In an unusual move, the Court issued two opinions today along with its usual Monday order list. In general, the Court releases opinions on Tuesdays or Wednesdays, but perhaps to avoid distractions before tomorrow’s affirmative action arguments, released opinions today.
Before I get to the opinions, there’s not much to report from the order list. The Court denied cert in a slew of cases, including one in which Mark Kravitz and I represented respondents in urging the Court to deny cert, Davis v. Southern Energy Homes, 02-1117. In this case, petitioners argued that the Magnuson-Moss Warranty Act repealed the Federal Arbitration Act to prevent arbitration of consumer warranty claims. We argued that this was wrong, and that in any event, the issue was not worth the Court’s time. Needless to say, Mark and I are pleased with the cert denied.
(As an aside, I don’t ordinarily report on “cert denieds” given the large quantity of such orders and their usual insignificance. That said, I’m happy to follow (and report on) specific cases if anyone has a particular interest in a pending case. Just let me know and I’ll track it for you and/or report on it in the updates.)
In more significant news, the Court issued an opinion by Breyer (for everyone but Thomas and Stevens) in Archer v. Warner (01-1418). (No, that is not a typo. In the category of you-won’t-see-this-pairing-in-many-cases, Stevens actually joined a dissent by Thomas.) This is a bankruptcy case about the nondischargeability of certain debts. As all you bankruptcy mavens know, certain debts are not dischargeable in bankruptcy. This case is about the section that makes non-dischargeable a debt “to the extent” that it is “for money . . . obtained by . . . false pretenses, a false representation, or actual fraud.” 11 USC 523(a)(2)(A). For all those who do not fall within the category of “bankruptcy maven,” Breyer begins the opinion by reducing the facts to a simple outline: (1) A sues B seeking money that A says B obtained through fraud; (2) the parties settle the lawsuit and release related claims; (3) the settlement agreement does not resolve the issue of fraud but provides that B will pay A a fixed sum; (4) B does not pay the fixed sum; and (5) B enters bankruptcy. The question is whether the obligation to pay the settlement sum is nondischargeable, and while I have not been losing sleep over this question, it seems that the circuit courts are split on it.
Breyer et al. recognized that the settlement agreement released all state law claims, leaving only a debt for the money promised in the settlement agreement, but according to Breyer, that conclusion does not end the inquiry. The basic question is whether that same debt can also amount to a debt for money obtained by fraud, and the Court holds that it can. The central case in support of this holding is Brown v. Felsen (1979) which held under virtually identical circumstances that the courts could look behind a consent judgment to decide whether the debt embodied in the consent judgment was a debt for money obtained by fraud. The only difference between Brown and the present case, according to Breyer, is that in this case, the debt was embodied in a settlement agreement, while in Brown, it was evidenced in a consent judgment and stipulation, but that distinction has no legal significance. Breyer ended the opinion by refusing to consider alternative arguments for affirmance that were not addressed by the court below and that were not within the question presented.
Thomas and Stevens dissented. They contend that because the settlement agreement released all claims, including all fraud claims, the agreement fully resolved the fraud claims. The fact that the earlier debt might have been nondischargeable is thus irrelevant to whether the new debt, which is not based on a fraud claim, is dischargeable. According to the dissenters, Brown is distinguishable because in that case, the consent judgment did not clearly release the fraud claim, but in this case, the settlement agreement did.
Finally, in Branch v. Smith (01-1437), the Court upheld a district court decision setting congressional districts for the State of Mississippi. (Allow me a small victory: As I had predicted, Scalia authored the principal opinion in this case!) Quite frankly, this case has a mess of a procedural posture, and it resulted in a mess of a decision from the Court. (For those not familiar with the Court’s voting rights jurisprudence, this “mess” is keeping with tradition.) I’ll do my best to simplify, beginning with some basic background: Section 5 of the Voting Rights Act provides that certain jurisdictions (including Mississippi) may not “enact or seek to administer” a change in voting practices/procedures without obtaining “preclearance” from the Attorney General or the United States District Court for the District of Columbia. When a new procedure or practice is submitted to the Attorney General for preclearance, the jurisdiction may enact/enforce the plan unless the Attorney General objects within 60 days.The 2000 census caused Mississippi to lose one congressional seat (reducing its representation from five Members to four), but the state legislature failed to enact a new redistricting plan. Anticipating the March 1, 2002 deadline for the qualification of candidates, in October 2001, certain plaintiffs (“state plaintiffs”) filed suit in state court asking that court to issue a redistricting plan for the 2002 congressional elections. One month later, other plaintiffs (“federal plaintiffs”) filed suit in the U.S. District Court for the Southern District of Mississippi asking that court to enjoin any plan issued by the state court and to draw its own redistricting plan. In recognition of the pending state court action, the federal court initially refused to act. Meanwhile, back in state court, the Mississippi Supreme Court held that the state trial court had authority to issue a redistricting plan, and the trial court did just that. Mississippi promptly submitted that plan (and the Miss. Sup. Ct.’s decision) to the Attorney General (“DOJ”) for preclearance. On February 14, DOJ asked for more information on the plan, and the state submitted the requested information on February 20. Jump back now to federal court: On February 4, based on the fear that the state plan would not be precleared by the March 1 deadline, the federal court promulgated its own redistricting plan to be used in the absence of a timely-precleared state plan. When DOJ had not acted by February 26, the federal court enjoined the state from using the state court plan and ordered the use of its own plan. It offered two bases for its decision: (1) the failure of the timely preclearance of the state court plan, and (2) alternatively, that the Constitution prohibits the state court from issuing a redistricting plan without express authorization from the state legislature. The state did not appeal from this decision. On April 1, DOJ told the state that the federal court’s injunction made any ruling on the state court plan moot. The state plaintiffs (by this time parties in the federal action), and the federal plaintiffs both appealed.
Still with me? On appeal, the two basic questions are (1) whether the district court properly enjoined the state court plan, and (2) whether the district court properly fashioned its own redistricting plan. Question one is pretty straightforward, and (mercifully!) unanimous. The district court’s injunction was based principally on the ground that the state court plan had not obtained preclearance. The state plaintiffs argued that the plan was in fact precleared by DOJ’s failure to object within 60 days after the state’s initial submission of the plan or, alternatively, within 60 days after the state submitted the requested additional information about the plan. The Court made short work of both arguments. Under the Voting Rights Act and the Attorney General’s regulations implementing that act, DOJ may request additional information about any voting change submitted for preclearance, and if DOJ requests such information, the 60-day preclearance clock does not begin to run until it receives that information. Thus, the clock did not start running until the state responded to DOJ’s Feb. 14 request for more information. And while the clock began again on Feb. 20 (when the state submitted the additional info to DOJ), it stopped running when the district court enjoined implementation of the state court plan and the state did not appeal. Taking a step back, remember that the preclearance requirements only apply when a state “enacts or seeks to administer” a change in voting practices. The state court plan was not “enacted” because it was adopted by a court (not the legislature), and although the state originally sought to enforce the change by submitting the plan for preclearance, the federal injunction prevented enforcement of the state court plan. Because the state never appealed the injunction, it was no longer “seeking to enforce” the plan and thus the preclearance clock stopped running. Having resolved the propriety of the injunction on the principal ground announced by the district court, the Supreme Court declined to rule on the alternative theory (that the state court plan was unconstitutional).
On the second question before the Court (the propriety of the district court’s own redistricting plan), the main issue is the interplay between section 2c and section 2a(c)(5) of the Voting Rights Act. In the circumstances of this case, Section 2c arguably requires a state to elect representatives from single-member districts, but Section 2a(c)(5) seems to require a state to elect representatives in at-large elections. In a portion of the opinion joined by everyone but O’Connor and Thomas, Scalia held that the district court properly drew a plan requiring the election of representatives from single-member districts. Cross-Appellants argued that Section 2(c) applies only to legislative apportionments, and that Section 2a(c)(5) governs where, as here, there is the absence of legislative action. Scalia rejected this argument noting that the historical context and longstanding interpretations of Section 2c demonstrate that that section applies to judicial, as well as legislative, redistricting plans. That’s the end of the Court’s opinion (i.e., the end of any section adopted by at least 5 Justices). I’m not going into detail from here on out. This stuff is dense; read only if you’re interested in watching a catfight.In the next section of his opinion (this time only joined by the Chief, Kennedy, and Ginsburg), Scalia, provided his own reconciliation of the seemingly contradictory language of Sections 2c and 2a(c)(5), and in the final portion of his opinion (joined by the same 3), he responded to O’Connor’s dissent. The details of this response are not that important unless you’re a voting rights lawyer. The amazing thing about this response (and O’Connor’s dissent) is the level of personal acrimony between Scalia and O’Connor. Scalia repeatedly chides O’Connor for failing to adequately explain her position, and goes on to belittle her for what she does say. O’Connor, for her part, peppers her dissent with quotes from earlier Scalia opinions and law reviews about “plain meaning interpretations” and “judicial legislation.” I think it’s safe to say that Scalia and O’Connor won’t be socializing anytime soon. While they’ll certainly be civil (everyone is at least civil these days), this is not one of those decisions that engenders warm fuzzies between the majority and the dissent.
Kennedy wrote separately to emphasize (although there was no real dispute on this) that the Court properly declined to rule on the district court’s alternative ground for the injunction. (Not exactly sure why Kennedy is writing to emphasize a point on which the Court was unanimous when he has only issued 2 majority opinions so far. Ever heard of priorities?) Stevens wrote separately (joined by Souter and Breyer) to explain that he believes Section 2c impliedly repealed Section 2a(c)(5). And finally, as described above, O’Connor concurred in part and dissented in part, joined by Thomas. Again, the details are not important, but O’Connor interprets Section 2a(c) to require federal courts to order at-large elections until a state is redistricted in the manner provided by law. Because the state had not redistricted in a manner provided by law, the federal court should have ordered an at-large election.