The challengers’ plea suggested that the federal government was pushing an arrangement that would go the furthest to shield the new law’s central provision — the individual insurance-purchase mandate — as well as other parts of the law from being nullified.  The states and their allies, by contrast, contended that they should not be shortchanged as they try to get all of the law struck down.

The challengers joined SG Verrilli in asking the Court to expand from 60 to 90 minutes the argument to be held on March 26 on what is known as the Anti-Injunction Act (AIA) issue.  That is the question of whether that Act bars anyone from making a challenge to the individual insurance mandate, on the theory that it is a tax provision not subject to legal protest until after it has gone into effect (in 2014).  But the SG’s view that the challengers should only get 20 minutes of the expanded 90-minute time drew their sharp protest, and they asked the Court to give them 30 minutes — an equal share with the federal government and with the Court-appointed lawyer drawn into the case to defend the Anti-Injunction bar.

The SG would allot the Court-appointed amicus lawyer Robert A. Long 40 minutes, and the federal government 30 minutes of a 90-minute hearing.  While the federal government is claiming that it is taking a middle-ground position on that issue, the challengers said, it actually is more closely aligned with the position Long will be taking since they will join in “the bottom line” view that the challenges to the individual mandate should fail.   The government argues that the mandate is constitutional on the merits, and Long is arguing that no one may challenge it, the new motion noted.

While the government does not share Long’s view that the specific challenges to the mandate are barred by the Anti-Injunction Act, the challengers’ motion said, the government actually has a long-term interest in having that bar interpreted broadly in order to insulate other tax provisions from pre-enforcement challenges in court.   The new motion contended: “The federal government is at least as concerned, if not more concerned, with rebutting the [challengers'] broader arguments about the AIA’s inapplicability as with securing a narrow exception to the AIA to cover the facts of this case but no other.”   The government, it added, “can win by losing” on its AIA position.

Giving the federal government, Long, and the challengers 30 minutes each, the new motion asserted, will divide up the time properly, and give each of the three counsel appearing on the AIA issue ample time to make their points.   But, the motion added, if the Court believes that Long should have more than an equal 30 minutes, any extra time should come out of the government’s allotment so that at least one-third of the argument time will be allocated “to parties without an institutional interest in the AIA’s broad applicability.”

(In another part of the motion, the challengers asked the Court to divide equally any time allotted to challengers, with the states getting half and the NFIB half.)

SG Verrilli has urged the Court to divide up in three equal ways the 90 minutes that will be devoted to the so-called “severability” issue — that is, the question of what parts of the new health care law — if any — can remain in force if the individual mandate is struck down.  (That argument will be heard as the first of two issues on March 28.)  That allotment would provide 30 minutes to the federal government, which is arguing that only two provisions of the law must fall with the mandate; 30 minutes to Court-appointed amicus lawyer Bartow Farr, who is arguing that no other parts of the law need to fall, and the states/NFIB parties, who are contending that all parts of the law must go down with the mandate.

In their new motion, however, the states/NFIB argued that the federal government once again is more closely aligned with Farr than might appear.  “It is not even clear,” they said, “that the federal government disagrees with the bottom-line position” that Farr is taking.  The government, the motion said, is arguing that none of the challengers have “standing” to make the severability argument as it applies to the individual mandate (because neither the states nor NFIB would be covered by that mandate).

Moreover, the motion asserted, the real debate over severability focuses on whether all of the health care law fails if the mandate fails.   That illustrates, it added, that the government and Farr have only a small difference between them on what if anything should go down with the mandate.

So, the challengers told the Court, they should get 40 minutes of the 90 minutes on severability, and the government and Farr should get 25 minutes each.   That, it added, is actually generous to the government and Farr as they seek to preserve all or most of the health care law.  If the Court prefers to give either the government or Farr more than 25 minutes, the motion suggested, it should switch it between them and not subtract it from the challengers’ allotment of 40 minutes.

There is no dispute among the parties over how the Court will allot time on the other issues the Court will be reviewing: 60 minutes each for the federal government and for the states/NFIB on the individual mandate’s constitutionality (being argued March 27, with no amicus involved on the issue), and 30 minutes each for the federal government and the states on the expansion of the Medicaid program for the poor (being argued as the second issue on March 28, with no involvement by an amicus or by the NFIB).

Since the parties are in disagreement on the argument array on the Anti-Injunction Act and severability questions, it will be up to the Court to decide what final arrangement should be made.  Presumably, that will be done some time in advance of the March arguments.

In association with Bloomberg Law

In association with Bloomberg Law

On February 21, the Court will hear oral argument in Taniguchi v. Kan Pacific.  At issue in the case is the interpretation of a federal statute that authorizes an award of costs for the services of interpreters to the prevailing party in a lawsuit – specifically, whether the statute extends to costs for translating documents as well as oral translation.

 Background

Kouichi Taniguchi, a Japanese baseball player, was visiting a resort in the Northern Mariana Islands when he fell through a wooden deck. He sued Kan Pacific Saipan, Ltd., the operator of the resort. After Kan Pacific won at summary judgment, the district court ordered Taniguchi to pay Kan Pacific the $5,257 it incurred in the case to translate contracts and other documents from Japanese to English. In awarding these costs, the court relied on 28 U.S.C. § 1920(6), which was added to the federal costs statute by the Court Interpreters Act of 1978 and authorizes district courts to tax as costs “compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [28 U.S.C. § 1828].”

The Ninth Circuit agreed with the district court (and the Sixth Circuit) that the term “interpreters” in the statute includes, as the panel put it, “costs for services required to interpret either live speech or written documents.” On the other hand, the Ninth Circuit panel acknowledged that the Seventh Circuit, in an opinion by Judge Posner, had held that the proper reading of “interpreter” includes only live oral translation and that the “specificity” and “character” of Section 1920 counsels against including the translation of written documents in taxable interpreter costs. The Supreme Court granted Taniguchi’s petition to resolve the split.

Whose dictionary is best?

 Both merits briefs open with arguments about the meaning of the word “interpreters” as used in Section 1920(6).  Petitioner Taniguchi cites a raft of dictionaries that define “interpreter” as some variation of “one who translates orally,” and even points to a few dictionaries that announce the demise of the broader definition that respondent Kan Pacific urges – one that includes written translation. As you might imagine, Kan Pacific has found several dictionaries that support its position, and it complains that Taniguchi cites mostly abridged dictionaries, with correspondingly abridged definitions (that neglect to include written translation). Kan Pacific notes that Taniguchi has asked the Court to pay attention only to the “esp[ecially]” portion of the Webster’s and Black’s definitions, both of which define “interpreter” as someone who translates from one language to another “esp. orally . . . .”  So, the company argues, a complete (“non-esp.”) definition of “interpreter” includes someone who translates written materials.

After exhausting his dictionary-based arguments, Taniguchi explains that the case is about more than the “ordinary meaning” of interpreter. First, he argues that technical and professional terms of art should be defined narrowly to accurately reflect the term’s specific meaning within that context (here, professional interpretation and translation), even if a broader meaning exists for lay people. Second, he observes that there are real differences between interpreters and translators. For example, oral interpreters require social skills to interact with clients on the fly, and they often need to translate back and forth, in two directions, whereas document translation is typically one-way. The argument here is that, given the on-the-ground differences between translators and interpreters, Congress should have used the term “translators” if it wanted to cover translation services. (At this point, amici associations of professional translators and interpreters join the fray, with two supporting Taniguchi and one supporting Kan Pacific. The curious reader can consult those briefs for the details, but suffice it to say that Taniguchi’s amici tell us about the large differences between the translating and interpreting professions, while Kan Pacific’s amici tell us how similar they are.)

Kan Pacific relies heavily on “common usage,” explaining that the terms “interpreter” and “translator” often are used interchangeably. Beyond dictionaries, it cites a variety of newspaper articles and judicial opinions in which the term “interpreter” refers to the translator of written materials, and even a few Supreme Court cases that use “translator” when referring to live oral interpretation. Here, Kan Pacific also confronts the Seventh Circuit’s assertion that, as a matter of common usage, interpreters are speakers and translators are writers, by questioning the logic of that court’s reasoning. The Seventh Circuit confidently exclaimed that no one would call Robert Fagles’s famous translation of the Aeneid an “interpretation,” but – as Kan Pacific points out – no one would call translation of a foreign oral speech into English an “interpretation” either. Yet, even under the Seventh Circuit’s narrower reading of the statute, the person doing the translating (or, perhaps we should say, the “interpreting”) would be an “interpreter” under Section 1920(6).

 The Court Interpreters Act

 Given the indeterminacy of the textual and “common usage” arguments, the case may turn on broader issues of congressional intent surrounding the enactment of the Court Interpreters Act of 1978 – which, among other things, added subsection (6) to 28 U.S.C. § 1920, as well as Sections 1827 and 1828 to Title 28. As used in those sections – which establish programs for live interpreters in judicial proceedings – no one disputes that “interpreters” are primarily simultaneous oral translators who assist in court proceedings involving witnesses who do not speak English. Taniguchi therefore argues that because Section 1920(6) was enacted at the same time and in the same Act as Sections 1827-28, the term “interpreter” should be accorded the same meaning in all three sections – that is, as including only oral translation services.

Kan Pacific responds that the structure of Section 1920(6) suggests a more permissive reading because it authorizes an award of costs for “court appointed experts,” “interpreters,” and “special interpretation services under [§ 1828].” This construction, the argument goes, indicates that the term “interpreters” is more general than “special” interpretation services; thus, as used in Section 1920(6), that term should not be limited by its meaning in Sections 1827 and 1828. Kan Pacific also offers evidence from documents prepared by the Administrative Office of the U.S. Courts (AO) that suggest that the duties of “interpreters” under Sections 1827 and 1828 go beyond live oral translation and include the translation of documents for entry in evidence. But Taniguchi counters that the most recent AO Guide to Judiciary Policy states that the Court Interpreters Act does not address written translation.

Both sides complicate things by describing a variety of statutes, a rule of civil procedure, and federal agency guidelines to argue that a broad or narrow meaning of “interpreter” is appropriate within the larger context of federal law. For example, Taniguchi points to 15 U.S.C. § 649, which establishes a preference for hiring bilingual employees at the Office of International Trade who can “translate documents” and “interpret conversations,” and 42 U.S.C. § 254b(j)(1), which establishes grants to health centers with large non-English-speaking constituencies for “interpretation” and “translation” services. The point, of course, is that these statutes show that interpretation and translation are distinct activities. In Kan Pacific’s view, these provisions prove nothing. After all, its basic argument is that the terms are flexible and interchangeable, so that Congress’s decision  to use both terms could, in Kan Pacific’s view, reflect an “abundance of caution” or recognition that the two terms are somewhat overlapping professional titles, not proof that Congress views the terms as entirely distinct. But here Kan Pacific hedges its bets, explaining that Congress has from time to time used “translator” to refer to someone who does live oral interpretation (or is that “live oral translation”?).

 Cost shifting and the common law

 The Ninth Circuit apparently did not find the statutory text determinative.  Instead, it relied on what it called the “preference for the award of costs to the prevailing party” in Federal Rule of Civil Procedure 54(d), which provides that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” That court reasoned that this preference gives district courts broad discretion in interpreting Section 1920 and taxing reasonable costs necessary for the litigation. Taniguchi disagrees, dusting off the common-law “American Rule” that parties to litigation generally bear their own costs. Taniguchi cites the Court’s landmark ruling in Alyeska Pipeline Service Co. v. Wilderness Society, which generally forbade federal courts from shifting costs (including attorney’s fees) in favor of the prevailing party without statutory authorization, even when doing so would further the underlying purposes of the substantive law. According to Taniguchi, the Ninth Circuit got it exactly backwards: Section 1920 is in derogation of the common law, and Rule 54 can do no more than authorize the award of “costs” that Congress has clearly granted. Thus, according to Taniguchi, if the question whether Section 1920(6) covers translation services is not clearly resolved by the statutory text and other tools of statutory construction, any ambiguity must be resolved against cost shifting.

Siding with the Ninth Circuit, Kan Pacific retorts that Section 1920 does expressly override the common law – that’s its whole point – and the only question is what Section 1920(6) means. In this regard, Kan Pacific points out that federal cost shifting has existed since at least 1853. So, in its view, the doctrine favoring narrow construction of statutes in derogation of the common law has no place here.

Analysis

 I’ll limit my analysis to three points. First, it is difficult to see any important policy ramifications in the outcome of this case. (It’s fun to note here what Kan Pacific said in its brief opposing cert.: “the issue is not especially important, and certainly not exceptionally important,” as Taniguchi had claimed in the petition.) The need to translate written documents arises infrequently in civil litigation, and the cost of translation is a minute component of civil litigation costs generally. Thus, I cannot discern an important policy need for (or against) cost shifting, particularly when compared to other, far more common litigation costs that are not shifted under Section 1920 (travel and depositions expenses, to name two that immediately come to mind).

Taniguchi claims that document translation costs should not be shifted because foreign governments would not want their citizens subjected to those costs. I’ll accept the tacit assertion that litigation involving foreign nationals often demands use of a translator. But is there any reason to think that foreign nationals tend to lose cases in which translation costs are incurred? After all, under Kan Pacific’s regime, when foreign nationals win, they likely will have their translation costs reimbursed.

There’s also no reason to think that Congress would want to encourage litigation involving translation costs. And if it did, we would not want to enact a two-way cost shifter, like Section 1920, because two-way cost shifting is at least as likely to discourage litigation as to encourage it. Rather, if you wanted to encourage litigation, you would enact a regime like 42 U.S.C. § 1988, under which prevailing civil rights plaintiffs are presumptively entitled to their costs, including attorney’s fees (see Newman v. Piggie Park), but prevailing civil rights defendants are not (see Christiansburg Garment Co. v. EEOC). The question here, however, is whether there should be a loser-pays rule for translation costs. To be sure, loser-pays rules tend to make poor and moderate-income plaintiffs less likely to sue, but the real impediment to suit for such prospective plaintiffs would be a loser-pays rule for attorney’s fees. In personal-injury cases like Taniguchi’s, those plaintiffs generally can hire a lawyer on a contingent-fee basis if they have a decent case, but they would likely be discouraged if they were required to pay their opponent’s attorney’s fees if they did not prevail.  So, the American Rule, as it applies to fees, brings down barriers to the courthouse in personal-injury cases. But it is very unlikely that the prospect of cost shifting for the small incremental cost of translation services will effectively bar the courthouse door to injury victims. In sum, the question presented here boils down to what “interpreters” means in Section 1920(6), with little or no additional public policy overlay

Second, though I doubt anyone cares, I’ll make a prediction: Taniguchi wins, with the American Rule serving as a tie breaker if needed. My gut tells me that if you asked most judges what the statutory text covers, they would say it covers the cost of oral translation. Then, if you told them about the dispute in this case, they would probably concede that the term could be construed to cover the work of document translators, even if not comfortably. So, what then? Well, the American Rule is a common-law rule, and the federal costs statute, regardless of its long pedigree, is at odds with the common-law rule, which otherwise prevails in the absence of statutory authorization for cost shifting. So, I’m guessing that the Court will demand something approaching a “clear statement” rule from Congress favoring cost shifting, not find it, and rule in favor of Taniguchi.

Third, and finally, why in the world did Taniguchi seek cert.? He had less than $5,300 at stake, not too much more than the costs of printing the briefs and appendices.  (Printing the appendices alone cost over $1200.) Taniguchi is not a repeat player: I doubt he’s anticipating another personal injury, and, besides, what’s the likelihood that his next deck plunge will result in another suit demanding document translation? Given that this case seems like a once-in-a-lifetime occurrence for Taniguchi, I can’t help paraphrasing Judge Posner and note that only a lunatic or a fanatic would pay lawyers to brief and argue a Supreme Court case lacking any significant public policy issue that’s worth only five thousand bucks. So, it’s a good guess that Taniguchi’s Supreme Court counsel is acting pro bono. Maybe that’s a fine thing, but only if you think the public good is always served by the resolution of a circuit split. And maybe not. After all, unless Kan Pacific’s counsel also isn’t charging, the Supreme Court litigation has imposed (and continues to impose) significant costs on Kan Pacific, all over a small amount of translation costs. Although Kan Pacific is more likely than Taniguchi to be a repeat player, unless Kan Pacific’s lawyers are working for free, Kan Pacific will be a loser in this case even if it wins. That would be pretty strange, don’t you think?

In association with Bloomberg Law

The Court refused to lift a stay of execution for an Ohio convict yesterday. A federal district judge had granted the stay (and the Sixth Circuit upheld it) because he was dissatisfied with the state’s changes to its lethal injection procedures.  James Vicini and David Bailey of Reuters have coverage, as do Andrew Welsh-Huggins of the Associated Press and Reginald Fields of the Cleveland Plain Dealer.

Finally, Justice Ginsburg’s recent interview on Egyptian television continues to garner commentary (video). In an op-ed for the Boston Globe, Jeff Jacoby responds to critics who accused Justice Ginsburg of “insulting the Constitution or being ‘mealy mouthed’ in its defense” during the interview. Ilya Somin of the Volokh Conspiracy uses Jacoby’s op-ed as a jumping-off point for a discussion of recent comments by both Justices Ginsburg and Scalia on foreign constitutions.

Briefly:

• At the Volokh Conspiracy, Kenneth Anderson discusses Kiobel v. Royal Dutch Shell, scheduled for argument later this month; he contends that Kiobel’s “basic question is whether the ATS is a statute about international law or whether it is instead a statute that enforces something we might call the ‘law of the hegemon.’”
• The editorial board of Bloomberg joins a growing chorus calling for the Court to allow cameras to film oral arguments.
• At this blog, Scott Dodson previews arguments in Wood v. Milyard, in which the Court will consider whether federal appellate courts can raise timeliness limitations sua sponte in habeas cases.
• Writing for ACSblog, Anthony Renzo criticizes the Court’s decision in Minneci v. Pollard, in which it refused to allow a federal inmate to bring suit against private prison corporation employees who had allegedly violated his Eighth Amendment rights, as both “bad law” and “promot[ing] a long list of bad policy choices.”
• Adam Klasfeld of Courthouse News reports on a recent decision by a federal district judge holding that the Office of the Solicitor General “may have misled the Supreme Court about resources the government provides wrongly deported immigrants who win their appeals” in its briefing in Nken v. Holder, argued and decided in 2009.
• In the Christian Science Monitor, Terry Hartle reviews James F. Simon’s new book about the relationship between President Franklin Delano Roosevelt and the Supreme Court in the New Deal era.
• Julie Watson of the Associated Press (via the Chicago Tribune) reports that supporters of a cross placed on San Diego’s Mt. Soledad in honor of combat veterans plan to file a cert. petition requesting reversal of a lower court decision deeming the cross unconstitutional.
• The Associated Press (via The (Columbus, Ind.) Republic) reports that the Court refused yesterday to block Mississippi’s execution of convicted murderer Edwin Turner, who had argued that he was mentally ill.
• Kristen Bonilla of the University of Hawaii News reports that Justice Sotomayor spent a week in Hawaii, during which she taught classes, served as a moot court judge, and met with faculty and students at the university’s law school.
• News Channel 5 in Nashville reports that retired Justice Sandra Day O’Connor spoke about her career yesterday at Middle Tennessee State University.
• The Associated Press (via the Chicago Tribune) reports that Justice Scalia will deliver an address at the University of Chicago Law School next week.

In association with Bloomberg Law

In association with Bloomberg Law

Facts and procedural history

In 1986, Patrick Wood was convicted of murder in Colorado state court.  In 1995, he filed a post-conviction petition in state court to vacate his conviction and sentence.  In December 1995, the state court appointed the Colorado Public Defender’s Office to represent Wood.

In 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) went into effect.  AEDPA imposes a one-year limitations period for filing a federal habeas petition, which can be tolled by the pendency of a state post-conviction petition.

Nothing happened in Wood’s state post-conviction action for more than eight years.  Hearing nothing from the state court, Wood filed a second state post-conviction petition in 2004.  The state courts denied the 2004 petition.

Exactly one year later, Wood filed a habeas petition in federal district court.  Wood mentioned his 2004 state petition but not his 1995 state petition.  Accordingly, the district court denied Wood’s federal petition as time-barred without requiring a response from the state.

Wood then filed a motion for reconsideration, which the district court granted.  In its pre-answer response and its formal answer, the state acknowledged the possibility that Wood had abandoned his 1995 petition and that his federal habeas petition was therefore untimely, but it nevertheless asserted that it “will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition.”  The district court denied the petition without deciding the timeliness issue.

The Tenth Circuit granted a certificate of appealability, but it also directed the parties to address whether Wood’s federal habeas petition was timely.  Responding to the Tenth Circuit’s directive, the state argued, for the first time, that AEDPA’s deadline barred Wood’s federal habeas petition.

The Tenth Circuit affirmed only on the timeliness ground.  It held that because Wood abandoned his 1995 petition sometime before filing his 2004 petition, his one-year deadline thus expired before he filed his federal habeas petition.

Wood filed a petition for certiorari, arguing that the Tenth Circuit’s holding conflicts with the decisions of two other circuits.  The Court granted certiorari in September 2011 to consider both whether the Tenth Circuit can raise a statute of limitations defense sua sponte and whether the state’s actions had waived such as defense.

Merits briefs

In his brief on the merits, Wood argues that the state’s failure to assert the AEDPA’s limitations defense in the district court precludes the appellate court from raising the defense on its own.  To support this contention, he cites Kontrick v. Ryan (2004), in which the Court held that a bankruptcy debtor could not challenge the timeliness of a creditor’s objection to discharge because the debtor failed to raise the timeliness defense until after the court had adjudicated the creditor’s complaint on the merits, and Eberhart v. United States (2005), in which the Court held that the government could not raise the timeliness of a criminal defendant’s motion for a new trial for the first time on appeal.  In response, the state distinguishes Kontrick and Eberhart as cases preventing a party – rather than the court – from raising a forfeited issue.

The state also points to Day v. McDonough (2006), in which the Court held that a district court could raise the AEDPA time bar sua sponte even though the state had forfeited the defense.  Wood contends that Day does not extend to appellate courts, at least not when the state acknowledged the timeliness issue in the district court.  The state counters that the Supreme Court has allowed appellate courts to raise a number of forfeited issues on their own, such as in Granberry v. Greer (1987) (habeas exhaustion), Caspari v. Bohlen (1994) (Teague nonretroactivity), and Arizona v. California (2000) (preclusion).  Wood replies that the systemic values of comity and federalism that animated those decisions are not implicated by the AEDPA time bar, which is a limitations defense designed to encourage timely filings, promote finality, and safeguard party repose.  The state disagrees, casting the AEDPA deadline as furthering federalism, finality, and docket control, values that underlie other issues that appellate courts can protect on their own.

Normatively, Wood argues that applying this forfeiture rule to AEDPA’s one-year deadline has a number of benefits.  First, it forces the state to raise (and the district court to resolve) dispositive limitations defenses before judicial and litigant resources are expended on the merits of the case.  Second, it discourages the state from sandbagging its defense for strategic advantage, perhaps hoping to win on favorable merits grounds.  Third, it advances the principles of the adversary system by requiring the parties to pursue the issues they believe most favorable to their interests.  Fourth, it advances judicial neutrality by reducing the authority of the court to raise an issue unfavorable to one litigant.

The state counters by urging that broad appellate authority to raise timeliness issues sua sponte makes good sense because such issues can terminate a habeas appeal clearly and expeditiously.  The state also argues that giving appellate courts flexibility to ensure the timeliness of a petition may also give them more comfort in exercising discretion to hear habeas appeals on the merits.  Finally, the state contends, requiring the state to take a position on the timeliness of a habeas petition at a very early stage in the litigation can be onerous for the state, which may not have sufficient information to be able to do so.

The state also argues that deliberate waiver generally prevents a court from considering the issue on its own, but forfeiture (which is what the state argues happened here) generally does not.  The United States, which filed a brief as an amicus in support of the state, makes a similar argument by reiterating that the question is not whether the appellate court must raise the timeliness issue sua sponte but rather whether it may raise it.  The United States contends that appellate courts inherently possess discretionary authority to raise forfeited defenses unless written law prohibits it.

The parties dispute the characterization of the state’s conduct in this particular case.  Wood characterizes the state’s statements in the district court as a deliberate waiver of the limitations defense, because the state recognized that the defense was available but specifically declined to raise it.  The state disagrees, contending that its position of “not conceding” the timeliness of the petition makes clear that no waiver occurred.  The state also characterizes its position as based on a misunderstanding of how AEDPA’s deadline interacts with abandonment rules.  Such a misunderstanding, the state reasons, cannot give rise to a knowing and intelligent waiver.

Analysis

This case provides the Court with an opportunity to flesh out a number of “soft” forms of federal procedural common law.  In particular, how do party waiver, party forfeiture, and judicial authority interact?  Wood’s theory is that waiver and forfeiture both cabin the authority of appellate courts to consider the issue sua sponte (with some exceptions based on the importance of any systemic interests at stake).  The state’s theory is that although waiver cabins judicial authority, forfeiture does not.  A third theory (that I raise, sua sponte), is that waiver and forfeiture constrain party conduct but not inherent judicial authority, which instead depends upon the particular systemic values at stake.

A refusal to allow party conduct to control court authority could create enforcement difficulties.  In other words, if forfeiture bars a party from re-raising an issue but does not bar a court from raising the issue, the forfeiting party may use hints and innuendos to try to persuade the court to raise the issue.  In other words, it could be difficult to determine when a party was unlawfully trying to “raise” a forfeited issue.

Neither party seemed to consider the possibility that the state’s seemingly ambivalent position – neither challenging nor conceding the timeliness of Wood’s habeas petition – could in fact be perfectly coherent.  The state’s assertion to the district court might mean simply that although the state was not asserting the legal defense in this case, it also was not conceding the factual issue of timeliness.  After all, the forfeiture or waiver of the legal defense affects only the case at hand, while the factual concession could affect other cases with similar facts.  For a repeat litigant routinely faced with the same issues – such as a state in habeas cases involving limitations issues – preserving the ability to take a particular position in a future case might be important.

The broader implications of the case might also affect other doctrines.  For example, Rule 60(b)(6) of the Federal Rules of Civil Procedure allows a losing litigant to seek relief from judgment, but only if he shows extraordinary circumstances.  In Ackermann v. United States (1950), the Supreme Court held that a losing party’s deliberate choice not to appeal cannot support Rule 60(b)(6) relief.  The Court has never explained what other deliberate litigation choices might disqualify Rule 60(b)(6) relief or whether the district court can, sua sponte, consider forgone options in granting relief.

Wood might also have something to say about state sovereign immunity (and, perhaps, vice versa).  State sovereign immunity is waivable.  But, in Edelman v. Jordan (1974), the Court allowed a state to assert immunity for the first time on appeal.  And in Ford Motor Co. v. Department of Treasury (1945), overruled in part by Lapides v. Board of Regents (2002), the Court allowed a state to assert immunity for the first time in the U.S. Supreme Court.  In addition, Justice Kennedy, in his widely cited concurrence in Wisconsin Department of Corrections v. Schacht (1998), hinted that district courts are under no obligation to enforce immunity sua sponte.  As I have written elsewhere, even when the state has waived the issue, it may be appropriate for courts to raise state sovereign immunity sua sponte in limited instances, such as if the court is unsure whether any waiver was valid.  For these reasons, Wood may shed insight into the character, and in the opportunities for characterizing, state sovereign immunity.

In association with Bloomberg Law

Looking ahead to this Term’s upcoming cases, at this blog Anne Poulin previews Blueford v. Arkansas, in which the Court will hear arguments on issues relating to jury deadlocks, mistrials, and double jeopardy, while Max Slater of JURIST reports that Arizona attorneys have filed their opening brief in Arizona v. United States, in which the Court will consider whether federal immigration laws impliedly preempt Arizona’s controversial S.B. 1070.

Finally, at the (Wilkes-Barre, Pa.) Times Leader, Terrie Morgan-Besecker reports that Pennsylvania prosecutors have filed a cert. petition seeking review of a Pennsylvania Supreme Court ruling holding that a mass murderer is incompetent to be executed.  (Thanks to Howard Bashman for the link.)  And at the Salt Lake Tribune, Lindsay Whitehurst reports on a cert. petition filed by an alleged gang member who is challenging an injunction barring him from associating with other gang members.

Briefly:

• As part of the Washington Legal Foundation’s media briefing series, former Attorney General Dick Thornburgh moderates a panel on the “High Court at Halftime.”  (Free online registration required; thanks to Howard Bashman for the link.)
• At the Constitutional Law Prof Blog Professor Ruthann Robson posts a clip of Justice Sotomayor making a guest appearance on the children’s television show Sesame Street, where she resolved a dispute between Goldilocks and one of the three bears.
• The website Tunisialive reports that Justice Ginsburg recently visited the U.S. embassy in Tunis, Tunisia, where she “hailed the participation of Tunisian women in political life.”

In association with Bloomberg Law

In the nation’s most closely watched gay rights case, the Ninth Circuit Court divided 2-1 on Tuesday and struck down “Proposition 8,” the ban on same-sex marriage adopted by California voters in November 2008.  The panel majority did not uphold a broad right of gay couples to wed, saying it was enough for now to rule that it was unconstitutional to take away a right to marry only for one minority group, when everyone had the right before.   The 128-page ruling can be read here.

The panel unanimously ruled that the sponsors of Proposition 8 had a legal right to be in the appeals court to challenge a federal District judge’s ruling in 2010 striking down the ballot measure, but it also rejected the sponsors’ plea to wipe out that ruling on the theory that the trial judge had a conflict of interest because he is gay and is in a long-term relationship with another man.

The majority summed up its ruling this way: “By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause [of the federal Constitution].  We hold Proposition 8 to be unconstitutional on this ground.”

It added: “We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts.  For now, it suffices to conclude that the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class. The judgment of the district court is affirmed.”

The opinion contained frequent references to a 1996 Supreme Court ruling, Romer v. Evans, which ruled unconstitutional a state constitutional amendment in Colorado that took away from gays and lesbians political rights that they had shared with other citizens.  The Romer decision was written by Justice Anthony M. Kennedy, who very likely would hold a pivotal vote on same-sex marriage if and when that issue reaches the Supreme Court.  Kennedy was also the author of a broader gay rights ruling in 2003, Lawrence v. Texas; there, the Court ruled that gays and lesbians have a constitutional right of privacy to engage privately in sexual activity by consent among adults.  That Kennedy opinion, though, said the Court was not taking a position then on same-sex marriage.

By fashioning what it considered to be a narrow ruling, the Circuit Court went some distance toward insulating its ruling from being overturned either by the en banc Circuit Court or by the Supreme Court.  However, because it assures a renewed right to marry in the nation’s most populous state, the ruling will be viewed at all levels of the court system as at least a partial assurance of equality to join in a revered social institution — one that many conservative observers believe to be under major stresses of modern life.

The Circuit Court said its ruling would remain on hold until it issued the formal mandate to put the ruling into effect.  In the meantime, the proponents of Proposition 8 have the option of asking the full Ninth Circuit Court to reconsider en banc Tuesday’s ruling, or they could seek to go directly to the Supreme Court to challenge the decision.  It would be up to the Supreme Court to decide whether to take on the controversy.

Circuit Judge Stephen R. Reinhardt, perhaps the federal judiciary’s most liberal member, wrote the 80-page majority ruling, joined by Senior Circuit Judge Michael Daly Hawkins.  Circuit Judge N. Randy Smith dissented on the marriage issue, concluding that Proposition 8 had valid reasons behind it.  Judge Smith, though, did join in the other parts of the panel ruling.

For many years, California had laws confining marriage to a man and a woman, although in recent years it had extended many of the legal benefits of marriage to gay couples who formed so-called “domestic partnerships.”  In 2008, however, the California Supreme Court ruled that it violated the state constitution to exclude gay couples from marrying as a legal option.   As a result, some 18,000 gay couples got married in the state.

Before that year was out, the opponents of such marriages pushed and won enactment of a state constitutional amendment, through approval of Proposition 8 in November 2008.   That was challenged in state courts, but the California Supreme Court upheld it under the state constitution in 2009, while at the same time ruling that the 18,000 existing gay marriages were legally valid.

That led two same-sex couples, seeking to wed, to challenge Proposition 8 under the federal Constitution.  That was the case in which U.S. District Judge Vaughn R. Walker in August 2010 struck down the measure, under the Equal Protection and Due Process Clauses, in a decision that was considerably broader in scope that Tuesday’s decision in the Circuit Court.

State officials of California, opposing the measure, had refused to defend it in court.  That task then was taken up by the official proponents of Proposition 8, and, after losing in Judge Walker’s court, they took the issue on to the Ninth Circuit.

In Judge Reinhardt’s explicit effort to keep the decision narrow, the majority opinion stressed that same-sex couples had all of the legal rights as opposite-sex couples – before Proposition 8 was enacted.  Thus, it concluded, the ballot measure “had one effect only” — that is, “it stripped same-sex couples of the ability they previously possessed to obtain from the state, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships.  Nothing more, nothing less.”

As a result, Reinhardt wrote, the ballot measure “could not have been enacted to advance California’s interests in child rearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples.  Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard these liberties.”

The ballot measure, the opinion added, “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.  The Constitution simply does not allow for ‘laws of this sort.’”  (That quotation was taken, the opinion noted, from the Supreme Court’s Romer v. Evans ruling.)

Reinhardt noted that “broader issues have been urged for our consideration,” but he said the panel need not decide those.  California already had extended the same marriage rights to same-sex couples and Proposition 8 merely took those away.  “This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrower grounds.”

It added, though, that if it could not have decided the case on that narrower basis, “we would not hesitate to proceed to the broader question — the constitutionality of denying same-sex couples the right to marry.”   The opinion noted that that is “an important and highly controversial question,” and was now a matter of great debate in the nation.

In dissent, Judge Smith argued that the Supreme Court’s Romer decision did not control the outcome in this case.  He went on to conclude that California had sufficient interests to justify the enactment of the same-sex marriage ban: steering childbearing into the realm of marriage among couples biologically capable of having a child together, and promoting strong parenting by providing for children to be born into the more stable relationship of such marriages.  He credited the arguments of the backers of Proposition 8 that their measure would further those interests sufficiently to justify its enactment.

The Smith dissent thus provides a basis for more conservative judges on higher courts to decide differently than the panel majority did.

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The principal focus of the internship (which is a paid one)  will be assisting Tom with the “Petition of the Day” and “Petitions to watch” features on the blog. This will require roughly ten to twenty hours of work a week on a flexible work schedule, which can be accomplished remotely. The expected commitment would be through the end of the Supreme Court’s Term in late June.

To qualify for the position, you must:

• Have a strong academic record
• Be currently enrolled in a J.D. or LL.M program (undergraduates are not eligible)
• Have a strong interest in learning about the U.S. Supreme Court and its workings
• Have some experience working with (or at least interest in) blog or website technology
• Have demonstrated excellent writing and editing skills
• Have excellent organizational skills and attention to detail.

To apply, please send us the following materials:

• Cover letter
• Resume
• Contact information for two references
• A writing sample of no more than five double-spaced pages that has not been edited by anyone other than you
• An official or unofficial law school transcript.

Application materials should be sent to Kali Borkoski at kborkoski@scotusblog.com and Max Mallory at mmallory@scotusblog.com. Materials must be received by February 10^th for consideration. Please note that if you are a law student and have already submitted application materials for the previously advertised Deputy Manager position, you will automatically be considered for this internship and there is no need to reapply.

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 On February 22, the Court will hear oral argument in Blueford v. Arkansas.  At issue in the case are two strains of double jeopardy jurisprudence.  The first addresses the question of what constitutes an acquittal and will therefore bar further prosecution, while the second governs when a mistrial will bar further prosecution.

The peculiar facts and procedural posture of the case frame the two double jeopardy issues narrowly.  The defendant was tried on four offenses, including both greater- and lesser-included offenses. The jury was instructed to proceed to the next lesser offense only after concluding that the defendant was not guilty of the greater.  Failing to reach a verdict on the lesser offenses, the jury reported that it agreed the defendant was not guilty on the two most serious offenses.  However, that jury vote was never further formalized.  Jeopardy attached when the jury was empanelled and sworn, so the issue before the Supreme Court is whether the resolution of the case raises a double jeopardy bar to further prosecution.

 Background

Blueford was charged with capital murder for the death of his girlfriend’s nineteen-month old son.  The charge of capital murder implicitly charged the lesser-included offenses of first-degree murder, manslaughter, and negligent homicide.  The evidence established that the child was injured while in Blueford’s care, leading to his death two days later.  At trial, the prosecution and defense disputed what had precipitated the fatal injury.  Relying heavily on the testimony of a medical expert who had failed to obtain board certification in anatomical pathology, the prosecution contended that Blueford had thrown the child down on a mattress with such force that it caused the injury and death.  The prosecution also stressed that Blueford had given inconsistent statements to the police and had left the state to avoid arrest.

By contrast, the defense sought to show that the injury was accidental.  Blueford testified to a chain of events that led to the child accidentally hitting his head on a table.  That account was supported by two expert medical witnesses, who were highly critical of both the autopsy performed by the prosecution’s expert and his assessment of the likely cause of death.  In closing, the defense asked the jury to convict Blueford of negligent homicide and acquit him of the three more serious offenses.

The trial court instructed the jury on all four offenses, starting with the most serious offense (capital murder) and proceeding to the least serious (negligent homicide).  Between the instructions on each offense and the next less serious offense, the trial court instructed the jury: “if you have a reasonable doubt of the defendant’s guilt on the [greater charge], you will consider the [next less serious charge].”  Prosecutors then repeated these instructions in their closing arguments, reminding the jury that it should only consider a lesser charge if it had first decided unanimously that the defendant was not guilty of the greater charge.

After four hours of deliberation, the jury signaled that it might be deadlocked.  The court encouraged the jury to attempt to reach a verdict, and deliberations continued for an additional half-hour.  When the jury again reported that it still could not reach a verdict, the trial court brought the jury into the courtroom and asked the foreperson for more information.  In response to the court’s questions, the foreperson reported that the jury was unanimously against conviction on both capital murder and murder in the first degree and was divided on the manslaughter charge, with nine for it and three against.  The jurors had not addressed the lesser charge of negligent homicide because they understood the instructions to require them to consider only one charge at a time, moving from most to least serious.  The juror’s report to the judge thus expressed the jury’s understanding that it could not consider the next lesser offense without first agreeing unanimously that the defendant was not guilty of the greater offense.

The court again encouraged the jury to continue deliberating to reach a verdict.  At this point, Blueford asked the court to give the jury verdict forms on which to record its verdicts on the two counts on which it did agree, but the trial court refused.  As a result, the foreperson’s report was never formalized, and no findings or verdicts were entered.

Before the jury was again sent out to deliberate, prosecutors suggested that the judge should enter a mistrial, but Blueford’s lawyers countered that they were not asking for a mistrial.  After deliberating an additional half-hour, the jury again reported that it was deadlocked on the other charges; the court then immediately entered a mistrial on all of the charges.  At that point, Blueford neither objected nor consented to the mistrial.

The Supreme Court of Arkansas concluded that the Double Jeopardy Clause did not bar the state from trying Blueford again.  The court rejected the argument that Blueford had been acquitted, reasoning that the report by the jury foreperson indicating that the jury was unanimously against conviction on the two most serious grounds was never translated into a formal acquittal. Moreover, the court held, Blueford was not entitled to a partial verdict; in reaching that conclusion, the court declined to adopt the minority position that double jeopardy in some cases requires a partial “not guilty” verdict on greater offenses when the jury is deadlocked on lesser-included offenses.

The Arkansas court did not squarely address whether the mistrial on the two most serious charges was manifestly necessary.  The court noted that a defendant can invoke a double jeopardy bar if a mistrial is declared without “overruling necessity.”  However, the court seemed to accept two responses to the argument that the mistrial barred further prosecution.  First, the court appeared to endorse the state’s argument that, by failing to object, Blueford impliedly consented to the mistrial.  Second, because it rejected the argument that the trial court was required to take a partial verdict, the court classified Blueford’s case as a run-of-the-mill hung jury case in which a mistrial is clearly permitted.

Merits briefing  

Blueford argues that the jury’s action constituted an explicit acquittal of the defendant; the jury expressed its “clear, express, and final determination.”  He emphasizes that the instructions, reinforced by the prosecution’s closing argument, directed the jury to resolve each more serious offense before considering the next less serious offense.  The instruction directed the jury to take an “acquittal first” or “hard transition” approach; in contrast, some jurisdictions use a “soft transition” approach, under which the jury may consider the greater and lesser offenses in whatever order it chooses.  As a result, the jury’s final report before it was discharged, stating that it could not reach a verdict on manslaughter, necessarily established that it had agreed to acquit the defendant on the two more serious charges.

Blueford further argues that the trial court declared a mistrial in the absence of manifest necessity, barring further prosecution.  Although the trial court was justified in declaring a mistrial on those counts as to which the jury could not reach a verdict, the jury was able to reach a verdict on the two more serious charges.  Because, as a result, there was no constitutionally sufficient reason to declare a mistrial as to those two charges, the mistrial bars further prosecution on those charges.

The state argues that the jury’s action did not constitute either an actual or implied acquittal.  It was not formalized, and the jurors could have returned to the more serious charges in their deliberations and reached a different decision.  The state also disagrees with Blueford’s characterization of the instructions as “hard transition” or “acquittal first” instructions.  It emphasizes that, although the jurors were told they must not move to the next lesser offense unless they agreed that they have a reasonable doubt of the defendant’s guilt on the more serious charge, they were neither instructed that they must acquit the defendant of the more serious charge before moving to deliberate on the less serious charge nor given a verdict form that would have permitted them to do so.

The state also argues that Blueford waived the argument that the mistrial was declared without manifest necessity by not objecting to the court’s sua sponte declaration of the mistrial when the jury continued to report that it was deadlocked.  Further, the trial court could properly declare a mistrial on all of the charges because the Constitution does not require the trial court to take partial verdicts.  Finally, the state adds that Blueford’s request for partial verdicts came too late, after several hours of deliberation.

Analysis

Permitting the state to further prosecute Blueford on the two charges in question threatens core double jeopardy protection.  A retrial in this case, in which the prosecution failed to establish the more serious charges altogether, would not only subject Blueford to another trial but would also allow the state to treat the first trial as a dress rehearsal and to improve its case in the second proceeding.  Nevertheless, the appropriate resolution of the case under the Court’s double jeopardy jurisprudence is not clear.

One question for the Court is whether Blueford was in fact acquitted.  The critical issue is whether the foreperson’s statement that the jury was unanimous that he was not guilty on the two charges was sufficiently formal to constitute an acquittal.  The state argues that the jury never finalized a verdict on either of these counts and was free to continue deliberating on those counts until it was discharged, while Blueford counters that the “hard transition” instruction, which the jury clearly followed, precluded the jury from even deliberating on the lesser charge on which it eventually deadlocked unless it first decided that Blueford was not guilty of the more serious charge. Having unanimously agreed on the more serious charges, as instructed, there was no reason for the jury to return to those charges.  Nevertheless, the Court is unlikely to conclude that the mere announcement by the jury’s foreperson of its position on the charges without further steps to formalize the verdict – the steps that the defendant requested and the trial court declined to take – should be deemed an acquittal.

Blueford also argues that the proceedings below resulted in an implied acquittal on the greater charges.  The Court has held that a jury verdict convicting a defendant only of a lesser included offense implicitly acquits the defendant of the more serious offense on which the jury returned no verdict.  However, it seems unlikely that the Court will extend this precedent and hold that a jury’s mere declaration that it is deadlocked on a lesser offense necessarily acts as an implied acquittal on all the greater charges.

The stronger argument for Blueford may be that the trial court should not have declared a mistrial on the charges as to which the jurors agreed and that the mistrial therefore bars further prosecution.  Atrial court is required to explore less drastic resolutions before declaring a mistrial and forcing the defendant through a second proceeding on the charges.  The entry of a partial verdict on the charges as to which the jury agreed arguably represented a less drastic resolution, supporting the argument that a mistrial on those charges was not manifestly necessary.  However, this result would force all jurisdictions to allow the entry of partial verdicts, a procedural option that is not currently available in many states.  The Court could conclude that the state’s interest in not taking partial verdicts is sufficient to outweigh Blueford’s interests in being protected against further proceedings.

Finally, Blueford should not be regarded as having consented to the mistrial.  If the Court concludes that he did indeed consent to the mistrial, double jeopardy will not bar further prosecution.  In this case, Blueford had asked the court to take a partial verdict and had earlier stated that the defense was not requesting a mistrial.  His failure to again protest when the court entered the mistrial should not be construed as consent.  Only express consent should defeat the defendant’s double jeopardy claim.

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