Supreme Court Update: Smith v. Bayer Corp. (09-1205), Turner v. Rogers (10-10) and DePierre v. United States (09-1533)

June 23, 2011 Supreme Court Update

Greetings, Court fans!

We're slowly digging our way out of the blizzard of recent decisions. This Update will cover: Smith v. Bayer Corp. (09-1205), regarding the preclusive effect of class certification decisions; Turner v. Rogers (10-10), on the right of indigent defendants to court-appointed counsel in civil contempt proceedings that could result in jail time; and DePierre v. United States (09-1533), on the meaning of "cocaine base."

While the Court's recent decision in Wal-Mart Stores, Inc. v. Dukes (2011) may have made certifying a gigantic class harder in federal court, its decision in Smith v. Bayer Corp. (09-1205) may well encourage those cases to be filed (or re-filed, as the case may be) in state court. As the Seventh Circuit once put it: ours is an "asymmetric system in which class counsel can win but never lose" because they can simply relitigate the class certification issue again and again using different named plaintiffs and different forums. One win trumps all prior losses. That system will certainly continue after Smith, where the Court held that a federal court cannot enjoin a state court from certifying a class under the state's procedural rules even though the class would include the same members and assert the same substantive claims as a proposed class rejected in federal court under Federal Rule of Civil Procedure 23.

McCollin brought a putative class action against Bayer on behalf of a class of West Virginia residents in West Virginia state court. The case was removed based on diversity jurisdiction and the federal district court denied class certification, finding that individualized issues predominated over common issues of fact. Shortly after the McCollin suit was filed, Smith filed a second putative class action against Bayer on behalf of the same putative class and asserting essentially the same claims. But Smith joined nondiverse defendants, which, prior to the Class Action Fairness Act of 2005 ("CAFA"), defeated federal jurisdiction. After the federal court denied McCollin's class certification motion and dismissed his claim on the merits, Bayer asked the court to enter an injunction barring the West Virginia state court from hearing Smith's certification motion. The court entered the injunction and the Eight Circuit affirmed.

The Court unanimously reversed in an opinion by Justice Kagan (though Justice Thomas did not join in one part of the Court's decision). The Court's analysis was simple. The Anti-Injunction Act generally prohibits federal courts from enjoining state court proceedings. The exceptions to that Act, including the "relitigation" exception at issue here, must be construed narrowly and all doubts must be resolved in favor of allowing the state court to proceed. The relitigation exception is premised on the well-recognized concepts of issue and claim preclusion. Here, in order for the district court's decision to have preclusive effect such that an injunction would be permissible, two conditions would need to be met: (1) the district court must have decided the "same issue" as that facing the state court; and (2) the plaintiff in the state court must have been a party to the first case or fall within one of the narrow exceptions that permit nonparties to be bound. The Court found neither condition satisfied. First, the state court was deciding a different issue because while West Virginia's Rule 23 largely tracked the text of Federal Rule 23, it had been interpreted differently and less stringently by the West Virginia courts. Second, an unnamed member of a proposed or rejected class is not a party. Indeed, here, the very decision that Bayer contended should have preclusive effect found that there was no class and therefore Smith could not have been a party. Smith also did not fall within any exception to the rule that only parties can be bound. (Justice Thomas didn't join this part of the decision.) Therefore, the district court's certification decision in McCollin could not have preclusive effect against Smith. Though the Court noted that Bayer raised some compelling policy problems (i.e., expensive serial litigation), altering the rules on preclusion was the not the answer. Principles of stare decisis and comity generally suffice to mitigate against this problem. Additionally, CAFA made removal of these kinds of cases easier and the federal rules allow similar cases to be handled by a single court in an MDL proceeding. Nevertheless, the Court noted that if this is not sufficient to ameliorate the problem of serial class litigation, Congress remains free to modify preclusion principles in this area and the courts remain free to consider a change in the Federal Rules of Civil Procedure to address it as well.

Gideon's trumpet sat out a set when the Court issued its decision in Turner v. Rogers (10-10) on Monday. In a 5-4 decision, the Court held that indigent defendants in civil contempt proceedings relating to child support payments have no automatic right to appointed counsel, even where they face jail time.

Deadbeat dad Michael Turner found himself before South Carolina family courts repeatedly for his failure to make child support payments. State statutes permit those courts to hold parents like Turner in civil contempt and incarcerate them for up to a year if they fall behind on child support and fail to show that they are unable to pay. By the time he arrived for his civil contempt hearing in January 2008, Turner was familiar with the drill: in the preceding five years he had been held in civil contempt five times and imprisoned three, once for six months. In this sixth round, without asking about Turner's ability to pay his arrears or making any specific finding on that subject, the family court found him in civil contempt once again and sentenced him to twelve months imprisonment. Turner appealed, claiming that he was entitled to counsel at the contempt hearing under the federal Constitution. The South Carolina Supreme Court held that civil contempt proceedings did not warrant the constitutional protections required in criminal proceedings and thus rejected Turner's right to counsel claim.

In Monday's decision, the Court first determined that the case was not moot because, although Turner had already completed his prison sentence, the issue was one "capable of repetition yet evading review," as history had already shown. On the merits, Justice Breyer wrote for a five justice majority. Noting that the Sixth Amendment – which guarantees counsel for criminal defendants – extends only to criminal proceedings, the Court concluded that any right to counsel in civil contempt proceedings could only be found in the Fourteenth Amendment's Due Process Clause. To determine what process noncustodial parents in Turner's shoes are due, the Court engaged in the familiar Mathews v. Eldridge procedural due process analysis, considering (1) the nature of the private interest affected; (2) the risk of an erroneous deprivation of that interest absent additional or substitute safeguards; and (3) the nature and magnitude of countervailing interests in not providing the additional or substitute procedural safeguards. Observing that the private interest at issue – freedom from incarceration – was at the core of liberty, the Court held that its threatened loss demanded due process protection. But it stopped short of saying that that protection must include a categorical right to counsel in civil contempt proceedings that could result in jail time. Instead, it found several considerations that militated strongly against finding a right to counsel in every proceeding like Turner's. The most important of these was that "substitute procedural safeguards" are available in the form of (a) notice to the defendant that ability to pay is central to the proceeding; (b) the use of forms to elicit financial information; (c) providing defendants an opportunity to respond to questions about financial status; and (d) an express finding by the court that a defendant is able to pay. These safeguards, the Court reasoned, can assure fundamental fairness even where the state does not provide counsel.

Ultimately, the majority cabined its decision very narrowly, limiting its holding to civil contempt proceedings involving indigent individuals who are subject to child support orders and who face incarceration for up to one year. Such individuals are not entitled to counsel where the opposing parent or custodian to whom child support is owed is not represented by counsel and where the state provides alternative procedural safeguards equivalent to those cited by the Court. The Court expressly did not address cases in which funds are owed to the state itself rather than a custodian, or unusually complex cases where a defendant "can fairly be represented only by a trained advocate." Although it found no general right to counsel, the Court determined that Turner himself received neither counsel nor alternative procedures sufficient to protect his due process rights. Specifically, the family court elicited no evidence and made no finding about Turner's ability to pay his past due child support. As a result, Turner's incarceration violated due process and the Court vacated the decision of the South Carolina Supreme Court.

Justice Thomas dissented and was joined by Justice Scalia; the Chief Justice and Justice Alito joined the dissent in part. The dissent agreed that the case was not moot and that neither the Sixth nor the Fourteenth Amendments categorically entitle defendants like Turner to counsel. But Justice Thomas would have gone further to hold that the Due Process Clause does not provide a right to appointed counsel in civil contempt proceedings under any circumstances. Even where liberty is at stake, the dissent concluded that the Sixth Amendment alone contemplated a right to counsel, and did so only with an eye toward criminal proceedings. According to the dissent, it would be improper to read the more general Fourteenth Amendment to provide a right to counsel that the more specific amendment – the Sixth – does not. The dissent also criticized the majority's Mathews v. Eldridge balancing and its focus on procedural safeguards, an issue not raised by the parties and only injected into the case by the United States, filing a brief as amicus curiae.

Our next decision, DePierre v. United States (09-1533), sits at the intersection of law and chemistry, examining whether the term "cocaine base," as used in the federal drug laws, means cocaine in its "chemically basic form" or exclusively what is known colloquially as "crack cocaine." The drug statutes at issue in DePierre were enacted in 1986 in response to the epidemic rise of crack cocaine. To combat this problem, Congress enacted statutes calling for mandatory minimum sentences for cocaine-related offences, and established a structure that penalized offenses involving "cocaine base" more severely than those involving "cocaine" (i.e., powder cocaine). That is, 5 grams of "cocaine base" was penalized as severely as 100 times that amount of other cocaine-related elements. (This is the so-called 100-to-1 ratio; as a result of recent amendments, the ratio is now closer to 18-1.) Although it was clear that "crack cocaine" was at issue in 1986, Congress did not use that term in the statute.

In 2005, DePierre sold two bags of drugs to an informant. At trial, a government chemist testified that the substance in the bags weighed 55.1 grams (exposing DePierre to a ten year mandatory minimum sentence) and was "cocaine base," but did not contain sodium bicarbonate, an ingredient commonly used to convert powder cocaine into "crack cocaine." DePierre requested that the jury be instructed that in order to convict him it must find that his offense involved "the form of cocaine base known as crack cocaine." Recognizing that "crack" is chemically identical to other forms of cocaine base, DePierre requested the additional charge that although "chemical analysis cannot establish a substance as crack cocaine . . . it can reveal the presence of sodium bicarbonate . . . ." The court refused DePierre's requests, and charged the jury that because the statute refers to "cocaine base," it must determine whether the substance in the bags was "cocaine base." DePierre appealed, and the First Circuit, noting a split in the Circuits, affirmed, holding that "‘cocaine base' refers to ‘all forms of cocaine base, including but not limited to crack cocaine.'"

The Court affirmed, concluding that "cocaine base" means what it says, and is not limited to "crack cocaine." Justice Sotomayor gave a lesson on the chemical make-up of cocaine in its base form (e.g., coca paste, crack and free base), how one turns coca paste into powder cocaine (cocaine in its salt form; not a base) and then back again into "crack" (a base form of cocaine). After noting that cocaine in its base form and salt form are chemically different, the Court turned to the text of the statutes providing mandatory minimum sentences for cocaine-related offense, and concluded that "the most natural reading of the term ‘cocaine base' is ‘cocaine in its base form,'" that is, "the molecule found in crack cocaine, freebase and coca paste." The Court noted the confusion from Congress' use of "the admittedly redundant term ‘cocaine base' to refer to chemically basic cocaine," but excused the error given the need at the time to make clear that the enhanced penalties applied only to "cocaine base," and not to "cocaine," a term that was understood at the time to refer only to powder cocaine.

Among other points, DePierre argued that his interpretation – that is, that "cocaine base" equals crack only – was correct because the U.S. Sentencing Commission defined "cocaine base" as "crack" for Sentencing Guideline purposes. The Court batted this claim away, noting that it has "never held that, when interpreting a term in a criminal statute, deference is warranted to the Sentencing Commission's definition of the same term in the Guidelines." Although the Court's conclusion created "sentencing anomalies" in cases involving non-mandatory minimum drug quantities – e.g., a difference of 10 offense levels for offenses involving 4 grams of "crack" and "cocaine" – the Court noted that "such disparities are the inevitable result of the dissimilar operation of the fixed minimum sentences Congress has provided by statute and the graduated sentencing schedule established by the Guidelines."

Justice Scalia concurred, but wrote to criticize the Court for what he viewed as its unnecessary analysis of the legislative history of the 1986 statutes. The Court had noted that the records of the Congressional hearings suggested that Congress was most concerned with the dangers associated with "crack," but concluded that this did not mean that Congress meant the enhanced penalties to "apply exclusively to crack cocaine offenses." To Justice Scalia, the Court's analysis should begin and end with the statutory text, and the Court's holding would be the same "[e]ven if [the experts] had not lectured an undetermined number of likely somnolent Congressmen on ‘the damaging effects of cocaine smoking on people in Peru. . . ." Justice Scalia believed that the Court's "needless detour into Legislative history" was "not harmless," as it "conveys the mistaken impression that legislative history could modify the text of a criminal statute as clear as this."

That's it for now. As always, thanks 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