Rocky Mountain Appellate Blog

Jury Selection and Harmless Error

Hatfield v. Wal-Mart Stores, Inc., (08-3233) is an excellent example of the lack of  an effective remedy when a District Court fails to strike a juror for cause.  In this case, the District Court erroneously refused to strike two jurors for cause even though “[a]t the time of trial, one of the challenged prospective jurors . . . was employed as a lift mechanic at [Defendant] Wal-Mart. The other challenged juror . . . disclosed during voir dire that she was a current Wal-Mart employee and that she had previously worked at the store where the incident occurred.  . . . [She] also disclosed that she was once co-manager with  . . . the Wal-Mart corporate representative and witness, and she knew several other Wal-Mart employees on the witness list.”  The plaintiff was thus forced to use preemptory challenges to remove these witnesses and, by virtue of having exhausted her preemptory challenges, was forced to seat a jury that included a juror who worked with the wife of the defense lawyer, and a juror who had previously worked in grocery stores and the retail industry. Under a harmless error analysis, the Tenth Circuit found that the presence of these jurors ‘did not have a “substantial influence on the outcome of the trial,’ nor does it leave one in ‘grave doubt as to whether it had such effect.’  The Tenth Circuit appears to have reached this conclusion in part because “at the time Plaintiff did not object to the composition of the jury as seated.”

U.S. Supreme Court Orders Rare Reargument in Citizens United Case

The U.S. Supreme Court has been busy issuing end-of-term decisions, including the Ricci decision which issued today.  That decision (which held by a 5-4 vote that a municipality violated Title VII by declining to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination) understandably received most of the press's attention today.

However, the Court did not issue a decision in the Citizens United v. FEC case, which was argued to the Court on March 24.  Instead, the Court took the extraordinary step of ordering reargument of the case in a special session on September 9.  Thus, the case will likely be decided by a different Supreme Court than the one to which arguments were presented on March 24.

The facts of the case surround a documentary on Hillary Clinton which a conservative not-for-profit group wanted to advertise in Democratic primary states without complying with federal campaign finance law.  Lower courts held that the movie was essentially a long campaign ad, and therefore must be regulated like one.

The Court ordered the parties to submit additional briefing to address whether the Court should overturn its past decisions banning certain political speech by corporations and corporate and union spending on television campaign ads.  This could signal that a majority of the Court is contemplating the reversal of decades of precedent on how money is spent in federal elections.

§ 5 of the Civil Rights Act Remains in Place

The Supreme Court issued its opinion in Northwest Austin Municipal Utilities District Number One v. Holder today regarding the constitutionality of § 5 of the Voting Rights Act.  The Court, in an opinion authored by the Chief Justice and joined by the remainder of the Court with the exception of Justice Thomas, who concurred in part and dissented in part, held that the district was eligible to seek a “bailout” under § 5.  The Court thus concluded that it did not need to reach the constitutionality of § 5.   Justice Thomas would have reached the constitutional question and struck down § 5.

Supreme Court Declines to Extend Title VII Mixed Motives Burden Shifting; Heightens Burden of Proof for ADEA Claims

Today, in a 5-4 decision, the Supreme Court issued its opinion in Gross v. FBL Financial Services, No. 08–441, holding that a mixed motives jury instruction is never appropriate in an Age Discrimination in Employment Act (“ADEA”) case.  This decision is noteworthy in several respects, not the least of which is the heightened difficulty a plaintiff faces when attempting to prove discrimination on the basis of age.

 

First and foremost, the Court has significantly raised the burden of proof for age discrimination plaintiffs, holding that a plaintiff must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the adverse employment action.  This represents a striking departure from the Court’s prior holdings that a Title VII plaintiff met his or her initial burden by demonstrating that an employer’s adverse action was motivated in part by an unlawful consideration.  Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).  In doing so, the Court relied heavily on the differing language of Title VII and the ADEA, noting that Congress has amended Title VII to explicitly authorize mixed motive cases.  42 U.S.C. §2000e-2(m).  Following well established tenets of statutory interpretation, the Court reasoned that had Congress intended the ADEA to permit a lessened burden of persuasion via a mixed motives theory, it would have amended the ADEA as well.  Thus, the majority concluded that the mixed motives burden shifting adopted by all of the Circuit Courts has no place in ADEA cases.

 

Second, and perhaps just as importantly, as noted by Justice Stevens in his dissent, today’s decision is addressed to a question on which the Court did not grant certiorari.  The question presented -- whether a plaintiff must first present direct evidence of discrimination before obtaining a mixed motives jury instruction in an ADEA case was disregarded.  Instead, Justice Thomas invoked Rule 14.1, which provides that the Court may consider any “subsidiary question fairly included” within the question presented by the parties.  Sup. Ct. R. 14.1.  While the question actually addressed is arguably antecedent to the subject to the cert petition, and, therefore within the ambit of Rule 14.1, Justice Stevens correctly points out the fact that the decision appears to represent “unnecessary lawmaking.”  Putting the outward appearances aside, the Court also went out of its way to cast doubt on the ongoing viability of Price Waterhouse even as it relates to common law civil rights precedent.  Gross, at 10 (“it is far from clear that the Court would have the same approach were it to consider the same question today in the first instance"; "even if Price Waterhouse were doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework”).

 

Finally, one can’t help but ponder the net effect of this decision going forward.  On one hand, the reasoning behind the Court’s decision -- strict statutory interpretation highlighting Title VII’s express language permitting the mixed motives theory -- opens the door for a broader application of this higher burden, beyond the ADEA context.  Plaintiffs bringing suit under Federal statutes that are modeled or legally analogous to Title VII, such as the ADA, may be foreclosed from utilizing the Price Waterhouse mixed motives theory on the reasoning that the ADA does not contain the express language Congress added to Title VII in the 1991 Civil Rights Act.  On the other hand, by singling out Congressional intent and legislative action as its basis for such a resounding change in the enforcement of Federal discrimination laws, the Court may be tempting (baiting?) Congress into reactive legislation, á la the Lily Ledbetter Act or the currently pending Arbitration Fairness Act.  We’ll have to wait to see whether this decision prompts a similar reaction from Congress, but readers should note that Senator Patrick Leahy (D-Vt.), Chairman of the Senate Judiciary Committee, recently posted a harshly worded assessment of today’s decision on his website: http://leahy.senate.gov/press/200906/061809c.html.

U.S. Supreme Court Defers to the States on Handling of DNA Evidence

The U.S. Supreme Court just issued a fascinating decision on post-conviction DNA evidence.  In District Attorney's Office v. Osborne, the plaintiff, who had been convicted of a brutal crime in Alaska 15 years ago, filed a section 1983 lawsuit against the DA's office seeking the release of DNA evidence that he claimed would prove his innocence.  The Supreme Court, by a 5-4 vote, rejected the lawsuit.  The first two paragraphs of Roberts' opinion succinctly set forth the Court's reasoning:

DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.  It has the potential to significantly improve both the criminal justice system and police investigative practices. The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure—usually but not always through legislation.

 Against this prompt and considered response, the respondent . . . proposes a different approach: the recognition of a freestanding and far-reaching constitutional right of access to this new type of evidence. The nature of what he seeks is confirmed by his decision to file this lawsuit in federal court under 42 U. S. C. § 1983, not within the state criminal justice system.  This approach would take the development of rules and procedures in this area out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts applying the broad parameters of the Due Process Clause.  There is no reason to constitutionalize the issue in this way.  Because the decision below would do just that, we reverse.

Is the Door As Open as Roberts and Scalia Say It Is?

Per Justice Scalia's dissent in Caperton v. A.T. Massey Coal Co., Inc.,  (U.S., June 8, 2009), 39 States elect their judges. According to the Chief Justice, joined by Scalia, Thomas and Alito, and Justice Scalia writing separately, the majority in Caperton opened a barrel of snakes, not a can of worms, by using the Due Process Clause to strike down a decision by a West Virginia Supreme Court of Appeals' justice refusing to recuse himself in a case where a coal company's corporate executive gave an estimated $3 million in contributions to the election of the non-recusing jurist.

The facts are unquestionably bad. The corporate executive's company suffered a $50 million jury verdict against it. The executive decided to back a challenger for an open state supreme court seat, bankrolling him to the tune of $3 million (which included $2.5 million to a § 527 group called "And For the Sake of the Kids"). The challenger won by a relatively narrow margin (approximately 53% to 47%). When the appeal of the $50 million jury verdict made it to the state supreme court, the new justice refused to recuse himself and the court reversed the jury verdict by a 3-2 vote. (Recusal would have apparently led to affirmance by an equally divided court.) The Supreme Court majority did not question the state supreme court justice's subjective view of his own lack of bias, but held, "[o]n these extreme facts the probability of actual bias rises to an unconstitutional level" based upon an "objective standard."

The dissents forcefully assert that the national court system will be dealing with Caperton bias claims for many years to come. Per the Chief Justice: "The majority's analysis is 'objective' in that it does not inquire into Justice Benjamin's motives or decisionmaking process. But the standard the majority articulates – 'probability of bias' – fails to provide clear, workable guidance for future cases."

Whether this is simply one of those rare sui generis cases that will likely never be replicated in our lifetime, or whether the barrel of snakes has truly been unleashed, we'll just have to see.

Consent to Settle

In Baird v. Olah (07-4282) the Tenth Circuit held that a bankruptcy trustee has the right to assign a bankrupt doctor’s right to consent to settlement under a medical malpractice insurance policy to the medical malpractice plaintiff. The Olahs sued Baird for medical malpractice. While the case was pending, Baird declared bankruptcy. The Olahs sought to purchase from the bankruptcy trustee Baird’s right to consent to settlement under Baird’s malpractice insurance. Baird objected, arguing that this right could not be assigned and that the transfer contemplated by the Olahs was contrary to public policy. In addition the insurer argued that the policy was an executory contract which had been rejected by the trustee. Both the bankruptcy court and the federal district court held that the policy was an executory contract. On appeal to the Tenth Circuit, the court first clarified the definition of an executory contract, formally adopting the “Countryman” definition set forth in Executory Contracts in Bankruptcy: Part 1, 57 Minn. L. Rev. 439, 460 (1973). Under this definition, the court held that the policy was not an executory contract. The court further held that the non-assignability clause of the policy did not apply after the event triggering the loss had occurred and set this date at the time of the events triggering the duty to defend. The Tenth Circuit thus concluded that nothing in the policy language prevented the right to consent to settlement from being exercised or assigned by the trustee. The Tenth Circuit noted that assignment of Baird’s right to settle to the Olahs would not increase the risk for the insurer, which could not be forced to settle. Rather it noted that “now that Dr. Baird has received his discharge in bankruptcy and will not be personally liable for any malpractice judgment, he has an inefficient and one-sided incentive to frustrate settlement and to insist that UMIA take the case to trial.”

10th Circuit Allows Rational Basis Challenge to Denver's Pit Bull Ban to Proceed

    In 1989, the City of Denver passed an ordinance banning pit bulls.  Over the years, it has survived a wide variety of legal challenges.  The most recent legal challenge was dismissed in federal district court late last year.  Last Wednesday, the 10th Circuit considered that dismissal in Dias v. City & County of Denver, 08-1132.  The 10th Circuit affirmed most of the trial court’s decision; however, it reversed the trial court’s dismissal of plaintiffs’ substantive due process claim.  Although the Court held that the human/companion animal bond is not a fundamental liberty interest, and thus that the ban was only subject to rational basis review, it nevertheless remanded the case back to the trial court for further consideration of this claim.  In doing so, the Court noted that the ban could be construed as irrational in light of the official breed guidelines from the American Kennel Club and the United Kennel Club which expressly state that American Pit Bull Terriers and Staffordshire Bull Terriers are noted for extreme friendliness towards people and gentleness with children.  Of course, the Court goes on to note that plaintiffs' chances of prevailing under this standard of review are quite remote.

    Interestingly, this case comes about six months after the American Bar Association’s Government and Public Sector Lawyer’s Division published an article noting that breed specific dog bans are falling out of favor among local governments.  The article cites to several studies which find that breed specific bans are expensive to enforce and are largely ineffective at reducing dog attacks.  The reason is simple: dog attacks are correlated to reckless owners, not to a particular breed.  Perhaps this case will encourage the Denver City Council to reconsider this ordinance.

A Supremacy Clause Primer

For those of you who are federal/state judicial power junkies, you will love the Supreme Court's May 27 opinion in Haywood v. Drown. The dispute was over whether the New York state legislature could effectively divest New York state courts of jurisdiction to hear 42 U.S.C. § 1983 claims brought against state prison officials. The New York Court of Appeals (in a 4-3 vote) upheld the constitutionality of the jurisdictional bar. The Supremes (5-4, usual suspects) reversed, finding the state jurisdictional bar unconstitutional.

Justice Stevens' majority opinion concludes that the state jurisdictional bar is not a "neutral rule of judicial administration" and thus violates the Supremacy Clause. Justice Scalia, by contrast, disagrees with this conclusion, but does so almost in passing. The meat of his far-reaching 37-page dissent is devoted to an incredibly entertaining constitutional analysis of concurrent jurisdiction by state and federal courts. Walking us through the debates by the Founders on the issue, he concludes that the States are free to close their courthouses to any federal claim they want under the Constitution as it was finally adopted. For the afficianados of a good Justice Scalia originalist rant, it's a must read.

Obama Picks Sotomayor

http://thecaucus.blogs.nytimes.com/2009/05/26/obama-makes-decision-on-supreme-court-nominee/?hp