Schriro v. Landrigan (05-1575), United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management Authority (05-1345), Scott v. Harris (05-1631) and order list

May 18, 2007 Supreme Court Update

Greetings, Court fans!
We owe you a few more summaries before the Court comes back Monday with yet more decisions, so let's get right to it.
In Schriro v. Landrigan (05-1575), a 5-4 Court reversed a Ninth Circuit habeas ruling (surprise!). Landrigan, while serving time for multiple violent crimes, escaped and killed another man. At his sentencing hearing for that murder, his counsel was prepared to offer mitigation testimony from Landrigan's mother and ex-wife regarding his rough upbringing and substance abuse problems, but Landrigan stopped him, telling the judge that he did not want them to testify and that, "as far as I'm concerned," there was no mitigating evidence to offer: "[I]f you want to give me the death penalty, just bring it right on." The judge obliged, but Landrigan later discovered that he suffered from an organic brain disorder; he sought to challenge his death sentence by claiming that his counsel provided ineffective assistance, in that he did not obtain a psychological evaluation or fully develop evidence regarding Landrigan's horrific background. After the Arizona courts rejected his claims, Landrigan filed a habeas application in federal court asking for an evidentiary hearing, which the court rejected on the ground that Landrigan could not show prejudice given his instructions to counsel not to offer mitigating evidence at all. The Ninth Circuit first unanimously affirmed, but then reversed en banc, holding that Landrigan's counsel had not performed a reasonable investigation before trial and that Landrigan's comments at sentencing were limited to the testimony of the two witnesses at issue, not all mitigating evidence generally. The Court reversed, led by Justice Thomas, who was joined by the Chief and Justices Scalia, Kennedy and Alito. Whether to grant an evidentiary hearing is a discretionary matter for a federal court, which must defer to the state court's findings so long as they are reasonable. Landrigan instructed his counsel not to offer mitigating evidence, the Arizona courts were entirely reasonable in construing that to apply to any and all mitigating evidence, and the district court was within its discretion in concluding that, regardless of what his counsel might have uncovered with a more thorough investigation, Landrigan would have stopped him from offering it at sentencing.
Justice Stevens led the four dissenters (joined by Justices Souter, Ginsburg, and Breyer). For Stevens, the Court's holding amounted to a finding that Landrigan likely would have waived his right to offer his new mitigating evidence had he known about it, which Stevens viewed as an attempt to hold back the "floodgates of litigation" contrary to the law and the record. Waivers must be knowing and voluntary, and Landrigan could not have waived the right to offer a full psychological assessment that had not yet been performed. While his mitigating evidence might not have been enough to avoid a death sentence, at the very least the district court should have given him an evidentiary hearing. Such hearings are not burdensome, so "doing justice does not always cause the heavens to fall."
One might expect that United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management Authority (05-1345), a case about waste hauling and the "dormant" Commerce Clause, would spark far less emotion amongst the Justices than Landrigan, but – well, that would be wrong. The really fun part: the Chief, Scalia, Thomas and Alito (who frequently vote together, but who all authored separate opinions here) seriously go at it. At issue was whether certain New York counties could require (through "flow control" ordinances) garbage haulers to dispose of solid waste at the Authority, a state-created processing facility. The Haulers could dispose of refuse more cheaply by hauling it to out-of-state facilities that charged lower "tipping fees" (aptly named since haulers literally tip the trash into the facilities), and they contended that the ordinances violated the dormant Commerce Clause by discriminating against interstate commerce in favor of the Authority. (They relied heavily on the Court's 1994 decision in C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, which invalidated a similar flow control ordinance that benefited a private waste processing facility.) The district court agreed with the Haulers, but the Second Circuit reversed, holding that an ordinance does not discriminate against interstate commerce when it favors local government at the expense of all private industry.
Chief Justice Roberts authored the main opinion rejecting the Haulers' claims, which Souter, Ginsburg and Breyer joined in full and in which Scalia concurred as to all but one part (see below). The Court agreed with the Second Circuit's public/private distinction. The flow control ordinances treated all private entities (in-state and out-of-state haulers) equally, and benefited only the state-created Authority. Laws discriminating in favor of in-state businesses often are premised on economic protectionism, but laws favoring local government may support many legitimate goals – here, improved recycling in the counties. Such laws are properly analyzed under the balancing test set out in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), which applies to laws that are directed toward legitimate concerns, but which have incidental effects on interstate commerce. Under Pike, a nondiscriminatory statute (like the ordinances here) is upheld unless the burden it imposes on interstate commerce is "clearly excessive in relation to the putative local benefits." The ordinances survived under Pike because there was little or no evidence that they had a disparate impact on out-of-state businesses and the Authority provided significant health and safety benefits. Scalia did not join this part of the opinion because he generally believes the Court's dormant Commerce Clause jurisprudence is "an unjustified judicial invention," and, although he is willing to abide by this doctrine in limited circumstances out of respect for stare decisis, a law benefiting a public entity should not be analyzed under the Clause at all – not even under the relatively deferential Pike balancing test. Thomas concurred in the judgment only. He, like Scalia, believes the Court's dormant Commerce Clause jurisprudence is made up, but – unlike Scalia – doesn't put as much stake in stare decisis. Thomas thus would find no need to engage in any dormant Commerce Clause analysis and would affirm on that ground alone.
Alito, joined by Stevens and Kennedy, dissented. For them, Carbone already answered this question. First, the waste processing facility in Carbone was effectively a state-owned facility (the contractor who built it, free of charge, was allowed to run it for five years and charge above-market fees, after which the town would buy it back for $1 – effectively allowing the town to finance the construction of its new facility through five years of trash revenues). Therefore, Carbone implicitly rejected the majority's public/private distinction. Second, there is no logical reason to exempt laws preferring state monopolies from dormant Commerce Clause analysis. There is no reason to believe that states will not enact laws protecting state-owned businesses for protectionist reasons; nor is it true that laws favoring private business cannot further legitimate public purposes. In addition, the dissenters argued that the Court "long ago" had recognized, in Vance v. W.A. Vandercook Co., 170 U.S. 438 (1898), that a law favoring a state-owned monopoly violated the dormant Commerce Clause. (The Chief dismissed this contention, writing that Vance "certainly qualifies as ‘long ago,' but does not support the proposition.") Therefore, the ordinances here, which facially discriminate against interstate commerce, should be subject to strict scrutiny and invalidated if the local government's goals could have been accomplished by nondiscriminatory means – and adopting uniform safety and recycling regulations would have done the trick here.
Finally, in Scott v. Harris (05-1631), the Court considered whether police tactics during a high-speed police chase constituted excessive force and an unreasonable seizure under the Fourth Amendment. The Court ushered in a new day by deciding the case based on video evidence – which it actually posted on its website! (If you're interested, go to the Supreme Court's website, click on "Recent Decisions," and find Scott, the 37th opinion of the Term – or just click here if you get this in HTML.) Harris was speeding on a rural Georgia road, and a high-speed chase ensued when he did not stop for police. Scott, one of the pursuers, bumped Harris from behind in an effort to get him off the road, causing a crash that left Harris a quadriplegic. Most of the car chase was captured on video from a cruiser-mounted camera. The Eleventh Circuit agreed with the district court that Scott was not entitled to qualified immunity because there was an issue of fact as to whether his bumping maneuver constituted excessive force.
The Court reversed. Writing for an eight-Justice majority, Justice Scalia concluded that because the undisputed facts showed that the speeding car posed a substantial risk of injury to others, Scott's attempt to ease the car off the road was justified and he was entitled to summary judgment. Remarkably, the Court rejected the Eleventh Circuit's reliance on the usual standard for summary judgment, which requires taking facts in the light most favorable to the nonmoving party (and, in this case, crediting Harris' assertion that he was in control of his vehicle and that there was little danger to others). Instead, the Court rested its analysis on its own viewing of the video tape, concluding that Harris was driving "shockingly fast" and dangerously, running red lights and forcing other cars onto the shoulder in the dark. Scalia concluded that a reasonable jury could only find that Harris "was driving in such a fashion as to endanger human life," and that in this context – mandated by the videotaped evidence – Scott's actions were reasonable.
Justice Stevens dissented, disagreeing with the majority's reliance on the videotape and its disregard of the typical summary judgment standard. He also believed that the tape showed that Harris's driving was comparable to a speeding ambulance or fire engine. (Scalia rejected this position, noting that society has accepted a certain amount of risk from rescuers but not from fleeing criminals.) Stevens also jibed at his colleagues: "Had they learned to drive when most high-speed driving took place on two-lane roads rather than on superhighways . . . they might well have reacted to the videotape more dispassionately."
The Court also granted cert in two cases:
Medellin v. Texas (06-984) may ring a bell for some of you, as it flows directly from Medellin v. Dretke (04-5928), a case in which the Court granted cert during the 2004 Term, only to dismiss cert as improvidently granted after the President took action to moot the issues raised by Medellin's petition (see our December 13, 2004 Update). Medellin is a Mexican foreign national sentenced to death by a Texas court. He challenged his detention by claiming that Texas never notified him of his right under the Vienna Convention on Consular Relations to contact the Mexican consulate after his arrest. The International Court of Justice (ICJ) agreed, ruling that the United States, "by means of its own choosing," had to review and reconsider Medellin's sentence. The Fifth Circuit, however, held that the Convention did not create any privately enforceable rights. A month before oral argument in the Court, the President announced that the U.S. would abide by the ICJ's ruling "by having State courts give effect to the decision"; the President also withdrew from the Convention, ensuring that the issue would not arise again. As a result of the President's actions, the Court DIG'ed the case, but this one simply won't go away. The Texas courts refused to go along with the President's pronouncement, holding that he exceeded his authority. Thus, Medellin (and 50 of his compatriots) are once more before the Court, raising the following issues: (1) Did the President act within his constitutional and statutory foreign affairs authority when he determined that the states had to comply with the ICJ's ruling?; and (2) Are state courts bound to honor the international treaty obligations of the United States and to give effect to the ICJ's judgment in cases that the judgment specifically addressed?
United States v. Santos (06-1005) deals with the federal money laundering statute, 18 U.S.C. 1956(a)(1), which makes it a crime to engage in a financial transaction using the "proceeds" of certain unlawful activities with the intent to promote those activities or to conceal the proceeds. The question presented: whether "proceeds" means the gross receipts from the unlawful activities or only the profits, i.e., gross receipts less expenses.
In other news, the Court has asked the SG to weigh in on the following cases or petitions:
Chamber of Commerce v. Brown (06-939): Is the State of California's regulation of noncoercive employer speech about union organizing preempted by federal labor law?
Estate of Roger Roxas v. Pimentel (06-1039) and Philippines v. Pimentel (06-1204): These interpleader cases deal with ownership of assets allegedly misappropriated by Ferdinand Marcos when he was President of the Philippines, and now claimed both by the Republic and by private creditors of the Marcos estate. The Republic was dismissed on sovereign immunity grounds. While there are many complicatedly written questions presented in the two petitions, the principle issue appears to be: Whether a foreign government that is a "necessary" party to a lawsuit under Rule 19(a) and has successfully asserted sovereign immunity is, under Rule 19(b), an "indispensable" party to an action brought in the courts of the United States to settle ownership of assets claimed by that government.
Montana v. Wyoming (137 Orig.): That's right, the SG will weigh in on an original jurisdiction case, which concerns Montana's claim that Wyoming has violated the water allocation terms of the Yellowstone River Compact.
Finally, there was one cert denial that bears mention: the Court declined to take Hamdan v. Gates (06-1169), which challenged the Military Commissions Act's removal of federal habeas jurisdiction over Guantanamo Bay detainees.
With that, we are caught up. Until next week, 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