Greetings, Court Fans!

Warning: This update will be a big one. Today, in a death penalty case, the Court issued its first 5-4 opinion of the Term (and of the new Chief’s tenure), on top of three opinions from yesterday dealing with heavy-duty trucks, disabled prisoners, and yet another instance of the courts’ unending struggle with the statute of limitations for federal habeas claims. We’ll get right to it.

First, in today’s ruling in Brown v. Sanders (04-980), the Court tried to clarify the law regarding when invalid sentencing factors will render a death sentence unconstitutional. Here’s some background: Since Furman v. Georgia, states have had to limit the class of murderers eligible for the death penalty, which they typically do through statutory eligibility factors (such as killing during a robbery or killing a witness, both of which applied to this case). After finding that a defendant is death-eligible, the jury must then weigh the evidence favoring a death sentence against any mitigating evidence. In some states, which the Court has previously termed “weighing states,” the only aggravating factors the jury can consider are the statutory criteria making the defendant death-eligible. Thus, if the jury’s finding on any of these eligibility factors turns out to be invalid, the jury’s treatment of evidence supporting that factor as aggravating necessarily skews the balance in favor of a death sentence and usually requires that a death sentence be reversed. Other states, which the Court has called “non-weighing states,” specify permissible aggravating factors that go beyond or are different from the eligibility criteria. In non-weighing states, the Court has held that a jury’s consideration of an impermissible eligibility factor does not necessarily skew the balance in favor of death because the list of sentencing factors is open-ended, so in these states there is a different rule: Reversal is warranted only if the jury may have treated constitutionally protected or utterly irrelevant conduct as aggravating or if the jury considers aggravating evidence that otherwise would not have been before it. So, until today, there have been two different rules depending on whether the state is classified as “weighing” or “non-weighing,” a distinction that today’s majority called “misleading” and outdated and one dissent called “impractical and unrealistic.”

And now it’s history. In this case, Sanders invaded a home to rob it, and in the process killed one occupant and attempted to kill another. The jury found four special circumstances making Sanders death-eligible, and sentenced him to death based on aggravating factors that included an omnibus “circumstances of the crime” factor. The California Supreme Court knocked out two of the jury’s four eligibility findings but still affirmed the sentence. Sanders lost his federal habeas petition in the district court, but the Ninth Circuit reversed, finding that California was a weighing state and that the jury’s consideration of two invalid eligibility criteria in sentencing Sanders to death was not harmless. The Supreme Court disagreed, in a five-Justice majority led by Justice Scalia. First, California is not a weighing state; the “circumstances of the crime” factor was not a discrete eligibility factor, but a broad factor that opened up the jury’s inquiry and rendered it a non-weighing state, to use the Court’s old terminology. More fundamentally, the majority threw out the weighing/non-weighing distinction in favor of the following rule: an invalid sentencing factor (whether or not it is also an eligibility factor) requires reversal unless another sentencing factor allows the jury to treat the same evidence as aggravating. In Sanders’s case, the California Supreme Court threw out two of the jury’s special factors: murder committed during a burglary, and a “heinousness” factor that it found unconstitutionally vague. But it upheld the murder-during-a-robbery factor, as well as the killing-a-witness factor, and these factors allowed the jury to consider as aggravating all the evidence that it would have considered anyway under the two impermissible factors. So there was no constitutional problem with the sentence.

There were two dissenting opinions. Justice Stevens, joined by Justice Souter, wrote to defend the “simple, categorical” distinction between weighing and non-weighing states, and to say that he thought California was a weighing state. Justice Breyer, joined by Justice Ginsburg, agreed to throw out the weighing/non-weighing distinction, but they would require appellate courts to determine whether the jury’s consideration of the impermissible factor was harmless under general appellate review standards. For Breyer, the issue is not whether the jury could consider the same evidence under another factor, but whether the errors at trial impermissibly emphasized the evidence, even if admissible. Breyer would have remanded for the Ninth Circuit to address these questions – for example, whether the trial court’s instructions on the unconstitutional heinousness factor tilted the jury’s consideration of the evidence in front of it. (Notably, all four dissenters noted that, if truly presented with the question, they might have found the errors here harmless.)

In the first opinion from yesterday, United States v. Georgia (04-1203) and the companion case Goodman v. Georgia (04-1236), the Court held that Title II of the Americans with Disabilities Act abrogates state sovereign immunity, at least as to statutory violations that also violate the Fourteenth Amendment, allowing a disabled inmate in a state prison to sue the state for money damages. Goodman was a paraplegic in a Georgia prison who sued prison officials for, among other things, confining him in a cell too small for him to turn his wheelchair and refusing to help him get to the bathroom, forcing him to sit in his own waste for periods of time. The Eleventh Circuit held that these allegations, if true, would violate the Eighth Amendment’s bar on cruel and unusual punishments and thus supported a civil rights suit under 42 U.S.C. § 1983. But it also held that Goodman could not sue under the ADA because the state enjoyed sovereign immunity under that statute. In an opinion by Justice Scalia, the Court quickly and unanimously reversed. The ADA allows suits for money damages against public entities, including state prisons. This abrogation of sovereign immunity is clearly valid to the extent that it reaches actual violations of the Fourteenth Amendment because Congress can create private remedies to enforce that Amendment. Given the uncontested ruling that Goodman had alleged at least some Eighth Amendment violations (and thus Fourteenth Amendment violations by the state), Title II of the ADA was a valid waiver of sovereign immunity as to these claims. The Court, however, left open the issue of whether Title II also waived sovereign immunity for ADA violations that did not rise to the level of constitutional violations. Instead, it ordered that on remand the district court should review Goodman’s complaint on a claim-by-claim basis to see if his ADA allegations included any conduct that did not also violate the Fourteenth Amendment, and only then should the court reach that question. Justice Stevens, joined by Justice Ginsburg, concurred with that approach, and added that Eighth Amendment claims were not the only possible constitutional rights applicable in the prison context.

Next, the trucks. In Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc. (04-905), a 7-2 Court held that a heavy-duty truck manufacturer’s inconsistent discounts for dealers do not violate federal price-discrimination laws unless they discriminate between dealers competing for the same retail customers. Reeder sued Volvo under the Robinson-Patman Act, claiming that Volvo was giving other dealers more advantageous wholesale discounts for their bids on retail truck contracts. The way the process worked was that the dealer, before bidding, would go to Volvo and request a customer-specific discount that it would build into its bid. Where two Volvo dealers were bidding against each other, Volvo’s policy was to give them both the same discount. Reeder nevertheless alleged price discrimination based on: (1) evidence that Volvo gave larger discounts to other dealers who were bidding on contracts on which Reeder did not bid; (2) one instance where Reeder was bidding against another Volvo dealer and Volvo promised them the same discount during bidding but, after the other dealer won the bid, Volvo gave it a higher discount; and (3) one instance in which Volvo increased Reeder’s discount to match the discount for another dealer bidding on the same contract. The jury found for Reeder, the District Court awarded treble damages, and the Eighth Circuit affirmed. The Court, led by Justice Ginsburg, reversed and remanded. The Court expressly left open whether Robinson-Patman even applies to competitive bidding or special-order sales, as opposed to sales from inventory. Instead, it held that, regardless, Reeder had not shown competitive injury because it was never in actual competition with a more favored dealer. Evidence regarding discounts Volvo gave to dealers for bidding that did not involve Reeder was irrelevant – particularly since the evidence was only anecdotal (Reeder did not look at all Volvo’s discounts, and admitted it might get better discounts than other dealers on other bids). Reeder’s head-to-head evidence fared no better, as in both instances Volvo gave each dealer the same discount during bidding, the only time it could have affected competition between the dealers.

Justice Stevens dissented, joined by Justice Thomas (yes, you read that correctly). Volvo was admittedly trying to streamline its dealer network, and Stevens thought the jury reasonably could have concluded that it was doing so by giving different discounts to dealers in the same geographic area. Nothing suggests that price discrimination is a transaction-specific inquiry, and treating it as such would ignore the reality that “competition among truck dealers is a continuing war” not limited to single deals.

Finally, in Evans v. Chavis (04-721), the Court engaged in some error correction, reversing – you guessed it – a Ninth Circuit decision after concluding that it conflicted with the Court’s 2002 opinion in Carey v. Saffold. Writing for all but Justice Stevens (who concurred in the judgment), Justice Breyer found that the Ninth Circuit incorrectly applied AEDPA’s one-year limitation period for filing a federal habeas corpus petition, which runs from the date that conviction is final but is tolled while a “properly filed” state habeas petition is pending. Where the petitioner has lost his state petition in a lower court but appeals that ruling in state appellate courts, federal law will consider the petition as still “pending” so long as the petitioner’s appeal is timely under state law. California was the problem here: While most states specify the number of days a petitioner has to appeal, California merely provides that a petitioner must request review within a “reasonable time.” In this case, Chavis waited over three years to appeal his state habeas claims to the California Supreme Court, which simply denied the decision without stating any basis for its ruling. In reviewing Chavis’s subsequent federal petition, the Ninth Circuit read this general denial as a decision on the merits of the state petition, not its timeliness, and found Chavis’ federal habeas petition timely despite the three-year delay on his state petition.

The Court disagreed, holding that where California courts are silent as to the reason for their denial of a petition, a federal court must independently determine whether the state petition was filed within a “reasonable time” under California law. Chiding the Ninth Circuit a bit, Justice Breyer wrote: “This is what we believe we asked the Circuit to do in Saffold. This is what we believe it should have done.” Here, three years was far too long and petitioner did not offer an adequate explanation for the entirety of the delay. Because the petition for review was not filed within a “reasonable time,” it did not toll the AEDPA limitations period and the federal habeas petition was time-barred.

Justice Stevens disagreed with the Court’s analysis, arguing that federal courts should attempt to determine only what the California Supreme Court actually decided, not conduct an independent review of a California procedural question. Where the court makes clear that a petition was time-barred, the federal court must apply that decision (there appears to be no disagreement on the Court as to this category). Where the state court specifically finds the petition to be timely, federal courts also must honor this decision (there’s probably no disagreement here either). But where the California Supreme Court enters a general denial, Stevens would adopt a rule of thumb that if the request for review was filed within six months of the lower court’s decision (the rule for death-penalty petitions), it would be presumed that the California court found the petition timely, and if later than six months, it would be presumed that the court found the petition untimely. Stevens admits that this system would not be perfect, but he believes it would be much more efficient and also more likely to be correct than the “ad hoc” system the Court adopted.

And with that, we are finally done. Thanks for sticking with us!

Ken & Kim

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