Supreme Court Update: Perry v. Perez (11-713), Maples v. Thomas (10-63), Golan v. Holder (10-545), Mims v. Arrow Financial Services, LLC (10-1195) and Order List

January 23, 2012 Supreme Court Update

Greetings, Court fans!

The Court issued two newsworthy decisions last week. First, in Perry v. Perez (11-713), the Texas redistricting case, the Court issued a per curiam opinion throwing out the District Court's proposed interim redistricting plan. Second, in Maples v. Thomas (10-63), the Court (in a surprising 7-2 decision) gave death row inmate Cory Maples another bite at the apple after his pro bono Sullivan & Cromwell attorneys effectively abandoned him and caused him to miss his deadline to appeal the denial of his state post-conviction petition. The Court also released decisions in: Golan v. Holder (10-545), upholding the extension of copyright protection in this country to certain works that were still protected in their country of origin but had been in the public domain in the United States, and Mims v. Arrow Financial Services, LLC (10-1195), finding that district courts have jurisdiction to hear claims by private individuals under the Telephone Consumer Protection Act.

Last Friday in Perry v. Perez (11-713), the Court sent the District Court back to the drawing board – with orders to give more deference to the redistricting plans drawn by the Texas legislature. After the 2010 census, which showed that Texas had huge population gains, Texas had to redraw its electoral districts for Congress, the State Senate, and the State House of Representatives. Because Texas is a "covered jurisdiction" (read: historical baddie) under Section 5 of the Voting Rights Act of 1965, changes must receive preclearance from a three-judge district court in D.C. or the Attorney General. Texas submitted its plans, drawn by the State legislature, to the D.C. District Court, where they remain pending. Meanwhile, advocacy groups filed suit in the District Court for the Western District of Texas, arguing that the legislature's plans would discriminate against Latinos and African Americans. That court withheld judgment pending resolution of the preclearance process in the D.C. District Court. With Texas' 2012 primaries set for April 3, however, it was compelled to create an interim plan.

As a general rule, courts redrawing district lines by judicial order must be guided by the legislative policies underlying an enacted state plan "to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act. Even plans that have not received preclearance under Section 5 of the Act must serve as a "starting point." The Court announced two new standards for balancing deference to state determinations with concerns about constitutional violations. First, where a state's plan faces challenges under the Constitution or Section 2 of the Act, district courts should be guided by that plan, except to the extent those legal challenges are shown to have a "likelihood of success on the merits." In cases where a state has sought preclearance from the D.C. District Court under Section 5 of the Act, however, other courts must take care not to prejudge the merits of the preclearance proceedings. In those cases, courts drawing interim plans must be guided by the state's policy judgments unless they reflect aspects of the state plan that "stand a reasonable probability of failing to gain § 5 preclearance," meaning that the Section 5 challenge is "not insubstantial." Because it was unclear whether the District Court for the Western District of Texas had applied those standards here, the Court remanded for further proceedings. Query whether the District Court will be able to develop an interim plan that can avoid or survive further challenges – or whether the Court can or will hear them – before the upcoming primaries.

Justice Thomas concurred in the judgment only, reiterating his previously expressed view that Section 5 of the Voting Rights Act is unconstitutional. Thus, he would have Texas' "duly enacted" plans govern the upcoming elections entirely.

Relatedly last Friday, in a West Virginia redistricting case, Tennant v. Jefferson Cty. Comm'n (11A674), the Court issued a stay that effectively permits West Virginia to use a plan that has been declared unconstitutional by a three-judge District Court in that state's upcoming primaries, while the District Court's decision is being appealed to the Court.

Maples v. Thomas (10-63) presented the sad tale of pro bono legal services gone horribly awry. Cory Maples was found guilty of murder and sentenced to death in Alabama state court. Alabama does not provide death row defendants with public defenders for purposes of filing post-conviction proceedings, but instead relies on "the efforts of typically well-funded out-of-state volunteers." Two associates from Sullivan & Cromwell signed on to assist Maples, and filed a state habeas petition on Maples' behalf. While Maples' petition was pending, both attorneys left Sullivan & Cromwell for government positions. They didn't tell Maples, or the court, or local counsel. After their departure, the state court denied Maples' post-conviction petition. Notice of the decision was sent to Sullivan & Cromwell . . . where the mail room proceeded to return it to sender unopened since the attorneys were no longer there! Notice was also sent to local counsel, who assumed the Sullivan & Cromwell attorneys were handling it. The end result of all of this bumbling was that Maples did not find out about his deadline to appeal until it was too late. A month after the deadline, the Alabama Assistant AG handling the post-conviction proceedings sent Maples a letter directly letting him know that his time to appeal had expired and that he had only four weeks remaining to file a federal habeas petition. Assisted by other attorneys at Sullivan & Cromwell, Maples tried to get the trial court to reissue its order or obtain leave to file an out-of-time appeal, but the Alabama courts showed no mercy. Maples then filed a federal habeas petition, but the District Court denied the petition. The District Court found that Maples had procedurally defaulted on his claims by failing to timely appeal the state habeas petition, and that the ineffectiveness of his postconviction appellate counsel did not qualify as "cause" to excuse the default. The Eleventh Circuit affirmed.

The Court reversed, in an opinion by Justice Ginsburg that was joined by all of the Justices except Scalia and Thomas. In general, a federal court will not entertain a state prisoner's habeas claim if a state court has declined to hear it because of the prisoner's failure to meet a state procedural requirement and the state judgment rests on independent and adequate state procedural grounds. An exception is made where the state prisoner can establish "cause" for his procedural default and "actual prejudice" from the alleged violation of federal law. Under Coleman v. Thompson (1991), a client is bound by the acts of his attorney, even if those actions are negligent, because the attorney is the client's agent; thus, an attorney's negligence will not constitute "cause." The Court did "not disturb that general rule," but found that a "markedly different situation" was presented in Maples' case. Maples' counsel had abandoned him without notice, severing the agency relationship. Local counsel had long ago informed the Sullivan & Cromwell associates that (contrary to the state's practice rules) his participation in the case would be limited to getting the associates admitted pro hac vice. And no other Sullivan & Cromwell attorney had entered an appearance for Maples in Alabama. Under these circumstances, Maples could not fairly be held accountable for the actions of his former counsel – actions which caused Maples not to receive actual notice of the denial of his petition for post-conviction relief until after the deadline to appeal had expired. This constituted cause. As for "actual prejudice," that issue will be addressed on remand.

Justice Alito wrote a separate concurring opinion merely to note that this situation was not a "predictable consequence" of Alabama's unique system of pro bono representation for death row prisoners, but a "veritable perfect storm of misfortune."

Justice Scalia, joined by Justice Thomas, dissented. Maples had no constitutional right to counsel at all in connection with his state habeas petition. Where the client has no right to counsel, "the client bears the risk of all attorney errors made in the course of representation, regardless of the egregiousness of the mistake." The dissenters agreed that abandonment could sever the agency relationship between attorney and client and that the actions of the Sullivan & Cromwell associates in fact severed their relationship with Maples. However, the dissenters viewed Maples as having an attorney client relationship with the firm, not just the two associates who left. In addition, Maples was also represented by local counsel, whose involvement should have, at a minimum, included tracking local orders and advising other counsel of impending deadlines. The negligence of Sullivan & Cromwell and local counsel was attributable to Maples and thus the lower courts properly found his habeas petition procedurally barred. The dissenters feared that the majority's opinion only gave future habeas petitioners a roadmap for evading the rule that ineffectiveness of postconviction counsel does not constitute cause to excuse procedural default: "The trick will be to allege, not that counsel was ineffective, but rather that counsel's ineffectiveness demonstrates that he was not a genuinely representative agent."

Golan v. Holder (10-545) considered a challenge under both the First Amendment and the Copyright Clause to § 514 of the Uruguay Round Agreements Act (URAA). Section 514, enacted in 1994, granted copyright protection to works created in member countries of the Berne Convention for the Protection of Literary and Artistic Works, which the United States joined in 1989. Its effect was to extend copyright protection to works that enjoyed copyright protection in their countries of origin but that previously had been in the public domain in this country. Petitioners – orchestra conductors, musicians, publishers, and others who had previously enjoyed free access to the newly protected works – claimed that § 514 ran afoul of both the Constitution's Copyright and Patent Clause and the First Amendment. In their view, once a work entered the public domain, for any reason, it must stay there. The Tenth Circuit disagreed, and the Supreme Court affirmed.

Writing for a six justice majority (Justice Kagan did not participate), Justice Ginsburg took on the Copyright Clause challenge first. Article I, § 8, cl. 8 states that "Congress shall have Power . . . [t]o promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings." The majority did not see this as an "impenetrable barrier" to the extension of copyright protection to writings in the public domain.

First, they rejected the idea § 514 ran afoul of the clause's reference to "limited Tim[e]." The 2003 decision in Eldred v. Ashcroft, 537 U.S. 186, disposed of the issue. In Eldred, the Court held that Congress did not violate the Copyright Clause when it extended the terms of existing copyrights by 20 years, and refused to infer that "the command that a time prescription, once set, becomes forever ‘fixed' or ‘inalterable.'" Instead, Eldred instructed that "limited" means "confine[d] within certain bounds," "restrain[ed]," or "circumscribed." Copyright protection restored under § 514 is limited in exactly the same way as protection afforded to U.S. copyright holders: to the life of the author plus 70 years. The majority also noted several historical instances in which Congress had extended copyright protection to works in the public domain.

Second, the majority rejected petitioners' claim that § 514 did not "promote the Progress of Science" because it did nothing to encourage the creation of new works. Again citing Eldred, the Court explained that every copyright provision need not induce new works, and that inducing dissemination – by adherence to the Berne Convention, for example – may also promote science.

The majority also rejected petitioners' First Amendment challenge, holding that extending copyright protection did not violate the free expression rights of those who had enjoyed free use of the works in question while they had been in the public domain. Section 514 did nothing to undermine First Amendment protections "embodied in the Copyright Act's distinction between copyrightable expression and uncopyrightable facts and ideas," and in the Act's fair use defense. Thus, as in Eldred, there was no basis for heightened review. The majority was not troubled by the fact that Petitioners would have to pay royalties for the use of works they had previously used for free; under § 514, such works – Justice Ginsburg cited Prokofiev's Peter and the Wolf as an example – would simply enter the same marketplace that exists for competing works by U.S. artists – Copeland and Bernstein, for example – that are used or performed regularly despite their copyright protection. In the end, "Congress determined that U.S. interests were best served by our full participation in the dominant system of international copyright protection." In enacting § 514 in pursuit of those interests, it did not overstep its constitutional bounds.

Dissenting, Justice Breyer – joined by Justice Alito – concluded that § 514 violated the Copyright Clause because it failed to "promote the Progress of Science" by doing nothing to "encourage anyone to produce a single new work," as it "bestows monetary rewards only on owners of old works – works that have already been created and already are in the American public domain." According to Justice Breyer, "[t]he possibility of eliciting new production is, and always has been, an essential precondition for American copyright protection" – an argument he bolstered with a history of early colonial copyright statutes and their English predecessors, as well as American legislative history and Supreme Court precedent. According to the dissenters, § 514 not only does not encourage new production, but also restricts dissemination of works by imposing costs – costs that might price school orchestras and nonprofit organizations out of the market or might impose unjustifiable administrative hurdles to securing permission to use so-called "orphan works" whose owners are not easy to find. In the dissenters' view, Congress, in enacting § 514, overstepped the limits imposed by the Copyright Clause. Although he stopped short of determining whether § 514 violated the First Amendment or not, Justice Breyer also found that "the First Amendment interest is important enough to require courts to scrutinize with some care the reasons claimed to justify the Act in order to determine whether they constitute reasonable copyright-related justifications for the serious harms, including speech-related harms, which the Act seems likely to impose." In the end, "[t]he fact that, by withdrawing material from the public domain, the statute inhibits an important preexisting flow of information is sufficient, when combined with the other features of the statute . . . to convince [the dissenters] that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute."

Finally, in Mims v. Arrow Financial Services, LLC (10-1195), the Court concluded that federal courts have jurisdiction to hear suits by private individuals under the Telephone Consumer Protection Act of 1991 (TCPA) – the birth mother of the Do Not Call List. (Three cheers for that beautiful list!) The TCPA bans certain invasive telemarketing practices and provides a variety of enforcement mechanisms, including suits by State attorneys general, which must be brought "exclusively in the U.S. district courts," and private actions, which may be brought "in an appropriate court of [a] State," if such actions are "otherwise permitted by the laws or rules of court of [the] State." The Eleventh Circuit, siding with the majority of circuits that had addressed the issue, found that the TCPA vested only State courts with jurisdiction over lawsuits brought by private individuals. Proving that there is no such thing as strength in numbers when you're before the Supreme Court, all nine Justices disagreed.

Justice Ginsburg wrote for the Court, explaining that actions under the TCPA clearly fall within the district courts' "federal question" jurisdiction under 28 U.S.C. § 1331 because such actions "arise under" the "laws . . . of the United States." There is a strong presumption that State and federal courts have parallel jurisdiction over federal question cases. Accordingly, district courts have § 1331 jurisdiction over private TCPA claims unless the TCPA expressly or by fair implication divests them of such jurisdiction. No such conclusion can be reached. While the TCPA gives permissive jurisdiction to State courts over private causes of action, that alone is insufficient to establish that Congress intended that jurisdiction to be exclusive. Moreover, given that State attorneys general can bring claims "exclusively" in federal courts, there was good reason for Congress to point out that the same was not true for private claims under the TCPA and that State courts can still exercise jurisdiction over those claims.

The Court has also granted cert in three more cases:

The Merit Systems Protection Board (MSPB) hears appeals by federal employees regarding certain adverse actions, including dismissals. When a federal employee claims that the challenged action was the result of unlawful discrimination, the claim is referred to as a "mixed case." Kloeckner v. Solis (11-184) asks: which court has jurisdiction if the MSPB decides a mixed case without determining the merits of the discrimination claim -- the Court of Appeals for the Federal Circuit or a district court?

United States v. Bormes (11-192) asks whether the "Little Tucker Act, 28 U.S.C. § 1346(a)(2), waives the sovereign immunity of the United States with respect to damages actions for violations of the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq."

Cavazos v. Williams (11-465) asks whether a habeas petitioner's claim has been "‘adjudicated on the merits' for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim."

And the Court has invited the SG to weigh in on the following cert petitions:

Los Angeles Cty. Flood Control v. Natural Resources (11-460), which would ask: (1) Do "navigable waters of the United States" include only "naturally occurring" bodies of water so that construction of engineered channels or other man-made improvements to a river as part of municipal flood and storm control renders the improved portion no longer a "navigable water" under the Clean Water Act?; and (2) When water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a "discharge" from an "outfall" under the Clean Water Act, notwithstanding this Court's holding in South Florida Water Management District v. Miccosukee Tribe of Indians (2004), that transfer of water within a single body of water cannot constitute a "discharge" for purposes of the Act?

Section 1610 of the Foreign Sovereign Immunities Action (FSIA) sets forth the circumstances in which property of a foreign state "shall not be immune" from prejudgment attachment or execution in satisfaction of a judgment; Section 1611 restores immunity to property of a "foreign central bank or monetary authority held for its own account" unless the bank or its government has waived its immunity. EM Ltd. v. Argentina (11-604) would ask: When a central bank has been adjudicated to be the alter ego of a foreign state that has waived immunity from attachment and execution, does Section 1611 of FSIA immunize the assets held in the name of that bank?

The Court apparently did not allow itself to be distracted by the "Occupy the Courts" protests last Friday – issuing four more decisions first thing this morning. We'll be back soon with those decisions. Until then, thanks, as always, for reading!

Kim & Jenny

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