Supreme Court review-- Professors provide updates on past cases

By Roberta M. Gubbins Legal News "We are becoming the Joe Paterno of the Luncheon Lecture series," said Phil Prygoski, commenting on the twenty-eight years that Cooley Law School Professors Prygoski and Bill Weiner have enlightened members of the Ingham County Bar Association and others with an update on the decisions of United States Supreme Court. Starting with a statistical review of the Court's work in the past year, Professor Bill Weiner noted that "in the last year the court decided 79 cases overall, 75 on the merits of the case--"that is a slight up-tick from the 71 decided the year before. Using a five-year perspective, this is right in the middle. "There were a few less unanimous opinions and a few more 6 to 3 and several more of those difficult 5-4 decisions. So what did jump this year was the average number of dissents--there were 23; 16 of them were the ideological splits where on the left we have Justices Stevens, Souter, Breyer, and Ginsberg and on the right we have Chief Justice Roberts, Justices Scalia, Thomas and Alito. "Right in the middle, we have Justice Kennedy. Last year he split 4 to 4--he sided with the left 4 times and the right 4 times. This year there were more ideological cases (16 of them) and he went to his right 11 times and to his left only 5 times. He was on the winning side in 18 of the 23 cases. He is the power player on the court. "Let's Go to Lunch award goes to Chief Justice Roberts and Justice Alito--they agreed 92% of the time. I have a feeling that they will be getting the reward every year. This year there is no outcast or dining alone award. "This was Justice Souter's last year having served 19 years. He was replaced by Justice Sonia Sotomayor. "What is next in terms of personnel on the court? It could be that Justice Stevens will retire--the justices get four clerks, and Stevens has almost always filled his quota of clerks during the summer of the year before they are hired. This year he hired for the 2010 term. He hired only one clerk and retired justices can hire one clerk. If he retires at the end of the 2009 term, he will be 90 years old. He will have been a Supreme Court Justice for 35 years. "Kansas v Ventris is an interesting case. Defendant Ventris and his girlfriend, after two days of no sleep and a bunch of drugs, decided to visit the victim whom they heard had lots of cash. They killed him, took his truck, his cell phone and $300 in cash. When arrested they are charged with murder and aggravated robbery. Kansas took the girlfriend's plea to robbery in exchange she would testify that the boyfriend shot the victim. Meanwhile the police plant an informant in Ventris's cell. As hoped, Ventris told the plant that he shot the victim, took his truck and his money. At trial, Ventris blames it all on girlfriend. The prosecution, over objection, gets the informant to testify. They concede that Ventris' 6th amendment right to counsel was violated but they want to get this 'confession' in, not as direct testimony, but to impeach Ventris's testimony. They get it in. The defendant gets convicted of Robbery but not of murder. "The Kansas Supreme Court reverses the conviction. They find that the 6th amendment violation covers impeachment as well as direct testimony. "The Supreme Court reverses the lower court holding that 'Our precedence make clear that the gain of excluding tainted evidence for impeachment purposes is not worth a candle -the interests safeguarded by such an exclusion are outweighed by the need to prevent perjury and insure the integrity of the trial process.' Justice Stevens dissents--he would keep it all out on a fairness ground. 'permitting the state to cut corners in criminal proceedings taxes the legitimacy of the entire criminal process.' "Vermont v Brillon: Brillon was arrested on a Domestic violence charge in July of 2001. He wasn't tried until 2004. Between the arrest and the trial he had six court appointed attorneys. When number one lost a motion, Brillon fired him; number two had a conflict, Brillon threatened to kill number three, numbers four and five had contract issues with the state of Vermont. Number six brought a speedy trial motion and loses, she tries the case and Brillon is sentenced to 12 to 20 years in prison. On appeal, the Vermont Supreme court applies the speedy trial sixth amendment test--which is a four part test--length of delay, reason for the delay, defendant's assertion of his right to trial, and prejudice to the defendant. The Vermont court is split 3-2 in defendant's favor. The remedy is dismissal of the charge." The Supreme Court reversed and remanded the case. "This time Justice Ginsberg writes for the majority: 'The Vermont court's error was in treating assigned counsel as state actor. Just like hired counsel, they act for their clients and their delays ought to be assigned to the defendant's they represent. While a systemic breakdown of the public defender's office might be attributed to the state, that wasn't the case here.' Justice Ginsberg sees Brillon as the problem. He forced at least two of his attorneys to withdraw. And the others had their own reasons for slowing things down. The Supreme Court didn't do much outside the area of criminal law," said Prygoski, citing two cases he expects to be back next year. The first is "Fox Television Stations, Inc., v. F.C.C., a 'fleeting expletives' case. The FCC issued notices of liability for indecency" to Fox for isolated utterances of the F-word and the S-word during live broadcasts. Years before "George Carlin, in a monologue, told of the seven dirty words you couldn't say on television. It was twelve minutes long and he said the seven dirty words in every possible permutation and the Second Circuit (U.S. Court of Appeals) referred to it as a verbal shock treatment. This is important because the Carlin speech was extended, deliberate and repetitive. "The examples of expletives in the Fox case were fleeting and are different from what George Carlin did. The case is really simply a standard for the FCC changing a rule. Justice Scalia writes for the court--if they have a rational reason for changing the rule, its okay." The Second Circuit set aside the agency action, finding the FCC's reasoning inadequate under the Administrative Procedure Act (APA). The Supreme Court sent the case back to the Second Circuit for a First Amendment review. "Here is the interesting thing," he added. "Broadcast media are more heavily regulated than other media. Television is uniquely accessible and available to kids. What about the Internet? A show on TV can be heavily regulated, but what if the same show is streamed over the Internet. That is protected. "Justice Thomas writes an opinion--he concurs but agrees with the Second Circuit in that constitutionally there should be no difference between over the air television or radio or satellite or Internet or streaming. Technology has changed and the same rules ought to apply. He doesn't say which rules. "Next year I will be standing here saying in part two of this case, the United States Supreme Court said that there was no first amendment concern. "The second case is Ricci v Stefano, 129 S. Ct. 2658 (2009). In this case white firefighters and one Hispanic firefighter sued New Haven, Connecticut, alleging that the City violated Title VII by refusing to certify the results of a promotional examination. The City believed that its use of the results of the exam would have a disparate impact on minority firefighters. The court ruled that the City's refusal to certify the results was a violation of the Title VII's disparate treatment provision, and that before an employer can engage in intentional discrimination, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take race-conscious action. "This is the case where Justice Soutomeyer was on the Court of Appeals case. She ruled for the city. The city had a rule of three--you had to in the top three to be promoted to captain. No blacks scored in the top three scores. So all whites would be promoted. The question in this case, technically, is whether the city acted legally when it refused to certify the results of the exam. "The Supreme Court says that mere fear of a disparate impact lawsuit is not enough to justify intentional discrimination against the white firefighters. There has to be 'a strong basis in evidence' to believe that the test was flawed. Here it wasn't enough. The city was wrong in throwing out the results of the test. "The interesting part is that Scalia concurs, 'I join the courts opinion but write separately to observe that its resolution of this dispute merely postpones the evil day when the court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection?'" Professors Prygoski and Weiner teach at Thomas M. Cooley Law School. Published: Thu, Dec 3, 2009

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