Supreme Court Update: Maryland v. King (12-207), Hillman v. Maretta (11-1221), and Nevada v. Jackson (12-694)

June 4, 2013 Supreme Court Update

Greetings, Court fans!

The Court issued three decisions on Monday to kick off its annual June rush to the finish line. First up is Maryland v. King (12-207), a major criminal procedure decision upholding a state law mandating DNA swabs for individuals arrested for serious crimes. We'll follow that with Hillman v. Maretta (11-1221), a federal preemption case that managed to inspire three opinions, despite its subject matter: federal employees' life insurance policies. Last, we offer Nevada v. Jackson (12-694), in which the Justices finally found something they could agree on: summarily reversing a Ninth Circuit grant of habeas corpus relief.

Maryland v. King (12-207) took up a practice followed in 28 states and by the federal government, of swabbing the insides of felony arrestees' cheeks to obtain DNA samples. In 2009, police swabbed Alonzo King when booking him on a charge of menacing people with a shotgun, pursuant to standard procedures under Maryland law. The DNA played no part in any prosecution of King for the shotgun charge, but it did come back as a match for an unsolved 2003 rape. Following King's conviction for the rape, Maryland's highest court determined that the 2009 cheek swab was an unreasonable search that violated King's Fourth Amendment rights. The Court, resolving a split among state courts, reversed 5-4.

Justice Kennedy wrote for the majority and was joined by the Chief and Justices Thomas, Breyer, and Alito. The majority agreed off the bat that swabbing an arrestee's cheek to get a DNA sample is a search for Fourth Amendment purposes, and thus is only permissible if it is "reasonable." But the Court described swabbing as a "gentle process" involving "but a light touch on the inside of the cheek." "The fact that an intrusion is negligible," the majority averred, "is of central relevance to determining reasonableness" under the Fourth Amendment.

The Court balanced the slight intrusion of a DNA swab against what it viewed as the state's great interest in collecting DNA. In what at times reads like a paean to the kinds of gee-whiz technology on display in CSI and its non-fiction cousins, the Court zeroed in on the state's interest in properly identifying the bad guys in its grasp. According to the majority, "[w]hen probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role" in properly identifying arrestees. After all, "[i]t is a well recognized aspect of criminal conduct that the perpetrator will take unusual steps to conceal not only his conduct, but also his identity." According to the Court, an arrestee's identity includes not only the physical question of who he is, but also his criminal history – which could well include crimes for which he has never been charged. Fingerprint evidence, after all, is routinely gathered from arrestees and cross-checked against databases of criminals and unsolved crimes; DNA analysis differs only in its "unparalleled accuracy." To properly "identify" an arrestee, therefore, police must search public and police records based on identifying information they receive from the arrestee to see "what is already known" about the arrestee. "In this respect the use of DNA for identification is no different than matching an arrestee's face to a wanted poster . . . or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee's fingerprints to those recovered from a crime scene." DNA is simply another means of identifying an individual by linking him to information – including information about unsolved crimes – that the police already possess. Properly identifying individuals in custody is important, the Court explained, not only to link arrestees to crimes, but to protect the safety of prison staff and populations; to ensure that an individual will not flee the jurisdiction; to make informed decisions about bail; and, occasionally, to free people wrongly imprisoned for offenses they did not commit. Weighing what it thus viewed as a substantial government interest in DNA identification against an arrestee's limited expectation of privacy at the police station, the majority had no trouble determining that minimally intrusive DNA swabs are not unreasonable and thus don't run afoul of the Fourth Amendment.

The dissent didn't buy the identification rationale for a moment. For the third time this term (see Florida v. Jardines (11-564) and Missouri v. McNeely (11-1425)), Justice Scalia sided with his more liberal colleagues – this time Justices Ginsburg, Sotomayor, and Kagan – and against procedures implicating Fourth Amendment rights. Writing for the group, Justice Scalia started with what he considered a "categorical" prohibition "at the very heart of the Fourth Amendment" against a suspicionless search of a person for evidence of a crime. When the Court has permitted suspicionless searches in the past, the aims of such searches has always been something other than crime detection – for example, permitting random drug tests of railroad employees in furtherance of the government's need to ensure safety, an interest "distinct from ‘normal law enforcement.'" In no previous case has the Court approved a search "whose primary purpose was to detect evidence of ordinary criminal wrongdoing." To the dissent, the distinction is crucial: "It is only when a governmental purpose aside from crime-solving is at stake" that the Court engages in the reasonableness analysis on which the majority based its decision. The dissent found no such governmental purpose with respect to DNA searches incident to arrest.

To the dissent, the majority's rationale that DNA was being taken not to solve crimes, but to identify those in the State's custody, seemed too clever by half: "If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search." But if "identifying" an arrestee is understood in the normal sense of the word – to determine who an individual is – the DNA search played no role with respect to Mr. King. Under Maryland's law, officers could collect a DNA sample upon arrest, but could not process it until after King was arraigned, three days later: "Does the Court really believe that Maryland did not know whom it was arraigning?" Moreover, King's DNA sample did not reach the lab for testing until nearly three months after his arrest, and was not matched to the cold rape case for several weeks more. King's identity during this time was never questioned. In fact, according to the dissent, the ultimate DNA match did not identify King, but the previously unidentified sample. "No minimally competent speaker of English would say, upon noticing a known arrestee's similarity [to a wanted poster] . . . that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified – just as, here, it was the previously unidentified rapist." The dissent noted, too, that the Maryland statute at issue did not articulate arrestee identification as an objective, while various state officials – and even Justice Roberts, in staying the decision below – had noted the value of arrestee DNA swabs in investigating unsolved crimes, which is not a permissible basis for suspicionless search. To the dissent, "[s]olving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives that the protection of our people from suspicionless law-enforcement searches."

Next up is Hillman v. Maretta (11-1221), in which the Court provided an avenue for forgetful husbands to anger their wives even after death. The Court held that the Federal Employees' Group Life Insurance Act of 1954 ("FEGLIA") preempted a Virginia statute that revoked a divorced spouse's right to a decedent's life insurance benefits.

Before we get to the forgetful husband, a bit of background is necessary. FEGLIA is a federal statute that provides group life insurance for federal employees. Upon an employee's death, FEGLIA benefits are paid in "order of precedence." The proceeds first accrue to the named beneficiary, which the employee may change at any time. The state of Virginia also regulates life insurance. Under Virginia law, a divorce automatically revokes any beneficiary designation to a former spouse. See Virginia Code § 20-11.1(A) ("Section A"). Virginia also enacted a statute to try to prevent preemption: § 20-11.1(D) ("Section D"), which provides that if Section A is preempted, the former spouse is liable for insurance proceeds to whoever would have received them had her designation been revoked.

Now for the husband. Warren Hillman designated his then-wife Judy Maretta as the beneficiary of his FEGLIA policy. Warren and Judy subsequently divorced and, four years later, Warren married petitioner Jacqueline Hillman. Warren, however, forgot to change the beneficiary from Judy to Jacqueline. When Warren died in 2008, the FEGLIA policy administrator refused to pay Jacqueline because Judy was the named beneficiary. Judy received the benefits and Jacqueline sued in state court. The trial court held that Judy was liable to Jacqueline for the full value of the policy under Section D. The Virginia Supreme Court, however, reversed because it found that Section D was preempted by FEGLIA.

Though the Court agreed that Section D was preempted, the Justices filed three different opinions. The majority, led by Justice Sotomayor, held that Section D conflicted with FEGLIA's "purpose and objectives." To ascertain FEGLIA's purpose the Court looked to its two prior decisions involving federal life insurance statutes. First, in Wissner v. Wissner, 338 U.S. 655 (1950), the Court held that the National Service Life Insurance Act—which created a life insurance system for the armed services—preempted California community property law. The Wissner Court held that Congress had spoken that the proceeds belonged to the named beneficiary and no other. In Ridgeway v. Ridgeway, 454 U.S. 46 (1981), the Court held that another life insurance scheme for members of the armed forces—the Servicemen's Group Life Insurance Act ("SGLIA")—preempted a Maine law that placed a constructive trust on insurance proceeds where the decedent had named a beneficiary in order to avoid obligations to a former wife under a divorce decree. The Ridgeway Court held that SGLIA made it clear that the named beneficiary should be paid pursuant to an "order of precedence" and not to the former wife.

Drawing on this precedent, the Court concluded that FEGLIA evinces Congress's decision to grant federal employees unfettered freedom of choice in selecting life insurance beneficiaries, giving highest priority to the insured's named beneficiary. FEGLIA's implementing regulations underscored that the proceeds "belong to the named beneficiary and no other." Section D directly conflicted with this scheme because it deemed that the proceeds "belong" to someone other than the named beneficiary. It made no difference whether the state law required transfer of the proceeds, like Section A, or creates a cause of action, like Section D. In either case, the law displaces the beneficiary selected by the insured under FEGLIA. Moreover, Congress had amended FEGLIA to restrict the freedom of choice in cases involving an attempt to evade obligations arising from divorce settlement agreements. This inclusion of one exception indicated the exclusion of other exceptions.

The Court then rejected Jacqueline's additional arguments. First, Jacqueline argued that unlike the insurance schemes at issue in Wissner and Ridgeway, FEGLIA does not include an anti-attachment provision. The Court noted, however, that those discussions about the anti-attachment provisions were alternative grounds to support the judgments and not part of the holdings. Second, Jacqueline argued that FEGLIA contained an express preemption provision; therefore, the Court could not find conflict preemption. To the contrary, the Court noted, conflict preemption was still applicable to statutes that contain express preemption provisions. Third, Jacqueline argued that employees were permitted to assign policies under FEGLIA, whereas the schemes in Wissner and Ridgeway were unassignable. The Court reasoned that the freedom to assign the FEGLIA policies underscored the statute's purpose of promoting employee choice.

Justice Thomas and Justice Alito each filed separate concurrences. Justice Thomas agreed that FEGLIA preempted the Virginia statute, but argued that the "purposes and objectives" framework of preemption was "illegitimate" and "entirely unnecessary." Thomas maintained that the Court should not "engage in a freewheeling inquiry into whether state law undermines supposed federal purposes and objectives." Nonetheless, Thomas found that FEGLIA's language directly conflicted with the Virginia statute. Justice Alito argued that FEGLIA should only preempt state law if it effectively overrides an insured's actual, articulated choice of beneficiary. Because Section D overrode Warren Hillman's expressed intent, it was preempted. If the insured had expressed a contrary intent, however, Alito thought it unlikely that Congress would want the named beneficiary to retain the funds.

For the last of the decisions, we come to Nevada v. Jackson (12-694). Following on the heels of two pro-prisoner habeas rulings last week, the Supreme Court returned Monday a more familiar routine—summarily reversing a Ninth Circuit issuance of the Great Writ. See e.g., Marshall v. Rodgers (2013) (per curiam); Cavazos v. Smith (2011) (per curiam); Felkner v. Jackson (2011) (per curiam).

In this instance, the Nevada Supreme Court had affirmed Calvin O'Neil Jackson's conviction for the rape of his on-again-off-again girlfriend, notwithstanding his argument that the trial court had erroneously precluded him from introducing extrinsic evidence of the victim's prior unsubstantiated accusations against him. The Nevada Supreme Court applied a state statute that prohibited the introduction of extrinsic evidence of witness conduct to uphold the exclusion. The court had previously carved out an exception to this rule for evidence of prior "fabricated charges" by a witness in sexual assault cases, but Jackson had failed to file written notice of his intent to introduce extrinsic evidence, as required to qualify for the exception. Accordingly, the Nevada Supreme Court upheld the exclusion of the evidence and Jackson's conviction. The District Court denied Jackson's habeas petition, but the Ninth Circuit reversed, holding that the exclusion of the extrinsic evidence—even if required by state statute—violated Jackson's constitutional right to present a complete defense.

In its per curiam reversal, the Court reiterated that "a federal habeas court may overturn a state court's application of federal law only if it is so erroneous that ‘there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.'" Here, the Ninth Circuit had held that the Court's prior decision in Michigan v. Lucas, 500 U.S. 135 (1991), clearly established that a case-by-case balancing of interests was required before an exclusionary rule like Nevada's could be applied, but the Court brushed that interpretation aside with a rather pointed jab at the Ninth Circuit majority: "No fair-minded jurist could think that Lucas clearly establishes that the enforcement of the Nevada rule in this case is inconsistent with the Constitution." Instead, the Ninth Circuit had "collaps[ed] the distinction between an unreasonable application of federal law and what a lower court believes to be an incorrect or erroneous application of federal law." The Court therefore granted the State's cert petition and summarily reversed the Ninth Circuit's judgment.

Finally, the Court granted cert in two new cases for next term:

Lexmark International, Inc. v. Static Control Components, Inc. (12-873) asks whether a party's standing to raise a false advertising claim under the Lanham Act should be determined by "(1) the factors set forth in Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters [(1983)] … (2) the categorical test, permitting suits only by an actual competitor … or (3) a version of the more expansive ‘reasonable interest' test."

And, in U.S. v. Apel (12-1038), the Court will consider whether a person barred from an enclosed military base may be convicted under 18 U.S.C. § 1382 for peacefully protesting on a public road easement outside that base, and whether such a conviction would run afoul of the First Amendment.

Still 20+ decisions to go – we'll be back soon!

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400