Ad Fontes: The Week in SCOTUS, Part Deux

[Ad Fontes was an early Renaissance and Reformation credo. Literally meaning “to the fountains,” the phrase embodied these movements’ emphasis on studying the original, primary sources in religious, philosophical, and scientific pursuits. This same commitment animates our efforts to follow our state and federal judiciaries’ decisionmaking in key cases being decided therein, given how these opinions shape the legal environment in which we live and work. As such, this periodic series seeks to provide quick but insightful summaries of recently issued decisions by courts across the country, with brief commentary on the potential implications or consequences of the decisions. Enjoy!

–LDB Editors]

As the Supreme Court’s term comes to a close here at the end of the month, the Court had a busy week issuing opinions to wrap up before the summer break. Here are quick takes on the decisions that came down on Thursday and Friday.

Perry v. Merit Systems Protection Board

In Perry v. Merit Systems Protection Board, the Court decided a statutory-interpretation dispute regarding which court had appellate jurisdiction over particular types of appeals from the Board.

For civil servants under the Civil Service Reform Act, the Merit Systems Protection Board reviews certain personnel actions taken against them. Depending on the nature of the employee’s claim, review of an MSPB adjudication can be had either exclusively in the federal circuit or in federal district court. In “mixed cases,” where the employee’s claims traverse these distinct categories, and the MSPB dismissed the case either on its merits or on procedural grounds, review is proper in federal district court. The issue that arose here was whether, in a mixed case, review was proper in federal district court when the MSPB dismisses a case on jurisdictional grounds.

The Court held, with Justice Ginsburg writing, that review was proper in federal district court rather than the federal circuit. This is “the more sensible reading of the statutory prescriptions.” To distinguish between procedure and jurisdiction “is no more tenable than ‘the merits-procedure distinction'” the Court has elsewhere rejected. “Just as the proper characterization of a question as jurisdictional rather than procedural can be slippery, the distinction between jurisdictional and merits issues is not inevitably sharp, for the two inquiries may overlap.”

Justice Gorsuch, joined by Justice Thomas, dissented, arguing for a stricter reading of the statutory language at issue. “Perry asks us to tweak a congressional statute–just a little–so that it might (he says) work a bit more efficiently. No doubt his invitation is well meaning. But it’s one we should decline all the same.” “If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation.” “I would decline Mr. Perry’s invitation and would instead just follow the words of the statute as written.” To Justice Gorsuch, the statute is straightforward: “because the scope of the Board’s jurisdiction is a question of civil service law, Mr. Perry must go to the Federal Circuit for his answer.” “Mr. Perry would have us upend a carefully crafted statutory scheme on the strength of a comment in one sentence of one footnote [in a prior opinion] offered in reply to a policy argument that failed for other reasons anyway. Full respect for stare decisis does not demand so much from us.” “At the end of a long day, I just cannot find anything preventing us from applying the statute as written–or heard any good reason for deviating from its terms.”

Murr v. Wisconsin

In Murr v. Wisconsin (a case argued by friends over at the Pacific Legal Foundation), the Court delved into the very messy world of regulatory takings to decide whether the state had to compensate the Murrs for effectively preventing them from selling a parcel of land that, at one time, had been a separate plot, but that had been effectively merged into an adjoining plot owned by the same family, for purposes of a complex regulatory scheme relating to land use on and around the St. Croix River.

St. Croix River

Portion of the St. Croix River.

The Court held for the state, concluding that no taking had occurred. Writing for the Court, Justice Kennedy embraced “flexibility” as the “central dynamic of the Court’s regulatory takings jurisprudence.” As such, in answering the all-important “denominator question” in deciding whether a regulation effected a taking, the Court adopted a new three-part test (Penn Central devotees may appreciate another three-part test in the regulatory takings context). “First, courts should give substantial weight to the treatment of the land, in particular how it is bounded or divided, under state and local law.” “Second, courts must look to the physical characteristics of the landowner’s property.” “Third, courts should assess the value of the property under the challenged regulation, with special attention to the effect of burdened land on the value of other holdings.”

This third prong seems especially open-ended by design. Justice Kennedy writes that “[t]he absence of a special relationship between . . . holdings may counsel against consideration of all the holdings as a single parcel . . . . On the other hand, if the landowner’s other property is adjacent to the small lot, the market value of the properties may well increase . . . . [which] may counsel in favor of treatment as a single parcel . . . .” Elsewhere, the Court specifically disclaims the adoption of a “bright-line rule,” stating that “nothing in this opinion approves that methodology.” “Like the ultimate question whether a regulation has gone too far,” Justice Kennedy writes, “the question of the proper parcel in regulatory takings cases cannot be solved by any simple test.”

As applied to the Murrs, the Court held that its new test means no regulatory taking had been effected. First, the state’s merger of the land for purposes of the regulation in question “informs the reasonable expectation they will be treated as a single property.” Second, “the physical characteristics of the property support its treatment as a unified parcel.” Third, the diminution in value wrought by the regulation as to the plot in question is offset “by the benefits of using the property as an integrated whole” and “by their combined valuation.”

Chief Justice Roberts, joined by Justices Thomas and Alito, dissented. The Chief’s key quibble with the majority is over how to define property pursuant to the Takings Clause. Contrary to the majority’s multi-factor balancing test, the Chief asserts the “[o]ur decisions have, time and again, declared that the Takings Clause protects private property rights as state law creates and defines them.” “The majority’s new, malleable definition of ‘private property’ . . . undermines th[e] protection” the Takings Clause provides individuals “from being forced to bear the full weight of actions that should be borne by the public at large.” The Chief would prefer a more straightforward test: “State law defines the boundaries of distinct units of land, and those boundaries should, in all but the most exceptional circumstances, determine the parcel at issue.” Chief Justice Roberts takes the majority to task for their “stand against simplicity” and for conflating the question of whether a taking has occurred with the distinct, precedent question of the nature of the property interest in question. “In departing from state property principles, the majority authorizes governments to do precisely what we rejected in Penn Central: create a litigation-specific definition of ‘property’ designed for a claim under the Takings Clause.” The end result of this new approach is “that the government’s regulatory interests will come into play not once, but twice—first when identifying the relevant parcel, and again when determining whether the regulation has placed too great a public burden on that property.” And the government now has incentives “to gerrymander the definition of ‘private property’ to defeat a takings claim.”

Justice Thomas also dissented separately, to note that “[t]he Court . . . has never purported to ground” its regulatory takings jurisprudence “in the Constitution as it was originally understood.” He would like “to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment.”

Jae Lee v. United States

In Jae Lee v. United States, the Court held that, when a defendant receives erroneous advice from counsel regarding the collateral immigration consequences of accepting a plea deal, proceeds to accept the plea deal, and is subject to mandatory deportation thereafter as a consequence, the defendant can show prejudice for the purposes of an ineffective-assistance-of-counsel claim if the defendant demonstrates that he would have gone to trial but-for that erroneous advice. Chief Justice Roberts, writing for the Court and applying a previous related decision, concluded that “the defendant can show prejudice by demonstrating a ‘reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.'” The Court rejected “a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial.” And the Court found that the defendant here adequately demonstrated that he would have gone to trial instead of accepting the plea deal, but-for the erroneous advice.

Justice Thomas, joined in part by Justice Alito, dissented. Justice Thomas first reiterated his view that the Constitution “does not ‘requir[e] counsel to provide accurate advice concerning the potential removal consequences of a guilty plea.'” Padilla v. Kentucky, 559 U.S. 356, 388 (2010) (Scalia, J., dissenting). He then also wrote to object to the “novel standard for prejudice at the plea stage” that “does not follow from our precedents.” “To establish prejudice under Strickland, a defendant must show a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.'” Strickland v. Washington, 466 U.S. 668, 694 (1984). The “result of the proceeding” under Strickland “refers to the outcome of the defendant’s criminal prosecution as a whole.” “[T]he defendant’s ability to show that he would have gone to trial is necessary but not sufficient, to establish prejudice.” In this case, the defendant could not “show a reasonable probability that the result of his criminal proceeding would have been different had he not pleaded guilty.” Justice Thomas also fears “pernicious consequences for the criminal justice system” stemming from the holding today, given “that more than 90 percent of criminal convictions are the result of guilty pleas,” “the burden of holding evidentiary hearings on” these types of ineffective-assistance claims “could be significant,” and the Court’s holding essentially states “that a defendant who pleaded guilty need show only that he would have rejected his plea and gone to trial.”

Maslenjak v. United States

Before obtaining U.S. citizenship, an individual must swear that they had never given false information or otherwise lied to a government official to gain entry into the United States. What if it later emerges that someone who became a citizen did, in fact, give false information to gain entry into the United States? What if that false information, however, had no effect on the decision to permit entry or grant citizenship?

In Maslenjak v. United States, the Court held that the Government must demonstrate that the entrant’s illegal act played a role in her acquisition of citizenship. The majority opinion, written by Justice Kagan, works through the relevant statutory language to conclude that the opposite view advanced by the Government – namely, that the law only requires some violation of law committed in the course of procuring naturalization, rather than some violation of law that was relevant to procuring naturalization or citizenship – “falters on the way language naturally works.” The Court also looked to the broader statutory scheme and adopted a reading that would avoid the bizarre result that “some legal violations that do not justify denying citizenship . . . would nonetheless justify revoking it later.” Accordingly, the Government must “prove that the misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials . . . to undertake further investigation,” and that any such “investigation would have borne disqualifying fruit.” If the Government carries its burden here, the defendant can overcome it by establishing she was qualified for citizenship nevertheless.

Justice Gorsuch, joined by Justice Thomas, concurred in part and concurred in the judgment, taking issue with the Court’s attempted operationalization of its holding by way of the new standard imposed. “[T]he question presented and the briefing before us focused primarily on whether the statute contains a materiality element, not on the contours of a causation requirement. So the parties have not had the chance to join issue fully on the matters now decided.” In a memorable line, Justice Gorsuch notes that “the crucible of adversarial testing on which we usually depend, along with the experience of our thoughtful colleagues on the district and circuit benches, could yield insights (or reveal pitfalls) we cannot muster guided only by our own lights.”

Justice Alito concurred in the judgment, reasoning that the statute does contain a materiality requirement but that the statute “does not require proof that a false statement actually had some effect on the naturalization decision.”

Turner v. United States

Turner v. United States addressed Brady claims brought by defendants who were convicted for an infamous 1984 murder that rocked D.C.

Turner and Overton

The Court held that the prosecution did not violate Brady in withholding certain evidence, including alternative-perpetrator evidence, that defendants argued would have allowed them to undermine the prosecution’s group-attack theory of the murder had that information been properly disclosed. The Court concluded that the withheld evidence was all either “too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards.”

Justice Kagan, joined by Justice Ginsburg, dissented. She concluded that “With the undisclosed evidence the whole tenor of the trial would have changed. . . . that could have flipped one or more jurors–which is all Brady requires.”

Weaver v. Massachusetts

In Weaver v. Massachusetts, the Court held that, though a criminal defendant’s right to a public trial was violated by closure of the courtroom during jury voir dire, and this constituted a structural error that would normally warrant automatic reversal on direct review, the defendant in this case was not entitled to reversal. The Court concluded so because the defendant’s contention was raised in the context of an ineffective-assistance-of-counsel claim rather than on direct review, meaning that the defendant had to show that the error led to a fundamentally unfair trial or that, but-for the ineffective assistance, there was a reasonable probability of a different outcome. Here, the harm of the closure was found to be inconsequential, meaning defendant had not met his burden.

Justice Thomas concurred, joined by Justice Gorsuch, expressing doubt that one of the key precedents to this case “is consistent with the original understanding of the right to a public trial.”

Justice Alito concurred in the judgment, joined by Justice Gorsuch, disagreeing with the Court’s application of Sixth Amendment case law, concluding that the case turns on “a straightforward application of the familiar standard for evaluating ineffective assistance of counsel claims” and that here the defendant did not show “a reasonable likelihood that his counsel’s error affected the verdict.”

Justice Breyer, joined by Justice Kagan, dissented. He reasoned that “a defendant who shows that his attorney’s constitutionally deficient performance produced a structural error should not face the additional–and often insurmountable–Strickland hurdle of demonstrating that the error changed the outcome of his proceeding.”

Stay tuned as the Court wraps up OT 2016 this Monday (with the possibility of explosive cert grants and retirement news forthcoming)!

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