Rocky Mountain Appellate Blog

Mackey on Drugs?

Although it is outside of the jurisdiction of the Rocky Mountain Appellate Blog, I could not resist blogging on Baird v. Department of the Army, No. 07-3046, from the Federal Circuit.*  In Baird the plaintiff challenged a decision of the Merit Systems Protection Board, which had upheld her removal from a position as a psychiatric nursing assistant in an Army hospital.  Baird was fired after failing a random drug test.  However, because she was the first employee at her hospital to fail a test, there was considerable internal discussion among her superiors between the time she failed the test and the time a discretionary decision was made to remove her.  Baird sought to show that the decision to remove her was made improperly.  The Federal Circuit reversed summary judgment for the defendant based on the defendants’ failure to produce various e-mails in discovery, which prevented the plaintiff from being able to support her theory.

However, Judge Rader, dissenting, noted that the court should not second guess the decisions of the administrative judge or unnecessarily interfere with attempts by federal agencies to implement zero tolerance drug polices. In support of this position he cited the well-known legal scholar Mr. Mackey (the school counselor at South Park Elementary) for the proposition that “drugs are bad, mmmkay?”  I’m hoping that we will see a citation to this proposition in at least one federal sentencing opinion in the next year.

*Thanks to Decision of the Day for bringing this case to my attention. 

The Fugitive Disentitlement Doctrine

In Martin v. Mukasey, No. 06-9572 the Tenth Circuit applied and upheld the constitutionality of the fugitive disentitlement doctrine in the context of an immigration appeal.   Under the fugitive disentitlement doctrine, a fugitive from justice loses the right to (among other things) pursue an appeal.  In this case, the plaintiff, Mr. Martin, had been ordered deported to the United Kingdom by the BIA, and had filed an appeal.  Four days after the BIA issued its order Martin and his counsel were sent a notice ordering him to appear before the Department of Homeland Security to discuss his case and his intentions to depart the United States. (Interestingly, although it is not discussed in the opinion, Martin was also ordered to bring with him a “one-way non-refundable ticket for use on or before” a date only a few weeks in the future, and long before his appeal would have been resolved.)

Instead of appearing as ordered, Mr. Martin disappeared from his job and residence and the Department of Homeland Security, despite some effort, was unable to locate him.  Martin did, however, continue to pursue his appeal through his attorney.  The court held that Martin’s failure to appear as ordered before the Department, and his disappearance, rendered him a fugitive.  It went on to observe that all of the circuits which had considered the issue had concluded that the fugitive disentitlement doctrine applied in the context of a pending immigration appeal. The Tenth Circuit agreed, citing concern for the enforceability of its decisions and the need for a sanction to redress the fugitive’s affront to the judicial process.  It therefore dismissed Martin’s appeal.

U.S. Supreme Court Rejects Categorical Exclusion of "Me Too" Evidence in Discrimination Cases

In a brief nine-page opinion, the Supreme Court in Sprint/United Mgmt. Co. v. Mendelsohn held that in an age discrimination case, allegations of age discrimination made by other employees involving different supervisors are neither per se inadmissible nor per se inadmissible.

However, the unanimous opinion is devoid of any analysis on that core question.  Instead, the opinion is devoted to discussing the Tenth Circuit's treatment of the trial court order that gave rise to the appeal.  The district court's order, it seems, was perfunctory and somewhat ambiguous, and the Supreme Court took issue with the Tenth Circuit's assumption that the district court intended to adopt a per se exclusionary rule.  In this regard, the Supreme Court makes an observation that appellate lawyers should bear in mind:

An appellate court should not presume that a district court intended an incorrect legal result when the order is equally susceptible of a correct reading, particularly when the applicable standard of review is deferential. . . . When a district court's language is ambiguous, as it was here, it is improper for the court of appeals to presume that the lower court reached an incorrect legal conclusion.  A remand directing the district court to clarify its order is generally permissible and would have been the better approach in this case.

In view of this analysis, it appears that the Supreme Court vindicates Judge Tymkovich's dissent to some degree.  In dissent, Judge Tymkovich stated:  "We are properly concerned with whether the court abused its discretion in excluding the testimony. I think not. This seems a classic judgment call. I readily admit that the court would not have erred in admitting the evidence, but I am equally confident that the court did not abuse its discretion in choosing to exclude it."

The Most Interesting Federal Courts Case in 20 Years

That's how one constitutional law professor who has taught federal courts for the last 20 years described Danforth v. Minnesota, which the U.S. Supreme Court handed down earlier this week.  Whether or not you agree with that assessment, law students in federal courts classes undoubtedly will be studying this decision for the next several decades.

In a nutshell, Danforth involved the "retroactivity" of Supreme Court decisions as applied to criminal convictions that have reached final judgment.  Can a state decide that a new rule of criminal law applies retroactively, even though the U.S. Supreme Court has determined that the new rule does not apply retroactively for federal habeas purposes?  By a 7-2 decision, with Chief Justice Roberts and Justice Kennedy dissenting, the Court answered in the affirmative.

In responding to the criticism that its holding comes at the expense of uniformity, the Court (per Justice Stevens) responded with language that easily could have been written by Chief Justice Roberts:

This interest in uniformity . . . does not outweigh the general principle that States are independent sovereigns with plenary authority to make and enforce their own laws as long as they do not infringe on federal constitutional guarantees.  The fundamental interest in federalism that allows individual States to define crimes, punishments, rules of evidence, and rules of criminal and civil procedure in a variety of different ways -- so long as they do not violate the Federal Constitution -- is not otherwise limited by any general, undefined federal interest in uniformity.

For his part, Chief Justice Roberts dissented largely on the ground that the majority's decision violates the Supremacy Clause.  His dissent was respectful, but vigorous:

The end result [of the majority's decision] is startling:  Of two criminal defendants, each of whom committed the same crime, at the same time, whose convictions because final on the same day, and each of whom raised an identical claim at the same time under the Federal Constitution, one may be executed while the other is set free -- the first despite being correct on his claim, and the second because of it.  That result is contrary to the Supremacy Clause and the Framers' decision to vest in "one supreme Court" the responsibility and authority to ensure the uniformity of federal law.  Because the Constitution requires us to be more jealous of that responsibility and authority, I respectfully dissent.

It would not at all be a stretch to describe Danforth as a triumph of federalism.  I find it immensely interesting that Justice Stevens was the author of that triumph, while Chief Justice Roberts dissented from it.  I would have thought that it would have been the other way around.  (I guess it must be true that Chief Justice Roberts never was a member of the Federalist Society.)

The Wire

The defendants in United States v. Verdin-Garcia, No. 06-3354 were each sentenced to three concurrent life sentences in prison (and other shorter concurrent sentences) for their leadership role in a large drug smuggling ring.

The defendants were arrested following a ten month DEA investigation involving extensive surveillance of the defendants’ organization. The defendants appealed, claiming among other things, that the DEA’s wiretaps were invalid and should have been excluded and that one of the defendant’s prison phone calls were improperly recorded for use as voice exemplars. The Tenth Circuit held that the wiretaps at issue were properly supported by affidavits demonstrating their necessity as required by 18 U.S.C. § 2518.  Among the many arguments the court rejected was the defendants’ suggestion that the government should have been required to infiltrate their organization with “moles or undercover agents” rather than rely on wiretaps.  The court also noted that the mere act of a defendant changing phone numbers does not require the government to reanalyze the existence of sufficient necessity for a wiretap.

The defendants refused to provide voluntary voice exemplars as ordered by the district court.  As a result, the government recorded calls that they made on prison phones, and used them as voice exemplars.  The Tenth Circuit held that because the defendants chose to use the prison phones despite being warned that their communications might be monitored, they had consented to the wiretapping of their conversations.

A Rare Win for an Indigent Pro-Se Litigant

Thayer v. State of Utah, No. 07-4066 is a rare case in which a destitute and imprisoned pro se plaintiff manages to jump through all of the procedural hoops, and is rewarded with an appellate victory.  In 2005 Mr. Thayer, an indigent Utah state prisoner, attempted to file a complaint against various defendants under §§ 1983, 1985, and 1986.  Contemporaneously with the filing of his motion, he also filed a motion for leave to file in forma pauperis.  This motion was granted, and the district court ordered Mr. Thayer to pay a reduced fee.  Mr. Thayer objected that he was unable to pay the reduced fee.  This second motion was ultimately granted, and Mr. Thayer was ordered to pay an eight cent filing fee. 

The district court then dismissed Thayer’s complaint, citing his failure to pay the eight cent fee.  In response, Mr. Thayer filed Rule 59(e) motion to alter or amend the judgment, claiming he had in fact paid the fee.  “Due to restrictions on his ability to copy documents, Mr. Thayer was unable to append to his motion a copy of the receipt evidencing his timely payment, but stated he would provide a copy when feasible.”  A month later, by letter, he provided a copy of this receipt to the court.

Mr. Thayer’s motion was subsequently denied, and he appealed. The Tenth Circuit held that the district court’s dismissal of Mr. Thayer’s complaint was a final an appealable order because the basis for the dismissal, the purported failure to pay the filing fee, could not be cured by amendment.  In considering the merits, the Tenth Circuit concluded that the district court had abused its discretion in dismissing Mr. Thayer’s action as “[c]ontrary to the district court’s findings, the record clearly reflects that Mr. Thayer provided a copy of a receipt showing that he paid the requisite $.08 partial payment . . . well within the prescribed period.”

Why Lawyers Cannot Arrest Their Former Clients

The defendant in Edison v. Owens, No. 07-7007, was an Oklahoma lawyer and a “reserve-force deputy sheriff” (a dual role which, the Tenth Circuit notes in passing, was prohibited by Oklahoma law).   About a few years prior to the incident in question, he had drafted a will for the plaintiffs.   In 2004, he was part of a group of deputies that obtained the consent of the plaintiffs to search their property (and a confession), located a number of marijuana plants, and placed the plaintiffs under arrest.  There were a number of problems with this arrest: (1) the defendant made a number of coercive statements to obtain the plaintiffs consent to a search, including threatening to “hold you here for three days” while a search warrant was obtained, and representing that “the judge would go harder” on them if they failed to consent to a search; (2) when one of the plaintiffs was “Mirandized” she identified the plaintiff as her lawyer, and he allegedly did nothing to correct this impression until she had been transported to jail. 

The case came before the Tenth Circuit on the Defendants appeal of the denial of his motions for summary judgment on the plaintiffs’ claims under the Fourth and Fifth Amendment, and for legal malpractice. After analyzing a number of factors, including the defendant’s role as the plaintiffs’ former attorney, the Tenth Circuit concluded that the consent to search was invalid.  However, the court determined that the facts of the case were sufficiently unique that the defendant was entitled to qualified immunity.  The Tenth Circuit also held that the Fifth Amendment claim failed, among other reasons, because there was no custodial interrogation and because whatever influence the defendants former legal role had on the plaintiff’s decision to confess, that influence was overshadowed by the fact that the plaintiff believed that her son had turned her in (an incorrect belief, but one she gained in part from overhearing conversation among the officers). The Tenth Circuit also held that the disputed factual issue precluded its review of the district courts denial of the defendant’s motion for summary judgment on the legal malpractice issue.

Justice Scalia on BBC

Justice Scalia is in London during a break in the Court's calendar, and yesterday he was interviewed on a BBC program called "Law in Action."  It's well worth listening to.

The U.S. media predictably focused on Justice Scalia's comments on torture of terror suspects.  That focus, though, obscures the fact that the BBC interview was both far-ranging and in-depth.  In one interesting exchange, Justice Scalia objected when the interviewer characterized Scalia as being "perceived as a fairly strict constructionist."  Justice Scalia called that a "false perception" and drew what appears to me to be a puzzling distinction:

I believe strictly in the fact that any legal document, including the Constitution, is static, does not take on whatever meaning the courts want it take on from age to age, yes I strictly believe that, but as far as giving content to it, I'm quite willing to give it a broad and reasonable content.

Another of Justice Scalia's comments that I found intriguing is the following:  "I ought to be the pin-up of the defense bar in the United States because I have written more opinions defending the right of the accused in our courts."  He made this comment in refuting the "common belief" that the Supreme Court's business essentially boils down to a clash between conservatives and liberals, and provided three examples of cases, including Texas v. Johnson (the flag-burning case) and BMW v. Gore (the punitive damages case), in which he came down on what might be deemed the liberal side.  (None of the three specific examples was a criminal case.)

Finally, it's worth noting Justice Scalia's thoughts on televising trials:  "Those who want to do it [i.e. televise trials] say we're trying to inform the public.  They're not trying to inform the public, they're trying to entertain the public and to make money in the process . . . . I think there is just something sick about making entertainment out of real people's legal troubles.  Even if you've ever been involved in civil litigaton, it gnaws at your insides and it's a terribly upsetting experience, and criminal [trials] is even worse."

Bush v. Gore and the Democratic Primaries

In case you haven't seen it, Ted Olson has a piece in today's Wall Street Journal, "Clinton v. Obama:  the Lawsuit."  Interesting musings on potential litigation, and the application of Bush v. Gore, if the Democratic primaries end up in a dead heat -- particularly in light of Michigan and Florida, whose delegates have been disqualified for defying party rules.  That outcome seems increasingly unlikely, though, as Obama continues to gain momentum.  Although Olson's piece is datelined today, it appears to have been written before Obama's weekend sweep and Clinton's management shake-up.

Legal Aid?

Thanks to a post on the Wall Street Journal’s Law Blog, I was tipped off to a suit recently filed in the District of Colorado. The plaintiffs (Colorado Legal Services and a similar organization from Texas) allege that numerous defendants have engaged in a nationwide scheme to defraud people seeking legal aid services.  The defendants allegedly advertise legal aid services, obtain money from clients in the form of “filing fees” and then disappear or provide grossly inadequate services.  The allegations in the complaint go on in detail for 581 paragraphs. I will be interested to see how this case develops.