Uttrecht v. Brown 06-413, Sole v. Wyner 06-531, Safeco Insurance Co. of America v. Burr 06-84, GEICO General Insurance Co. v. Edo 06-100, Claiborne v. United States 06-5618, Erickson v. Pardus 06-7317 & order list

June 8, 2007 Supreme Court Update

Greetings, Court fans!
The Court issued five opinions this week – the minimum necessary to maintain the "decision-a-day" pace needed to get through all outstanding cases by the end of June. And, to be honest, a couple of the decisions barely count as such . . . but we'll save those for later in the Update.
In the Court's most controversial decision, Uttrecht v. Brown (06-413), a 5-4 Court upheld Brown's death sentence over his claim that his Sixth and Fourteenth Amendment rights were violated when a Washington State trial court excused "Juror Z," who the prosecution claimed was confused and had an attitude that might prevent him from voting for the death penalty. At voir dire, Juror Z said that he could follow the law and that he agreed with the death penalty in certain circumstances (such as if the defendant were "incorrigible and would reviolate if released"). (There's far more to this exchange. If you're interested, the transcript of Juror Z's voir dire is attached to the Court's opinion.) That risk was not present in Brown's case because the only other sentencing option was life without parole. The prosecution challenged Juror Z for cause because he seemed to believe death was only appropriate where there was a risk of recidivisim. Defense counsel responded, "no objection," and Juror Z was struck. The Washington State courts affirmed Brown's sentence on direct review, as did the federal district court reviewing Brown's habeas claim, but the Ninth Circuit reversed, finding that the trial court's excusal of Juror Z violated Brown's right to a fair trial.
In a decision that will give trial courts wide latitude in deciding when to excuse a juror for cause, the Court reversed. Under Witherspoon v. Illinois, 391 U.S. 510 (1968), a person cannot be excluded from serving as a juror in a death penalty case simply because he has a general moral or religious objection to the death penalty if he can and will follow the law. But under Wainwright v. Witt, 469 U.S. 412 (1985), a juror may be excused if his views would "prevent or substantially impair" his ability to follow instructions and act in accordance with his oath. For the majority, led by Justice Kennedy (who was joined by the Chief and Justices Scalia, Thomas and Alito), the key was deference to the trial court in making this determination. Juror Z's voir dire testimony was somewhat confused and conflicting; it was not clear whether he would be able to impose death since Brown could never be paroled (and thus would never reviolate). The trial court, which observed Juror Z's demeanor, was better able to evaluate his equivocal responses. Further, the fact that defense counsel did not object suggests that all involved felt Juror Z was fairly struck. Finally, federal courts should accord even more deference to a trial court's decision when reviewing it under the Antiterrorism and Effective Death Penalty Act (AEDPA).
Justice Stevens authored the main dissent, joined by Justices Souter, Ginsburg and Breyer. For the dissenters, the best reading of the voir dire was that, while Juror Z had reservations about the death penalty, he would consider it and impose it where appropriate. With respect to Juror Z's comment about recidivism, this was only an example of when he would find death appropriate, not the only circumstance. After being told that Brown could never be released, Juror Z repeatedly affirmed that he could still consider and vote for death. There was no cause to strike under Witherspoon-Witt – and the trial court's ability to observe Juror Z's "demeanor" cannot overcome his actual voir dire responses. Otherwise, there will be no way to challenge trial court decisions in this area. Moreover, defense counsel's failure to object was not a procedural bar under Washington law. (Breyer wrote a separate dissent, joined by Souter, to emphasize this point.) And given that the trial judge had just asked whether either party had any problems with Juror Z, the "no objection" comment by defense counsel may have meant that the defense did not object to keeping Juror Z on the panel, rather than that he consented to his excusal.
Next, in Sole v. Wyner (06-531), the Court unanimously held that a party who succeeds in obtaining a preliminary injunction at the start of her case, but ultimately loses on the merits, does not qualify as a "prevailing party" who can receive an award of attorney's fees pertaining to her initial injunction. Wyner wanted to organize an antiwar protest involving nude protesters assembled in a peace sign on a Florida state beach, and she filed a declaratory judgment action seeking an advance ruling that Florida's "bathing suit rule" violated the First Amendment. (As author Justice Ginsburg so interestingly characterized the rule, it requires patrons in state parks to wear, "at a minimum, a thong and, if female, a bikini top.") The district court granted a preliminary injunction allowing the protest, on the condition that the "artwork" be screened off from other parts of the beach by a large curtain. As it turned out, however, the protesters were so overcome with expressive exuberance that they ignored the screen and romped all over the beach – leading the court to conclude later, on the merits, that Florida's rule was a reasonable restriction to protect the experiences of park visitors. The court nevertheless awarded Wyner fees for the injunction stage of the proceedings, reasoning that she succeeded in getting the injunction and that the decision could not be revisited, and the Eleventh Circuit affirmed.
The Court reversed, holding that the adverse decision on the merits superseded Wyner's victory in getting a preliminary injunction, which rested on the district court's premise that a screen would adequately protect the state's interests (a premise that turned out to be wrong). At the end of the day, Wyner had obtained no change in the relationship between herself and the state – she won a battle, but lost the war – so she was not entitled to fees. (The Court left open whether success in getting a preliminary injunction entitles a party to fees when the case does not result in any decision on the merits – which happens frequently.)
In the last of the main opinions from Monday, Safeco Insurance Co. of America v. Burr (06-84) and GEICO General Insurance Co. v. Edo (06-100), the Court considered two different class actions under the Fair Credit Reporting Act. The Act requires businesses to give consumers notice before taking any adverse action against them "based on" their credit reports. If a company is negligent in failing to give notice, a consumer can recover actual damages, but "willful" violations of the Act entitle a consumer to statutory and punitive damages. The cases involved customers of Safeco and GEICO claiming that the companies, without notice, charged them higher auto insurance premiums based on their credit reports, but the facts were slightly different. Safeco simply relied on credit reports in setting premiums, but sent no notice to customers that they might have gotten better rates had their credit scores been higher. GEICO developed a supposedly "neutral" system that generated a premium for a customer that was independent of his credit score, and only provided notice if taking the credit report into account would yield a higher premium; GEICO got sued anyway by customers who thought they might have gotten better rates with better credit scores (or whose credit scores entitled them to a better than "neutral" premium). The district courts held for the companies in both cases – for GEICO because there was no causation (the customers paid the same premium as if GEICO had ignored their credit reports) and for Safeco because the case involved initial customer premiums (i.e., the court agreed with Safeco that "adverse action" applied only to subsequent increases in an existing customer's premium). The Ninth Circuit reversed both judgments, in the process holding that the "willfulness" requirement for statutory and punitive damages included conduct that was in "reckless disregard" of the notice requirement, and remanded the cases to be reviewed under that standard for intent.
In a mostly unanimous opinion by Justice Souter, the Court reversed and reinstated the judgments in favor of GEICO and Safeco. It agreed that recklessness would be enough to satisfy the willfulness requirement, based on what it called the "standard civil usage" at common law that willfulness encompassed both knowing and reckless conduct (in contrast to criminal law, which is more exacting). The Court rejected the companies' various arguments to the contrary, in a somewhat lengthy passage that fans of statutory construction may find interesting (with Justice Scalia declining to join a few footnotes that relied on congressional report language – legislative history and all that). But the Court held that neither company had recklessly violated the Act. As to Safeco, the Court held that an initial premium charge could be an "adverse action" – but Safeco's interpretation that only premium increases were subject to the notice requirement, while wrong, was not recklessly so because there was no court or FTC guidance on the matter and Safeco's reading did not create an "unjustifiably high risk of harm" that was so obvious they should have known better. (Justice Thomas, joined by Justice Alito, dissented from the ruling that an initial premium could be an adverse action – given that the Court had ruled that Safeco was not reckless in any event, they thought it was unnecessary to reach this question.) As to GEICO, the Court agreed with the district court that the Act required but-for causation – and since the customers' rates were no higher than they would have been without their credit reports, their rates were not in fact "based on" the reports. (Justice Stevens, joined by Justice Ginsburg, dissented from this part of the ruling because it left a loophole: customers with better-than-"neutral" credit scores who deserved better premiums than GEICO's "neutral" system gave them. Because GEICO was unconstrained in coming up with its own "neutral" credit score, they would require notice to these customers too.)
Turning to the decisions that "barely count," in Claiborne v. United States (06-5618), the Court was to consider the Eight Circuit's conclusion that a sentence below the range established by the U.S. Sentencing Guidelines is presumed to be unreasonable in the absence of extraordinary circumstances. But before the Court could rule, Claiborne died in prison, and on Monday the Court issued a per curiam opinion vacating the Eighth Circuit's decision as moot. Because evaluating the reasonableness of below-guidelines sentences is critical to federal sentencing decisions across the country, Claiborne's counsel had urged the Court either to decide the case notwithstanding his client's death or to grant expedited review in Beal v. United States (06-8498), which raises the same issue. On Tuesday, the SG also asked the Court to grant expedited review in Beal, proposing the filing of simultaneous briefs on June 15th, with the case to be decided this Term without argument. We shall see.
Erickson v. Pardus (06-7317) generated another brief per curiam opinion. Acting pro se, Erickson claimed that prison officials violated his Eighth and Fourteenth Amendment protections against cruel and unusual punishment by denying him treatment for hepatitis C, with life-threatening consequences including possible permanent liver damage. The district court dismissed Erickson's case, and the Tenth Circuit affirmed on the ground that Erickson's allegations of harm were "too conclusory" to support a claim. Because this holding "depart[ed] in so stark a manner from the pleading standard mandated by the Federal Rules of Civil Procedure," the Court felt compelled to grant review and reverse. Rule 8 requires only a "short and plain statement," and "specific facts are not necessary;" allegations are sufficient if they give the defendant fair notice of the claims asserted. (This is undoubtedly reassuring to those who worried that the Court's decision last month in Bell Atlantic v. Twombly would affect the pleading standard for all cases, not just those involving antitrust violations). Further, since Erickson was acting pro se, his complaint should have been "liberally construed," and "held to less stringent standards than formal pleadings drafted by lawyers." Justice Thomas dissented to state his view that the Eighth Amendment only addresses injuries caused by the criminal sentence itself, and that in any event, the mere risk of injury is insufficient to state an Eight Amendment claim. Justice Scalia would not have granted cert.
There was one cert grant this week, in Federal Express Corp. v. Holowecki (06-1322), which will consider this question: Whether the Second Circuit erred in concluding, contrary to the law of several other circuits and implicating an issue this Court has examined but not yet decided, that an "intake
questionnaire" submitted to the Equal Employment Opportunity Commission ("EEOC") may suffice for the charge of discrimination that must be submitted pursuant to the Age Discrimination in Employment Act, even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge.
And finally, the Court asked the SG to brief the cert petition in Teck Cominco Metals. Ltd. v. Pakootas (06-1188), which asks: (1) Whether the Ninth Circuit erred in concluding, in derogation of numerous treaties and established diplomatic practice, that CERCLA (and, by extension, other American environmental laws) can be applied unilaterally to penalize the actions of a foreign company in a foreign country undertaken in accordance with that country's laws; and (2) Whether the Ninth Circuit erred in concluding, in direct and acknowledged conflict with the First Circuit, that "arranger" liability under CERCLA does not require the involvement of any "other party or entity."
That's it for this week – expect more decisions on Monday. Thanks for reading!
Kim & Ken

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400