Supreme Court Update: Snyder v. Phelps (09-751), Henderson v. Shinseki (09-1036) and Michigan v. Bryant (09-150)

March 8, 2011 Supreme Court Update

Greetings, Court fans!

We're back with three more decisions. The most newsworthy came in Snyder v. Phelps (09-751), where a nearly unanimous Court found that a grieving father's tort claims against protesters at his military son's funeral were barred by the First Amendment. A far less publicized, but practically important ruling came in Henderson v. Shinseki (09-1036), which further clarified the distinction between jurisdictional and claim processing rules. Finally, in Michigan v. Bryant (09-150), the Court held that the statements of a mortally wounded gunshot victim could be admitted at trial without violating the defendant's Sixth Amendment rights.

We'll start with the most controversial decision, Snyder v. Phelps (09-751). The Westboro Baptist Church members involved in the protest at issue in that case apparently believe that the United States is doomed by, among other things, its tolerance for gays (particularly in the military) and that American soldiers are killed by God as a result. For over 20 years, they have protested at military funerals. In this case, they traveled to the funeral of Marine Lance Corporal Matthew Snyder, and protested in a location specified by police on public land approximately 1000 feet from the Church where the funeral was held. They held up signs, such as "Fags Doom Nations," "Thank God for Dead Soldiers," "You're Going to Hell," "God Hates You," "Priests Rape Boys" and "America is Doomed." Prior to the protest, they put out a press release to ensure they would get publicity. After the funeral, Snyder's father filed a diversity action in federal court asserting state law claims including intentional infliction of emotional distress, intrusion upon seclusion and civil conspiracy. A jury awarded Snyder millions in compensatory and punitive damages. But the Fourth Circuit reversed and granted judgment as a matter of law, concluding that the First Amendment protected the protesters' speech.

In an 8-1 decision authored by Chief Justice Roberts, the Court agreed. The Court focused on the crucial distinction between speech on matters of public concern (which is given special protection) and speech on private matters. Here, the Court found that notwithstanding the location of the protest, which was private but was chosen to heighten publicity, the speech at issue dealt with "broad issues of interest to society at large," such as the political and moral conduct of the nation, the conduct of the Catholic Church, and the issue of homosexuality in the military. The protesters conducted their activities on public land where "they had a right to be," in a peaceful manner, and did not interfere with the funeral activities. And the evidence demonstrated that the protesters were espousing honest beliefs they had held for decades that were not specific to Snyder or Snyder's funeral. While a few of the signs might have been interpreted as containing messages aimed at Snyder specifically, "that would not change the fact that the overall thrust and dominant theme . . . spoke to broader public issues." Therefore, the First Amendment protected the protesters from the state law tort claims at issue here. The Court did note, however, that its ruling was specific to the precise facts in front of it and also that States might be able to enact reasonable content-neutral time, place and manner restrictions on picketing near funerals. Justice Breyer concurred to emphasize the narrow nature of the decision, which involved "picketing in a place where picketing was lawful" and where the picketing could not be seen or heard from the funeral ceremony itself.

Justice Alito was the lone dissenter. He did not agree with the majority's premise that this was speech on a matter of public concern. First, Matthew Snyder was a private figure. Second, an ordinary observer likely would believe the signs were directed at Snyder (implying that he was gay and would go to hell). After the protest, the Westboro picketers confirmed their private attack by posting an online account about their protest that focused very specifically on Snyder and his family (a post the majority refused to address because it wasn't mentioned in the petition for cert). Third, the speech occurred in the context of a private event, which the protesters turned into a media circus. To the extent that some matters of public concern were raised by the picketers, Alito "fail[ed] to see why actionable speech should be immunized simply because it is interspersed with speech that is protected." He would have found that the speech (like "fighting words") was unprotected and permitted the verdict to stand.

Next, in Henderson v. Shinseki (09-1036), the Court followed up on its line of recent decisions clarifying the distinction between "claims processing" and "jurisdictional" rules, this time in the context of an appeal from the Board of Veterans' Appeals ("Board") to the Court of Appeals for Veterans Claims ("Veterans Court"). The Veteran's Judicial Review Act ("VJRA"), which established the Veterans Court, an Article I tribunal, also provided that an appeal to that court must be taken within 120 days of the date that the Board's final decision was mailed. Henderson, who had been previously diagnosed with paranoid schizophrenia, filed a claim for supplemental disability benefits. The claim was denied by the VA regional office and then by the Board. Henderson appealed to the Veterans Court, but missed the 120 deadline, apparently due to his illness. The Veterans Court initially dismissed the appeal as untimely but then granted reconsideration based on equitable tolling. However, while Henderson's case was pending, the Court decided Bowles v. Russell (2007), which held that the time limit to file a notice of appeal in an ordinary civil case was jurisdictional and therefore could not be excused based on equitable factors. Following Bowles, the Veterans Court dismissed Henderson's appeal and the Federal Circuit, in a divided en banc opinion, affirmed.

In an 8-0 decision penned by Justice Alito (Justice Kagan did not participate), the Court reversed. The Court explained that the distinction between mandatory claims processing rules and jurisdictional rules is "not merely semantic," since jurisdictional rules cannot be waived and can be raised at any time (even after trial) and must be raised and addressed by a court sua sponte if not raised by the parties. Therefore, it is important to distinguish between the two different types of rules (which the Court admittedly didn't do very well until recently) and only declare a rule as jurisdictional when Congress truly intended it to go to the Court's adjudicatory capacity. Filing deadlines are "quintessential claim-processing rules," but that is not the end of the analysis because Congress certainly can attach jurisdictional significance to a filing deadline if it chooses to do so. Courts therefore must look to the structure, content, and context of the actual rule. Here, the 120 deadline for filing an appeal to the Veterans Court bore none of the hallmarks of a jurisdictional rule. It did not speak in jurisdictional terms and was not placed in the section of the VJRA regarding jurisdiction. In addition, the appeal involved was to an Article I tribunal, rather than an Article III court. And most critically, the structure of the veterans benefits process is designed to place a thumb on the scale favoring the veteran. For example, there is no initial deadline to file a claim and a claim can be reopened at any time based on new evidence. "Rigid, jurisdictional treatment" of the 120 day appeal period would not be consistent with this structure. Finally, the Court relied on the "long applied" canon of statutory construction that benefits to members of the Armed Services are to be construed in the beneficiaries favor (seriously, this is an actual canon of construction). The Court declined to address, however, just how mandatory the 120 day filing deadline was, whether it was subject to equitable tolling, and whether the facts warranted tolling in this instance. Those issues were left for remand.

Last, in Michigan v. Bryant, police officers arrived at a gas station to find Anthony Covington bleeding from a gunshot wound to his abdomen. The officers spoke to Covington for 5 to 10 minutes before an ambulance arrived. In response to their questions, Covington said that he had had a conversation with "Rick" through the back door of Rick's house several blocks away, and that Rick had shot him through the door as he turned to leave. The police went to the defendant, Richard Bryant's, house. Bryant was not there, but they found a bullet and blood on the back porch and an apparent bullet hole in the back door. They also found Covington's wallet and identification outside the house. Covington died within hours of the shooting. Bryant was arrested over one year later in California. At trial, the officers testified about what Covington had told them, and Bryant was convicted of second-degree murder and related gun charges. After a couple rounds of appeal in the Michigan courts, the Michigan Supreme Court overturned the conviction, on the ground that Covington's statements to the police were testimonial in nature, and therefore inadmissible under the Confrontation Clause of the Sixth Amendment.

The Court reversed, 6-2, with Justice Kagan sitting out again. Justice Sotomayor wrote for the Court. The Confrontation Clause of the Sixth Amendment guarantees a defendant's right to be "confronted with the witnesses against him." Although earlier cases suggested that statements could be admissible so long as they were reliable, in Crawford v. Washington (2004) the Court held that "testimonial" statements were admissible only if the witness were unavailable and the defendant had a prior opportunity for cross examination. Two subsequent decisions clarified the meaning of "testimonial" statements. In Davis v. Washington (2006), the Court held that statements made to a 911 operator by a domestic violence victim while she was being attacked were not testimonial, because they described events as they were happening, were informal, and were elicited to resolve an ongoing emergency. In Hammon v. Indiana (2006), the Court held that statements made by a domestic violence victim after police arrived at the scene and kept her husband in another room were testimonial, because the emergency was no longer in progress. Turning to this case, the Court found that Covington's statements were not testimonial because, based on an "objective analysis" of the "circumstances of the encounter and the statements and actions of the parties to it," the primary purpose of the statements was to enable police to meet an ongoing emergency. The Michigan Supreme Court had determined that there was no ongoing emergency because there was no immediate threat that Bryant would continue to assault Covington. The Court rejected that view of emergency as too narrow: the threat to first responders and the public must also be considered. Davis and Hammon had focused on the threat to the victims because domestic violence cases have a "narrower zone of potential victims." Here, Covington did not explain why Bryant had shot him, and the police could not be sure whether other victims were at risk. The risk was exacerbated by the suspect's use of a gun, and how severely he had injured Bryant. The questions the officers asked Covington – what had happened, who had shot him, and where it occurred – were exactly the type of questions necessary to allow them to assess the situation and meet an ongoing emergency. Finally, the informality of the situation and the interrogation, with officers arriving at different times and asking overlapping questions, suggested that neither they nor Covington were focused on the future prosecutorial use of his statements.

Justice Thomas concurred in the judgment only. In determining whether an out-of-court statement is "testimonial," he would consider only whether the interrogation resembled the historical practices that the Confrontation Clause addressed. Because the highly informal circumstances in this case bore no resemblance to those historical practices, Justice Thomas agreed that Covington's statements were not testimonial. But he continued to reject the Court's "primary purpose" test as an "‘exercise in fiction' that is ‘disconnected from history' and ‘yields no predictable results.'"

Justices Scalia and Ginsburg wrote separate dissenting opinions. In Justice Scalia's view, courts should focus solely on the declarant's intent. Here, when Covington made the statements to police, he could not have possibly feared that Bryant would continue to assault him while he was surrounded by police officers. Further, according to Justice Scalia, Covington knew that Bryant was a drug dealer, and not a spree killer who might randomly threaten others. Thus, Covington understood that the officers were focused on investigating a past crime, and answered their questions with that understanding. Justice Scalia criticized the majority's consideration of questioners' motives as unsupported and unwieldy. But if one were to consider the questioners' motives in this case, Justice Scalia believed that it would only underscore the testimonial nature of Covington's statements. None of the officers' actions indicated that they perceived an imminent threat. Indeed, one officer candidly testified that he interrogated Covington because Covington was dying, and the officer wanted to find out who was responsible. Scalia worried that the Court, by defining an ongoing emergency so broadly, had "create[d] an expansive exception to the Confrontation Clause for violent crimes," allowing prosecutors to use without cross-examination any statements obtained in the first hours of an investigation.

Justice Ginsburg agreed with Scalia, and wrote to highlight an issue that the Court did not reach. In Crawford, the Court suggested, but did not decide, that dying declarations, even if testimonial, might be admissible as a historical exception to the Confrontation Clause. The Court did not have occasion to reach the issue in this case because the prosecution only established that Covington's statements met the excited utterance exception to the hearsay rule. If the prosecution had preserved the dying declaration argument, Justice Ginsburg would have taken up the question of whether that hearsay exception survives the Court's recent Confrontation Clause decisions.

We'll be back again soon with additional decisions.

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