Publications
Wilkinson v. Dotson (03-287), Shepard v. United States (03-9168), Ballard v. Commissioner of Internal Revenue (03-184), Estate of Kanter v. Commissioner of Internal Revenue (03-1034) and order list
Greetings, Court Fans!
The Court issued three opinions on Monday and granted cert in two cases. It was a banner day for people bucking the system – criminal defendants went 2 for 2, while two taxpayers successfully challenged the Tax Court’s practice of keeping secret the findings of its special trial judges.
In Wilkinson v. Dotson (03-287), a case with potentially far-reaching ramifications, the Court held (in an 8-1 decision) that prisoners can challenge state parole procedures under 42 U.S.C. § 1983. Dotson and Johnson are serving lengthy sentences in Ohio prisons. Both complained that, in reviewing their sentences, their parole boards utilized guidelines adopted after their crimes were committed, in violation (they claimed) of the Ex Post Facto and Due Process Clauses. In addition, Johnson claimed that the parole board denied him due process because he did not have an adequate opportunity to speak and because too few members of the board were present. Both filed suit under § 1983, seeking new parole hearings. The district court held that their only recourse was via a habeas corpus suit because they were implicitly challenging the fact or duration of their confinements. The Sixth Circuit reversed, finding § 1983 an appropriate avenue for Dotson’s and Johnson’s claims.
The Supreme Court affirmed, in an opinion by Justice Breyer. The Court held that claims regarding the constitutionality of parole procedures that would not necessarily provide immediate release or shorten a prisoner’s confinement do not seek “core habeas relief” and, therefore, may proceed under § 1983. At most, respondents would receive new parole hearings, and the outcome of these hearings would be entirely uncertain. Therefore, their claims claim do not fall within the habeas corpus heartland and could proceed under § 1983. The Court left open whether these claims could also be pursued in a habeas corpus petition. In his concurrence, Justice Scalia (joined by Thomas) addressed that question, arguing that § 1983 is the exclusive vehicle for Dotson’s and Johnson’s claims because the habeas corpus statute does not permit “federal courts to order relief that neither terminates custody, accelerates the future date of release from custody, nor reduces the level of custody.”
Justice Kennedy dissented, arguing that courts have routinely considered parole challenges in habeas corpus proceedings and that letting prisoners bring these same claims under § 1983 would allow them to escape the more stringent exhaustion requirements of the habeas corpus statute. In addition, while “[t]he language of § 1983, to be sure, is capacious enough to include a challenge to the fact or duration of confinement; . . . because habeas is the most specific applicable remedy, it should be the exclusive means for raising the challenge.” Relief such as that sought by Dotson and Johnson could be provided through a discretionary writ – one ordering the prisoner released or the error corrected.
In the second criminal case, Shepard v. United States (03-9168), the Court held that, under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 922(g)(1), district courts cannot consider police reports and complaint applications in determining whether a prior guilty plea admitted a “generic burglary conviction” that would qualify as a prior “violent felony” conviction. Under ACCA, individuals convicted of a felony involving a firearm who have three prior convictions for violent felonies or drug offenses must be sentenced to a mandatory minimum of 15 years. The Court previously held that only “generic burglary convictions” – those occurring in a building, and not in a car or boat – were intended to be encompassed as “violent felonies” under the Act. The issue in Shepard was determining what evidence a trial court can look at to decide whether a prior conviction was for “generic burglary” where the relevant statute was not limited to burglaries of buildings. The government argued that courts should consider police reports and complaint applications. Rejecting this approach, the Court held that “a later court determining the character of an admitted burglary is generally limited to examining the statutory definition [of the crime], charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”
The Court was somewhat splintered in its result. Justice Souter authored the opinion of the Court, which was joined in full by Stevens, Scalia and Ginsburg, and, in large part, by Thomas (the Chief did not participate). In Taylor v. United States, 495 U.S. 575 (1990), the Court had held that ACCA generally prohibits later courts from delving into the particular facts disclosed by the record of conviction, “thus leaving the court normally to ‘look only to the fact of conviction and the statutory definition of the prior offense.'” This interpretation of ACCA has been the law for 15 years, and Congress has not disturbed it, so the majority found no justification for upsetting the Taylor rule (it is a wee bit surprising that Scalia joined this part of the opinion given his strong dislike for the “dog that didn’t bark” method of ascertaining legislative intent). While Taylor involved a jury trial rather than a guilty plea, there was no compelling reason to treat these situations differently. Finally, if sentencing courts were permitted to look at the underlying record in a prior case, and to make a factual finding about whether the conviction was for a “generic burglary,” that inquiry could run afoul of the Sixth Amendment right to a jury trial – the same concerns animating the Court in Apprendi and Blakely (and, of course, Booker/Fanfan).
Justice Thomas wrote separately to express his strong opinion that ACCA is unconstitutional because it violates a criminal defendant’s Sixth Amendment right to a jury trial. Apprendi and Blakely carved out an exception to this right to allow for judicial “factfinding that concerns a defendant’s prior convictions.” Thomas believes that this exception is unwarranted and that a majority of the Court would require that the prosecution bear the burden of proving the existence of prior convictions to a jury beyond a reasonable doubt. “Innumerable criminal defendants have been unconstitutionally sentenced . . . despite the fundamental ‘imperative that the Court maintain absolute fidelity to the protections of the individual afforded by notice, trial by jury, and beyond-a-reasonable-doubt requirements.'”
Justice O’Connor dissented, joined by Kennedy and Breyer. They would permit trial courts to determine the nature of a prior conviction based on any uncontradicted background documents – such as police reports and complaint applications. To find otherwise would “frustrate Congress’ scheme for punishing repeat violent offenders who violate federal gun laws” and undermine the uniform application of ACCA to all states. O’Connor (who opposed the decisions in Apprendi and its progeny) also expressed grave concern about expanding Apprendi to cover recidivism determinations: such determinations raise few due process or jury trial concerns, and requiring prior convictions to be found by a jury would actually harm, rather than help, defendants because such evidence could bias the jury.
The Court’s third opinion of the day, in Ballard v. Commissioner of Internal Revenue (03-184) and Estate of Kanter v. Commissioner of Internal Revenue (03-1034), hit upon an issue close to all our hearts: whether the Tax Court can exclude special trial judges’ reports from the record on appeal. Short answer: No. For the tax lawyers, here’s the whole story: When more than $50,000 is at issue, Tax Court Rule 183 allows the court to send a case to a special trial judge for initial findings of fact and opinion. The Tax Court can adopt the special trial judge’s report, modify it, or reject it altogether, but it must presume that the special trial judge’s factual findings are correct and give “due regard” to the fact that she could evaluate the witnesses firsthand. In 1983, the Tax began withholding special trial judges’ reports from the record on appeal, and even stopped indicating whether and how its rulings deviated from the reports. Two taxpayers argued that this practice denied them due process by making it impossible to determine whether the Tax Court treated the reports with the “due regard” required by Rule 183. The Court (by a vote of 7-2) held for the taxpayers, but not on due process grounds. Justice Ginsburg’s opinion characterized the Tax Court’s practice as treating the reports as “an in-house draft to be worked over collaboratively by the regular judge and the special trial judge,” which was not authorized by any statute or by Rule 183. While the Tax Court has leeway in interpreting its rules, this practice was unreasonable in light of the Rule’s language and the history of deference to special trial judges before 1983. Further, withholding the reports prevents informed appellate review and runs counter to the practice in other federal judicial and administrative decisionmaking. The Court left open whether the Tax Court could fix things in the future by adopting an explicit rule codifying its post-1983 practice (which would force the due process issue). Justice Kennedy (joined by Scalia) concurred, but he could not agree that the Tax Court had adopted a novel “collaborative” practice because the record did not indicate what happened to the special trial judges’ reports in the petitioners’ cases – if the Tax Court in fact did not deviate from the reports, then it could not have violated Rule 183. On remand and in future cases, making the reports part of the record would address that problem. The Chief (joined by Thomas) dissented on the ground that the Court should defer to the Tax Court’s interpretation of its own Rules, which he found reasonable (and supported by twenty years of practice). The Chief also frowned upon the majority’s reliance on arguments that the taxpayers did not even make to the Court.
Finally, the Court granted cert in two more cases:
United States v. Olson (04-759): Is the liability of the United States under the Federal Tort Claims Act with respect to safety inspections the same as that of private individuals under like circumstances or, as the Ninth Circuit held, the same as that of state and municipal entities under like circumstances?
Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc. (04-905): (1) May an unaccepted offer that does not lead to a purchase – so that there is no “discrimination . . . between different purchasers” as the statutory language contemplates – be the basis for liability under the Robinson-Patman Act? (2) Does the RPA permit recovery of damages by a disfavored purchaser that does lose sales or profits to a competitor that does not purchase from the defendant, but does not lose sales or profits to any purchaser that “receives the benefits of” the defendant’s price discrimination?
The Court is now on recess until March 21, when it will probably hit us with a few more opinions. Until then, thanks as always 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
