The Court sits down on Tuesday to hear the arguments slated for February. This is the Court’s second to last month before the summer recess, and we have only received four opinions so far this term. For comparison, at this time last year we had six. Although not a huge difference, keep in mind that the Court is now sitting with a full bench, whereas last year Justice Gorsuch had yet to be appointed. On the other hand, this term has some of the most high-profile cases heard in recent years. We expect that May and June will be particularly busy for the Court (for example, last June, the Court handed down 22 opinions).
But apart from handing down opinions, the Court has certainly been busy since their last sitting! Earlier this month, the Court declined to block Pennsylvania’s Supreme Court gerrymandering decision, meaning that Pennsylvania lawmakers will have to re-draw their districts ahead of the 2018 midterm elections—just nine months away. Justice Alito gave no reasoning in his decision, but it is likely that the Court recognized that because the Pennsylvania Court’s decision was based solely on Pennsylvania’s Constitution, an intrusion would raise federalism concerns. This is not the Court’s last word on gerrymandering, though: still pending are the challenges to Wisconsin, Maryland, and North Carolina voting districts.
Additionally, the Court met on Friday to discuss the Deferred Action for Childhood Arrivals (“DACA”) program. The DOJ has asked the Court to review the federal district decision blocking the Trump administration’s plan to end the program. In a CNN article, Professor Stephen Vladeck, University of Texas School of Law, noted that the Court has not granted a petition for certiorari before a judgment since 2004, and has not done so absent circuit-level review since 1988. That article also predicts that we may get the Court’s decision on the petition on Tuesday.
As for the February oral arguments, the Court’s docket is fairly light when compared to other months this term. Notably, the Court will hear arguments in Janus v. American Federation of State, County, and Municipal Employees. The Court will look at whether they should overturn their 1977 decision in Abood v. Detroit Board of Education. Abood held that employees of public sector, union represented employers who choose not to join the union could be required to pay union dues because of the benefits that those employees receive from the union representation, whether they belong or not. The Abood decision has come under scrutiny for its tension with the First Amendment. Specifically, opponents argue that the act of negotiating is an inherently political act, and those employees who are not part of the bargaining unit and have no input are still required to pay for the act of negotiation, even if they disagree.
In another First Amendment case, Minnesota Voters Alliance v. Mansky, the Court will review a Minnesota statute that prohibits voters from wearing political apparel at the polls. The background of this case involves members of the Tea Party passing out buttons at the polls in 2010. Those buttons said “Please I.D. Me,” which the Brennan Center notes could mislead voters into thinking that identification is required to vote and possibly disincentivize people who do not have ready access to a government-issued I.D. from voting. This decision will have to thread the needle between protecting the right to vote and protecting freedom of speech.
The Court will also hear a challenge, brought under the Fifth Amendment, to a denial of a motion to suppress evidence obtained from wiretaps, and a challenge brought under the Sherman Act, among others. These and other cases being argued this month are detailed below. On the Docket has researched the parties’ court filings, summarizing the factual and procedural history of each case so that readers may acquaint themselves with the cases before they are argued. As always, don’t forget to check back when opinions are handed down for in-depth analysis of decisions.
February 20
Currier v. Virginia
No. 16-1348, Va.
Following a burglary, Michael Currier was charged with breaking and entering, grand larceny, and possessing a firearm after being convicted of a felony. The prosecution alleged that, on March 7, 2012, Mr. Currier and Bradley Wood broke into a house and proceeded to steal a safe containing $70,000 and more than twenty guns. After briefly removing the guns to access the money, the duo allegedly took the money and threw the safe carrying the guns into a river. The felon-in-possession charge was based on the theory that Mr. Currier briefly laid out the guns on the bed of the truck (thus possessing them) before placing them back into the safe and throwing the safe in the river.
Because the felon-in-possession charge required the prosecution to introduce evidence of Mr. Currier’s criminal history—in particular, previous breaking and entering and grand larceny convictions—both parties agreed to sever the charges. There would first be a trial on the breaking and entering and grand larceny charges. The felon-in-possession charge would be prosecuted in a second trial. Virginia later emphasized the rationale behind the severance: to help Mr. Currier. The state reasoned that if there had been a single trial to hear all the charges, the jury would have heard evidence of Mr. Currier’s prior convictions and possibly assumed guilt.
At the first trial, a jury acquitted Mr. Currier of both the breaking and entering and grand larceny charges. But at the second trial, after more refined witness testimony and a corrected procedural mistake from the first trial, a jury convicted Mr. Currier and sentenced him to five years in prison. Mr. Currier argues that issue preclusion under double jeopardy precluded the second trial because one jury had already found him innocent of the first two charges, and thus he could not have possessed the firearms (as the latter conviction requires the former conviction). In other words, Mr. Currier’s argument is: if he did not participate in the break-in, as a jury decided, he could not have later participated in the getaway involving the gun possession.
Both the trial court and the Virginia Court of Appeals disagreed with Mr. Currier and upheld his conviction at the second trial. The judges opined that a double jeopardy violation requires prosecutorial overreaching, which was simply not present here. In fact, they argued, the entire reason behind the severance was to protect Mr. Currier from undue prejudice; rather than prosecutorial overreaching, this scheme actually helped the defendant. The courts added that Mr. Currier waived his right to issue preclusion by consenting to the severance in the first place. Respondent pushes this argument in its brief to the Supreme Court by emphasizing that when a defendant agrees to risk the hazards of a second trial, he is accepting the possibility of inconsistent results.
Mr. Currier disagrees, arguing that the Supreme Court has held in multiple cases that prosecutorial overreaching is not required to violate double jeopardy. Additionally, he argues that the lower courts misapplied prior case law when coming to the conclusion that issue preclusion is unavailable when a defendant consents to having separate trials. Mr. Currier emphasizes the basic definition of issue preclusion—that is, precluding relitigation of any issue that was necessarily decided by a jury’s acquittal in a prior trial—and that these facts fit squarely within that definition.
City of Hays v. Vogt
No. 16-1495, 10th Cir.
The introduction of a defendant’s compelled statements at trial would plainly violate the Fifth Amendment privilege against self-incrimination. Does a similar violation occur when the government introduces a compelled statement at a probable cause hearing?
In the course of his work as a police officer in Hays, Kansas, Matthew Vogt came across a knife and, instead of reporting it, took it for his own personal use. When he later revealed what he had done, the department launched an internal investigation and ordered Vogt to provide a statement. Based on the investigation, the state filed criminal charges against Vogt. At a preliminary hearing to determine if probable cause existed, the state introduced evidence based on Vogt’s prior statements. The court determined that probable cause did not exist and dismissed the case.
The present litigation began when Vogt sued his former employer under 42 U.S.C. § 1983, arguing that the use of his statements at the preliminary hearing violated his Fifth Amendment right against self-incrimination. The district court found that Vogt did not properly allege a Fifth Amendment violation and dismissed the complaint. The Tenth Circuit reversed, finding that the Amendment protected against the introduction of Vogt’s statements from the probable cause hearing.
By its terms, the Fifth Amendment limits the privilege against self-incrimination to “any criminal case.” US Const. amend V. The City, however, does not argue that a probable cause hearing is not part of a criminal case. Rather, it argues that the nature of the privilege—protecting a defendant against being “compelled . . . to be a witness against himself”—means that a completed violation can only occur when the government introduces the defendant’s compelled statements in a criminal trial. The City cites cases in which the Court has referred to the Fifth Amendment protection as a trial right. Additionally, the City argues that its view is consistent with Fifth Amendment jurisprudence, most notably, the application of the Fifth Amendment in grand jury proceedings. Because a criminal defendant cannot attack an indictment based on the grand jury’s use of the defendant’s privileged statements, the City argues, it follows that defendants cannot claim the privilege to prevent the introduction of such statements in a hearing that takes the place of a grand jury.
Vogt replies that the language from prior cases describing the privilege as a “trial right” was dicta. He cites history to argue that the Founders expected the Fifth Amendment to apply in pretrial proceedings held to determine if criminal charges would move forward. He also notes that the government cannot introduce compelled self-incriminating statements in sentencing proceedings to refute the City’s claim that the right applies only at trial. The City’s claim about grand jury proceedings, Vogt further argues, merely demonstrates that the Fifth Amendment cannot be violated before indictment.
The United States has filed a brief in support of the City as amicus curiae.
February 21
Rosales-Mireles v.United States
No. 16-9493; 5th Cir.
Criminal defendants who fail to timely object to errors at trial face a heavy lift in convincing a court on appeal that the error warrants reversal. The question in Rosales-Mireles is whether a forfeited error in computing the defendant’s sentence should give rise to a presumption that the defendant can carry that burden.
Florencio Rosales-Mireles, a Mexican citizen illegally present in the United States, was deported after being convicted of an assault. He waded across the Rio Grande back into the United States shortly thereafter, and following his apprehension pleaded guilty to illegal reentry into the United States. The Probation Office calculated a sentencing range between 77 and 96 months. Unnoticed by either party, however, the presentencing report double-counted one of Rosales-Mireles’s prior convictions; a proper calculation would have resulted in a sentencing range between 70 and 87 months. The district court sentenced Rosales-Mireles to 78 months.
The Fifth Circuit affirmed the sentencing, finding that the error did not merit reversal under the “plain error” standard applicable to unpreserved errors. In United States v. Olano, 507 U.S. 725 (1993), the Supreme Court laid out a four-prong test for courts to apply on plain-error review. Applying the first three prongs, a court must find that there was an error, that the error was plain, and that the error affected the defendant’s substantial rights. If a court finds that the error satisfies all three of those prongs—as the parties agree the error in Rosales-Mireles’s case does—a court should correct the error if failure to do so “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” 507 U.S. at 736. The Fifth Circuit interpreted the fourth prong to mean that a court should reverse for plain error only if the error “shock[s] the conscience of the common man, serve[s] as a powerful indictment against our system of justice, or seriously call[s] into question the competence or integrity of the district judge.” United States v. Rosales-Mireles, 850 F.3d 246, 250 (5th Cir. 2017) (quoting United States v. Segura, 747 F.3d 323, 331 (5th Cir. 2014)).
Before the Supreme Court, the parties agree that the Fifth Circuit’s “shocks-the-conscience” test misstates the fourth prong of Olano. They disagree, however, about the scope of relief that is appropriate when a forfeited district court error results in a higher sentencing range. Rosales-Mireles argues that an erroneously high sentencing range should raise a presumption that the error satisfies the plain error standard. Although the government can still invoke countervailing factors to argue that the error does not merit reversal, Rosales-Mireles argues, in most cases courts should find that it does. Even if the Court does not adopt such a sweeping holding, Rosales-Mireles argues the Fifth Circuit’s unduly stringent “shocks-the-conscience” test, which makes it effectively impossible for defendants to satisfy Olano’s fourth prong, justifies reversal in his case.
In response, the government argues that Rosales-Mireles’s proposed presumption in cases of sentencing miscalculation would turn plain-error review on its head. The plain error standard is intentionally difficult to meet, the government argues, in order to encourage defendants to timely object to errors at trial. Replacing case-by-case evaluation with a default presumption in cases of miscalculated sentences would undercut the policy rationales underlying the rule. Although the government concedes that the Fifth Circuit misstated the standard, it argues that the court nevertheless applied it correctly. In Rosales-Mireles’s case, the final sentence imposed by the district court was reasonable and within both the erroneous range and the correctly calculated one, and thus did not seriously undermine the fairness of the proceedings.
Dahda v. United States
No. 17-43, 10th Cir.
Los Dahda was fined over sixteen million dollars and sentenced to prison for crimes stemming from an alleged marijuana distribution network in Kansas. The operation was manned by over forty individuals who sourced marijuana from California. Dahda’s role was as an importer and dealer. The government began investigating this drug network in 2011. As a part of that investigation, the government used wiretaps on the cell phones of the suspected members of the network. Those wiretaps were used to convict Dahda on fifteen counts. Dahda appealed his convictions to the Tenth Circuit.
Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, judges are authorized to issue a wiretap order “within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction).” 18 U.S.C. §2518(3). Here, nine wiretap orders were issued by the U.S. District Court for the District of Kansas. The orders did not include a geographic limitation on the locations of the listening posts or cell phones and therefore allowed interception to occur outside of the district court’s territorial jurisdiction.
The Tenth Circuit agreed with Dahda that the wiretap orders exceeded the district court’s territorial jurisdiction, but stated that the territorial defect did not warrant the suppression of the evidence. The court held that suppression is mandated only for a violation of the statutory requirements that “directly and substantially implement the congressional intention to limit the use of” wiretapping. United States v. Giordano, 416 U.S. 505, 527 (1974).
The Supreme Court, in Giordano, reasoned that not every violation of Title III’s requirements result in an unlawful interception under the statute. The Tenth Circuit, using the Supreme Court’s reasoning, held that even though some wiretap orders may be facially insufficient, that defect alone does not directly and substantially affect the congressional intention to limit wiretapping. The Tenth Circuit laid out two congressional “core concerns”: (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized. The court held that territorial-jurisdiction limitation did not implicate these core congressional concerns—as it was not mentioned in the legislative history of the Act—and thus did not require suppression of evidence. Dahda argues that the “core concern” reasoning, which he notes is extratextual, does not apply to motions to suppress that are insufficient on their face.
The Court will have to revisit the text of Title III to determine how a congressionally-supplied exclusionary rule should be interpreted in this statutory scheme.
February 26
Janus v. American Federation of State, County, and Municipal Employees, Council 31
No. 16-1466; 7th Cir.
When one thinks about labor unions, two of the top things that come to mind are collective bargaining agreements and union dues. In 1977, the Supreme Court held in Abood v. Detroit Board of Education, that public employers whose employees were represented by a union, but who chose not to join the union, were allowed to require those employees to pay fees because those employees benefited from the actions of the union. 431 U.S. 209 (1977). In Janus, the Court will decide whether Abood should be overturned so that the employees who do not join the union cannot be forced to pay a fee.
Janus originated in Illinois, which has a similar law to the Michigan one upheld in Abood. The Illinois law allows a union representing public employees to collect dues from members and a “fair share” fee from non-member employees on whose behalf the union also negotiates. In 2015, the Governor of Illinois filed suit to halt the collection of these fees. He argued that the statute violated the First Amendment because employees who disapprove of the union must contribute money to it.
Janus was dismissed by the district court and affirmed by the Seventh Circuit because “neither the district court nor this court can overrule Abood, and it is Abood that stands in the way of [t]his claim.” 851 F.3d 746 (7th Cir. 2017). Last term, the Court heard Friedrichs v. California Teachers Association, 578 U.S. ___, which also asked the Court to consider overturning Abood based on First Amendment grounds. The Court affirmed the decision below by an equally divided court. With a full complement of Justices, the Court will now decide whether Abood remains good law.
Ohio v. American Express Co.
No. 16-1454, 2d Cir.
By granting certiorari in Ohio v. Amex, the Court continues to accept its role in shaping the world of antitrust law. And now, it will have to do so with a more complex arrangement involving a two-sided platform made up of both merchants and customers.
The basic premise of the case against American Express is that it allegedly thwarts competition by prohibiting its merchants from steering customers towards credit cards with lower fees. Specifically, American Express includes an anti-steering provision in its agreements with merchants which forbids the merchants from doing anything to encourage the use of competing cards. This includes providing discounts for using other credit cards or simply posting a sign saying they prefer a different credit card. American Express essentially relies on this model in order to continue charging merchants higher transaction fees so that it can provide its customers with high-end benefits and rewards.
This case began with several major credit card companies. Each of those companies settled years before trial, except for American Express—the company arguably with the most to lose. This case also began with the Department of Justice’s Antitrust Division attempting to enforce this country’s antitrust laws. But the DOJ backed out of the case during the transition of presidential administrations, and now Ohio is the namesake for the petitioner.
The Eastern District of New York, finding in favor of the Government, applied the rule of reason (rather than finding American Express’s conduct per se unconstitutional), meaning that American Express had to show that the behavior at issue had some reasonable basis besides being anticompetitive. The Judge held that the anti-steering provisions were, in fact, anticompetitive because they stifled competition among credit card companies. Further, because American Express failed to establish any procompetitive effects, the scheme violated Section 1 of the Sherman Act. The Second Circuit reversed, finding that the Government’s burden was actually higher in two-sided platform cases than the district court required of it. In fact, the Second Circuit held, the Government bore the burden of showing that the anti-steering provisions had anticompetitive pricing effects on the merchant side and that those anticompetitive effects outweighed any benefits on the cardholder-customer side.
In its brief to the Supreme Court, Ohio argues that the Government met its burden under the rule of reason by showing that the anti-steering provisions caused industry-wide increases in merchant prices. Despite the Second Circuit’s holding, Ohio claims the Government did not need to prove that the anticompetitive effects (the higher merchant prices) outweighed the benefits (higher cardholder rewards).
American Express, in response, points to its lack of market power, which undermines any anticompetitive effects of its anti-steering provisions. To prove its lack of market power, American Express noted that its rivals are free to meet market demand where American Express only accounts for 26% of all credit card transactions. Additionally, while merchant prices might be higher, the Government failed to prove reduced output, reduced quality, and/or supracompetitive prices. Higher merchant prices alone are insufficient to prove a violation, American Express argues.
February 27
United States v. Microsoft Corp.
No. 17-2; 2d Cir.
In the midst of an investigation into illegal drug activity, the government issued a search and seizure warrant for the data pertaining to a specific Microsoft email account. There was probable cause to believe that the account was being used to further the illegal drug trade in the United States. The warrant required disclosure of email contents, records regarding the identification of the account, and records of communications between Microsoft and other persons regarding the account itself. Microsoft moved to quash the warrant on the grounds that the data the warrant required was in a data center in Dublin, Ireland, and the Stored Communications Act (“SCA”) restricts access to foreign servers. A magistrate judge denied Microsoft’s motion, holding that the relevant place of seizure for SCA purposes is where the government would review the content rather than the location where the content was stored. Thus, because the government would be reviewing the content from the execution of the warrant in the United States, the SCA did, in fact, authorize this warrant.
The SCA governs how an electronic communications service—such as Microsoft—can lawfully access electronic communications—e.g., emails—and disclose content from those communications. While both parties fundamentally agree that there is a presumption against extraterritoriality, the parties differ on whether the disclosure of data stored in Dublin violates that presumption. That question ends up turning on the focus of the SCA and determining where the conduct relevant to the statute’s focus takes place. Microsoft, asking the Court to affirm the Second Circuit’s opinion reversing the magistrate judge, argues that the SCA’s focus is on the need to protect users’ privacy interests. It further argues that the invasion of users’ privacy takes place where the customer’s protected content is stored. In this particular case, Microsoft says, the protected content is stored in Dublin. Therefore, executing this warrant would violate the presumption against extraterritoriality.
In contrast, the Government argues that the focus of the statute is on the acts the statute seeks to regulate and the parties or interests that it seeks to protect. This does not occur where the customer’s protected content is stored. Rather, because the statute seeks to regulate the disclosure of electronic records, which occurs in the United States, the Government says, the warrant does not violate the presumption against extraterritoriality.
Thus, the question of this case will turn on where the Court believes the conduct relevant to the focus of the SCA occurs. The answer to that question will have far-reaching significance for future computer privacy issues.
Lozman v. City of Riviera Beach
No. 17-21, 11th Cir.
It is not easy for an individual to get his or her case heard by the Supreme Court. It’s almost unheard of that the same person will get two cases heard before the Court. Fane Lozman will achieve that feat in a five-year window. In 2013, Lozman sued the City of Riviera Beach, see Lozman v. City of Riviera Beach, 568 U.S. ___ (2013), over whether his floating plywood home was a vessel under maritime law. Lozman won that case but his issues with the City of Riviera Beach continue.
Lozman was a resident of the City of Riviera Beach when the City proposed a redevelopment plan for the Marina in which his floating home resided. The City proposed using eminent domain for the plan, and Lozman openly criticized the Mayor and Council at City Council meetings. While the redevelopment plan was being finalized, Florida passed a bill prohibiting eminent domain for private development. Subsequently, the City Council held an emergency meeting to try and pass the plan the day before the Governor signed the bill. Lozman sued the City, arguing that the meeting was convened without sufficient notice. In a closed-door session, Councilperson Wade suggested using intimidation to beat the suit.
In November of 2006, the City held a public session at which Lozman was granted permission to speak. Lozman began speaking about corrupt local politicians and Councilperson Wade called for an officer to escort Lozman out. Lozman objected and was told he would be arrested if he didn’t walk out. Lozman was charged with disorderly conduct and resisting arrest.
In February of 2008, Lozman filed a § 1983 action against the City claiming that they retaliated against him for opposing the redevelopment plan. He brought claims for retaliation by false arrest, in violation of the First Amendment, unreasonable seizure, in violation of the Fourth Amendment; and common-law false arrest. At trial, where Lozman proceeded pro se, the jury returned a verdict in favor of the City on all counts. Lozman filed for a new trial, but was denied. Lozman then appealed to the Eleventh Circuit.
The Eleventh Circuit affirmed the ruling stating that the jury’s finding that the arresting officer had probable cause was supported by the evidence. The court then analyzed the jury instructions which stated that in order to find for Lozman on the claim of a First Amendment retaliatory arrest that the officer must possess a retaliatory animus. Lozman claimed the jury should have been instructed that it was Councilperson Wade who needed to have animus, and the court agreed that he had a compelling argument. The court, however, found the error to be harmless in light of the probable cause finding.
In his petition for certiorari, Lozman focused on the Eleventh Circuit’s claim that the probable cause finding made the jury instruction error harmless. The Supreme Court granted cert to decide whether probable cause defeats a First Amendment retaliatory-arrest claim. This question was presented to them once before but left unanswered by resolving that case on other grounds.
February 28
Minnesota Voters Alliance v. Mansky
No. 16-1435; 8th Cir.
Though it may not boast the same high stakes as debates over voting rights and redistricting, another case before the Court this term may affect Americans’ rights at the ballot box in a different way: what they have the right to wear.
Minnesota is one of ten states that bans voters from wearing political apparel at polling locations. The state’s ban prohibits voters from wearing a “political badge, political button, or other political insignia” while voting. See Minn. Stat. § 211B.11. On Election Day 2010, voters wearing shirts and buttons supporting Tea Party-aligned groups were told to cover up their political apparel and, in some cases, turned away from the polling place.
The Minnesota Voters Alliance (“MVA”) brought facial and as-applied challenges to the statute, arguing that it violated the First Amendment. The district court dismissed the complaints. The Eighth Circuit affirmed dismissal of the facial challenge but remanded the as-applied challenge. The district court then granted summary judgment to the state on the as-applied challenge, and the Court of Appeals affirmed.
MVA argues that the statute is overbroad, giving state officials wide discretion to ban any form of political attire. MVA distinguishes active campaigning for candidates and political causes from passive political speech. While the state’s legitimate interest in maintaining peace and order at polling locations may justify limiting the former, MVA argues, it cannot justify restrictions on the latter. Moreover, even if the state can legitimately prohibit Tea Party-themed attire on the basis that it might seek to influence how voters cast their ballots, MVA argues the statute is nonetheless too broad to stand.
The state argues that the statute is far narrower than Petitioners suggest. Under the state’s interpretation, apparel is only prohibited if it is intended to influence how people vote. Moreover, because the government is regulating speech in a government-sponsored forum, the state contends, the restriction need only be viewpoint-neutral and reasonable. In this case, the restriction serves the state’s legitimate interest in protecting the voting booth from confusion and improper influence. Finally, the state argues that the law is not overbroad, but urges the Court to certify a question over the law’s interpretation to the Minnesota Supreme Court in case it is concerned about its reach.
