Whorton v. Bockting (05-595), Sinochem International Co. v. Malaysia International Shipping Corp. (06-102), Lance v. Coffman (06-641) and order list

March 6, 2007 Supreme Court Update

Greetings, Court Fans!
The biggest legal news of the day was the verdict in the Lewis Scooter Libby trial, where, after 10 days of deliberations, the jury found Libby guilty on 4 out of 5 counts of the indictment. While Libby is exposed to a sentence in the range of 30 years, most believe he will get only a year or so of that – and it wouldn't be surprising if we report on his case in the Update before he serves a day! And now, on to the Court's three outstanding decisions, two from yesterday and one remaining from last week:
Whorton v. Bockting (05-595), issued last week, resolved a circuit split (between the Ninth and . . . everybody else) regarding the applicability of Crawford v. Washington, 541 U.S. 36 (2004) to cases that already were final on direct review when Crawford came down. Crawford represented a major sea change in the Court's Confrontation Clause jurisprudence, holding that testimonial statements of absent witnesses can be admitted only where the witness is unavailable and the defendant has had a prior opportunity for cross-examination. The case overruled Ohio v. Roberts, which had permitted such evidence to be introduced so long as the witness was unavailable and there were sufficient indicia of reliability. Whorton's conviction became final on direct review about a decade before Crawford was decided, but he sought to take advantage of the ruling (which came down when his federal habeas petition was pending on appeal in the Ninth Circuit) on collateral review. Under Teague v. Lane, an "old rule" (one in existence at the time of conviction) is applicable to cases on both direct and collateral review, while a "new rule" applies only on direct review unless it is a substantive rule (not applicable here) or a "watershed" procedural rule implicating "the fundamental fairness and accuracy of the criminal proceedings."
A unanimous Court, led by Justice Alito, found that the Crawford rule requiring the opportunity for cross-examination was not old (since Crawford explicitly overruled Roberts); nor was it a "watershed" rule – one that (1) is necessary to prevent an impermissibly large risk of an inaccurate conviction or (2) alters our understanding of the bedrock procedural elements essential to the fairness of a proceeding. Crawford merely recognized that the Constitution expressed a preference for assessing the reliability of testimonial statements by way of cross-examination. Crawford's rule with respect to testimonial statements is more restrictive than Roberts, but Crawford also eliminated Confrontation Clause protection for non-testimonial out-of-court statements – so Crawford's net effect on the accuracy of criminal fact-finding is unknown. Further, the rule simply does not compare to the right of indigent defendants to counsel, announced in Gideon v. Wainwright, which is the only case thus far to recognize a "watershed" rule. The Crawford rule's relationship to the accuracy of fact-finding is far less direct and profound. So criminal defendants whose convictions became final before Crawford will simply have to serve their sentences.
The first case from yesterday, Sinochem International Co. v. Malaysia International Shipping Corp. (06-102), unanimously resolved a question near and dear to the hearts of jurisdiction junkies everywhere: whether a federal court faced with a motion to dismiss for forum non conveniens must first determine that it has jurisdiction over the case before dismissing it in favor of a more convenient foreign forum. The short answer: No – a district court need not reach the issue of its own personal or subject matter jurisdiction over a case if it determines that, in any event, a foreign tribunal is clearly a more suitable forum for the case. Sinochem involved a dispute between a Chinese company and a Malaysian shipper that led to the seizure of the Malaysian ship in foreign waters, which the shipper then tried to reverse in a Pennsylvania federal court. That court ruled that it had subject matter jurisdiction over the admiralty case, but that discovery would be necessary to determine if it had personal jurisdiction over Sinochem; despite that open jurisdictional issue, the district court dismissed the case because, in any event, the Chinese courts were obviously a more convenient forum. The Third Circuit reversed, holding that the district court had to go through the personal jurisdiction inquiry before it could dismiss for forum non conveniens. Justice Ginsburg wrote for the Court, which wasted no time in reversing right back and dismissing the case. A forum non conveniens dismissal is not a dismissal on the merits; rather, it is a threshold inquiry. As a result, while a court should dispense with jurisdictional questions where possible, a court may bypass jurisdiction when, as here, jurisdiction is murky but the case obviously should be dismissed for forum non conveniens. Note, however (and this is where we give ourselves away as jurisdiction junkies), that the Court left open one issue not presented here: whether a court must make sure that it has jurisdiction before it can condition a forum non conveniens dismissal on the defendant's waiver of limitations or jurisdictional defenses in the foreign forum. Expect that issue to be back someday.
The Court issued a per curium decision yesterday in Lance v. Coffman (06-641), dismissing for lack of standing a challenge by several Colorado citizens to a judicially crafted redistricting plan. The plan was put in place by a state court after Colorado's legislature was unable to agree on how to redraw the districts after the 2000 census. The legislature subsequently attempted to put in place its own plan, but Colorado's AG filed an action claiming that the Colorado Constitution limits redistricting to once per census (here, the court-created plan) – and a court enjoined implementation of the new plan. Citizens sued, claiming that the judicially crafted plan violated their rights under the Elections Clause of the U.S. Constitution (which requires that "Manner of holding Elections . . . shall be prescribed . . . by the Legislature"). Because the citizens had no more than a generalized injury – possessed by every citizen – they lacked the "concrete and particularized" injury necessary to satisfy the Article III standing requirements, and the case had to be dismissed
Last week's order list included a few new cert grants. Here are the questions presented:
Watson v. United States (06-571): Whether mere receipt of an unloaded firearm as payment for drugs constitutes "use" of the firearm during and in relation to a drug trafficking offense within the meaning of 18 U.S.C. § 924(c)(1)(A) and this Court's decision in Bailey [v. United States, which held that "use" means "active employment"]?
Board of Education of the City of New York v. Tom F. (06-637): Does the holding of the United States Court of Appeals for the Second Circuit, stating that the Individuals with Disabilities Education Act permits tuition reimbursement where a child has not previously received special education from a public agency, stand in direct contradiction to the plain language of 20 U.S.C. § 1412(a)(10)(C)(ii) which authorizes tuition reimbursement to the parents of a disabled child "who previously received special education and related services under the authority of a public agency"?
Washington State Grange v. Washington Republican Party (06-713) and Washington v. Washington Republican Party (06-730): Does Washington's primary election system in which all voters are allowed to vote for any candidate, and in which the top two candidates advance to the general election regardless of party affiliation, violate the associational rights of political parties because candidates are permitted to identify their political party preference on the ballot?
The Court also invited the SG to weigh on the petition in LaRue v. DeWolff, Boberg & Assocs. (06-856), which actually has footnotes in the questions presented (wouldn't you know it's an ERISA case?). Here's the gist: (1) Does § 502(a)(2) of ERISA permit a participant to bring an action to recover losses attributable to his account in a "defined contribution plan" that were caused by fiduciary breach? (2) Does § 502(a)(3) permit a participant to bring an action for monetary "make-whole" relief to compensate for losses directly caused by fiduciary breach (known in pre-merger courts of equity as "surcharge")?
That's it for now, and the Court is on recess again until March 19. Until then, 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