Friday, August 26, 2011


Preemption, the Supremacy Clause, and Medicaid top the list of legal arguments the Supreme Court will hear in the October Term.  This first argument comes from a consolidated group of cases from the Ninth Circuit Court of Appeals:  09-958:          Douglas v. Independent Living Center of Southern California;  09-1158:  Douglas v. California Pharmacists Association; and Douglas v. Santa Rosa Memorial Hospital.  The Court will hear one hour of argument on Monday October 3rd.     

This case is about the Medicaid Act, which the Court said in Gonzaga University v. Doe, 536 U.S. 273 (2002) does not confer "rights" upon Medicaid providers or recipients which are enforceable under the Civil Rights Act, 42 U.S.C. §1983.  Here providers are suing claiming the Medicaid Act preempts cuts in the reimbursement rate where the State failed to comply with requirements not found in the four corners of the statute, and where those cuts were made for budgetary reasons.

The Court granted certiorari on June 27, 2011 with Associate Justice Sonia Sotomayor taking no part in the considerations.

The second case this term will look at the legal issue of standing and the Sexual Offenders Registration and Notification Act (S.O.R.N.A.).  In case number 1-6549, Reynolds v. United States Mr. Reynolds wants to raise claims about the Attorney General's interim rule. Does Reynolds have standing and does the Court need to resolve a conflict between the Circuit Courts of Appeal are the first questions presented in this case.

The argument will be limited to that first two-part question.  The other question asks if S.O.R.N.A. violates the Constitution, again asking if the Court needs to hear this case to decide conflicting opinions of the several Courts of Appeal regarding the Commerce Clause, the Ex Post Facto Clause, and Due Process of Law.  Remember that the Court will always be reluctant to settle an issue by declaring a law unconstitutional, especially a federal statute, hence no argument on the second question.

On Tuesday October 4th the Court will begin with a capital case, number 10-63, Maples v. Thomas.  Here the Eleventh Circuit is divided.  Alabama wants to proceed with the execution of Maples.  Here the state inmate gets no federal review of the merits of serious constitutional claims.  Maples missed the filing deadline.  What happened was that the state court sent a letter containing  order to Maples lead attorney of record.  The letter was returned unopened and marked "Return to Sender - Left Firm" written on the envelope.

I would have liked to see the question presented framed in terms of whether the Due Process Clause, in the interest of fairness, requires the deadline to be tolled where counsel for the convicted is no longer representing the client.  I see the case in light of the Sixth Amendment and the Fourteenth Amendment.  What do I always say?  The decisions of the Court are framed by the questions presented. 

And yes the Sixth Amendment is not applicable to all aspects of post-conviction relief.  Here, if the deadline was triggered by an order of a state appellate court where Maples was represented, then the Sixth Amendment imposes a duty on the lawyer to, at minimum, notify the convicted client of the court order.  That is because triggering the deadline is a significant event in the proceedings against the client.  If, on the other hand, the deadline was triggered by an order of the state trial court, then the Sixth Amendment applies. In Douglas v. California, 372 U.S. 353 (1963) the Court held that counsel must be provided for the first statutory appeal of right.  In either case the attorney in question is ineffective for failing to notify the Court of his correct mailing address.   

The first question actually presented asks if the decision of the Eleventh Circuit went wrong deciding that the state procedural default rule was adequate as a matter of federal law in barring federal habeas review of serious constitutional claims.  In this case the appellate court disregarded state law permitting untimely appeals in analogous circumstances, reconstructed state law based on distinctions the state courts have not made, and relied on cases decided after the default had taken place. The Court will not hear arguments on this question.

Maples' second question will be argued before the Court.  That question is "Whether the Eleventh Circuit properly held - in conflict with the decisions of this Court and other courts - that there was no "cause" to excuse any procedural default where petitioner was blameless for the default, the State's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default."  Perhaps the Sixth and Fourteenth Amendment arguments will weigh in on this case after all.  

Picking up where Maples v. Thomas leaves off is the next Tuesday case, Martinez v. Ryan, number 10-1001.  Martinez was convicted of sexual conduct with a person under the age of fifteen and sentenced to two consecutive terms of 35 years to life by an Arizona court.  Lawyer "A" was Martinez' first state appointed appellate attorney.  Lawyer "A" initiated the first statutory appeal of right under the  Arizona Rules of Criminal Procedure by filing a "Notice of Post-Conviction Relief".  Martinez says he was not notified by Lawyer "A" of that filing. Lawyer "A" filed a motion with the state appellate court claiming that after a review of the trial transcripts and file she could find no colorable issues to raise on appeal.

Lawyer "A" asked the court to grant Martinez 45 days to file a pro se petition in support of post-conviction relief. Martinez alleges that his counsel filed this statement without prior notice to him and without his consent. He alleges that his counsel failed to advise him to file a pro se petition. On April 28, 2003, after time had expired for Martinez to file a petition, the trial court dismissed the Rule 32 action for post-conviction relief.

Exit Lawyer "A" and enter Lawyer "B".  Lawyer "B" filed a second motion for post-conviction relief alleging that Martinez' trial counsel was ineffective and raised Sixth and Fourteenth Amendment issues.

The Arizona Superior Court deemed Martinez' claims to be procedurally defaulted because he had failed to raise them in his first Rule 32 action for post-conviction relief. Martinez sought review in the Arizona Court of Appeals. That court granted review, but denied relief to Martinez on the basis that his claims were precluded. Martinez sought further review by the Arizona Supreme Court, which denied review without opinion.

The Ninth Circuit affirmed the Arizona courts, concluding that Martinez is procedurally barred from seeking federal habeas relief absent a showing of cause and prejudice to excuse his default.  The Ninth Circuit found no constitutional right to effective assistance of counsel in the post-conviction stage of the proceedings against Martinez.

The last argument on Tuesday is Howes v. Fields, case number 10-680.  The question for the Court is when is a prisoner "in custody" for purposes of the Miranda warning under 28 U.S.C. §2254, a part of the Antiterrorism and Effective Death Penalty Act of 1996. Fields was incarcerated in a Michigan prison, taken from the general population, placed in a locked conference room, and interrogated about issues unrelated to the crime that landed him prison in the first place.  Although he was told he could go back to his cell during the seven hour interrogation, he couldn't just get up and leave.  Returning to his cell required the summoning of a guard to open the conference room and escort Fields back to his cell.  Fields did not ask for a lawyer but did say several times that he did not want to speak to anyone about the new accusations being levied at him by police.  Fields was not given a Miranda warning before, during, or after his interrogation.

On Wednesday the Court shifts gears and looks into the far reaches of the "ministerial exception".  This is First Amendment doctrine barring most employment-related lawsuits brought against religious organizations by employees performing religious functions.   

In Hosanna-Tabor Church v. EEOC, case number 10-553, the question presented goes beyond the heart of the exception which the Circuits all agree covers hiring practices for pastors, priests, and rabbis.  This case looks at the hiring of teachers who fill clearly secular roles teaching  non-religious subjects and also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

The final case to be heard on the first week of the 2011 October term focuses on the Progress Clause of the Constitution which is Article 1 § 8:  "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

The dispute in Golan v. Holder, case number 10-545, centers around §514 of the Uruguay Round Agreements Act of 1994.  Here Congress restored thousands of copyrights on works that had been placed in the Public Domain. 

The Petitioners in this case are orchestra conductors, educators, performers, film archivists and motion picture distributors, who relied for years on the free availability of these works in the Public Domain, which they performed, adapted, restored and distributed without restriction.

There are two questions being presented to the Court in this case.  First, does the Progress Clause of the United States Constitution prohibit Congress from taking works out of the Public Domain?

Second, does Section 514 violate the First Amendment of the United States Constitution?

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