Supreme Court Update: Williams v. Pennsylvania (15-5040), Dietz v. Bouldin (15-458), Simmons v. Himmelreich (15-109) and Ross v. Blake (15-339)
Greetings, Court Fans!
Though the Puerto Rican Day Parade marched down Fifth Avenue Sunday, the Commonwealth was getting much less love on One First Street. Yesterday morning, in Puerto Rico v. Franklin California Tax-Free Trust (15-233), the Court held that Puerto Rico is a "State" under the Bankruptcy Code, with the result that a statute it enacted in response to its ongoing fiscal crisis is preempted by the Code. But last week, in Puerto Rico v. Sanchez Valle (15-108), the Court held that Puerto Rico is not a State for purposes of "separate sovereign" analysis, meaning that the Double Jeopardy Clause precludes it from successively prosecuting an individual for the conduct previously prosecuted by the United States. We'll leave the bankruptcy case (along with two others decided this morning) for next time. This Update will cover Sanchez Valle and the remaining decisions from last week: Williams v. Pennsylvania (15-5040), on judicial recusal; Dietz v. Bouldin (15-458), on a federal judge's power to recall a dismissed jury; Simmons v. Himmelreich (15-109), on the scope of the Federal Tort Claims At vis a vis prisoner litigation; and Ross v. Blake (15-339), on the Prison Litigation Reform Act's exhaustion requirement. We've got a lot to cover, so let's get right to it.
While Puerto Rico has sufficient sovereignty to field its own international soccer team (viva El Huracán Azul!), the Court held in Sanchez Valle that it is not a "separate sovereign" for purposes of the Double Jeopardy Clause, which means the U.S. and Puerto Rico may not successively prosecute a person from the same conduct under equivalent criminal laws.
As the Court did, we must first deal with "the grittier precincts of criminal law" before getting to the "lofty sphere of constitutionalism." Sanchez Valle involved the consolidated appeals of two defendants, each of whom sold a gun to an undercover police officer in Puerto Rico. The Commonwealth's prosecutors indicted each for, among other things, selling a gun without a permit. The federal government followed suit, and each was charged under analogous federal gun trafficking laws. The defendants pled guilty to the federal charges, and then moved to dismiss the pending Commonwealth charges on double-jeopardy grounds. The trial court dismissed the Commonwealth's case under the Double Jeopardy Clause, the Puerto Rico Court of Appeals reversed, and the Supreme Court of Puerto Rico ultimately agreed with the trial court, finding that, because Puerto Rico's power to prosecute "derived from the United States Congress," it was not a "separate sovereign" for purposes of the Double Jeopardy Clause.
The Supremes affirmed in a decision penned by Justice Kagan and joined by everyone but Justices Breyer and Sotomayor. All agreed that the Double Jeopardy Clause ordinarily prevents a person from twice facing prosecution for the same offense. They also agreed that the Double Jeopardy Clause does not apply where two separate sovereigns have brought the prosecutions, even if the prosecutions were for the same offense. And all agreed that "sovereignty" in the context of double jeopardy ignored the common indicia of sovereignty—such as the extent of control one entity yields over another, the degree of self-governance, or the right to field an Olympic team—but rather focused exclusively on the source of "ultimate power" for the authority to prosecute.
Where the majority and dissent differed was over the actual source of Puerto Rico's "ultimate power" to prosecute. According to the majority, even though the Puerto Rican Constitution, ratified in 1952, states that the Commonwealth derives its authority from "the people," the island's "wellspring of authority" came from the U.S. government. Unlike States or Indian tribes, Puerto Rico never had independent authority that pre-existed the formation of the United States. It was a Spanish colony, prosecuting crimes by the authority of the Spanish crown, until 1898, when the Rough Riders took it for the U.S. While the U.S. gave the island increasing degrees of autonomy throughout the first half of the Twentieth Century, even the "transformative constitutional moment" in the early 1950s did not change the original source of Puerto Rico's power. Although its Constitution said that Puerto Rico drew its power from the Puerto Rican people, the ultimate source of its power to prosecute remains the U.S. Congress. After all, the Puerto Rican Constitution could not have been ratified without Congress's approval. Justice Kagan rationalized that, by allowing the Constitution, Congress was merely exercising its power under the Territory Clause in an inventive way. Congress has many powers, Justice Kagan wrote, but "[i]t has no capacity, no magic wand or airbrush, to erase or otherwise rewrite its own foundational role in conferring political authority." Accordingly, both Puerto Rico and the United States draw their power from the same source, meaning the Double Jeopardy Clause bars successive prosecutions.
Justice Breyer dissented, joined by Justice Sotomayor (who wrote a student note on Puerto Rican sovereignty). The dissenters found fault with the majority's historical analysis, arguing that attempting to trace the line between current and ultimate power is a fool's errand. We do not trace the U.S. government's power back to "the English Parliament or to William the Conqueror or King Arthur." And we likewise do not trace Puerto Rico's power back to "Spain or to Rome or to Justinian." That's because we recognize that something has broken the chain—something akin to independence. For example, we recognize the Philippines as independent even though the ultimate source of that independence was Congress. The same is true for the States that entered the Union after 1787: It takes an act of Congress to allow those states to join the Union and create their own constitutions. And it is only by dint of congressional forbearance that Indian Tribes have retained their sovereignty; Congress has the power to take away that power. In Breyer's view, the Puerto Rican Constitution, dependent as it may have been on Congressional solicitude, created a new source of power, including a new and distinct source of prosecutorial power, permitting a successive prosecution in these cases.
Though the Justices sparred most over the scope and sources of Puerto Rican sovereignty, two short concurrences raised two additional interesting topics for future cases. First, Justice Ginsburg, joined by Justice Thomas, took the opportunity to call for fresh examination of the "separate sovereign doctrine." The Double Jeopardy Clause is supposed to shield individuals from harassment from multiple prosecutions, but the separate-sovereigns doctrine "hardly serves that purpose." A final judgment in a criminal case should preclude "renewal of the fray anyplace in the Nation," just as it does in the civil context. Ginsburg therefore called for a renewed challenge in "a future case in which a defendant faces successive prosecutions by parts of the whole USA." In addition to joining Ginsburg's concurrence, Justice Thomas penned a paragraph of his own taking the opportunity to reiterate his concerns about the Court's precedents regarding tribal sovereignty, which he believes rest on the inherently contradictory assumptions that Congress can regulate virtually all aspects of tribal life and yet tribes retain the sovereign power to prosecute.
Next up, in Williams v. Pennsylvania (No. 15-5040), the Court extended the circumstances when judicial recusal of a state-court judge is required as a matter of due process under the Fourteenth Amendment. Terrance Williams committed a murder in 1984 and was convicted and sentenced to death. His conviction and sentence survived a direct appeal and multiple state and federal habeas petitions. Many years later, his accomplice disclosed new information that led, in 2012, to another petition for post-conviction relief; and the state trial court, following an evidentiary hearing, found a Brady violation and other prosecutorial improprieties and ordered a stay of execution and a new sentencing hearing. The State appealed. At the outset of that appeal, Williams moved for Chief Justice Ronald D. Castille to recuse himself, because Castille had, nearly 30 years earlier as District Attorney, signed off on the state prosecutor's memo recommending pursue of the death penalty. Chief Justice Castille denied the request without explanation and declined to refer the motion to the full Court, which proceeded to reverse the trial court's Brady holding and reinstate the death sentence.
By a 5-3 vote, the U.S. Supreme Court reversed the state high court and ordered it court to rehear and issue a fresh, new decision on the State's appeal. Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, concluded that Castille's participation in the appellate deliberations and decision violated Williams's due process rights, because Castille's approval of the death penalty recommendation as District Attorney created an impermissible risk of actual bias when asked as an appellate judge to sit in judgment of the prosecutor's conduct. The risk arose because Castille had significant, personal involvement in the prosecutor's office regarding Williams's case. Justice Kennedy acknowledged that the Court's due process precedents did not directly address the question of recusal where a judge had prior involvement in the prosecutor's office, but believed this was a necessary extension of the due process analysis in the 2009 Caperton decision—also authored by Kennedy—concerning a judge who sat on a case where the party's CEO had contributed large sums to get the judge elected. Although due process guarantees an absence of actual bias, the Court employed an objective test, asking whether the average judge in the situation is likely to be neutral or the situation instead raises a serious question whether the judge, even with diligent effort, could set aside personal interest in the outcome. The Court thought that Castille's decision to pursue the death penalty, even if it was a long time ago, and just one of many decisions in the Williams case made by a large office, was hardly a perfunctory decision requiring little investment of personal effort, and Castille would likely view the latest habeas challenge as an attack on his own former office. Also, Castille had touted his pursuit of the death penalty in his election campaign. The Court concluded that its due process analysis would have a small impact on the judiciary, because state ethics rules largely were more stringent than what due process sets as a floor (perhaps implying that Castille should have recused under state law without the need to invoke due process).
All that said, Castille's vote was only one in a unanimous Pennsylvania Supreme Court decision. Nevertheless, Justice Kennedy wrote for the majority that the error was structural and not subject to harmless-error analysis. The participation of a potentially partial judge on an appellate panel taints the entire process and decision, as it cannot ever be known how much influence that judge had on the full court. While that earlier influence cannot be entirely erased, Williams is entitled to appellate reconsideration without the participation of Castille (who, in any event, is no longer on the state court, having reached the mandatory retirement age).
The same justices who dissented in Caperton (minus the late Justice Scalia) dissented again here. The Chief Justice, joined by Justice Alito, saw no need to extend a due process analysis to the present situation because the latest habeas issue for Williams involved Brady and related issues and did not directly implicate Castille's only involvement as prosecutor, which was to approve the pursuit of the death penalty. While state law and ethics rules might counsel Castille to recuse, the Due Process Clause does not. Justice Thomas similarly dissented, emphasizing that the present matter was a civil habeas case and not a continuation of the earlier criminal proceedings, so this case was not a continuation of the case where Castille had been involved as District Attorney. Due process requires less in civil habeas than in criminal cases, according to Justice Thomas.
Next, in Dietz v. Bouldin (15-458), the Court confirmed that federal judges in civil cases have inherent, though limited, authority to recall a discharged jury to correct an error in the verdict, so long as the judge determines that the jurors were not subject to any outside influence that might prejudice their ability to reconsider the verdict fairly.
Dietz began as a "run-of-the-mill" car accident case from Montana. The defendant admitted fault and stipulated that the plaintiff had $10,136 in medical expenses from the accident. The only disputed issue was what additional damages should be awarded. The jury returned a verdict for the plaintiff, but awarded $0 in damages. The judge discharged the jury before realizing that, given the stipulated damages, the verdict was invalid. By that time, one juror had left the courthouse but all of them, once reassembled, said they had spoken to no one about the case. Over the objection of plaintiff's counsel, who demanded a new trial, the judge reconstituted the jury, gave them clarifying instructions, and directed them to deliberate again. The jury returned a verdict of $15,000. The Ninth Circuit affirmed.
So did the Supreme Court, in a 6-2 decision authored by Justice Sotomayor. The Court clarified that district judges have inherent authority over many aspects of litigation – if it is a "reasonable response to the problems and needs confronting the court's fair administration of justice" and is not contrary to any express rule or statute. Under that standard, recalling a discharged jury—in "civil cases only"—is a reasonable response to discovering a correctible error in the verdict and does not contravene any rule or statute. Justice Sotomayor cautioned, however, that the power to recall a jury should be exercised with great restraint, to avoid "any suggestion of prejudice." Judges should consider the length of time between discharge and recall, whether the jurors have spoken to anyone about the case or accessed their smartphones or the internet, and whether there was any emotional reaction to the verdict that might make jurors question what they did. Applying those factors, the majority held that the district judge did not abuse his discretion by recalling the jury.
Justice Thomas dissented, joined by Justice Kennedy. In the dissenters' view, a bright-line rule barring recall of a jury after it's been discharged would be more easily administered and consistent with due process. Justice Thomas emphasized that the opportunity for discharged jurors to be influenced, even by reflecting on the merits or implications of the verdict after discharge, is enough to preclude recall. After discharge, "the court has no power to impose restrictions on jurors and jurors are no longer under oath to obey them." What's more, the majority's multi-factor test for determining prejudice would likely produce more litigation and lead to inconsistent decisions on the limits of a judge's power to recall a jury.
Finally, last week the Court issued two decisions of particular note to our incarcerated readers—one making it a bit easier to sue for alleged constitutional violations, one making it a bit harder. The good news for inmates came in Simmons v. Himmelreich (15-109), where a unanimous Court held that the plain language of the Federal Tort Claims Act ("FTCA") permits prisoners to file suit against individual officers if an earlier suit against the federal government is dismissed for falling into an exception to the FTCA.
The case arose from two lawsuits filed by a federal inmate named Walter Himmelreich, who was serving time for producing child pornography when he was severely beaten by another inmate. Himmelreich filed suit against the United States under the FTCA, alleging that negligent prison officials were responsible for his injuries. The FTCA waives sovereign immunity for tort claims against the federal government under certain circumstances, but it contains a litany of "exceptions," including a "discretionary function" exception that prohibits suits based on "the exercise or performance . . . of a discretionary function." The District Court held that Himmelreich's suit fell within this exception, because deciding where to house an inmate was a discretionary function. So Case One was dismissed. Undeterred, Himmelreich filed Case Two against the individual corrections officers, rather than the Government. The individual defendants moved to dismiss this second suit on the grounds that it was barred by the FTCA's "judgment bar" provision, which says that a lawsuit against an individual federal employee can't proceed when a plaintiff already received a judgment in an FTCA suit involving the same incident. The District Court agreed, and dismissed Himmelreich's second suit. But the Sixth Circuit reversed and (for the first time this term), the Supreme Court affirmed CA6.
Writing for a unanimous Court, Justice Sotomayor concluded that Himmelreich's second suit must be allowed to proceed based on the plain language of the FTCA. As she explained, the "exceptions" provision (under which Himmelreich's first suit was dismissed) says that the "provisions of this chapter" shall not apply to claims dismissed under the listed exceptions. The "judgment bar," in turn, is a provision of the chapter. Accordingly, a case dismissed under the "discretionary function" exception (or any other exception) does not preclude a second case against individual federal employees. The Court rejected various nontextual arguments advanced by the Government, including that the Court's reading of the FTCA would lead to a "parade of horribles." To the contrary, the Court noted that its conclusion is "utterly sensible." "The dismissal of a claim in the ‘Exceptions' section signals merely that the United States cannot be held liable for a particular claim; it has no logical bearing on whether an employee can be held liable instead."
While Himmelreich permits prisoners to file suit against individual officers even if they've already tried and failed to sue the U.S. under the FTCA, Ross v. Blake (15-339), reminds prisoners that they still must generally satisfy their prison's grievance provisions before they can bring suit in federal court. The Court rejected a broad "special circumstances" exception to the Prison Litigation Reform Act's (PLRA) administrative-exhaustion requirement, but did not slam the door entirely on litigants who fail to exhaust.
Blake, an inmate in a Maryland state prison, accused two prison guards of viciously assaulting him while they transferred him to a different section of the prison. He reported the incident to a senior corrections officer, who referred it to the Maryland prison system's internal investigations unit. After the investigations unit issued a report condemning the actions of one of the guards, Blake sued the guards under § 1983. The jury awarded Blake $50,000 for his injuries, but Ross—one of the defendants—appealed on the grounds that Blake had failed to exhaust his administrative remedies before filing suit. In particular, the Maryland correctional handbook required prisoners to file a formal grievance with the prison warden and then appeal the warden's decision to two administrative bodies. Blake acknowledged that he had not satisfied these requirements, but argued that his referral to the prison's internal investigations unit was a substitute to the standard administrative process. The District Court rejected Blake's explanation and dismissed his lawsuit, but the Fourth Circuit reversed, relying on an exception to the PLRA's exhaustion requirement for "special circumstances" where "the prisoner's failure to comply with administrative procedural requirements may nevertheless have been justified." According to the Fourth Circuit, Blake's reasonable belief that he had exhausted his administrative remedies qualified as a "special circumstance" that allowed him to circumvent the standard administrative process.
In a unanimous decision, the Supreme Court rejected the Fourth Circuit's "special circumstances" exception to the PLRA. Justice Kagan wrote for the Court, joined in full by the Chief, Kennedy, Ginsburg, Alito, and Sotomayor. The whole point of a mandatory exhaustion statute, Kagan wrote, is to "establish mandatory exhaustion regimes, foreclosing judicial discretion." Since there is no "special circumstances" exception in the text of the PLRA, the Fourth Circuit had no authority to create one. The legislative history confirmed this interpretation, Kagan argued, in that the PLRA replaced an earlier statute with a weaker exhaustion provision. But not all was lost for Blake and other similarly situated prisoners, for the Court proceeded to suggest that Blake's failure to exhaust might be excused by the PLRA, itself. The PLRA provides that "[n]o action shall be brought with respect to prison conditions … until such administrative remedies as are available are exhausted." As Justice Kagan noted, an inmate need not follow the administrative steps if there's no remedy available to him through that process. Justice Kagan gave a few examples of unavailability, including when administrative officers "are unable or consistently unwilling to provide any relief," when an administrative scheme is "so opaque that it becomes, practically speaking, incapable of use" or when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Was an administrative remedy available to Blake? After reviewing other prisoner cases in Maryland and finding the state's prison-grievance procedure "perplexing," the Court acknowledged that the answer was not an easy one. It therefore remanded the case to the Fourth Circuit for further consideration of whether Blake had "available" remedies to exhaust.
Though he concurred in the judgment, Justice Thomas took issue with the Court's discussion of Maryland's prison-grievance procedure because it was based, in part, on documents Blake filed with the Court that were not part of the appellate record. Justice Breyer also wrote separately to point out that the Court's rejection of the "special circumstances" exception did not amount to a rejection of the "well-established exceptions to exhaustion" that exist in administrative law more broadly.
That'll do it for now. We'll be back with analyses of yesterday's decisions, as well as whatever the Court hands down on Thursday.