Supreme Court Update: Blueford v. Arkansas (10-1320), Holder v. Martinez Gutierrez (10-1542) and Holder v. Sawyers (10-1543)
Greetings, Court fans!
As usual for this time of year, the Court has been busy issuing decisions. This Update will bring you: Blueford v. Arkansas (10-1320), holding that Double Jeopardy does not apply when a jury continues deliberating after announcing that it is unanimous against guilt on certain charges, and the court eventually declares a mistrial with no verdict on any charges; Holder v. Martinez Gutierrez (10–1542) and Holder v. Sawyers (10-1543), a 2-in-1 decision that aliens who lived in the United States as minors may not count their parent's immigration status or years of residence toward their qualification for discretionary cancellation of removal under 8 U.S.C. §1229b(a); and Freeman v. Quicken Loans, Inc. (10-1042), holding that Section 2607(b) of the Real Estate Settlement Procedure Act deals only with fee splitting, and not unearned fees by a single provider.
Blueford v. Arkansas (10-1320), an important Double Jeopardy decision, began with the tragic death of one-year-old Matthew McFadden, Jr. The State charged his mother's boyfriend, Alex Blueford, with capital murder. The defense argued that Matthew's death was an accident. The trial court instructed the jury on capital murder and three lesser included offenses: first-degree murder, manslaughter, and negligent homicide. The jury was instructed to consider capital murder first, and if there was reasonable doubt, then to consider first-degree murder, and if there was reasonable doubt of that, manslaughter, and so on. The jury's decision at each stage had to be unanimous. The jury was given five verdict forms: one allowing them to convict on each of the four charged offenses, and a fifth allowing them to acquit on all charges. There was no form allowing the jury to acquit on some of the offenses but not others. A few hours into deliberations, the jury sent the court a note asking "what happens if we cannot agree on a charge at all." The court responded by emphasizing the importance of reaching a verdict. After another half hour of deliberations, the jury sent out a note saying that it "cannot agree on any one charge in this case." The court brought the jury back into the courtroom, and asked the foreperson to disclose the jury's votes on each offense. The foreperson reported that the jury was "unanimous against" capital murder and manslaughter, and 9 for and 3 against manslaughter. When asked about negligent homicide, the foreperson said "We did not vote on that, sir. . . . We couldn't get past the manslaughter. Were we supposed to go past that? I thought we were supposed to go one at a time." The court reiterated the importance of reaching a verdict and sent the jurors back for further deliberations. At that point, Blueford's counsel asked the court to give the jurors new verdict forms "for those counts that they have reached a verdict on." The court denied the request, reasoning that the jury had already received instructions and verdict forms, and permitting a partial verdict now would be "like changing horses in the middle of the stream." After the jury returned half an hour later without a verdict, the court declared a mistrial.
When the State sought to retry Blueford, he moved to dismiss the capital and first-degree murder charges on double jeopardy grounds. The trial court denied the motion, and the Arkansas Supreme Court affirmed on interlocutory appeal. The Arkansas Supreme Court held that the foreperson's report did not preclude the State from retrying Blueford because the foreperson "was not making a formal announcement of acquittal" when she reported the jury's votes. The Arkansas Supreme Court further held that the trial court did not err in denying Blueford's request for new verdict forms that would have allowed the jury to render a partial verdict on the capital and first-degree murder charges.
Led by the Chief, the Court affirmed, 6-3. The Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The Clause does not bar a second trial if the first ended in a mistrial, however. Here, Blueford argued that he could not be retried for capital and first-degree murder because the jury actually acquitted him of those offenses: even though there was no formal verdict, the foreperson's announcement of the jury's unanimous votes on capital and first-degree murder represented a resolution of those offenses in his favor. The Court disagreed. The foreperson's report was not necessarily a final resolution, because nothing precluded the jurors from revisiting their votes when they went back to the jury room. When they returned half an hour later, the foreperson stated that they were unable to reach a verdict. But she did not say whether the jury was still unanimous on the capital and first-degree murder charges. The Court also rejected Blueford's argument that the trial court erred in declaring a mistrial on the capital and first-degree murder charges, given the foreperson's report of unanimity against guilt on those charges. Arkansas law permitted the trial court to limit the jury's options to convicting on one of the offenses or acquitting on all; i.e., it did not have to allow for a partial verdict. Moreover, the Court had never required a trial court to "consider any particular means of breaking [an] impasse – let alone to consider giving the jury new options for a verdict" – before declaring a mistrial because of a hung jury.
Justice Sotomayor, joined by Ginsburg and Kagan, dissented. In the dissenters' view, the majority misapplied two longstanding principles of Double Jeopardy jurisprudence: (1) that an acquittal occurs if a jury's decision, "whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged"; and (2) that a trial judge may not defeat a defendant's entitlement to a favorable verdict by declaring a mistrial absent "manifest necessity." Justice Sotomayor did not believe that the jury could have reconsidered its decisions on capital and first-degree murder during its last round of deliberations, or that it did. As an "acquittal first" jurisdiction, Arkansas law required the jurors to acquit unanimously on each murder charge before it could reach manslaughter. The forewoman's comment, "I thought we were supposed to go one at a time," indicated that the jury was following instructions scrupulously. Moreover, any ambiguity about whether the jurors revisited the murder charges should have been resolved in favor of the defendant.
In Justice Sotomayor's view, even if the jurors could have revisited the murder charges, the trial court had declared mistrial prematurely. "Manifest necessity" is a high bar, and "in light of the historical abuses against which the Double Jeopardy Clause guards, a trial judge must tread with special care where a mistrial would help the prosecution, at a trial in which its case is going badly, by affording it another, more favorable opportunity to convict the accused." Sotomayor was particularly suspicious in this case, because some of the trial judge's comments suggested that he wrongly believed that the jury was not required to reach unanimity on an offense before considering a lesser included one. If the judge had made that mistake of law, then he may have accorded insufficient finality and weight to the forewoman's earlier announcement that the jurors were "unanimous against" capital and first-degree murder, and negates any deference due to his decision to declare a mistrial. In Sotomayor's view, the trial judge abused his discretion in declaring a mistrial because he failed to explore any alternatives to mistrial – including asking for the votes on each offense again – or to make any finding of manifest necessity on the record. Beyond the facts of this case, Sotomayor would require trial judges in all acquittal-first jurisdictions – as some already do – to honor a defendant's request for a partial verdict before declaring a mistrial on the ground of jury deadlock. Noting that acquittal-first instructions generally increase the likelihood of conviction on a greater offense, Sotomayor wanted these jurisdictions to take the "bitter with the sweet": "If a State wants the benefits of requiring a jury to acquit before compromising, it should not be permitted to deprive a defendant of the corresponding benefits of having been acquitted."
Turning now to Holder v. Martinez Gutierrez (10–1542) and Holder v. Sawyers (10-1543), 8 U.S.C. §1229b(a) gives the Attorney General discretion to cancel the removal of an inadmissible or deportable alien if he or she: "(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been [lawfully] admitted in any status, and (3) has not been convicted of any aggravated felony." The two cases before the Court asked whether aliens who lived in the United States as minors could count their parent's immigration status or years of residence toward their own 5-year and 7-year requirements. In the first case, Carlos Martinez Gutierrez illegally entered the United States with his family at the age of five, in 1989. Martinez Gutierrez's father was admitted as a lawful permanent resident ("LPR") in 1991, but Martinez Gutierrez was not lawfully admitted or given LPR status himself until 2003. Two years after that, he pled guilty to a removable offense, and sought cancellation of removal under § 1229b(a). The Immigration Judge found that he qualified for cancellation because of his father's immigration history, but the Board of Immigration Appeals ("BIA") reversed, under its longstanding position that all aliens had to meet §1229b(a)'s requirements on their own. In the second case before the Court, Damien Sawyers was lawfully admitted as an LPR at the age of fifteen, in October 1995. By that time, his mother had already resided in the country for six consecutive years following a lawful admission. In August 2002, Sawyers was convicted of a drug offense. The Immigration Judge found that Sawyers fell just shy of the 7-year requirement and refused to impute his mother's immigration history to him. The BIA affirmed, consistent with its longstanding position. The Ninth Circuit granted both Martinez Gutierrez and Sawyers' petitions for review, and sided with them. The Ninth Circuit and the BIA had been at odds since 2005, when the Ninth Circuit instructed the BIA to impute a parent's years of residence to an unemancipated minor for purposes of §1229b(a)(1), and the BIA declined to extend that instruction to §1229b(a)(2) or to other Circuits.
The Court took the case to resolve the standoff and a growing Circuit split, and sided with the BIA. Justice Kagan wrote for a unanimous Court. The Court found that the BIA's approach was consistent with the text of §1229b(a), which does not mention imputation, much less require it. Because the BIA's rejection of imputation was at least a reasonable construction of the statute, it deserved Chevron deference. The respondents argued that Congress implicitly ratified imputation when it passed §1229b(a), because § 1229b(a)'s predecessor had authorized the Attorney General to prevent the removal of an LPR alien who had maintained a "lawful unrelinquished domicile of seven consecutive years," and three Circuits had ruled that the BIA should impute a parent's years of domicile to his or her child, since children were presumed not legally capable of forming the requisite intent to establish their own domicile." The Court was not persuaded. The doctrine of congressional ratification applies only when Congress reenacts a statute without relevant change. Here, when Congress passed §1229b(a), it established separate 5-year LPR and 7-year continuous residence requirements and dropped the key term "domicile" altogether. The Court also rejected the respondents' argument that the BIA's refusal to impute under §1229b(a) – while imputing under other provisions – constituted arbitrary agency action. For example, the BIA will impute a parent's knowledge of inadmissibility (or lack thereof ) under a provision that authorizes the Attorney General to admit certain inadmissible aliens if he finds that inadmissibility "was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure." Likewise, the BIA will impute a parent's abandonment (or non-abandonment) of LPR status to her child when determining whether that child can reenter the country as a "returning resident immigran[t]" under §1181(b). The Court accepted the BIA's "reasoned explanation" for its differing approaches: it will impute matters involving an alien's state of mind, while declining to impute objective conditions or characteristics – such as §1229b(a)'s 5- and 7-year clocks, based on the objective facts of immigration status and place of residence.
Freeman v. Quicken Loans, Inc. (10-1042) also yielded a unanimous decision, this time authored by Justice Scalia. The case addressed the Real Estate Settlement Procedures Act ("RESPA"), which prohibits giving and accepting "any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service . . . other than for services actually performed." (If you're wondering what a real estate settlement service is, think title searches, title insurance, property surveys etc.) The issue for the Court was whether RESPA applies only when a charge is divided between two or more persons or whether it can also apply when one provider charges a fee that is not for work actually performed. Plaintiffs contended that Quicken Loans violated RESPA by charging them "loan discount" fees, where they did not receive lower interest rates in return. Quicken Loans sought summary judgment, arguing that RESPA's prohibition on unearned fees only applies to fee splitting. The District Court and the Fifth Circuit agreed. So did the Court.
To support their interpretation, plaintiffs relied on a Department of Housing and Urban Development ("HUD") policy statement that RESPA prohibits any person from giving or accepting unearned fees, and from charging excessive fees (on the theory that the excess over reasonable value constitutes a portion of a charge that is not for services provided). Even the plaintiffs didn't press HUD's excessive charge interpretation, which the Court found was "manifestly inconsistent with the statute HUD purported to construe." Indeed, when Congress passed RESPA, it included a directive for HUD to report back to Congress regarding, among other things, the desirability of price regulation. So there could be no doubt that RESPA as written did not cover excessive charges. The Court found that the plain language of the statute also foreclosed any reading that would cover allegedly unearned fees by a single provider. (Because the Court found that HUD's policy statement on unearned fees by a single provider could not stand, with or without any Chevron deference, it did not reach the rather interesting issue of whether the Chevron deference that might otherwise apply to HUD's single provider statement was "eliminated by the policy statement's palpable overreach with regard to price controls.") First, RESPA prohibits the giving or acceptance of a "portion, split or percentage" of a "charge," that has been "made or received." The language used clearly describes two transactions – the charge made to or received from the consumer, and the giving of the portion/split/percentage of the charge from one service provider to another. Second, RESPA prohibits the giving or accepting of the portion/split/percentage. If RESPA applied to charges by a single provider, the person "giving" the charge would be the consumer, and RESPA clearly didn't intend to punish consumers. Third, while it is conceivable that a portion or percentage can be construed to include 100% of the whole, a split cannot can't and in any event the most natural reading of all of these terms requires a sharing of the charge between two persons.
We'll be back soon, as the June deluge of decisions continues. As always, thanks for reading!
Kim and Jenny