Sell v. United States (02-5664), Virginia v. Hicks (02-371), Overton v. Bazzetta (02-94), FEC v. Beaumont (02-403) and order list

June 17, 2003 Supreme Court Update

Greetings Court fans!

The Court issued four opinions and an order list yesterday. That leaves ten opinions remaining for the Term. Currently, the Court only has one more day (next Monday) scheduled to hand down opinions, but I'd be surprised if they didn't schedule another hand-down session. Ten opinions is quite a handful for one day. If they do schedule another session, it won't be this week; it will be sometime next week or the following Monday. I'd bet on sometime late next week. Wouldn't you want to finish up everything before a weekend instead of coming back for a final session on a Monday?

In the big news of the day, in Sell v. United States (02-5664), the Court defined the conditions under which the Constitution permits the involuntary administration of antipsychotic drugs to a mentally ill defendant in order to render him competent to stand trial. (Even if you're not that interested in the substantive issue presented by the case, the Court has an interesting discussion of the "collateral order doctrine" that might be worth a read.) Dr. Sell, once a practicing dentist, was charged with various federal offenses, but questions soon arose about his competence to stand trial. (Perhaps it was just his history of mental illness combined with his screaming and shouting during a bail revocation hearing, but I've got to believe that his spitting in the judge's face contributed to questions about his competence.) A magistrate judge found him incompetent to stand trial and ordered him hospitalized for treatment to determine whether there was a probability that he could regain the mental capacity to proceed with trial. While hospitalized, the medical staff recommended that he take antipsychotic medication. When he refused the medication, the staff sought permission to administer it involuntarily. This issue went through various levels of review in the hospital, eventually making its way into the courts, where it culminated in an Eighth Circuit decision permitting involuntary medication.

Today, the Supreme Court reversed. Breyer (for himself, Rehnquist, Stevens, Kennedy, Souter and Ginsburg) first addressed whether the Court of Appeals had jurisdiction to hear Sell's case. Federal law limits appellate court jurisdiction to the review of final judgments. In the criminal context, this usually means a conviction and imposition of sentence, and this case assuredly does not fall within that category. Nonetheless, Breyer found jurisdiction under the "collateral order doctrine," which permits appeal of an order (1) that conclusively determines a question, (2) resolves an important issue separate from the merits of the dispute, and (3) is effectively unreviewable on appeal from a final judgment. (I won't belabor details here, but appellate practitioners should review this decision carefully.) Turning to the merits, the Court reviewed its prior cases to hold that the Constitution authorizes the involuntary administration of antipsychotic drugs in order to render a defendant competent to stand trial only under specific conditions: (1) There must be an important government interest at stake. Bringing an accused to trial for a serious crime is ordinarily an important interest, but courts should consider the specific circumstances. (2) The involuntary medication must significantly further the state interests. In other words, if the drugs won't make the defendant competent, or will prevent him from participating in his own trial, medication should not be authorized. (3) The involuntary medication must be necessary to further state interests (i.e., no less intrusive means available). And (4) The administration of drugs must be medically appropriate. These standards only apply to determining whether a defendant can be involuntarily medicated to render him competent to stand trial. Ordinarily (and usually), however, a court should first consider whether involuntary medication can be justified on other grounds (i.e., to control potentially dangerous behavior). Because the lower courts did not evaluate Sell's claim under these standards, the Court remanded for further proceedings. (Although the media is reporting this as a major decision, I'm skeptical about the practical impact of the decision. The decision only addresses the standards for forced medication to render a defendant competent to stand trial, taking pains to note that there are more objective and manageable standards (routinely applied by courts throughout the country) for forced medication for different purposes (i.e., the defendant is a danger to himself or others). Indeed, in this case, the Court went out of its way to say that it doubted the Eighth Circuit's finding that Sell was not dangerous to others, implicitly suggesting that on remand the courts should reconsider that issue.)

Scalia (joined by O'Connor and Thomas) dissented. Scalia would find that there was no appealable judgment and thus that the Court lacked jurisdiction to consider the case. Scalia doesn't think much of the collateral order doctrine, but assuming that doctrine applies, he would find that the order in this case doesn't fall within its scope. The stumbling block for Scalia is his belief that the medication order would be reviewable on appeal from a final judgment. The majority's conclusion to the contrary, according to Scalia, effects "a breathtaking expansion of appellate jurisdiction."

Next, in Virginia v. Hicks (02-371), the Court upheld a public housing development's trespassing policy against a First Amendment overbreadth challenge. The trespass policy authorized police to tell any non-resident who could not demonstrate a legitimate business or social purpose to leave the development. If the non-resident returned after being given such an order, he was subject to prosecution for trespassing. Hicks violated the policy and was convicted of trespassing. (The opinion doesn't say what Hicks was doing in the development, but suggests that he might have been engaged in criminal conduct. Whatever it was, it was something without a legitimate business or social purpose.) Hicks claimed that the trespassing policy was overbroad under the First Amendment and the Virginia courts agreed with him.

Scalia, for a unanimous Court, reversed. Before addressing the overbreadth claim, Scalia turned to an issue of standing. Virginia asked the Court to hold that Hicks lacked standing to pursue the overbreadth claim because he was not involved in any sort of expressive activity, but the Court rejected this argument. While this type of limit might be appropriate in a case arising in federal court -- a court subject to the constitutional "case or controversy" requirement -- this case arose in a state court, and state courts are not bound by those limitations. Turning to the overbreadth question, Scalia found no problem with the statute. Under the overbreadth doctrine, a showing that a law punishes a substantial amount of protected free speech, in relation to the statute's legitimate sweep, justifies a prohibition on enforcement of the law in all cases in order to prevent the "chilling" of constitutionally protected speech. In this case, Hicks could not show that a "substantial" overbreadth exists. He could not show, for example, that the "no-return" orders would ever be given to someone engaged in protected speech. Similarly, the provision authorizing arrest of someone who violates a no-return order does not violate the First Amendment because it punishes conduct (trespassing), not speech. Finally, the policy applies to everyone who enters the development, not just those who seek to engage in protected speech, and thus Hicks cannot show that the policy prohibits a substantial amount of protected speech. Souter (joined by Breyer) joined and wrote separately to emphasize that in different cases, the outcome of the overbreadth analysis might be different depending on the scope of the law chosen for comparison.

Next, in Overton v. Bazzetta (02-94), the Court upheld Michigan prison regulations that limit visits with prisoners against various constitutional challenges. (This doesn't seem like a hard case to me. Stop for a minute and ask yourself whether you could picture this Court holding that states may not impose limits on prison visits. It just wouldn't happen.) The regulations, enacted in response to increased problems with visitor control and drug abuse, limit the number (10) and identity of visitors (basically immediate family members) who may visit prison inmates. Prisoners who commit multiple substance abuse violations cannot have any visitors at all for two years. Clergy and counsel are excepted from these limits. The Sixth Circuit held that these regulations were unconstitutional, but in an opinion by Kennedy (for everyone but Thomas and Scalia), the Court reversed. First, the Court rejected the argument that the regulations infringe a constitutional right of association. Although prior cases outside the prison context certainly discuss the right to maintain certain personal relationships, as Kennedy points out, the whole point of prison is confinement. Prisoners must surrender certain rights and privileges enjoyed by other citizens that are inconsistent with confinement, such as freedom of association. Although a prisoner might retain some rights of association, it is enough for this case that the challenged regulations bear a rational relation to legitimate peneological interests. In deciding whether a regulation affecting a constitutional right that survives incarceration withstands constitutional scrutiny, the Court looks at whether the regulation has a rational relation to legitimate government interests, whether alternative means are open to exercise the asserted right, what impact accommodation of the right would have on prison resources, and whether there are alternatives to the regulation. (Kennedy runs the regulation through this test and finds them valid.) Next, the Court rejected the argument that the elimination of visits for repeat substance abuse offenders violates the Eighth Amendment. The restriction of privileges for disciplinary purposes is not a dramatic departure from accepted standards of confinement and it does not threaten prisoner health or safety.

Stevens (joined by Souter, Ginsburg and Breyer) concurred to emphasize that nothing in the opinion means that prisoners don't have constitutional rights. Thomas (joined by Scalia) concurred in the judgment. According to Thomas, the Constitution does not establish a definition of incarceration; states are free to define the terms of punishment so long as those terms are consistent with the Eighth Amendment. Thus, the only issue is whether the state has validly deprived a prisoner of a constitutional right enjoyed by ordinary law-abiding citizens. Here, the history of prison confinement confirms that Michigan intended to define incarceration as not including the right to visitors.

Before I turn to the last opinion, in a complete digression, I thought I would point out an error in the Overton decision -- and the Court's quick response to that error. In the decision released from the Court yesterday, the majority states that the challenge to the prison regulations was "certified as a class action under Federal Rule of Criminal Procedure 23." That should have been "Federal Rule of Civil Procedure." This mistake made it through at least 20 people -- 9 Justices, 9 clerks, and 2 people in the Reporter of Decisions office. It happens (and is much more likely near the end of the Term), but it's still quite surprising. What is not surprising is that the Court corrected the error very quickly. The version of the opinion now available from the Court corrects the error.

Returning to substance, in the final opinion, FEC v. Beaumont (02-403), the Court upheld the validity of a campaign finance law restricting direct contributions by corporations as applied to a non-profit advocacy corporation. Federal law makes it unlawful for "any corporation . . . to make a contribution or expenditure in connection with" certain federal elections. North Carolina Right to Life (NCRL) is a non-profit corporation that advocates on behalf of alternatives to abortion. (You could have guessed that last part just from the name, right?) NCRL claimed that this law was unconstitutional as applied to it, and the Fourth Circuit agreed. The Court (in an opinion by Souter, for everyone but Kennedy, Thomas, and Scalia) reversed, at least with respect to the limit on direct contributions. (The FEC did not ask the Court to review the holding on independent expenditures.) Souter began with the basic point that throughout a century of campaign finance laws, Congress has repeatedly and consistently tried to limit the potentially deleterious influence of corporations on federal elections. NCRL claimed that despite this history, it should be exempted from the basic limits on corporations because it is a non-profit advocacy corporation. Souter reviewed the Court's previous decisions and ultimately concluded that the Court could not rule for NCRL without upsetting settled law on the "risks of harm posed by corporate political contributions, of the expressive significance of contributions, and of the consequent deference owed to legislative judgments on what to do about them." The fact that NCRL lacks substantial resources does not alter that judgment. All corporations (whether non-profit or not) benefit from the state-created advantages of the corporate form that allow for massive wealth accumulation, and indeed, other non-profit advocacy corporations do have significant resources (i.e., AARP, NRA, Sierra Club).

Kennedy concurred in the judgment. He has dissented in previous campaign finance cases (thinks the Court has erred in sustaining state and federal restrictions on political speech), and continues to adhere to his position. Because language in a prior decision supports the Court's holding, however, he concurs in the judgment. Thomas (joined by Scalia) dissented. According to Thomas, campaign finance laws are subject to strict scrutiny, and the restriction at issue here fails under that test.

Finally, a quick update on the order list, both today's and last week's:

1. The Court granted cert in 2 cases: Till v. SCS Credit Corp. (02-1016): This is a bankruptcy case about the rate of interest owed to undersecured creditors in a Chapter 13 cramdown proceeding. Muhammed v. Close (02-9065): This is a Section 1983 suit brought by a prisoner challenging the conditions of confinement in prison. The questions the Court will address relate to whether a prisoner challenging the conditions of confinement (as opposed to the fact or duration of confinement) must satisfy the requirements of Heck v. Humphrey, and whether the prisoner who is no longer subject to the conditions he is challenging (i.e., administrative confinement) must satisfy the requirements of Heck v. Humphrey.

2. The Court asked the SG to provide the views of the United States in Zapata Hermanos Sucesores v. Hearthside Baking Co. (02-1318). This cert petition asks whether attorneys' fees and other litigation expenses qualify as "loss" under the UN Convention on Contracts for International Sale of Goods, and whether a court has the inherent power to sanction a party for bad faith conduct when such conduct is potentially sanctionable by statute or rule.

3. Finally, as promised, I have more information on one of the cases the Court granted last week: Crawford v. Washington (02-9410). (My "source" on cert petitions doesn't describe petitions filed on the in forma pauperis docket. As it turns out, the petition was filed by a former colleague of mine, who was kind enough to forward the cert papers.) The petition asks whether the Confrontation Clause permits the admission against a criminal defendant of a custodial statement by a potential accomplice on the ground that parts of the statement "interlock" with the defendant's custodial statement. This petition further asks the Court to re-think its Confrontation Clause jurisprudence with respect to out-of-court "testimonial" statements.

That's all until next Monday. As always, I welcome any questions, comments, suggestions, or corrections. Thanks for reading.


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