Winter 2005

Supreme Court Update:

2004-05 Term Features Equal Protection, Rights of Immigrants, Establishment Clause Cases

The U.S. Supreme Court’s docket for the 2004-05 term includes numerous cases of interest to the Section, including due process and equal protection, rights of immigrants, First Amendment rights of government employees, warrantless arrests under the Fourth Amendment, and the Establishment Clause of the First Amendment. In December 2004, the Court issued decisions in several of these cases.

In its Dec. 13, decision in Kowalski v. Tesmer (03-407) the Court held that respondent attorneys lacked third-party standing to assert the rights of Michigan indigent defendants who had been denied appellate counsel.

Attorney respondents joined indigent criminal defendants in filing suit in the U.S. District Court for the Eastern District of Michigan after Michigan’s Constitution was amended to require that an appeal by an accused pleading guilty or nolo contendere be by leave of the court. Consequently, several state judges denied appointed appellate counsel to indigents pleading guilty. Respondents argued that this practice denies indigents their federal due process and equal protection rights. The District Court held both the practice and statute to be unconstitutional but the U.S. Court of Appeals for the Sixth Circuit reversed, holding that the attorneys had third-party standing to assert the indigents’ rights and that the statute was constitutional. On rehearing, the en banc Sixth Circuit agreed on standing but found the statute unconstitutional. In it’s holding, the U.S. Supreme Court found that the attorneys did not have a “close relationship” with their alleged “clients,” nor had they demonstrated any “hindrance” to the indigents’ advancing their own constitutional rights against the Michigan scheme. In its amicus brief, filed in support of Respondents, the ABA asserted that every convicted defendant, regardless of whether they have the means, should have assistance of counsel at the first level of appeal.

On Nov. 8, the Court heard oral arguments in Devenpeck et al. v. Alford (03-710) and considered the question of whether an arrest violates the Fourth Amendment when a police officer has probable cause to make an arrest for one offense, if that offense is not closely related to the offense articulated by the officer at the time of the arrest. In its Dec. 13, decision the Court reversed and remanded the case, holding that a warrantless arrest by a law officer is reasonable under the Fourth Amendment if, given the facts known to the officer, there is probable cause to believe that a crime has been or is being committed. The Court opined that the U.S. Court of Appeals for the Ninth Circuit’s additional limitation, that the offense establishing probable cause must be “closely related” to and based on the same conduct as the offense the arresting officer identifies at the time of arrest, is inconsistent with the Court’s precedent in Wren v. United States, which holds that an arresting officer’s state of mind (except for the facts that he knows), is irrelevant to probable cause.

On Dec. 9, the Court reversed and remanded the U.S. Court of Appeals for the Eleventh Circuit’s decision in Leocal v. Ashcroft (03-583), determining that state DUI offenses which either do not have a mens rea component or which require only a showing of negligence in the operation of a vehicle, are not crimes of violence.

Petitioner, a lawful permanent resident of the U.S., pleaded guilty to two counts of driving under the influence of alcohol and causing serious bodily injury in an accident, in violation of Florida law. While he was serving his prison sentence, the Immigration and Naturalization Service (INS) initiated removal proceedings pursuant to §237(a) of the Immigration and Nationality Act (INA), which permits deportation of an alien convicted of “an aggravated felony.” An Immigration Judge and the Board of Immigration Appeals (BIA) ordered petitioner’s deportation, and the Eleventh Circuit dismissed his petition for review, relying on its precedent that a conviction under Florida’s DUI statute is a crime of violence.

In a per curiam opinion issued on Dec. 6, the U.S. Supreme Court reversed the decision of the U.S. Court of Appeals for the Ninth Circuit in City of San Diego, California et al. v. John Roe (03-1669). The case involved John Roe, a former San Diego police officer who was fired in 2001 after his employer discovered that he had been using the Internet to sell videotapes of himself stripping off his uniform and pretending to write tickets. Roe argued the videos qualified as a “public concern” and were protected by the First Amendment because they were made while he was off-duty and away from the workplace, were marketed to a public audience, and did not identify him as a San Diego officer. In its opinion, the U.S. Supreme Court rejected Roe’s argument, stating that the officer’s “expression does not qualify as a matter of public concern under any view,” and found that his speech was “detrimental to the mission and functions of [his] employer.”

Later this term, the U.S. Supreme Court will hear arguments in Rompilla v. Beard (04-5462), where the key question presented is whether the refusal of the trial court to instruct the jury that, under state law, the only alternative to a death sentence was life imprisonment without parole was contrary to Simmons v. South Carolina. In Simmons, the Court held that the state could not advance generalized arguments about a capital defendant's future dangerousness while at the same time prevent the jury from learning that, if imprisoned, he would never be eligible for parole. Other questions presented in the case concern whether defense counsel was ineffective when he did not review prior convictions knowing that the prosecution would use them to push for a death sentence, and where the records would have provided mitigating evidence regarding the defendant's traumatic childhood and mental impairments; and whether counsel's ineffectiveness warranted habeas relief under the Anti-Terrorism and Effective Death Penalty Act. The ABA filed an amicus brief in support of Petitioner in this case.

The Court granted certiorari in three cases involving the Establishment Clause of the First Amendment. In McCreary County, KY, et al. v. ACLU of KY, et al. (03-1693), the Court will decide whether a government display of framed copies of the Ten Commandments in county courthouses violates the Establishment Clause of the First Amendment. In Van Orden v. Perry (03-1500), the Court will consider whether a monument of the Ten Commandments, located on the grounds of the Texas State Capitol, is an impermissible establishment of religion in violation of the First Amendment. In Cutter, et al. v. Wilkinson, et al. (03-9877) the court will determine whether Congress violated the Establishment Clause by enacting the Religious Land Use and Institutionalized Persons Act, which requires state officials to lift unnecessary governmental burdens imposed on the religious exercise of institutionalized persons under their control.

In Medellin v. Dretke (04-278) the Court will consider arguments brought by a Mexican national whose rights were adjudicated in the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.). In Avena, the United Nations’ highest tribunal, the International Court of Justice at the Hague (the World Court), ordered U.S. courts to reconsider the convictions and death sentences of Medellin and fifty other Mexican nationals on death row because the defendants were not given their rights under the Vienna Convention. Both the United States and Mexico are parties to the Vienna treaty, which enables consular officials to protect their citizens who are detained in foreign countries. The Court will decide whether U.S. courts must apply as the rule of decision, the Avena holding and whether U.S. courts must review and reconsider the national’s conviction and sentence without resort to procedural default doctrines.

In Castle Rock v. Gonzales (04-278) the Court will decide whether local governments can be sued for failing to enforce restraining orders. At issue is whether the Fourteenth Amendment obligates police to protect residents from violence when a local government issues a restraining order and promises to enforce it.

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