Before we discuss this week's oral arguments, I'm happy to report that on Friday the Supreme Court released decisions in three cases (all unanimous!), including a case in which my colleagues at Pacific Legal Foundation served as co-counsel.
Sheetz v. County of El Dorado, CaliforniaÂ
This is the PLF case, so you know Friday was a good day in the PLF offices. George Sheetz applied for a permit to build a manufactured house, and pursuant to county legislation, the County of El Dorado demanded $23,420 as a condition of granting the permit to finance unrelated traffic road improvements. The Supreme Court previously held in Nollan v. California Coastal Commission and Dolan v. City of Tigard that the government may condition a person's use of their property on offsetting harms created by that use. But the measures must be aimed at actually offsetting those harms. The County made no determination that Sheetz's project bore an essential nexus or rough proportionality to the exaction it sought, as required by Nollan and Dolan. Instead, its demand was based solely on the zone and the type of project. Sheetz challenged the permit requirement, arguing that it is an unconstitutional exaction.
In a unanimous opinion written by Justice Amy Coney Barrett, the Court held that the Takings Clause of the Constitution does not distinguish between legislative and administrative land-use permit conditions. The Court rejected the state court's finding that Nollan and Dolan do not apply to monetary fees imposed by a legislature, holding instead that "nothing in constitutional text, history, or precedent supports exempting legislatures from ordinary takings rules." The Court remanded to the California courts to determine whether the fee at issue is an exaction, which was not decided in the first go-around.
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Macquarie Infrastructure Corp. v. Moab Partners, M.P.
This is a securities fraud case involving a company's failure to make certain disclosures to investors. In a unanimous decision written by Justice Sonia Sotomayor, the Court held that "pure omissions are not actionable under" Securities and Exchange Commission Rule 10b–5(b), which makes it unlawful "to omit material facts in connection with buying or selling securities when that omission renders 'statements made' misleading." The Court concluded, "Silence, absent a duty to disclose, is not misleading."
Bissonnette v. LePage Bakeries Park St., LLC
In a unanimous decision by Chief Justice John Roberts, the Court held that a transportation worker does not have to work in the "transportation industry" to be exempt from the Federal Arbitration Act. Though the Act establishes a federal policy strongly favoring arbitration over litigation to resolve contract disputes, it carves out an exception to that preference for arbitration in employment contracts of seamen, railroad employees, and other "transportation workers." The Court held independent contractor/truck drivers employed by a baked goods company may be exempt from the Act, explaining that its text "focuses on 'the performance of work' rather than the industry of the employer."Â
A (Re)tired Campaign
It has otherwise been a couple weeks since we last heard from the justices, but that hasn't kept them from making headlines—particularly Justice Sotomayor. But it's her lack of action that has put her into the news cycle. For many years, the right has had a rallying cry of "No more Souters." It seems the left has adopted something similar: "No more Ginsburgs." Or rather, no more octogenarians who refuse to retire on someone else's preferred timeline.
The recent history is well known to those with even a passing interest in the Supreme Court. Justice Ruth Bader Ginsburg ignored the whisper campaign hinting at retirement that started in 2013 after President Obama was re-elected. Then in September 2020, she succumbed to her battle with cancer, paving the way for President Trump to nominate Amy Coney Barrett.
The left seemed to have learned that subtly was not the way to get results, and a pressure campaign strongly encouraging Justice Stephen Breyer to retire began just three months into the Biden Administration. It was quite a bit more aggressive than a private lunch with the president and the occasional opinion piece by a well-known law school dean suggesting it was time for the Notorious RBG to hang up her jabot. In April 2021, Demand Justice and other progressive groups launched an aggressive campaign targeting Justice Breyer. There were billboards, trucks blazoned with "RETIRE BREYER" driving around Capitol Hill, protestors at Breyer's events, and an onslaught of interviews and opinion pieces by activists and politicians. Â
Whether or not this campaign influenced Justice Breyer's decision to retire in 2022, now some on the left have set their sights on Justice Sotomayor, who turns 70 in June. So far, it's just a small handful of commentators suggesting she retire. Senator Richard Blumenthal (D-Conn; 78 years old) has joined their ranks, recently offering this comment to NBC News:
"We should learn a lesson. And it's not like there's any mystery here about what the lesson should be. The old saying—graveyards are full of indispensable people, ourselves in this body included." That sounds like another "mystical aphorism of the fortune cookie."
Justice Sotomayor enjoys plenty of support among those on the left, including Senator John Fetterman (D-Pa.) who remarked, "I have no opinion on anyone else's ability to retire unless it's that sleaze-ball [Sen. Bob] Menendez. He should resign." Writing in the Washington Post, Jim Geraghty noted that Sotomayor has "got every reason to tell Blumenthal and other nervous Democrats to go pound sand." She's a decade (or more!) younger than many officials serving in the other branches of government and does not appear to have any significant medical issues that affect her service, so I tend to agree with Geraghty. Now let's get on with the Court's business coming up this week.Â
Monday
The first argument of the week is Snyder v. United States, which involves the corruption prosecution of a mayor of a small town in Indiana.
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The City of Portage, Indiana awarded two contracts to Robert and Stephen Buha, the owners of a local trucking company, to use their trash trucks for the city's trash collection. After the contracts had been awarded, Portage Mayor James Snyder approached the Buha brothers about doing some health-insurance and technology consulting for them. They agreed to pay Snyder $13,000 for one year upfront for his consulting work. The federal government, which was already investigating Snyder for tax issues, alleges this payment was not for consulting services but a gratuity for Snyder's past conduct of awarding contracts to the Buhas.Â
Snyder was convicted of soliciting and accepting $13,000 in violation of 18 U.S.C. § 666(a)(1)(B), which prohibits state or local officials from "corruptly solicit[ing] demand[ing] … or accept[ing] … anything of value from any person, intending to be influenced or rewarded in connection with any" government business "involving any thing of value of $5,000 or more." The U.S. Court of Appeals for the Seventh Circuit upheld his conviction, finding that a reasonable jury could conclude that Snyder accepted the $13,000 as a bribe or gratuity for the city selecting the Buhas' bids. The appeals courts are split on whether § 666 criminalizes gratuities in addition to bribes, where there is a quid pro quo arrangement.Â
Representing by the inimitable Lisa Blatt, Snyder’s brief to the Supreme Court begins:
America's 19.2 million state and local officials serve their constituents. In turn, millions of constituents routinely express their thanks in ways large and small. A crime victim's family brings the officers on the case doughnuts and coffee in gratitude for their around-the-clock efforts to arrest the perpetrator. In recognition of a town's success stopping traffic accidents, the local car-insurance company treats town workers to a baseball night in the company’s box … Every campaign contribution to any state or local incumbent, from $1 to infinity, expresses thanks for official conduct thus far … Yet, under the government's interpretation of 18 U.S.C. § 666, every such act of gratitude is a potential federal crime, subjecting both the official and constituent to up to ten years' imprisonment.Â
Later in the brief, Snyder asserts, "Congress routinely uses similar language in other bribery statutes, and routinely uses dramatically different language when criminalizing gratuities. Congress famously does not hide elephants in mouseholes, and Congress did not camouflage a gratuities crime deep within a provision targeting bribery."
The government hangs its hat on the word "rewarded" in § 666, arguing that barring officials from soliciting or accepting any thing of value "intending to be influenced or rewarded" unambiguously covers gratuities, including "gifts or payments offered to or accepted by an official for having undertaken (or resolving to undertake) some business or transaction of a covered organization."
The second argument on Monday is Chiaverini v. City of Napoleon, Ohio.Â
This case presents the Supreme Court with an opportunity to clarify a Fourth Amendment issue that has divided the lower courts: whether a malicious-prosecution claim under 42 U.S.C. § 1983 is governed by the charge-specific rule—allowing a malicious-prosecution claim to proceed for a baseless charge even if other charges are supported by probable cause—or the any-crime rule—precluding a malicious-prosecution claim if there was probable cause to support at least one charge.Â
Jascha Chiaverini operates the Diamond and Gold Outlet in Napoleon, Ohio. He purchased jewelry that turned out to be stolen. The police directed him to retain the jewelry as evidence of the theft … but also told him to return it to the rightful owner. Chiaverini refused to return the jewelry, and he was subsequently arrested and charged with retaining stolen property, dealing in precious metals without an active license, and money laundering. Chiaverini was in police custody for three days, but the charges were ultimately dropped. He then sued the city and several of the police officers under 42 U.S.C. § 1983, alleging, among other things, that they initiated criminal charges without probable cause, which led to his unlawful arrest and detention (aka malicious prosecution).Â
The lower court held there was probable cause to support the first two charges but did not rule on whether there was probable cause to support the money laundering charge. The state money-laundering law requires that Chiaverini knew the jewelry was stolen when he purchased it, and that is in dispute. The issue before the Supreme Court is whether there must have been probable cause for just one charge, or all three charges, to prevent Chiaverini's malicious-prosecution claim from proceeding.Â
Now at the Supreme Court, Chiaverini argues that American tort law in 1871 (the year § 1983 was enacted) supports adopting the charge-specific rule, and further that this rule comports with the "values and purposes of the Fourth Amendment." The United States supports Chiaverini, arguing that the lower court was wrong to hold that a "single valid charge automatically defeats" a malicious-prosecution claim.Â
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The City of Napoleon says Chiaverini has presented the Court with a "binary choice" that is "oversimplified and wrong." It maintains that to bring a malicious-prosecution claim, a plaintiff "must show that the baseless charge caused a Fourth Amendment seizure." And the City concludes the two other charges supported his seizure.
Easha Anand, co-director of Stanford’s Supreme Court Clinic represents Chiaverini, and this will be her third argument of the term (and third SCOTUS argument ever!). Check out David Lat’s recent interview to hear about Easha's meteoric rise.
Tuesday
Fischer v. United States stems from the activities that occurred on Capitol Hill on January 6, 2021. The riot/insurrection/mostly peaceful protest brought the work of Congress to a halt for several hours. The question in this case is whether individuals who are alleged to have assaulted Capitol police may be charged (among other things) with violating 18 U.S.C. § 1512(c)(2), which prohibits obstructing, influencing, or impeding congressional proceedings. The district court dismissed this charge, finding that § 1512(c)(2) is limited to defendants who acted "with respect to a document, record, or other object" with the objective to "corruptly obstruct, impede or influence an official proceeding." The D.C. Circuit reversed, over the dissent of one judge. (Fun fact I learned from the lower court decisions: the U.S. Department of Justice now has a Capitol Siege Section.)
The question presented to the Supreme Court is whether the D.C. Circuit erred in construing § 1512(c)'s prohibition on obstruction of congressional inquiries and investigations to include acts unrelated to investigations and evidence.
The petitioner argues the "structure, context, title, and statutory history make clear Congress' aim: protecting the integrity of investigations and evidence." This is also referred to as preventing the "spoliation" of evidence (a term I must find a way to work into ordinary conversation). The petitioner points out that prior to his and the other January 6 cases, not a single defendant has been convicted of an "obstruction-of-Congress offense outside the context of a legislative inquiry or investigation." He also maintains that both the rule of lenity and the canon of constitutional avoidance "resolve any lingering doubt over the breadth" of § 1512(c)(2). The government contends that the text, context, and history confirm that § 1512(c)(2) is a "catchall offense" designed to "ensure complete coverage of all forms of corrupt obstruction of an official proceeding."Â
Wednesday
Rounding out the week is Thornell v. Jones, which is an ineffective assistance of counsel claim arising from Danny Lee Jones's conviction for two murders in 1992. His various postconviction claims have ping-ponged around the state and federal courts for decades—including a trip to the Supreme Court in 2011. The state and district courts denied relief on his claim that he had ineffective assistance of counsel at sentencing in violation of the Sixth Amendment. The Ninth Circuit reversed, over the dissent of nine judges. One of the dissenters observed that, "The Supreme Court routinely reverses us in capital cases, including cases based on our misapplication of Strickland." Strickland v. Washington provides a demanding standard for ineffective assistance of counsel claims.
The question presented to the Supreme Court is a bit of a doozy:
Did the Ninth Circuit violate this Court's precedents by employing a flawed methodology for assessing Strickland prejudice when it disregarded the district court's factual and credibility findings and excluded evidence in aggravation and the State's rebuttal when it reversed the district court and granted habeas relief?
In other words, did the Ninth Circuit ignore the demanding standard for ineffective assistance of counsel claims and essentially throw out the district court's factual findings? If I were a betting woman (I'm not), my money would be on the state. If you’re curious, check out this 2012 article by (now-Senior) Judge Diarmuid O’Scannlain detailing the Supreme Court's reversal of Ninth Circuit cases from 2000-2010. There's a whole section devoted to capital cases. It seems the Ninth Circuit's record has not improved in the intervening years.Â
Check back later in the week for highlights from the oral arguments, any newsworthy happenings, and, as always, my favorite SCOTUS moment of the week!