Greetings, Court Fans!
We’re back from a brief hiatus, with five decisions and a few other items to report. Without further ado, here are the summaries:
In Garcetti v. Ceballos (04-473), a major decision that came down last week, the Court held 5-4 that when public employees make statements in the context of their official duties, their speech is not protected by the First Amendment and may be subject to employer discipline. (The case was reargued after Justice Alito joined the Court, and he was indeed the tiebreaker.) Ceballos was a prosecutor who, after becoming convinced that a search warrant was based on false representations, wrote a memo to his boss about the misconduct and testified at trial on behalf of the criminal defendant. He claimed he suffered various adverse employment actions because of his speech in violation of his First Amendment right to speak as a citizen on a matter of public concern – protection recognized by the Court in Connick v. Myers and Pickering v. Board of Education of Township High School District 205, Will County for speech that does not unduly disrupt the employer’s operations. The Ninth Circuit agreed that Ceballos’ speech was protected, but did not consider whether Ceballos was speaking as a citizen as opposed to an employee obligated to report misconduct to his boss.
The Court reversed, in an opinion by Justice Kennedy. For the majority, the key fact was that Ceballos wrote his memo as part of his duty to recommend to his supervisor how to dispose of a particular case. His speech, therefore, owed its existence to his professional responsibilities, and restricting it (by subjecting it to discipline) would not infringe on any personal rights of Ceballos as a citizen. The fact that he wrote and spoke while performing his duties did not mean his employer could not evaluate his performance – if his supervisors thought Ceballos was inflammatory or misguided, they had the authority to discipline him. A holding to the contrary would require state and federal courts to perform the Connick/Pickering balancing test on all sorts of communications between public employees and their supervisors, inconsistent with the principles of federalism and the separation of powers. As a result, that test now simply does not apply to speech made pursuant to official responsibilities.
Justice Souter wrote the principal dissent, a lengthy opinion joined by Stevens and Ginsburg that is beyond the scope of this summary but worth reading. Souter defended the use of the Connick/Pickering balancing test for “official” as opposed to “personal” speech, arguing that a citizen’s interest in speaking does not evaporate simply because the speech relates to what he must do every day at work. While the majority’s concerns about intrusion into the public workplace are valid, Souter believes that they can be accommodated by recognizing the weighty interest of public employers in performing their essential functions, such that only speech on very serious matters should be protected. Justice Stevens also dissented, disputing the idea that a categorical distinction between citizen and employee was possible, or that constitutional protection could hinge on a job description. He also noted that the Court seemed to establish a perverse incentive: To ensure First Amendment protection, employees should voice their concerns publicly rather than talk frankly with their superiors. Justice Breyer also dissented, rejecting both the majority’s categorical rule and Souter’s modified Pickering test, which Breyer believed still would not screen out enough speech (since most government issues are matters of public concern). Breyer would protect “official” speech only where there was an “augmented need” for constitutional protection and a low risk of judicial interference in the workplace; he thought both concerns were satisfied here.
This week, the Court issued four more opinions. First up, in Zedner v. United States (05-5992), the Court, led by Justice Alito, unanimously held that a defendant cannot prospectively waive his rights under the Speedy Trial Act of 1974. (Justice Scalia joined all parts of the opinion except that portion mentioning legislative history; given Alito’s free reliance here on legislative history, perhaps that “Scalito” nickname is inappropriate.) The Speedy Trial Act provides that federal criminal trials shall begin within 70 days after charge, but excludes delays resulting from a continuance so long as “the ends of justice served by [the delay] outweigh the best interest of the public and the defendant in a speedy trial,” and so long as the court considers specific factors and gives its reasoning on the record. In this case, Zedner was caught trying to open an account with very poorly made counterfeit U.S. bonds (as in, bonds from the “Ministry of Finance” of “Thunted States” – these bonds could not have fooled your dog). After Zedner was indicted, his counsel requested and received two “ends-of-justice” continuances. When Zedner requested a third continuance, the trial judge, concerned that another continuance might lead to an extended delay due to scheduling conflicts with other pending trials, suggested that Zedner waive his speedy trial rights “for all time” and provided him a form to do so, which Zedner signed. After the case dragged on for several years (in part because of concerns over Zedner’s competency), Zedner moved to dismiss on speedy trial grounds, claiming that his prospective waiver was invalid. The District Court denied the motion and the Second Circuit affirmed, but the Court reversed unanimously.
First, the Court found prospective waivers inconsistent with the goals, language, and structure of the Act, which was concerned not just with a defendant’s right to a speedy to trial but with the public’s interest in swift justice. The Court recognized that there are circumstances where the defendant, government, and court all would be happy to delay a trial, but where the public interest would not be served by such a result. Further, a defendant can obtain an excludable continuance only if the court expressly finds that the ends-of-justice” exception is satisfied. If a criminal defendant could just waive application of the Act, that exception would be rendered a virtual nullity. The Court rejected the government’s suggestion that the trial court be permitted on remand to give its reasons for granting Zedner’s third continuance – creating a possible basis for the excluding the delay under the “ends-of-justice” exception after the fact – because the Act requires the court’s reasons to be put on the record at some point before the court rules on a defendant’s motion to dismiss. Finally, the Court declined to exercise “harmless error” review because the Act requires dismissal where its provisions are not followed. The Court left it to the district court to determine whether the dismissal should be with or without prejudice.
Next, in Anza v. Ideal Steel Supply Corp. (04-433), the Court reiterated that only one whose injury is “proximately caused” by an alleged RICO violation may bring a civil suit, applying its holding in Holmes v. Securities Investor Protection Corporation. Ideal claimed that National Steel Supply, Inc. and its owners the Anzas violated RICO by failing to pay certain New York sales taxes and by submitting fraudulent state tax returns, enabling National to cut its prices (but not profits) and increase market share at Ideal’s expense. Ideal claimed that this conduct violated 18 U.S.C. § 1962(c), which forbids conducting an enterprise’s affairs through a pattern of racketeering activity, and § 1962(a), which prohibits using or investing income derived from racketeering activity in an enterprise engaged in interstate commerce (Ideal claimed National used its extra income to open a new office).
Justice Kennedy penned the 7-member majority opinion, explaining that this case presents a straightforward application of Holmes’ requirement that there be a “direct relation between the injury asserted and the injurious conduct alleged.” Ideal’s claim under § 1962(c) fails because it cannot establish this link. New York – not Ideal – was the direct victim of National’s alleged tax fraud scheme. Ideal’s alleged injury is too remove, indirect, and speculative: National’s lower prices do not prove fraud (numerous factors may drive a drop in prices), and fraud would not necessarily lead to lower prices (the tax money saved could have been spent elsewhere). Thus, it would be extremely difficult to ascertain Ideal’s damages and, were permitting such claims would mire the courts in highly complex damage assessments involving speculative claims. The Court further emphasized that an allegation of an injurious motive is not a “panacea” that can overcome the absence of proximate cause: Even assuming that National’s goal was to take market share from Ideal, the means it used directly injured New York, not Ideal. Finally, the Court declined to reach Ideal’s § 1962(a) claim since it was “at least conceivable” that the proximate cause analysis could differ between the two sections, and it remanded the case to the Second Circuit for a determination in the first instance. Justice Scalia concurred to note that “it is inconceivable” that Ideal’s alleged § 1962(c) injury is within the zone of interests protected by RICO.
Justice Thomas authored an extensive dissent (though he concurred in the remand of the § 1962(a) claim). Thomas found the injury alleged by Ideal to be sufficiently direct under RICO because it is not derivative or duplicative of New York’s interest (tax revenue), but is a separate interest injured directly by National’s conduct (the theft of market share). The fact that New York was a direct victim did not mean that Ideal was not also a direct victim. Further, difficulties in proof are no reason to find a lack of proximate cause – they are dealt with adequately by the requirement that damages cannot not be speculative; in any event, Thomas believes that the majority overstates the difficulties of proof. Thomas would approve the Second Circuit’s approach, limiting RICO plaintiff’s to “targets, competitors and intended victims of the racketeering enterprise.” Thomas also emphasized that the majority’s restrictive proximate cause test would cut at the heart of RICO’s reach over organized crime, precluding a legitimate business from bringing a claim that a mob-run business was increasing market share by threatening customers because the competitor would not be injured directly by the alleged intimidation.
Justice Breyer also concurred in part and dissented in part. He would adopt a different test for proximate cause that would preclude any RICO claim based on competitive injury where the harm was traceable to an unlawful act only through a form of legitimate competitive activity. Thus, where a competitor alleges only that it was injured by legitimate business activity (here, decreasing prices or opening a new store) that was made possible due to a RICO predicate act (mail and wire fraud in connection with failing to pay state sales tax), that claim is not cognizable under RICO. However, if a mob run business employs threats or extortion to increase its market share, that, in Breyer’s view, would be sufficient to establish proximate cause. (Clearly, Breyer’s opinion is at least in part a proposed solution to the concern raised by Justice Thomas of the effect this decision will have on organized crime cases.)
This has been a lengthy Update, so you’ll be happy to hear that the Court’s other decisions this week were short per curiam opinions. The Court dismissed as improvidently granted the writ of cert in Mohawk Industries, Inc. v. Williams (05-465), a case concerning whether a corporation and its agents were an “association-in-fact enterprise” under RICO, and remanded the case for the Eleventh Circuit to reconsider in light of Anza. And in Whitman v. Department of Transportation (04-1131), the Court remanded to the Ninth Circuit a case involving an FAA employee who challenged the agency’s drug-testing policy without first filing a union grievance. The Court took the question to review the Ninth Circuit’s ruling that the suit was barred, but decided instead to ask the Ninth Circuit first to determine whether the drug-testing policy alleged by Whitman was a “prohibited personnel practice” under the Civil Service Reform Act and thus subject to different treatment from other kinds of grievances (potentially a jurisdictional issue for the Court).
Finally, the Court’s order list this week included cert grants in three cases. The newsmaking grants were in Parents Involved in Community Schools v. Seattle School District No. 1 (05-908) and Meredith v. Jefferson County Board of Education (05-915), which concern the use of race in student assignments in public K-12 education. Since the Court took up the affirmative action issue just a few years ago in the University of Michigan admissions cases, these grants took many by surprise. Parents asks: (1) Whether the rationale for promoting student body viewpoint diversity in institutions of higher education, as discussed in Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003), should be limited and not extended into the context of elementary and secondary public schools. (2) Is racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools? (3) May a school district that is not racially segregated and that normally permits a student to attend any high school of her choosing, deny a child admission to her chosen school solely because of her race in an effort to achieve a desired racial balance in particular schools, or does such racial balancing violate the Equal Protection Clause of the Fourteenth Amendment?
Meredith asks similar, if less artful, questions (just a reminder, we don’t write these ourselves): (1) Should Grutter v. Bollinger, 539 U.S. 306 (2003) and Regents of University of California v. Bakke, 438 U.S. 268 (1978) and Gratz v. Bollinger, 539 U.S. 244 (2003) be overturned and/or misapplied by the Respondent, the Jefferson County Board of Education, to use race as the sole factor to assign students to the regular (non-traditional) schools in the Jefferson County Public Schools? (2) Whether the race-conscious Student Assignment Plan with mechanical and inflexible quota systems of not less than 15% nor greater than 50% of African American students without individually or holistic review of any student, meets the Fourteenth Amendment requirement of the use of race which is a compelling interest narrowly tailored with strict scrutiny. (3) Did the District Court abuse and/or exceed its remedial judicial authority in maintaining desegregative attractiveness in the Public Schools of Jefferson County, Kentucky?
The third grant was in Burton v. Waddington (05-9222), which asks whether the Court’s 2004 decision in Blakely v. Washington, invalidating state sentencing guidelines that turn on facts not found by juries, applies retroactively.
And with that, we are done for now. Thanks for reading!
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