unparalleled ability to exonerate the wrongly convicted.
The Court reversed, in an opinion by Chief Justice Roberts. The majority acknowledged that Osborne had a limited liberty interest created by state law, since Alaska allowed a defendant an opportunity to challenge his conviction based on newly discovered evidence that could establish actual innocence, which the DNA evidence Osborne sought might be able to do. However, the Court found that Alaska's procedures were generally adequate to allow a defendant to obtain DNA evidence for testing and thus satisfied the Due Process Clause. In the majority's view, Osborne simply hadn't invoked those procedures correctly. Thus, there was no procedural due process violation. And the Court declined to find a substantive due process right under the Constitutional to obtain DNA evidence for post-conviction testing, particularly since 46 states and the federal government already had enacted statutes specifically addressing post-conviction access to DNA evidence. Justice Alito, joined by Kennedy and Thomas (in part), concurred to provide additional reasons why Osborne's claim failed. First, Osborne was required to bring this claim as a petition for habeas corpus, not a § 1983 action, and his habeas corpus claim would be denied for failing to exhaust state court remedies. Second, a criminal defendant who has elected not to test DNA evidence at trial for tactical reasons has no Constitutional right to access that evidence for further testing post-conviction. Alito also underscored that DNA testing sometimes is not conclusive and can even falsely exonerate a guilty person.
Justice Stevens, joined by Ginsberg and Breyer in full, and by Souter in part, dissented. Justice Stevens would have found both a procedural and substantive due process right to the DNA testing. In the dissent's view, Osborne did invoke State procedures in an attempt to obtain the DNA evidence and Alaska simply would not give it him; nor did Alaska ever provide a legitimate justification for this refusal. While finality is an important goal of the criminal justice system, it was outweighed here – where a simple and relatively costless test could absolutely determine Osborne's guilt or innocence. There was simply no basis to deny it. Souter also penned a separate dissent. Because he found a clear procedural due process violation in the operation (as opposed to the design) of Alaska's procedures, he would not have reached the substantive due process question in this case. However, he noted that the relative unanimity with which the states and federal government have acted to ensure post-conviction access to DNA evidence supports, rather than undercuts, a potential substantive due process right to this critical evidence.
In a follow-up to its very recent decision in Melendez-Diaz v. Massachusetts (2009), the Court also granted cert in Briscoe v. Virginia (07-11191), which asks: "If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?"
And that brings us to the end of this Update and the Term (with the exception of one hold-over case, which will be addressed next fall). As promised, I will be back one last time to bring you the Term in Review.
Until then, thank you for following the Court with me.
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400