Roell v. Withrow (02-69), Demore v. Kim (01-1491)

April 29, 2003 Supreme Court Update

Greetings Court fans!
To follow up on the Justice-residence trivia from yesterday, I'm informed by reliable sources that both Stevens and Kennedy live in Virginia. (Although Stevens might be more accurately described as a Florida resident, when the Court is sitting, he's in Virginia.) That gives Virginia a 5-1 residence advantage over Maryland.
On to the substantive news. The Court released two opinions today, including one 75-page whopper. I'll start with the short one. In Roell v. Withrow (02-69), the Court held that a party's consent to jurisdiction by a magistrate judge can be inferred from a party's conduct in the litigation. Under 28 USC 636(c)(1), a magistrate judge may conduct all proceedings in a civil matter, including the entry of judgment, "upon the consent of the parties." In this case, the plaintiff expressly consented to a magistrate judge's jurisdiction, but 2 of the 3 defendants failed to do so. Nevertheless, after having been told of their right to withhold consent, all the defendants participated in the proceedings before the magistrate judge, up through and including a jury trial. On appeal (plaintiff lost), the Court of Appeals remanded to determine whether all the defendants had consented. On the basis of circuit precedent, the district court held that implied consent was ineffective, and the court of appeals of affirmed. Today, the Supreme Court reversed.
Souter (writing for himself, Rehnquist, O'Connor, Ginsburg and Breyer), held that the defendants' general appearances before the magistrate judge, after having been told of their right to be tried by a district judge, supplied the consent necessary for Section 636(c)(1). Souter noted that the statutory language at issue only requires "consent" of the parties; unlike other related statutes, it does not prescribe a form of consent. Souter acknowledged that the parties in this case did not comply with the procedures for consent (found in Section 636(c)(2) and the Federal Rules), but found that this did not deprive the magistrate judge of jurisdiction so long as the parties in fact voluntarily consented. Furthermore, Souter concluded that Congress intended to permit implied consent. Section 636(c)(1), with its consent requirement, was designed to protect a litigant's right to trial before an Article III judge and to improve access to the courts for all litigants by reducing the backlog of civil cases. While a bright line rule (requiring express consent) would certainly protect Article III rights, it would increase the risk of opportunistic litigants using technical defects to avoid the consequences of the judgment. On balance, Souter concluded that the better rule is to accept implied consent when a litigant or counsel is made aware of the need for consent and still voluntarily appears to try the case before the magistrate judge. This serves judicial efficiency and "substantially honors" Article III rights.
Thomas (joined by the unusual grouping of Stevens, Scalia, and Kennedy) dissented. Thomas would prefer the bright-line rule. As he reads the text of Section 636(c)(1), it requires consent before the proceedings, not during them, and this consent must be explicit, not implied. Moreover, an express consent requirement would more fully protect Article III rights and avoid the ambiguities inherent in the majority's implied consent rule. Finally, Thomas concludes that the failure to expressly consent to proceedings before a magistrate judge is a jurisdictional defect because without consent, the magistrate judge has no authority to enter a "judgment."
Second, in an unusually long opinion for the Chief, the Court held in Demore v. Kim (01-1491) that the United States may detain certain aliens, without bail, during their removal proceedings. In 1996, Congress enacted a law (Section 1226(c) of the Immigration and Nationality Act) that mandates the detention of aliens who are removable (i.e., deportable) because they have committed certain crimes. After Kim committed some of the selected crimes, INS charged him with being deportable and detained him pending his deportation hearing under 1226. Kim filed a habeas petition in which he argued that the detention statute violated due process because INS had not made any determination that he was a danger to society or a flight risk. The lower courts granted Kim's petition, but today the Court reversed.
The opinion is in two parts, with different line-ups for each part. Part 1 (joined by Kennedy, Stevens, Souter, Ginsburg and Breyer) holds that the Court has jurisdiction to consider challenges to Section 1226(c). Another subsection of the statute, Section 1226(e), precludes review of "discretionary" judgments by the AG, and further states that "no court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." This section does not apply here, according to the Court, because Kim is not challenging a discretionary decision or a decision regarding detention or release. He is challenging, rather, the statutory framework that permits his detention without bail. When Congress means to preclude review of constitutional claims, it must be very clear, and when it means to preclude habeas claims, it must be super, duper clear. Section 1226(e) does not meet either standard, and thus the Court can review his claims.
Part 2 of the opinion (joined by Kennedy, O'Connor, Scalia, and Thomas) holds that Section 1226(c) is constitutional. It was adopted, according to the Court, in response to the "wholesale failure by the INS to deal with increasing rates of criminal activity by aliens." [The Court goes into intricate detail on the background here. Suffice it to say that criminal aliens are a real problem, and that Congress had evidence before it suggesting that one solution would be the wholesale detention of deportable criminal aliens during deportation proceedings.] Turning to the constitutionality of the law, the Court begins with the "fundamental premise of immigration law" that in the exercise of its broad power over immigration and naturalization matters, "Congress regularly makes rules that would be unacceptable if applied to citizens." While aliens are entitled to due process in deportation proceedings, the Court has long recognized detention during those proceedings as a constitutional aspect of the process, even without individualized findings of dangerousness. The biggest challenge for the Court was its recent decision in Zadvydas, which held that while aliens may be detained beyond the 90 day statutory period for removal, this detention period could could only be for such time as was necessary to secure their removal. According to the Chief, this case is different because in Zadvydas, the aliens involved were ones for whom removal was no longer practically attainable (no other country would take them) and thus detention no longer served any immigration purpose. Here, by contrast, because the only question is detention during deportation proceedings, detention continues to serve an immigration purpose. Although individualized bond hearings might also serve the same goal, the Due Process clause does not require Congress to use the least burdensome means. Zadvydas is different also because the statutory provision in that case allowed indefinite detention, while the statute here only allows detention pending a determination of removability.
There are four additional opinions in this case, so I'll summarize quickly. (If you're pressed for time, you can stop reading now.):
Kennedy concurred: According to Kennedy, due process requires individualized determinations that there is some merit to the INS charge of deportability. If the government cannot satisfy this standard, then the lawfulness of the detention turns on the alien's ability to satisfy ordinary bond procedures. Kennedy notes that there were procedures available to Kim to argue that he was not properly detained, but he did not invoke those procedures. Moreover, while due process would require individualized determinations on risk of flight and dangerousness if continued detention became unreasonable, there were no facts to suggest that was the case here.
O'Connor concurred in part and concurred in the judgment (joined by Scalia and Thomas): O'Connor's opinion explains why she can't join Part 1. She reads Section 1226(e) to unequivocally deprive federal courts of jurisdiction to set aside the Attorney General's decisions on detention of criminal aliens, and concludes that this case falls within that category. She believes that Section 1226(e) meets the super-duper-clear standard for revoking habeas jurisdiction, and that this revocation likely does not violate the Suspension Clause. (She joins Part 2 because a majority of the Court having found there was jurisdiction, she agrees with the Court's resolution on the merits.)
Souter (joined by Stevens and Ginsburg) concurred in part and dissented in part: According to Souter, the Court's opinion upholding the mandatory detention of lawful permanent residents ignores a century of precedent. Aliens within our territory are entitled to due process, and lawful permanent residents -- who are very similar to citizens in many respects -- are accorded even greater protections than other aliens under the due process clause. With this background, Souter turns to Kim's claim, a claim that he reads narrowly. Kim claims not that he cannot be detained, but rather that any detention must be based on a hearing and an impartial decisionmaker's finding that detention is necessary to serve a governmental purpose. Souter reviews analogous detention cases and distills the principle that due process requires an individualized determination before someone is locked away. In Souter's opinion, Zadvydas is consistent with this principle. Based on this standard, Kim's detention was unlawful. (Souter then goes into a detailed explanation on why he believes the Court's reliance on Zadvydas and other cases was misplaced. I'll spare you.)
Breyer concurs in part and dissents in part: He doesn't believe that Kim conceded deportability, and thus according to Breyer, the immigration statutes allow him to obtain bail. This would require the government to permit Kim to seek an individualized assessment of his flight risk and dangerousness so long as his claim that he is not deportable (1) is not interposed solely for purposes of delay, and (2) raises a not-insubstantial question of law or fact.
That's all for today. Tomorrow, the Court hears its last arguments of the Term, and (possibly) issues opinions. Until then, thanks for reading!
Sandy
From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Mark Kravitz, Jeff Babbin, or Sandy Glover
at 203-498-4400, or visit our website at www.wiggin.com.