| Supreme Court Year in Review |

n the 2009–2010 term, the U.S. Supreme Court revisited state that the land transfer would violate the firearms regulations in McDonald v. City of Chicago (08-1521), 2002 injunction. religious symbols on public land in Salazar v. Buono (08-472), Charity and Terrorism I In 1996, Congress passed 18 U.S.C. charitable donations to State Department-designated terrorist or- § 2339B, which bars Americans from ganizations in Holder v. Humanitarian Law Project (08-1498), and engaging in a list of activities defined state universities’ recognition of student groups that exclude openly within the act as “material support” of gay members in Christian Legal Society v. Martinez (08-1371). State Department-designated terrorist organizations. Groups and individuals supportive of Turkish and Sri Lankan The term saw an unusual number of governmental funds to remove the separatist groups that the State Depart- of unanimous decisions: 46 percent of cross, one designating the cross as a ment has classified as terrorist organi- decisions were determined by 9-0 or national memorial, and one directing zations sued to gain exemption from 8-0 votes. The term also saw the lowest the secretary of the interior to transfer the statute. These groups claimed that percentage of 5-4 votes (18 percent) the government’s interest in the land they wanted to provide targeted help since the 2005–2006 term (13 percent). to the VFW. Buono returned to the in the form of financial aid, legal train- Of the 5-4 decisions, 10 were left-right district court in 2005, seeking injunc- ing, and political advocacy to specific splits, with Justice Kennedy as the tive relief against the transfer. The dis- portions of the Turkish and Sri Lankan determining vote. Justice Stevens, in his trict court found that the transfer was organizations that perform political and last term on the Court, found himself in invalid, because it was an attempt by humanitarian activities. The plaintiffs the majority only 51 percent of the time the government to keep the cross atop asserted that § 2339B was unconstitu- in cases with at least one dissent, and Sunrise Rock. The court of appeals tionally vague and infringed on their he penned 24 separate opinions—the again affirmed. rights to free speech and association. most written by any justice. In Salazar v. Buono (08-472), the In Holder v. Humanitarian Law U.S. Supreme Court issued six opin- Project (08-1498), the Supreme Court First Amendment ions that provided no clear majority decided that § 2339B is constitutional ruling but ultimately reversed the court as applied to the activities that the Establishment Clause of appeals and remanded the case. groups’ supporters wanted to pur- In 1934, members of the Veterans Counting the votes on certain issues sue. Chief Justice Roberts wrote for a of Foreign Wars (VFW) placed a Latin will provide for more clarity than anal- six-justice majority that the activities cross on federal land in the Mojave ysis of individual opinions will. Seven Congress had prohibited were clearly National Preserve in remembrance of justices voted for the notion that a and adequately defined. The Court American soldiers who died in World retired National Park Service employee also decided that the First Amendment War I. Citing the First Amendment’s had a legal right to pursue his com- concerns about the statute were not prohibition against state establishment plaint about a religious symbol on fed- significant enough to defeat the statute, of religion, Frank Buono, a retired eral property; however, Justice Scalia both because the Court deferred to employee of the National Park Service and Justice Thomas dissented explicitly Congress’ expertise in foreign relations and a regular visitor to the preserve, on that point. Five justices concluded and because the statute only restricts sought an injunction requiring the gov- that the federal judge erred in bar- speech that constitutes material sup- ernment to remove the cross. There ring a congressionally ordered land port for terrorism, allowing for inde- were four stages of this litigation. The transfer, but there were two different pendent advocacy. first, in 2002, occurred when the dis- rationales. Justice Kennedy, writing for trict court ruled in Buono’s favor on Chief Justice Roberts, Justice Alito, and Freedom of Expression opposing motions for summary judg- himself, said it was an incorrect legal In order to obtain recognition from ment. The Ninth Circuit stayed the proposition. Justice Scalia, writing for the school, the University of California 2002 injunction to the extent that it Justice Thomas and himself, concluded Hastings College of Law requires stu- required the cross to be removed but that the Park Service employee did not dent groups to comply with the school’s did not forbid alternative methods of have standing to pursue his complaint. nondiscrimination policy, which bars complying with the order. On appeal, Four justices would have upheld the discrimination based on religion and the judgment of the district court was order, but for two different reasons. sexual orientation. Hastings interprets affirmed, both as to standing and on Justice Breyer, in a solo dissent, rested this policy as mandating acceptance of the merits of the challenge to the on the law of injunctions to find no all students who want to participate in Establishment Clause. While this case significant federal question. Justice Ste- a group. At the beginning of the 2004– progressed, Congress enacted several vens, writing for the other dissenters, 2005 school year, the leaders of the laws, including two forbidding the use supported the district court’s opinion Christian Legal Society required officers

42 | The Federal Lawyer | August 2010 to sign a written statement agreeing works of social value. The trial court regulations like those listed in Heller— to conduct their lives in accord with convicted Stevens under the statute, including prohibitions of possession certain moral principles, including the but on appeal, the Third Circuit agreed of firearms by felons and the mentally prohibition of sexual activity outside with Stevens that § 48 violated the First ill, restrictions on carrying firearms in of marriage between a man and a Amendment. sensitive places, and conditions on woman. The society also excludes Upholding the Third Circuit’s deter- the commercial sale of arms—are still anyone who engages in “unrepentant mination, Chief Justice Roberts wrote legitimate under the Court’s decision homosexual conduct.” Based on these for an eight-justice majority in United in McDonald. The majority, however, actions, Hastings rejected the society’s States v. Stevens (08-769) that § 48 was split on how the Fourteenth Amend- application for recognition. The soci- too broad to survive the First Amend- ment incorporates the Second Amend- ety filed suit for injunctive and declara- ment. The court decided that, despite ment to apply to the states, as well as tory relief, alleging that the refusal to the federal government’s assurances the federal government. While Justice recognize the group violated its First that it would apply the law only to Alito and his supporters looked to the and Fourteenth Amendment rights to depictions of extreme cruelty, the Due Process Clause, Justice Thomas in free speech, expression, and religion. statute could apply to depictions that his concurrence stated that the Privi- The district court ruled for Hastings, are protected by the First Amendment, leges and Immunities Clause should holding that the “all-comers” condition such as hunting magazines and videos. justify incorporation. Justice Stevens’ was reasonable and viewpoint-neutral As a result, the Supreme Court declined dissent questioned whether this deci- and that there was no restriction on to categorically exempt depictions of sion does not limit the personal right speech or religious exercise. The Ninth animal cruelty from First Amendment to a gun to having it at home, while Circuit affirmed. protection. Only Justice Alito dissent- Justice Breyer’s dissent argued that In Christian Legal Society v. Marti- ed, stating that the decision would the Fourteenth Amendment does not nez (08-1371), the Supreme Court held protect “depraved entertainment.” incorporate the Second Amendment. that the all-comers policy on access to the limited public forum created Second Amendment Fourth Amendment by Hastings through recognition is In 2008, in District of Columbia v. both reasonable and viewpoint-neu- Heller, the Supreme Court held that the Public Employment tral. Thus, Hastings’ policy does not Second Amendment protects the right In October 2001, the city of Ontario, transgress First Amendment limitations. to keep and bear arms for the purpose Calif., issued pagers that could send Justice Ginsburg authored the major- of self-defense. Chicago’s laws banned and receive text messages to Jeff Quon ity opinion, stating that state college handgun possession by almost all pri- and other members of Ontario’s SWAT leaders may reverse recognition to vate citizens. After Heller, Chicago resi- Team. Before acquiring the pagers, the groups that admit all comers if the dents who wanted to keep handguns city announced a policy that reserved policy genuinely seeks and promotes in their homes for self-defense filed the right to monitor and log all net- that aim without singling out any set federal suit against the city alleging work activity with or without notice of beliefs. Justice Stevens and Justice that the ban has left them vulnerable but did not explicitly mention text Kennedy authored separate concur- to criminals. The district court followed messaging. The notice made it clear, ring opinions, with Kennedy stating precedent to uphold the constitution- however, that the city would treat text that a dialogue between students of ality of the ban. The Seventh Circuit messages the same way it would treat differing beliefs is impossible if the stu- affirmed, relying on three cases inter- e-mails, which the policy did mention. dents prevent themselves from hearing preting the Fourteenth Amendment’s After Quon had exceeded his monthly opposing points of view. Justice Alito’s Privileges or Immunities Clause. text message limit several times, the vehement dissent argued that the all- In McDonald v. City of Chicago city contacted the wireless company to comers policy has been used only to (08-1521), the Supreme Court voted obtain the transcripts of the text mes- single out student groups for exclusion 5-4 to decide that the Fourteenth sages. The transcripts, which included based on their beliefs. Amendment incorporates the Second personal messages—including some of Amendment right to keep and bear a sexually explicit nature—led to dis- Depictions of Animal Cruelty arms for the purpose of self-defense. ciplinary action against Quon. Quon Federal prosecutors indicted Robert Justice Alito, supported by the other and the persons with whom he had Stevens under 18 U.S.C. § 48 for selling conservative justices, held that self- exchanged text messages filed suit, dogfighting videos. Congress enacted defense, the central component of alleging that Ontario had violated § 48 to criminalize the creation, sale, the Second Amendment, makes the their Fourth Amendment rights against or possession of video or audio depic- right to bear arms fundamental. Alito unreasonable search and seizure by tions of the intentional injury or killing cited the intentions of the framers of reviewing the transcript of the mes- of an animal in a jurisdiction where the the Constitution and the ratifiers of sages on Quon’s pager. The district depicted conduct is illegal under state the Fourteenth Amendment to show court denied Quon’s motion for sum- or federal law. The law, which applied that the right to keep and bear arms mary judgment, relying on O’Connor v. to depictions intended for interstate or is necessary to the American system foreign commerce, exempted certain of ordered liberty. However, state COURT continued on page 44

August 2010 | The Federal Lawyer | 43 COURT continued from page 43

Ortega to conclude that, even though tive asked him whether he “pray[ed] to of Maryland reversed, holding that Quon had a reasonable expectation of God to forgive [him] for shooting that the passage of time does not end the privacy in the content of his messages, boy down?” The suspect moved to sup- protections that Edwards provides. In the issue turned on whether the city press the statements, claiming that he Maryland v. Shatzer, the Supreme had a proper purpose in determining had invoked his Fifth Amendment right Court held that, because Shatzer expe- whether Quon was using his pager to to remain silent. The trial court denied rienced a break in custody lasting more waste time. Once the jury concluded the motion and the Michigan Court of than two weeks between the first and that the city’s intent was legitimate, Appeals affirmed. The suspect then second attempts at interrogation, the the court granted the city’s motion for filed a habeas request, which the fed- trial court did not have to suppress the summary judgment. The Ninth Circuit eral district court denied. However, the 2006 statements. Writing for the major- reversed, holding that the search was Sixth Circuit reversed, holding that the ity, Justice Scalia determined that a not reasonable because there were less state court was unreasonable in finding 14-day period is an appropriate length intrusive means to determine whether an implied waiver of Thompkins’ right of time for a suspect to readjust to nor- Quon was wasting time. to remain silent. In Berghuis v. Thomp- mal life and, as such, is enough time In City of Ontario v. Quon (08- kins (08-1470), the Supreme Court for the coercive effects of prior custody 1332), the Supreme Court held that split 5-4 to hold that the state court’s to lapse. Because Shatzer’s release the search of Quon’s text messages decision rejecting the suspect’s claim constituted a break in custody, Scalia was reasonable and that the city did was correct. Justice Kennedy, writing concluded that the original invocation not violate his Fourth Amendment for the majority, determined that the of the right to counsel did not survive rights. Justice Kennedy, writing for the suspect’s silence during the interroga- in this case. Justice Thomas agreed that majority, used a two-step test from tion did not unambiguously invoke the incarceration constituted a break O’Connor to consider the impact of the his right to remain silent. The suspect in custody and with the judgment “operational realities of the workplace” waived his Fifth Amendment right but disagreed with the imposition of on the expectation of privacy and when he knowingly and voluntarily the 14-day rule. Justice Stevens, who the reasonableness of the employer’s made a statement to the police. In her authored a concurrence, also disagreed intrusion on that expectation. Under dissenting opinion, Justice Sotomayor with imposition of the 14-day rule. this test, the review of the transcript concluded that the majority’s decision of the messages on the pager was combats the idea in Miranda that the Sixth Amendment reasonable, because it was motivated prosecution bears a heavy burden to by a legitimate work-related purpose show that the suspect had waived his Effective Assistance of Counsel and was not excessive. Justice Stevens’ rights and that the prosecution did not Jose Padilla, a native of Honduras, concurring opinion addressed the fact meet that burden here. lived in the United States for more than that the Court did not answer which Another case in which the Supreme 40 years and served in the U.S. military approach given in O’Connor was cor- Court interpreted a suspect’s Miranda in Vietnam before being arrested on rect. Justice Scalia, who concurred with rights, Maryland v. Shatzer (08-680), charges of distributing marijuana in his the judgment, would have not used the involved a police detective’s attempt state of residence, Kentucky. Despite “operational realities of the workplace” in 2003 to question Michael Shatzer Sr. Padilla’s concerns about the conse- test, a view he had already expressed about allegations that Shatzer had sex- quences of a drug conviction on his in his opinion in O’Connor. ually abused his son. Shatzer invoked immigration status, before going to trial his right to have counsel present dur- Padilla pleaded guilty on the advice Fifth Amendment ing interrogation, so the detective ter- of his lawyer, who told Padilla that The Supreme Court decided several minated the interview and returned his long-term residence in the United cases interpreting Miranda v. Arizona Shatzer to prison. Three years later, States would protect him from depor- with respect to custodial investigations. in 2006, another detective attempted tation. Once convicted of the crime, The Court heard a case that involved to interrogate Shatzer regarding the Padilla became deportable under fed- two police officers’ interrogation of same allegations, but this time, Shatzer eral law. 8 U.S.C. § 1227(a)(2)(B)(i). Van Chester Thompkins about a shoot- waived his rights and made incriminat- Later, Padilla appealed the decision on ing that had occurred outside a mall ing statements. The trial court declined the grounds that, by giving him this in Southfield, Mich. After advising the to suppress the statements, reasoning erroneous advice, his attorney had pro- suspect of his rights, the detectives that the Supreme Court’s holding in vided him with ineffective counsel in interrogated him for two hours and Edwards v. Arizona, which held that violation of the Sixth Amendment. On 45 minutes. During this time, the sus- once a suspect invokes the right to appeal, the Kentucky Supreme Court pect, though not expressly indicating counsel any waiver of that right dur- denied Padilla relief on the grounds that he did not want to talk with the ing subsequent police interrogation is that the deportation was merely a police or that he wanted an attorney, involuntary, did not apply because of collateral—rather than a direct—conse- remained silent for the most part, but the break in custody before the 2006 quence of his criminal conviction. later responded “yes” when the detec- interrogation. The Court of Appeals In Padilla v. Kentucky (08-651), by a

44 | The Federal Lawyer | August 2010 7-2 decision, with Justices Thomas and rules of Atkins v. Virginia, Roper v. hold that, when an agreement to arbi- Alito dissenting, the Supreme Court Simmons, and Kennedy v. Louisiana, trate includes an agreement that the reversed the appellate court’s decision. as well as statistics regarding actual arbitrator will determine the enforce- Justice Stevens wrote for the major- sentencing practices and the number ability of the agreement, the type of ity that the Sixth Amendment right to of life sentences without parole given challenge determines who determines effective counsel requires that attorneys to juvenile offenders whose crimes do the enforceability. If a party spe- tell their clients if a criminal conviction not include homicide. Justice Kenne- cifically challenges the validity of the will result in deportation. To reach this dy’s analysis led him to conclude that agreement to arbitrate, the district result, Justice Stevens stated that the the national consensus finds Florida’s court determines the enforceability. If Court made no distinction between sentencing practice unconstitutional. a party challenges the enforceability of direct or collateral consequences in its Justice Stevens wrote a brief con- the contract as a whole, the challenge requirement that a lawyer provide his curring opinion supporting evolving is for the arbitrator. Justice Scalia, writ- or her client with “reasonable profes- standards of decency to respond to ing for the majority, relied on Prima sional assistance,” as articulated in Justice Thomas’ dissenting opinion that Paint Corp. v. Flood & Concklin Mfg. Strickland v. Washington. In addition, argued that this holding was inconsis- Co. to hold that only a specific chal- Justice Stevens cited the seriousness tent with precedent. Justice Roberts lenge to an agreement to arbitrate is of deportation and its impact on the concurred with the majority but saw relevant to a court’s determination of families of legal residents to justify the no need to create a categorical rule for whether the arbitration agreement at decision. Despite this general decision, juvenile offenders whose crimes did issue is enforceable. Because the arbi- the Court remanded determination of not include homicide. Justice Thomas tration agreement is severable from the Padilla’s particular case. wrote the dissenting opinion, stating rest of the agreement, a court should that the Court should have looked look at only those cases in which the Eighth Amendment to the examples of the 37 states that party disputes the arbitration agree- In July 2003, Terrance Graham, allow life sentences without parole for ment; otherwise, the court should then 16 years old, attempted to rob such juvenile offenders. Justice Alito allow the arbitrator to make that deter- a barbeque restaurant in Jacksonville, joined Justice Thomas’ opinion in part mination. Justice Stevens authored a Fla. Police arrested and charged him and wrote a separate dissent to state dissent, calling the majority’s reasoning with armed burglary, assault or battery, that the court had improperly decided “even more fantastic” than the holding and attempted armed robbery. Graham the issue of whether Graham’s sen- in Prima Paint. Justice Stevens wrote pleaded guilty under a plea agreement, tence violates the narrow, as-applied that he would have relied on a line which withheld a decision of guilt as proportionality principle that applies of cases seeking the parties’ intent to to both charges and sentenced Graham to noncapital sentences. decide this case. to two concurrent three-year probation Granite Rock Co. v. Teamsters (08- terms. In 2004, Graham participated in Arbitration 1214) was another case involving arbi- two armed robberies for which police On Feb. 1, 2007, Antonio Jackson tration. In June 2004, a local union arrested him again. Because these acts filed an employment discrimination supported by the Teamsters began were in violation of Graham’s proba- suit under 42 U.S.C. § 1981 in the U.S. a strike against Granite Rock, the tion, the trial court found Graham District Court for Nevada against his employer of some of the local union’s guilty of the earlier attempted burglary former employer, Rent-A-Center. Rent- members, following the expiration of and attempted armed robbery charges A-Center filed a motion under the Fed- the parties’ collective bargaining agree- and sentenced him to the maximum eral Arbitration Act to dismiss or stay ment and an impasse in their negotia- sentence authorized by law on each the proceedings in the district court tions. On July 2, the two sides created charge: life imprisonment for the armed and compel arbitration as per a mutual a new agreement containing no-strike burglary and 15 years in prison for the agreement to arbitrate claims. Jackson and arbitration clauses but could not attempted armed robbery. Release was opposed the motion on the ground reach an agreement holding the local impossible under Graham’s life sen- that the entire arbitration agreement union harmless for strike-related dam- tence because Florida had abolished was unconscionable. The district court ages. The Teamsters instructed the its parole system. Graham filed a granted Rent-A-Center’s motion, find- union to continuing striking until the motion challenging his sentence under ing that the agreement gives the arbi- hold-harmless clause was included in the Eighth Amendment’s Cruel and trator authority to decide whether the the agreement. Granite Rock sued both Unusual Punishments Clause. agreement is enforceable. A divided Teamsters and the local union under In Graham v. Florida (08-7412), the Ninth Circuit reversed on the question § 301(a) of the Labor Management Court, in a 6-3 decision, held that the of who had the authority to decide Relations Act of 1947, seeking damages Cruel and Unusual Punishments Clause whether the agreement is enforceable from the strike. The unions countered, does not permit a juvenile offender to and affirmed the conclusion that the asserting that the local’s members be sentenced to life in prison without provision in question was not uncon- never ratified the new agreement and parole for a crime that does not include scionable. thus the no-strike clause had no force. homicide. Writing for the majority, Jus- In Rent-A-Center Inc. v. Jackson (09- tice Kennedy looked to the categorical 497), the Supreme Court split 5-4 to COURT continued on page 46

August 2010 | The Federal Lawyer | 45 COURT continued from page 45

The district court granted the Team- were unconstitutional. majority, overruled Austin v. Michigan ster’s motion to dismiss the tortious The Supreme Court unanimously Chamber of Commerce, which held interference claim but denied local’s held that attorneys who provide bank- that corporations could be prohibited motion to send the parties’ dispute to ruptcy assistance are debt relief agen- from using treasury money to support arbitration, ruling that a jury should cies under the BAPCA when providing or oppose candidates in elections with- determine when the contract was rati- qualifying services. In addition, the out violating the First and Fourteenth fied. The Ninth Circuit affirmed the Court upheld the constitutionality of Amendments, and part of McConnell dismissal of the first claim but reversed the act’s limitations on client advis- v. Federal Election Commission, which the arbitration order. ing. Here, the Court rejected Milavetz’s upheld BCRA § 203’s extension of In Granite Rock Co. v. Teamsters, assertion that the statute could pun- § 441b’s restrictions on independent the Supreme Court held that the district ish attorneys who provide responsible corporate expenditures. Justice Ken- court, not the arbitrator, should resolve advice, stating that the law adequately nedy, joined by Chief Justice Roberts, the parties’ dispute over the ratification protected those advising clients to Justice Scalia, Justice Alito, and Justice date. Justice Thomas, writing for the take on an increase in debt for a Thomas (but only on this issue), con- majority, held that the dispute requires valid purpose. Finally, the Court held cluded that § 441b denied corporations judicial resolution, because the district that the BAPCA’s advertising disclosure the First Amendment right to political court would need to determine wheth- requirements do not violate the First speech. Chief Justice Roberts wrote a er the parties consented to arbitrate the Amendment, because the statute’s ben- concurrence that addressed the issues agreement. To resolve this issue, when efits in protecting consumers from mis- of judicial restraint and stare decisis. a contract is formed is as important as leading commercial speech outweigh Justice Scalia, in another concurrence, whether the contract was formed. Jus- the burden disclosure poses for debt addressed concerns raised in Justice tice Sotomayor concurred in the Court’s relief agencies. Stevens’ dissent that allowing corpora- handling of the Teamsters’ motion but tions to use their money on campaign dissented on the arbitration issue. Jus- Campaign Financing finance in this manner threatens the tice Sotomayor used existing case law In January 2008, Citizens United, integrity of elections. However, as to determine that the arbitrator should a nonprofit corporation, released a applied to the television advertise- determine the ratification date. documentary criticizing then-Senator ments, the Court voted 8-1 to hold and Democratic presidential candidate that §§ 201 and 311 of the BCRA are Bankruptcy Counseling Hillary Clinton. To promote the doc- valid. The four dissenting justices in The Supreme Court’s decision in umentary, Citizens United produced the previous issue joined Part IV of Milavetz v. United States (08-1119) lim- television advertisements to run on Justice Kennedy’s majority opinion that its how lawyers may counsel their broadcast and cable television net- addressed this issue. Justice Thomas, clients on bankruptcy matters. In 2005, works. Concerned about violating the lone dissenter on the television Congress enacted the federal Bank- 2 U.S.C. § 441b, a federal law prohibit- advertisements question, wrote that he ruptcy Abuse Prevention and Consum- ing corporations and unions from using would have struck down the reporting er Protection Act (BAPCA). 11 U.S.C. their general treasury funds to make requirements to protect the anonym- §§ 101(12A), 526, 527, 528, which independent expenditures for speech ity of organizations exercising free prohibited a class of organizations that qualifies as “electioneering com- speech. termed “debt relief agencies”—agen- munication,” Citizens United sought cies that provide bankruptcy assistance declaratory and injunctive relief, argu- Diversity Jurisdiction to consumers—from advising clients ing that § 441b was unconstitutional In September 2007, Melinda Friend to incur more debt before bankruptcy. as applied to the documentary and and John Nhieu, who were citizens of In addition, the act requires these that the disclaimer, disclosure, and California, sued the Hertz Corporation agencies to include certain disclosures reporting requirements contained in in state court for violations of Califor- in advertisements. Several plaintiffs the Bipartisan Campaign Reform Act nia’s wage and hour laws. Hertz sought associated with the same law firm, (BCRA) of 2002 were unconstitutional removal to a federal court through here collectively known as Milavetz, as applied to the documentary and 28 U.S.C. § 1332(d)(2), claiming that the filed pre-enforcement suit in federal the ads. The district court denied a federal court possessed diversity-of- district court, asking the court to hold preliminary injunction and granted the citizenship jurisdiction under 28 U.S.C. that these provisions of the BAPCA do Federal Election Commission summary § 1332(c)(1). Friend and Nhieu claimed not apply to them. The district court judgment. that Hertz was a California citizen and the Eighth Circuit heard the case, In Citizens United v. Federal Elec- because Hertz’s “business activity” was disagreeing about whether attorneys tion Commission (08-205), the Supreme predominantly in California, whereas are debt relief agencies under the act Court split 5-4 to hold that § 441b’s Hertz argued that its “principal place of and whether disclosure requirements restrictions on corporate expenditures business” was in New Jersey because should apply to them, but agreeing are invalid as applied to the documen- the headquarters or “nerve center” was that limitations on advising clients tary. Justice Kennedy, writing for the in that state.

46 | The Federal Lawyer | August 2010 In Hertz Corp. v. Friend (08-1107), of the applicable statutes that equates Act’s text. Justices Roberts, Thomas, the Supreme Court unanimously held a simple conviction of possession of and Alito joined the opinion that Jus- that the phrase “principal place of busi- illegal drugs that resulted in a short jail tice Kennedy delivered for the Court, ness,” as found in § 1332(c)(1), refers sentence with an aggravated felony. He and Justice Stevens and Justice Breyer to the place where a corporation’s also noted that the prior charge played concurred separately. high-level officers direct, control, and no role in the second conviction; there- coordinate the corporation’s activities. fore, the defendant had no chance International Law Justice Breyer, writing for a unanimous to defend himself against recidivism Somali natives sued Mohamed Ali Court, concluded that the “nerve cen- charges, and that the federal govern- Samantar, a resident of Virginia, in fed- ter” approach, though not perfect, is ment should respect Texas prosecutors’ eral district court, alleging that Saman- superior to the “business activity” test decision to charge Carachuri-Rosendo tar authorized torture and extrajudicial in determining the citizenship of cor- with a misdemeanor rather than a killings when he held Somali govern- porations. The “nerve center” test pro- felony. Justices Alito and Thomas con- ment posts, including defense minister vides lower courts a test that is easier curred in the judgment, but not the and prime minister, between 1980 and to apply, because it does not require majority’s reasoning, and issued sepa- 1990. Samantar denied the allegations courts to weigh corporate functions, rate opinions. and moved to dismiss the case, assert- assets, or revenues in order to deter- ing that the federal Foreign Sovereign mine where the corporation predomi- Intellectual Property Immunities Act of 1976 immunized him nantly has its business activities. How- In 1997, the U.S. Patent and Trade- from suit. 28 U.S.C. § 1604. The district ever, the Court instructed lower courts mark Office denied Bernard Bilski’s court agreed with Samantar’s asser- to look at the record to determine the patent application for a business pro- tion that, because he was an official source of the corporation’s decisions, cess that allowed commodities traders of the Somali state, the act immunized so that corporations do not avoid law- in the energy market to hedge against him, but the Fourth Circuit reversed suits by creating a “mail drop box” in a risk. A patent appeals board agreed on appeal, holding that § 1604 did not more favorable jurisdiction. with the Patent Office that the process cover state officials. was ineligible for a patent, and the The Supreme Court granted certiora- Immigration Court of Appeals affirmed, rejecting ri, and in Samantar v. Yousuf (08-1555), The federal government initiated its prior multifaceted test of whether the Court considered whether the act deportation proceedings against Jose a process is patentable—which had provides Samantar with “immunity from Angel Carachuri-Rosendo, a permanent asked broadly whether the claimed suit based on actions taken in his offi- U.S. resident, after he was convicted in invention produced a useful, tangible cial capacity,” and unanimously held Texas and sentenced to 10 days in jail result—deciding, instead, that when that it did not. Justice Stevens wrote for for misdemeanor possession without a interpreting the Patent Act, 35 U.S.C. the Court that the language of the act, prescription of an anti-anxiety tablet. § 101, the sole inquiry should be its legislative history, and common law Even though this was his second charge whether a claimed new process is tied principles all indicate that § 1604 does (the first was for misdemeanor mari- to a particular machine or transforms not immunize officials acting on behalf juana possession a year earlier), state a particular article (the “machine-or- of a foreign state from suit in the United prosecutors declined to charge him with transformation” test). States. However, in the opinion he a felony, a charge authorized for repeat Bilski appealed the ruling, and the delivered for the Court, Justice Stevens drug crimes under Texas and federal Supreme Court granted certiorari. Jus- stressed the narrow scope of the deci- law. Carachuri-Rosendo asked the immi- tice Kennedy delivered the Supreme sion, noting that other legal principles gration judge to use discretion and to Court’s opinion in Bilski v. Kappos may immunize Samantar from suit. cancel his deportation, but the judge (08-964), which overturned the court agreed, instead, with the prosecutors of appeals’ decision that the machine- Labor and Employment Law that Carachuri-Rosendo was ineligible or-transformation test was the only one In 1995, the city of Chicago con- for such discretionary relief because the needed. Justice Kennedy stated that, ducted a written examination of appli- second conviction could be considered even though some business methods cants for positions as firefighters. The an aggravated felony under federal law, may be eligible for patents (citing Court city announced that it would select 8 U.S.C. §§ 1101(a)(43), 1229b(a)(3). The precedent and the need for a patent candidates randomly from a list of Board of Immigration Appeals and the system that recognizes diverse innova- “well-qualified” applicants who scored Fifth Circuit affirmed the holding. tions), Bilski’s application remained at least 89 out of 100 points on the In Carachuri-Rosendo v. Holder (09- ineligible because it was, in effect, an examination. The city informed “quali- 60), the Supreme Court unanimously abstract idea—a category of claimed fied” applicants—those who scored reversed the court of appeals, holding inventions that the Court has deter- between 65 and 88 points—that it was that immigration judges retain discre- mined is ineligible for patents. Parker unlikely that they would be called for tion to cancel automatic deportations v. Flook, 437 U.S. 584 (1978). Finally, further processing but that they would following repeat drug misdemeanors. the justice clarified that other limitations remain eligible for employment. Begin- In his opinion, Justice Stevens reasoned on patent eligibility were valid as long that common sense refuses a reading as they were consistent with the Patent COURT continued on page 48

August 2010 | The Federal Lawyer | 47 COURT continued from page 47 ning in March 1997, several African- permits for the project. The landowners § 4248 who were about to be released American applicants who scored in the said that, by claiming the new land as from prison. The district court granted “qualified” range, but were never hired, state property, Florida unconstitution- the five men’s motions to dismiss the filed suit, alleging that the city’s practice ally took their common law property proceedings on constitutional grounds. of selecting only from “well-qualified” right to claim as their own new land The Fourth Circuit upheld the dis- applicants had a disparate impact on gradually exposed at the water’s edge. missal. African-Americans, in violation of Title The Florida Supreme Court disagreed A 7-2 majority of the Supreme Court VII of the Civil Rights Act of 1964. The with the state court of appeals about reversed the Fourth Circuit’s decision district court denied the city’s motion whether the Beach Renourishment Act in United States v. Comstock (08-1224), for summary judgment, rejecting the constituted an unconstitutional taking holding that the federal government city’s claim that the petitioners had of property. has the authority to enact the federal failed to file EEOC charges within 300 Justice Scalia wrote for the eight civil commitment statute. Justice Breyer, days after the unlawful employment participating justices in Stop the Beach writing for the majority, clarified that the practice occurred. The Seventh Circuit Renourishment v. Florida Department court was only considering whether the reversed the judgment, holding that the of Environmental Protection (08-1151) law was a necessary and proper exer- suit was untimely. that Florida’s assignment of property cise of federal power under Article I of In Lewis v. City of Chicago (08- rights to land exposed in its efforts the Constitution and did not consider 974), the Court unanimously held that to shore up its eroding beaches did other questions, such as potential due a plaintiff who does not file a timely not constitute an unconstitutional tak- process violations. In concurring opin- charge challenging the adoption of a ing. The Court reasoned that Flori- ions, Justices Alito and Kennedy agreed practice may assert a disparate-impact da common law does not distinguish that the statute was constitutional, but claim in a timely charge challenging between sudden increases that result Justice Kennedy raised concerns about the employer’s later application of that from human activities and those that federalism, and Justice Alito raised con- practice as long as the plaintiff alleges arise from natural events. Although the cerns about the statute’s broad potential each of the elements of a disparate- Court was unanimous that there was no applications. Justice Thomas dissented, impact claim. Writing for the Court, unconstitutional taking in this particular joined by Justice Scalia, stating that Justice Scalia explained that excluding case, it was split on the larger question § 4248 overreached Congress’ enumer- passing applicants who scored below of whether the actions by courts that ated powers. 89 when selecting those that advance terminate an established property right, through each round of selection pro- in addition those by legislatures, can be Securities Fraud vided for individual unlawful employ- considered an unconstitutional taking. In October 2001, Enron Corp., the ment practices. Thus, the city’s practice Justices Scalia, Roberts, Thomas, and nation’s seventh largest business firm, did occur within the 300-day charging Alito agreed that these “judicial takings” collapsed, devastating Houston’s econo- period. exist. Justices Breyer and Kennedy my and causing widespread loss of jobs concurred separately, joined by Jus- and retirement savings. In 2006, Jeffrey Property tices Ginsburg and Sotomayor, holding K. Skilling, a former Enron executive, In Florida, common law ordinar- that this question was not necessary to was convicted of conspiracy to commit ily dictates the boundary between pri- decide this case. Justice Stevens recused securities fraud and wire fraud, securi- vate beachfront property and the state- himself. ties fraud, making false statements to owned seabed. Florida common law accountants, and insider trading. The dictates that landowners of waterfront Civil Commitment Fifth Circuit Court upheld the convic- property gain ownership of land that A federal statute related to civil com- tion. Skilling challenged as unconstitu- the sea deposits on their property, as mitment authorizes the U.S. Department tional the “honest services” fraud law, long as the increase is so gradual as to of Justice to detain a mentally ill, sexu- an amendment to 18 U.S.C. § 1346, be imperceptible. But if the augmenta- ally dangerous federal prisoner beyond which criminalizes any form of fraud if tion is sudden, the owner of the seabed the date the prisoner would otherwise the misconduct has deprived another of (typically the state) retains ownership of have been released. 18 U.S.C. § 4248. the right of honest services and which the newly exposed land. In response to That statute allowed for post-sentencing the prosecutors in Skilling’s case used erosion on its ocean beaches, Florida’s civil commitment of persons who have to reinforce the charge against him of legislature passed the Beach Renour- committed certain sex crimes in the past conspiring to commit securities and ishment Act, which added sand to the and who suffer from a mental illness wire fraud. Skilling also challenged the seabed at various Florida beaches and that makes them sexually dangerous conviction on the ground that pretrial gave ownership of the resulting new to others. In November and December publicity and community prejudice pre- waterfront land to the state. A group 2006, the government instituted civil vented him from receiving a fair trial. of owners of beachfront property sued commitment proceedings under § 4248 In Skilling v. United States (08-1394), the Florida Department of Environmen- against Graydon Earl Comstock Jr. and tal Protection in state court for issuing others convicted of crimes covered by COURT continued on page 59

48 | The Federal Lawyer | August 2010 Hillary A. Stern Phyllis O. Tousey Lisa S. Wahlin Benjamin J. Wilensky Hui-Ju Wu Elwood C. Stevens Michael L. Turrill Holly B. Wardell David G. Wilhelm Gregory C. York Catherine M. Stockwell Kevin Ueland Steve R. Warren Thomas H. Wilkins Christine M. Young Karen V. Sullivan Virginia T. Vance Asma J. Warsi-Chaudry James W. Williams Cole M. Young Laszlo M. Szabo Mark L. Vavreck Kevin K. Washburn Jeremy S. Williams Susan C. Yu Mary Katherine Taylor Chris P. Villemarette Victoria L. Weatherford Samuel L. Winder F. Lachicotte Zemp Michael J. Thomas Charles M. Viser Jennifer B. Wells Richard R. Winter Kevin Zolot Orlando J. Torres Jonathan Vogel Frederick Wen Carrie A. Wozniak Osiris Torres Scott A. Wagner Bruce E. Wickline Robert T. Wright

REVIEWS continued from page 56 avoid the puddle I saw the mystery, the what they thought they heard, or what the times, the attorney general of Utah unspeakable wrongness, of cutting a witnesses later recounted. And, although used his Twitter account to get his own life short when it was in full tide.” we all think there is a right to last words, last words in, tweeting on his iPhone Elder’s collection of last words cannot it is a gift of the state. Pennsylvania, for that he, the attorney general, had just be complete. He makes a selection, and example, does not provide for last words given the go ahead to proceed with the in choosing one quotation over another, in its protocol, and neither did Ohio until execution. The five gunmen then fired he makes a political statement. I would several years ago. Some last words can at 12:15 a.m., and Gardner was pro- have rather he had left out overt politi- only be spoken to the warden; others are nounced dead at 12:17 a.m. TFL cal proclamations, ranging from those required to be brief. It is strange to read of Nathan Hale and Mary Goode (of the that Chaplain Carroll Pickett, who min- Jon M. Sands is the federal public de- Salem witch trials) to Joe Hill and the istered to nearly 100 death row inmates fender for the District of Arizona. more recent declarations of Julius and in the Texas prison system, acting on Ethel Rosenberg and Timothy McVeigh. instructions from the warden, advised Endnotes Such political expressions detract from the condemned that there should be no 1See Kevin F. O’Neill, Muzzling the anonymity of the forgotten. Gettysburg Address (a speech known for Death Row Inmates: Applying the First Elder’s discussions of the methods of its brevity). Pickett’s last charge indeed! Amendment to Regulations that Restrict execution, serving as organizing themes, But last words, like last meals (Beuke a Condemned Prisoner’s Last Words, 33 are insightful. Each method is touted as asked that his be given to a homeless Ar i z . St. L.J. 1159 (2001). humane, and each reflects, in a man- person), have symbolic value. With the 2This admonition was by Robert ner, the era of its use. The changes in advent of the Internet and the abil- Comer, who was executed by the state methods also illustrate the movement ity to collect last words and menus of of Arizona on May 22, 2007. Comer was of execution from a public spectacle last meals, is this collection necessary? a “volunteer” who had sought his exe- to a cloistered procedure, away from Perhaps. It will soon be outdated, not cution. These last words were directed a shielded public. The methods strive because capital punishment will end, as to his counsel, with whom he spent his to be painless, and recent litigation has then the book would have historical and last minutes talking about the National focused on lethal injection. Yet, there social value, but because executions will Football League and of the fact that they are throwbacks. Utah, for example, still continue. There will be no last last words were both fans of the Oakland Raiders. allows execution by firing squad for in the foreseeable future.3 3For interesting aspects of the rites of those convicted prior to 2002, if the Our office represented Ronnie legal executions, see Daniel LaChance, inmate chooses this method. Gardner, who was executed by a Utah Last Words, Last Meals, and Last Stands: In collecting these last words, Elder firing squad on June 18, 2010. His Agency and Individuality in the Modern can rely only so much on what was tran- life ended with no last words. When Execution Process, 32 La w & So c i al scribed. Most last words were the result asked if he had any final words, he In q u i r y 701 (2007). of reporters’ hastily scribbling down said, “I do not, no.” But, as a sign of

COURT continued from page 48 the Court held that the “honest services” ing for the three dissenters on this issue, voir dire in this case. TFL statute applied only to crimes involv- argued that the Court had legislated ing bribery and kickbacks. Therefore, from the bench in its interpretation of Prepared by LII Summer Editors Jeffrey because Skilling and the others had the “honest services” law. Ginsburg also Catalano and Bret Brintzenhofe. In ad- been tried under the statute for other wrote for a majority of five, holding that dition to the cases highlighted above, the crimes, the convictions could not stand. the publicity and community prejudice decisions from the Supreme Court’s en- Justice Ginsburg, writing for a major- did not prevent Skilling from receiving tire 2009–2010 term can be found on ity of six, held that reading the law as a fair trial. Justice Alito wrote a separate the LII’s Supreme Court website: www. covering anything other than bribes and concurrence on the right to an impartial law.cornell.edu/supct/. kickbacks would raise questions of con- jury; Justice Sotomayor dissented on this stitutional vagueness. Justice Scalia, writ- issue, questioning the adequacy of the

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