Greetings Court fans!
Two new opinions today, thus reshuffling the rankings I reported yesterday: After today, O’Connor joins Ginsburg and Souter with 4 majority opinions (go SO’C!), and Thomas leaves Kennedy and Scalia in a tie for last place with only two majorities out so far. Why, might you ask, do I report such things? Well, because by counting majority opinions, and by studying the already-released opinions from each sitting, you can sometimes predict which Justice will write particular opinions. Ok, so “predict” is probably a strong word, but this sort of Court-obsession at least allows you to hazard a guess on potential authorship. With that background, at the end of this email, I’ll present my “picks” for the remaining cases from the December sitting.
First, though, I’ll begin with O’Connor’s opinion (for a unanimous Court) in City of Cuyahoga Falls v. Buckeye Community Hope Foundation (01-1269). Buckeye bought land to build a low-income housing project in the City of Cuyahoga Falls, and the good residents of Cuyahoga Falls went nuts. After all, poor people would bring with them crime, drugs, and children (gasp!). Although O’Connor does not relay the specifics, it seems that some of the opposition to the project was based in part on the likely race of potential occupants (i.e., African American). Despite the opposition, the project met all zoning requirements so the city council passed an ordinance approving the project. Concerned citizens challenged the approval, and pursuant to the city charter, this challenge stayed implementation of the ordinance until after a popular referendum on the topic. Buckeye filed suit in state court to enjoin the referendum, but the trial court denied the injunction. When Buckeye applied for building permits anyway, the city engineer (on advice from the city law director) denied the permits noting that the citizen challenge to the ordinance stayed its implementation. In a November 1996 referendum, the voters repealed the ordinance, but two years later the Ohio Supreme Court declared that the referendum violated the Ohio Constitution. The city issued building permits and Buckeye broke ground.
Meanwhile, in federal court, Buckeye filed suit alleging that the referendum process and city engineer’s original denial of the building permits violated the Equal Protection Clause and the Due Process Clause. (Note that after the Ohio Supreme Court invalidated the referendum, Buckeye’s claim was reduced to a claim for damages for delay in construction.) The Sixth Circuit ultimately held that Buckeye had enough evidence to go to the jury on these claims, but today, the Supreme Court reversed. The key to this opinion is understanding that Buckeye’s challenge is not to the referendum results, but rather to the referendum process itself.
O’Connor began by demonstrating that Buckeye had failed to show discriminatory intent as necessary to sustain an Equal Protection claim. The submission of the referendum to the voters was required by a facially neutral city charter and thus does not demonstrate any intent by the city. And the refusal to issue building permits was similarly based on city law and so demonstrates no racial animus. The fact that many voters had an allegedly discriminatory intent is irrelevant because Buckeye offered no evidence that would attribute their motives to the city. Moreover, by allowing the referendum process, the city enabled public debate and thus served First Amendment interests. The principle that government may not prohibit expression of an idea merely because it is distasteful “dovetails” with the notion that all citizens have the right to petition their government, regardless of the content of their ideas. (In other words, the city might have been in trouble if it had departed from its established procedures merely because it didn’t like the ideas expressed by proponents of the referendum.). Finally, O’Connor rejected Buckeye’s alternative equal protection theory (that the city acted in concert with private citizens to prevent the project because of the race of the occupants) because (1) Buckeye had not effectively preserved the argument below and (2) because it had presented insufficient evidence to support the theory.
On the substantive due process claim, O’Connor first held (without deciding whether Buckeye had a property interest in the building permits) that the engineer’s refusal to issue building permits during the petition process was not arbitrary or egregious conduct. It merely followed the law. She next rejected the argument that the submission of the issue to referendum was per se arbitrary noting that the people retain the power to govern through referendum on any topic within the realm of local affairs. While the results of a referendum might be arbitrary, the process itself is not.
Scalia and Thomas concurred to observe that even if there had been arbitrary government conduct, there was no substantive due process violation because freedom from delay in receiving a building permit is not a fundamental liberty interest protected by substantive due process.
In the second case today, Woodford v. Garceau (01-1862), Thomas announced an opinion for himself, Rehnquist, Stevens, Scalia and Kennedy. Several years ago, in Lindh v. Murphy, the Court held that 1996 amendments to the federal habeas statute (for the habeas geeks among us, I’m talking about AEDPA, the Anti-Terrorism and Effective Death Penalty Act) do not apply to cases pending on AEDPA’s effective date. This seems straightforward enough, right? But since this is habeas law, you won’t be surprised to learn that there was a circuit split on when a habeas case is “pending” within the meaning of Lindh. Is a case pending when the petitioner asks the court to appoint counsel to assist with a habeas application? Or when he asks for a stay of execution so that he can file a habeas petition before it is moot? Or is it only pending when he files the habeas petition itself?
Today, the Court held that a petition is pending only when a petitioner has placed before a federal court an application for habeas relief seeking relief on the merits of his claims, i.e., the habeas petition itself. This is mostly about statutory interpretation, so I’ll skim through the details. According to Thomas, AEDPA was primarily about “revising” the standards for the review of the merits of a habeas petition (some might have used the word “restricting” or “eliminating”), and thus the Lindh rule should be interpreted in light of this emphasis on the merits of the petition. Moreover, Thomas found support for his reading in other provisions of AEDPA. Ok, enough on the majority, let’s move on to the concurrence and dissent.
O’Connor concurred in the judgment, arguing that the majority’s reasoning was broader than necessary and that the majority misapplied its own rule. According to O’Connor, the merits of petitioner’s habeas claims were before the court pre-AEDPA based on his filings and the district court’s conclusion that he had identified non-frivolous issues in his case. In any event, she would answer the question by looking to the relevant language of AEDPA which only applies to an “application” for a writ of habeas corpus. Thus, while pre-application filings might result in a habeas proceeding, they are not an application as required by the statute.
Souter (joined by Ginsburg and Breyer) dissented. (Note that Stevens, their usual comrade-in-arms, joined the majority.) He read the relevant language in AEDPA in light of the separate provision that allows a court to stay an execution pending resolution of a habeas petition. Under that section, a court must assess the merits of the habeas claim, and according to Souter, the ultimate merits of the habeas petition should be judged by the same standards applied by the court when it makes the initial assessment of the merits on the stay application.
Finally, my picks for the remaining December cases. (When reading these, please keep in mind that I am currently 39th in my office pool on the NCAA men’s tournament.):
1. Virginia v. Black (cross-burning): Thomas. For no reason other than that he actually spoke at oral argument in this case. I’d bet that the Chief rewards this display of interest.
2. Branch v. Smith (Voting Rights Act/redistricting case): Scalia. This case has some statutory interpretation and jurisdictional issues–right up Scalia’s alley.
3. State Farm v. Campbell (punitive damages): Stevens. He’s written some of the big punitive damage cases recently, so it wouldn’t be surprising if he wrote this one. Although he’s already had a majority opinion from December, it was that awful tax case (sorry tax lawyers!), so he could get another one.
4. Washington Legal Found. v. Legal Foundation (IOLTA; takings): O’Connor. The last IOLTA case was 5-4, and it wouldn’t be surprising if this one is too, with SO’C providing the deciding vote. (For the non-lawyers on this list, IOLTA stands for “interest on lawyer trust accounts.” Don’t worry about this now; I’ll explain it when the case comes down.)
5. Chavez v. Martinez (5th amendment/qualified immunity): Kennedy. I don’t know why. It just sounds like a Kennedy case and he doesn’t have any majorities yet from December.
(You should all delete this email now so you won’t remember my picks when the actual decisions come down.)
Thanks for reading.
Sandy
From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Mark Kravitz, Jeff Babbin, or Sandy Glover
at 203-498-4400, or visit our website at www.wiggin.com.