Greetings Court fans!
This email should finish out all the opinions handed down in the last 2 weeks. The Court will sit tomorrow to hand down an order list (and possibly opinions), but that should be it for this coming week.
Before turning to the opinions, the Court entered one order of interest Friday afternoon: it removed Medical Board of California v. Hason (02-479) from its argument calendar (it was scheduled for argument March 25) thus suggesting that an order dismissing the case will soon follow. This case was at the intersection of two major “themes” in the Court’s current jurisprudence: the Eleventh Amendment and the Americans with Disabilities Act. In this case, petitioner the Medical Board of California asked the Court to decide whether Congress had the power to abrogate state sovereign immunity for claims brought under Title II of the ADA. On Monday, however, the state filed a motion to dismiss the case. (It is not really clear why the state filed this motion, although some sketchy news reports suggest that advocates for the disabled launched a concerted effort to convince the political decision-makers in California to drop the case.) Although the Court has not officially dismissed the case, it seems likely that it will do so soon.
On to the opinions:
In Scheidler v. NOW (01-1118), the Court overturned a RICO jury verdict in favor of NOW in its suit against abortion protestors. NOW claimed that the abortion protestors engaged in a pattern of racketeering activities to shut down abortion clinics throughout the country. After considerable procedural wrangling, the case eventually went to the jury, and the jury returned a verdict for NOW. The Seventh Circuit upheld the verdict, but the Supreme Court (in an 8-1 opinion, authored by the Chief) reversed. According to the Court, the verdict for NOW could not stand because all of the predicate acts supporting the verdict were ultimately based on the crime of extortion, but NOW had failed to prove extortion. (Under RICO, a plaintiff must show 2 or more “predicate acts,” i.e., crimes, to prove a pattern of racketeering activity.)
The primary focus of the Court’s opinion was on the alleged extortion in violation of the federal Hobbs Act. The thrust of the opinion is this: extortion has always been understood to mean the “obtaining of property from another with his consent, induced by a wrongful use of force or fear or under color of official right.” The key word is “obtaining.” While petitioners might have deprived NOW and the clinics of some of their property rights (right to seek medical services, right to perform jobs, right to conduct business), they did not obtain respondents’ property. If you remove the “obtain” requirement from extortion, the crime becomes “coercion,” but Congress clearly intended to reject coercion when it drafted the Hobbs Act. Thus, petitioners did not commit extortion under the Hobbs Act. Moreover, because all of the remaining predicate acts were in some way based on extortion, they were all deficient, and thus the verdict must be overturned.
Ginsburg and Breyer concurred, principally to note that they were focused on the implications of this case for individuals engaged in protest activities. They noted that Congress has passed specific legislation to address criminal activity at abortion clinics, and thus the principal impact of an opinion against the abortion protestors would have been on other cases under RICO (i.e., cases against civil rights protestors). Stevens dissented. The primary focus of his dissent was that extortion under the Hobbs Act extends to intangible property as well as tangible property.
Turning next to Miller-El v. Cockrell (01-7662), in another 8-1 decision (this time with Thomas in dissent), the Court (opinion by Kennedy) reversed the Fifth Circuit’s refusal to hear an appeal from a district court’s denial of habeas petition filed by a death row inmate. This case is ultimately about the appropriate standard for a Court of Appeals to apply when deciding whether to consider an appeal from the denial of a habeas petition (in habeas statute lingo, whether to issue a “certificate of appealability” or COA), so let me get that out of the way: Under the federal habeas statute, a court of appeals should issue a COA when a habeas petitioner makes a “substantial showing of the denial of a constitutional right.” This inquiry is made on a threshold examination of the petitioner’s claim, and the standard is satisfied if reasonable jurists could disagree with the district court’s resolution of the case. In this case, the Court of Appeals erred by applying a significantly more stringent standard to the inquiry. When the Court applied the proper standard, it found that a COA should have issued.
This case is interesting beyond the habeas context primarily because of the underlying legal claim, namely, a Batson challenge to the selection of a jury in a capital case in Texas. Under Batson, prosecutors may not exercise peremptory strikes on the basis of race. Miller-El claimed that the prosecution exercised its peremptory challenges to exclude 10 of the 11 African-Americans eligible to serve on his capital jury. The central question in this case was whether the prosecution offered persuasive race-neutral justifications for its peremptory strikes. On this issue, Miller-El presented the evidence from his own case (the number of excluded veniremen of different races, different questions asked of veniremen of different races), and evidence that district attorneys had been trained to exclude minorities from juries and to use other procedural mechanisms to reduce the chances of ending up with minorities on the jury. Under the preliminary review of this evidence at the COA stage, the Court found this evidence called into question the prosecutor’s justifications and thus required the issuance of a COA.
Scalia concurred to explain (in detail, based on extensive quotations from the record) why he thought this was a very close case. Thomas dissented. In his opinion, the Court failed to accord sufficient deference to the state courts’ factual findings, which had upheld the prosecutors’ justifications as credible.
I turn next to two Indian trust cases: United States v. White Mountain Apache Tribe (01-1067) and United States v. Navajo Nation (01-1375). (Full disclosure: In a former life, I worked with the attorneys for the government who were primarily responsible for these cases. That said, I hope I get these right!) In both of these cases, an Indian tribe sued the United States for money damages for an alleged breach of trust. The “Indian Tucker Act” (28 USC 1505) waives sovereign immunity for such suits against the United States, but does not itself create any substantive rights. To sustain a claim, a tribe must point to a source of substantive law that “can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.” The primary cases giving content to this standard — which the Court reaffirmed with the current decisions — are called Mitchell I and Mitchell II. In Mitchell I, the Court found that the General Allotment Act did not authorize claims for money damages against the US because while it created a trust relationship between the US and Indians who received allotments of land under the act, the act did not authorize the US to manage or control the land. In Mitchell II, by contrast, the Court found that other statutes and regulations imposed judicially enforceable duties on the US in its management of forests on allotted lands because those statutes/regulations gave the US full responsibility to manage Indian resources and land for the benefit of the Indians.
In the current cases, the Court held that the Indian Mineral Leasing Act (IMLA) fell within the reach of Mitchell I, while a 1960 Act regarding the former Fort Apache Reservation fell within Mitchell II. In Navajo Nation, the Court (Ginsburg, for herself, Rehnquist, Scalia, Kennedy, Thomas and Breyer) found that the IMLA provision requiring government approval of Indian coal leases does not mandate compensation by the federal government. The Secretary of the Interior approved a lease between the Nation and Peabody Coal, and the Nation filed this suit claiming that the Secretary breached his fiduciary duty by approving the lease with an inadequate royalty rate for the Nation. (The Nation focused primarily on some allegedly improper ex parte contacts between the Secretary and Peabody regarding the lease negotiations.) The Court held that the mere approval of a lease was not a duty adequate to support a claim for monetary damages, primarily because the government had no authority to manage the resources. (The Court also rejected the Nation’s alternative arguments based on other statutory provisions, finding all of them inapplicable in the present setting.) Souter (joined by Stevens and O’Connor) dissented. Souter contended that the power to approve leases raised a substantial fiduciary obligation to the Nation, and this was enough to survive a motion for summary judgment.
In White Mountain Apache Tribe, by contrast, the Court found a statute that fairly read, mandated compensation by the government. The statute in that case provided that the US would hold certain land in trust for the tribe “subject to the right of the Secretary of the Interior to use any part of the land and improvements for administrative or school purposes for as long as they are needed for the purpose.” Although the government used the land (which was subsequently listed as a national historic site) for the stated purposes, a 1983 study determined that it would cost $14 million to rehabilitate the property in accordance with standards of historic preservation. The tribe sued for breach of the fiduciary duty to maintain, protect and repair trust property, and the Supreme Court upheld jurisdiction. The primary factor pushing this case into the Mitchell II camp was the fact that the US had the authority to make use of the trust corpus, and having exercised that authority, obtained control over that property. Under elementary principles of trust law, the trustee must preserve and maintain trust assets, and thus, the Court held that it was natural that the government should be liable in damages for breach of this duty.
Ginsburg and Breyer concurred to explain why they believed the result in this case was consistent with Navajo Nation. Thomas (joined by Rehnquist, Scalia, and Kennedy) dissented. According to Thomas, the statute at issue created a “bare trust” and thus was insufficient under Mitchell I.
Finally, in Moseley v. V Secret Catalogue, Inc. (01-1015), the Court (Stevens for a unanimous Court) interpreted the Federal Trademark Dilution Act (FTDA) to require proof of actual dilution. In this case, respondents claimed that petitioners’ store (“Victor’s Little Secret”) diluted the trademark for their Victoria’s Secret stores and catalogue. As most of you know, Victoria’s Secret sells “moderately-priced, high quality, attractively designed lingerie.” Victor’s Little Secret sells lingerie as well, but also sells a variety of other items, including adult videos and adult novelties. (In what is destined to be a famous footnote, footnote 4 describes the items sold by Victor’s Little Secret. Anyone know what a “whyss” is?). As relevant here, dilution under federal law is the “lessening of the capacity of a famous mark to identify and distinguish goods and services.” Courts had split on whether a party had to show actual harm to the famous mark or whether the party could show dilution by showing tarnishing of the image or blurring of the marks.
The Supreme Court held that under federal law, dilution requires the showing of actual harm to the famous mark. While mere tarnishing or blurring might be sufficient under some state laws, the federal statute excludes language that might support such a claim. Thus, the mere fact that consumers mentally associate a junior user’s mark with the famous mark is not sufficient because such mental association will not necessarily reduce the capacity of the famous mark to identify the goods of its owner. To succeed, a claimant must show actual dilution–an actual lessening of the capacity of the famous mark to identify and distinguish goods or services.
Two final points on the opinion: (1) Scalia joined the opinion except for Stevens’ perusal of the legislative history of the federal statute, and (2) Kennedy concurred separately to emphasize his belief that the key word in the dilution statute is the word “capacity.”
That’s all for now. Thanks for reading. And again, as always, I welcome any comments, questions, or corrections.
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.