Rocky Mountain Appellate Blog

The Memoirs of Justice Thomas

Justice Thomas’s memoirs, My Grandfather’s Son: A Memoir, will be released on October 1st. In connection with the release, Justice Thomas will give an interview to 60 Minutes (some of the details of which have already been leaked).

Books by Supreme Court Justices are not uncommon, and at least one other sitting Supreme Court Justice has published a memoir (Justice O’Connor’s memoir Lazy B). Justice Thomas’s book, like Justice O’Connor’s, apparently focuses on his childhood, and ends at his confirmation hearing. While some people have suggested that such a memoir is an inappropriate attempt to “cash in” on the prestige of his office, it is (in my opinion) no more improper than the slew of books from current and former executive and legislative branch officials and military officers. 

I am sure that, whatever is in it, the book will be an interesting read for Supreme Court watchers, particularly given Justice Thomas’s reputation for privacy.  I hope, however, that Justice Thomas has chosen to go beyond his (admittedly very compelling) life story to discuss the development of his legal philosophy.  Justice Thomas’s theory of Constitutional interpretation is unlike that of most of the other Justices (a fact obscured by the similarity of his voting record to that of Scalia) and a book further explicating it could be truly important.

Colorado Supreme Court Rejects Confrontation Clause Challenge

In Hinojos-Mendoza v. People, No, 05SC881, the Colorado Supreme Court reaffirmed the consititionality of C.R.S. § 16-3-309(5) under the new standards established by Crawford v. Washington, 541 U.S. 36 (2004). 

Hinojos-Mendoza was convicted of possession of cocaine with the intent to distribute. At his trial, the state, as allowed by § 16-3-309(5), introduced a lab report indentifying the substance in his possession as cocaine without calling the technician who prepared the report. When defense counsel objected, the court determined that the defense counsel had failed to request that the technician be present (as he was entitled to do under the statute) because he was not aware of the statutes existence.

The Colorado Supreme Court first determined that laboratory reports are testimonial statements subject to Crawford. It then determined that § 16-3-309(5) was facially valid because it did not deny the defendant the right of cross examination, but simply imposed a minimal procedural burden on that right, similar to the requirement that a defendant make a pretrial disclosure of alibi witness. The Colorado Supreme Court further held that the statute was constitutional as applied because the right at issue was not so “personal and fundamental” that it could be waived only by the defendant himself and not his counsel.

Justices Martinez and Bender dissented, and would have held that § 16-3-309(5) cannot be constitutionally applied without a voluntary, knowing, and intentional waiver, that they did not believe was present in this case. The dissent also reveals why the testimony of the technician was so important to the defendant. He was convicted for possession of over 1000 grams of cocaine. The lab report stated that the “tan tape wrapped block” it examined weighed 1004.5 grams, but did not state whether this weight included the weight of the wrapping. The extra 4.5 grams of weight increased the defendant’s maximum sentence by eight years.

Supreme Court Grants Cert on Tenth Circuit Drunk Driving Decision

Last December, the Tenth Circuit held that felony driving while intoxicated (DWI) is a "violent felony" under the Armed Career Criminal Act, thus subjecting the defendant, Larry Begay, to a mandatory minimum sentence of 15 years.  U.S. v. Begay, No. 05-2253.  I posted on the decision at the time, and expressed agreement with Judge Hartz's opinion. 

Judge McConnell dissented from Judge Hartz's majority opinion, arguing that the plain language of the statute compelled the contrary result.  He did, however, acknowledge his reluctance to part with the majority and the two other circuits (Seventh and Eighth) to have decided the issue the same way.

Today the Supreme Court granted Begay's cert petition (scroll down to page 6).  Begay is represented by Margaret A. Katze of the New Mexico Federal Public Defender's Office.

I noted earlier this year that Justice Stevens, in a concurring opinion, acknowledged Judge McConnell as a "well-respected federal judge"; I wonder whether Begay's cert petition was helped by the fact that the decision drew a dissent from Judge McConnell.

Another Victory for Tribal Sovereignty

Last week the Tenth Circuit -- in a concise, tightly written opinion by Judge Baldock -- rejected on sovereign immunity grounds a challenge to an Indian tribe's civil forfeiture of non-Indian property.  Miner Electric, Inc. v. Muscogee (Creek) Nation, No. 06-5216.

The plaintiff, Russell Miner, had parked his van overnight at the Muscogee (Creek) Nation's casino, and the following day tribal security officers seized the vehicle as well as illegal drugs and $1400 found inside the vehicle.  (The opinion gives no indication of the grounds on which the van was initially seized and searched, but presumably it was illegally parked.)  Miner pleaded guilty in tribal court to possession of drugs, and the Nation then brought a civil forfeiture action against the van and the cash.  The property was forfeited after a tribal court hearing in which Miner participated, and the forfeiture was affirmed on appeal to the Nation's Supreme Court.

Miner brought an action in federal district court seeking an injunction and declaratory relief against the Nation, claiming that the tribal court lacked jurisdiction over a quasi-criminal proceeding against non-Indians.  The Nation argued that the court lacked jurisdiction on sovereign immunity grounds, but the district court rejected the argument and granted the plaintiff injunctive and declaratory relief.

The Tenth Circuit reversed, holding that Indian tribes as sovereigns are immune from suit absent a waiver.  The court further rejected Miner's argument that the court nonetheless had jurisdiction under the federal question statute:  "in an action against an Indian tribe, we conclude that § 1331 will only confer subject matter jurisdiction where another statute provides waiver of sovereign immunity or the tribe unequivocally waives its immunity."

The decision is a clear victory for tribal sovereignty.  However, the court's hinted that federal courts may still have jurisdiction where the plaintiff names tribal officials as defendants rather than the tribe itself: "[B]ecause [Miner] named only the Nation itself as a defendant, we do not reach the question whether any of the Nation's officials would be subject to suit in an action raising the same claims."

Tenth Circuit Affirms That Taxes Are Not Voluntary

In United States v. Chisum, No. 06-7082, the defendant, a “self-styled business and estate planner” was prosecuted for tax evasion.   The defendant’s primary argument at trial appears to have been that the Tax Code “is written to be 100% compatible with the scripture, and that it has a very strong voluntary component to it.”  Naturally, he lost on the merits.

The plaintiff appealed on various grounds.  The most interesting argument by far was his position that his prosecution was barred by the Paperwork Reduction Act because there had been no proof that IRS Form 1040 carried a control number as required by the Act.  The Tenth Circuit noted that, whatever the merits of this argument might be, the Act only potentially precluded prosecution for failure to file a form that did not carry a control number, not for filing of false information.

As a side note, the Tenth Circuit also affirmed that the Federal District Court for the Eastern District of Oklahoma may exercise judicial powers “within the State of Oklahoma’s sovereign territory and without the federal zone.”

"A Constitutional Crisis"

That's how Chief Justice Roberts last year described Congress's failure to raise judges' salaries (currently $165,200).

There's a story on the front page of today's USA Today that might bolster the chief justice's point.  The paper reports that since 2005, 22 of 875 federal judges have resigned or retired.  Since 2000, there have been 51, and another 17 are projected to leave the bench by 2009.  (To put these numbers in perspective, the paper reports that only three judges resigned or retired between 1958 and 1969.)

Among the high-profile judges to have recently resigned their judgeships:  Judge Paul Cassell of the District of Utah, who resigned on Friday, and Judge Michael Luttig of the Fourth Circuit, who resigned last year to take a job as general counsel for Boeing.  Judge Cassell candidly stated in his resignation letter that salary was a factor in his decision, and Judge Luttig's decision to leave for a million-dollar salary at Boeing was almost certainly driven mainly by financial considerations.

Although salary is undoubtedly an issue, I wonder whether the trend toward nominating younger lawyers to the bench has compounded the problem.  It used to be that judges weren't generally nominated to the bench until they'd had a long and distinguished career in private practice, where presumably they made enough money to afford the substantial pay-cut that a judgeship entails. 

In the last 25 years or so, however, more judges have been appointed to the bench at ever-younger ages (scroll down to the 12th paragraph).  If a lawyer is nominated before the age of 40 and has small children at home, he or she might feel enormous pressure to resign when the children hit college-age (and when the judge is roughly 50, at the height of his or her financial potential).

Colorado Court of Appeals Upholds $12 Million Jury Verdict Against Union Pacific

In July 2005, a Douglas County jury awarded Missy Martin and her family nearly $12 million, including $4 million in punitive damages, against Union Pacific in a lawsuit arising from a railroad crossing accident that left Missy Martin severely injured and permanently disabled.  (Click here for contemporaneous news reports of the verdict.)

UP appealed, claiming that the trial court erred by holding that the Premises Liability Act strips landowners of the statutory defense of comparative negligence.  (UP had, on the eve of trial, moved the trial court to treat the case as a premises liability case rather than a garden-variety negligence case.)  The trial court interpreted the Colorado Supreme Court's decision in Vigil v. Franklin, which held that the Premises Liability Act abrogated the open and obvious danger defense, as also stripping away statutory defenses, such as comparative negligence, from the PLA.

In a decision issued yesterday, the Colorado Court of Appeals affirmed the jury verdict.  Martin v. Union Pacific R.R. Co., No. 05CA1917.  The court, per Judge Webb (joined by Judge Loeb), held that Vigil did not speak to the issue of whether the PLA abrogated comparative negligence.  The court held instead that it is clear that the PLA did not include comparative negligence, because after the Vigil decision, the General Assembly amended the PLA by reinstating statutory defenses such as comparative negligence.  Justice Rovira dissented, arguing that Vigil mandates a contrary outcome.

In addition to rejecting UP's appeal, the court agreed with the Martin's cross-appeal and remanded the case for the trial court to consider whether to treble the damages.

The decision is a smashing victory for the Martins -- and for Hale Friesen, which defended the verdict on appeal.  Our own Richard Westfall argued the case to the court, and he was ably assisted by several Hale Friesen attorneys, including Shayne Spalten and me.

Justice Roberts Re-Affirms Marbury v. Madison

Apparently, Chief Justice Roberts gave a speech yesterday at Syracuse University. I have not tracked down a copy of the speech itself, but from reading various other blogs, the gist of the speech appears to have been that the existence of an independent judiciary is critical to the protection of First Amendment rights, and that without an independent judiciary the guarantees in the United States Constitution would be as worthless as those in the constitution of the former Soviet Union.

Other bloggers, and clever student protesters, have used this speech to criticize the Chief Justice’s First Amendment jurisprudence.  I think it also says something important about his view of the role of the judiciary.  It is generally accepted that, in the words of Justice Marshall “it is emphatically the role of the judicial department to say what the law is.”  There is a contrasting opinion, however, that the legislative and executive branches of the government should be their own independent arbiters of the constitutionality of their acts. While I may be reading too much into his speech, Justice Roberts appears to have emphatically rejected that point of view.

The Best 15 Minutes in Radio

As a follow-up to Aaron's post, although Professor Chemerinsky has not appeared before the Tenth Circuit as an advocate very often, he is a regular speaker at the Tenth Circuit Judicial Conference. He presents a summary of the key cases from each Supreme Court term, and he's one of the many highlights of what is always a terrific conference.

Professor Chemerinsky also appears in a weekly 15-minute segment on the Hugh Hewitt Show, where he debates with Dean John Eastman of the Chapman University School of Law concerning current legal and constitutional issues.  Their discussions are rigorous, but always substantive and respectful.  In my view, it is easily the best 15 minutes in radio.

Chemerinsky in the Tenth Circuit

It appears that Erwin Chemerinsky has been re-hired as Dean for the new Donald Bren School of Law at the University of California, Irvine. This is good news for the new law school, which gains a noted scholar as its new dean, and good news for public universities in general in that it reaffirms the distinction between the popularity of a professor’s views and the quality of his or her scholarship.

Although Chemerinsky’s work has been repeatedly cited by the Tenth Circuit, he seems to have appeared before that court on only on occasion. In Quigley v. Rosenthal, 327 F.3d 1004 (10th Cir. 2003), he and Catherine Fisk prepared a brief for various amici curiae. I tried to summarize Quigley, but it has so many twists and turns (and good details) that I found I could not do it credit. In short, it involved invasion of privacy/defamation claims by a couple who had been recorded making virulent anti-Semitic remarks about their neighbors and discussing, among other things, burning down their neighbors home using an effigy of the neighbors or a burning cross. The Tenth Circuit ultimately affirmed a multi-million dollar damages award in the plaintiffs’ favor.