Arkansas executes fourth inmate in one week

Arkansas executes fourth inmate in one weekWithout any recorded dissents, the Supreme Court last night declined to block the execution of Kenneth Williams. Williams was the fourth inmate executed in Arkansas in a week; the state had sought to execute eight inmates over a span of 11 days so that it could carry out the executions before one of the drugs […]

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Arkansas executes fourth inmate in one week

Without any recorded dissents, the Supreme Court last night declined to block the execution of Kenneth Williams. Williams was the fourth inmate executed in Arkansas in a week; the state had sought to execute eight inmates over a span of 11 days so that it could carry out the executions before one of the drugs in its lethal injection protocol expired, but four other inmates had their executions stayed. The 38-year-old Williams had been serving a life sentence without parole for the 1998 murder of Dominique Herd when he escaped from prison and murdered Cecil Boren, who lived near the prison. Williams stole Boren’s truck; driving the truck while trying to evade capture, Williams struck and killed another driver, Michael Greenwood. Williams was sentenced to death in 2000.

In filings yesterday at the Supreme Court, Williams argued that his execution should be put on hold to allow him to demonstrate that he is intellectually disabled and therefore cannot be put to death. But the justices were unwilling to step in. They issued orders denying Williams’ request for relief shortly after 11 p.m. EDT, the state began to administer the lethal injection a little less than an hour later, and Williams was pronounced dead at 11:05 p.m. CDT.

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Argument analysis: Concerns about prosecutorial discretion likely to lead to ruling for Bosnian Serb in immigration case

At oral argument today in the U.S. Supreme Court, the justices were not especially sympathetic to the plight of Divna Maslenjak. The 53-year-old came to the United States as a refugee in 2000, fleeing ethnic strife in the former Yugoslavia. Maslenjak became a U.S. citizen seven years later, but last fall she was deported to […]

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At oral argument today in the U.S. Supreme Court, the justices were not especially sympathetic to the plight of Divna Maslenjak. The 53-year-old came to the United States as a refugee in 2000, fleeing ethnic strife in the former Yugoslavia. Maslenjak became a U.S. citizen seven years later, but last fall she was deported to Serbia. U.S. immigration officials stripped her of her citizenship after she admitted that she had lied about her husband’s service in the Bosnian Serb military, but the justices seem likely to give her another shot at keeping it. Although they may not have been fans of Maslenjak personally, though, the justices were even less enthusiastic about the prospect of ruling for the government, expressing concern that such a ruling would give U.S. officials boundless discretion to take away citizenship based on even very minor lies.

During the first part of the argument, things didn’t necessarily look good for Maslenjak. The government had charged her with violating a federal law that authorizes both a fine and a prison sentence for anyone who “knowingly procures or attempts to procure, contrary to any law, the naturalization of any person.”  The government argued that, when Maslenjak applied to become a citizen, she knew that she had lied to immigration officials when seeking to come to the U.S. as a refugee. Maslenjak countered that the government couldn’t take away her citizenship just because she lied; the lie had to be a “material” one – that is, one that would not have affected the immigration officials’ decision.

 But some justices didn’t regard the distinction between a material and immaterial lie as an easy line to draw. Justice Anthony Kennedy told Christopher Landau, who was representing Maslenjak, that whether a false statement influenced the government’s decision to grant citizenship is sometimes “known only after the fact.” “You can have a statement that everyone thinks is immaterial, it’s subjectively immaterial, but it might have a causal connection at the end of the day.”

Christopher Landau for petitioner (Art Lien)

Justice Samuel Alito echoed this sentiment. He told Landau that requiring the government to show that it would have rejected Maslenjak’s citizenship application if it had known the truth would be an “awfully hard” burden for the government to bear, because “even if somebody says something that has a real potential to affect the naturalization decision, you would still have to go back and show that in this case it actually did make a difference.”

And other justices were skeptical that, even if the court were to adopt the rule that Maslenjak herself urged and require the lies to be material, Maslenjak could prevail. Justice Ruth Bader Ginsburg asked Landau, “Why isn’t this obviously material?” Maslenjak, Ginsburg observed, lied to U.S. government officials about her husband’s activities in Bosnia. “She said he was trying to avoid military conscription when, in fact, he was in the service and in the unit that was committing atrocities. Under what circumstances,” Ginsburg went on, “would that be immaterial?”

Alito seemed to agree. He asked Landau whether the jury in Maslenjak’s case could also hear evidence about her husband’s military service in Srebrenica, the town where Bosnian Serb soldiers killed over 8,000 Muslim men and boys in 1995. If so, Alito suggested, “I don’t know how well you are going to do” in front of the jury. Landau agreed with Alito that Maslenjak would have a “tough row to hoe” on remand, but he argued that his client at least deserved a chance to have the jury decide whether her lies were material.

Chief Justice John Roberts had been largely silent during Landau’s argument. Robert Parker, the assistant to the U.S. solicitor general who argued on behalf of the federal government, quickly learned why. Roberts is generally no friend of criminal defendants, but he has often expressed concern about federal laws that give too much leeway to prosecutors, thereby creating the potential for abuse and uneven enforcement. Today was one of those days.

Roberts noted that one question on the naturalization application form asks whether the applicant has “ever committed, assisted in committing, or attempted to commit a crime or offense for which you were not arrested.” “Some time ago,” Roberts confessed, “outside the statute of limitations, I drove 60 miles per hour in a 55-miles-per-hour zone. I was not arrested.” “Now you say that if I answered that question no, 20 years after I was naturalized as a citizen,” he declared incredulously, “you can knock on my door and say, guess what, you’re not an American citizen after all.”

Chief Justice Roberts questions Assistant to the Solicitor General Robert A. Parker (Art Lien)

Parker tried to offer Roberts some assurances that the hypothetical naturalized scofflaw would have little to fear, but he didn’t make much headway. “So you really are looking for the listing of every time somebody drove over the speed limit,” Roberts concluded.

Justice Sonia Sotomayor piled on, asking Parker whether failure to disclose a childhood nickname – another question on the naturalization application form – could constitute cause to take away someone’s citizenship.

Parker pushed back, reassuring Sotomayor that the government was not interested in childhood nicknames. However, Justice Stephen Breyer retorted that, even if Sotomayor’s example could be distinguished, “that isn’t the point.” The point, Breyer emphasized, is that the questions on naturalization application form are “unbelievably broad.” “To me,” Breyer said, “it’s rather surprising that the government of the United States thinks that Congress is interpreting this statute and wanted it interpreted in a way that would throw into doubt the citizenship of vast percentages of naturalized citizens.”

Perhaps thinking of the difficulties that might follow from requiring a lie to be “material,” Breyer suggested some alternative standards, potentially less onerous for the government, that would still call for a connection between the lie and the naturalization decision. What about requiring that the lie “had a tendency to affect a reasonable immigration officer in his judgment” or “influence the decision”?  All those are wrong? he queried.

Breyer later admonished Parker that the government’s interpretation “would raise a pretty serious constitutional question” when it could take away someone’s citizenship “because 40 years before, he did not deliberately put on paper what his nickname was, what his speeding record was 30 years before that, which was, in fact, totally immaterial.”

Roberts added that it might not be a constitutional problem, but “it is certainly a problem of prosecutorial abuse.” Given the wide range of questions on the naturalization form, he observed,  the government’s position would mean that government officials would have “the opportunity to denaturalize anyone they want, because everybody is going to have a situation where they didn’t put in something like that.” “And then the government can decide,” Roberts warned, “we are going to denaturalize you for reasons other than what might appear on your naturalization form, or we’re not.” For Roberts, giving that “extraordinary power, which essentially is unlimited power,” to the government would be “troublesome.”

Kennedy was also clearly uneasy about the government’s interpretation. Your argument, he admonished Parker, is “demeaning” to the “priceless value of citizenship.” Kennedy added, “you are arguing for the government of the United States, talking about what citizenship is and ought to mean.”

Landau tried to capitalize on this unease in his rebuttal, telling the justices that “the questioning today makes it chillingly clear that the government’s position in this case would subject all naturalized Americans to potential denaturalization at the hands of an aggressive prosecutor.” And that, Landau concluded, “is not what Congress intended” and “not what is in the language of the statute.” Even if the justices agree, Maslenjak may not be home free, because the government would almost certainly try to show that her lies would have influenced immigration officials’ decision to grant her citizenship – which, the justices seemed to suggest today, might not be a particularly difficult task. But she does seem likely to at least get what Landau asked for today: “an opportunity to debate” that issue in front of a jury.

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Argument analysis: Justices likely to hand victory to railroad in jurisdictional dispute

The Supreme Court seemed ready to hand a victory to railroad company BNSF in a lawsuit brought by two of the company’s injured workers. A solid majority of the justices appeared unconvinced that the Federal Employers’ Liability Act, a federal law that allows railroad workers to sue their employers for injuries that occur on the […]

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The Supreme Court seemed ready to hand a victory to railroad company BNSF in a lawsuit brought by two of the company’s injured workers. A solid majority of the justices appeared unconvinced that the Federal Employers’ Liability Act, a federal law that allows railroad workers to sue their employers for injuries that occur on the job, allows the workers to sue the company – which is incorporated in Delaware and has its principal place of business in Texas – in Montana, even though neither worker lived in Montana or was injured there.

Arguing for BNSF, attorney Scott Tulumello told the justices that the Montana state court’s decision allowing the case against the railroad to go forward was flatly wrong. Under the Supreme Court’s 2014 decision in Daimler AG v. Bauman, he contended, the Montana courts could not have jurisdiction over the injured workers’ lawsuits because the railroad was not “at home” in Montana.

Andrew S. Tulumello for petitioner (Art Lien)

Justices Sonia Sotomayor and Ruth Bader Ginsburg challenged that assertion. Sotomayor asked Tulumello whether BNSF had registered its business in Montana. When Tulumello responded that it had, Sotomayor suggested that registration in Montana might “change things.” If she established residency in several different states, she observed, she could be sued in those states. Alluding to the court’s campaign-finance jurisprudence, she asked pointedly, “If you are going to treat a corporation like a person, which we seem to be doing,” why wouldn’t a corporation be subject to suit in the states where it is registered? Ginsburg echoed that idea, telling Tulumello that by registering in Montana, the company had effectively consented to jurisdiction in the state.

Tulumello pushed back, countering that the text of the Montana law that requires BNSF to register specifically provides that personal jurisdiction over companies cannot be based solely on registration in the state. And any traction that the two justices might have temporarily gained from their line of questions seemed to vanish when Chief Justice John Roberts asked Tulumello whether that issue was actually even before the Supreme Court. No, Tulumello responded.

Justice Samuel Alito also posed a fairly friendly question, asking Tulumello to address assertions by the workers’ supporters that a ruling for the railroad would “create chaos” in the court system. Tulumello assured Alito that the result would actually be the opposite, likening the current system to the “wild west.”

After a relatively easy time at the lectern, Tulumello sat down early, using only 11 of his 20 minutes. He was followed by Nicole Saharsky, the assistant to the U.S. solicitor general representing the federal government, which filed a brief supporting BNSF. The justices allowed Saharsky to speak at some length, and she too sat down early.

Julie Murray represented plaintiffs Robert Nelson, who contends that he suffered a serious knee injury while working as a fuel-truck driver, and Kelli Tyrrell, who alleges that her husband Brent died of cancer that he contracted as a result of his exposure to chemicals while working for BNSF. Murray emphasized the long history of injured railroad workers being able to sue under FELA. When it enacted FELA, she stressed, Congress expressly intended that workers would be able to bring these kinds of lawsuits, even when neither the workers nor the injuries had any connection to the state where they were filed. This is so, she explained, because Congress recognized that railroads operate differently from many other industries – for example, she noted, it is commonplace that railroad workers will never work in their home states.

Julie A. Murray for respondents (Art Lien)

Roberts was skeptical, reminding Murray that BNSF operates in over two dozen states. Does this mean, he asked Murray, that the railroad can be sued in one of those states even if the injury occurs elsewhere? Yes, Murray responded, that is what Congress intended.

Roberts wondered aloud whether the decision to sue BNSF in Montana might be related to the perception that Montana would be a more desirable forum in which to sue a large corporation. Murray explained that, because of the large volume of FELA cases filed in Montana, the state’s judges know the issues “like the back of their hand” – an answer that Roberts characterized as “a little circular.”

Alito seemed to agree with Roberts, telling Murray that he could understand why Congress would want an injured railroad worker to be able to sue in the state where the injury occurred, in the state where the worker lives, and in the state where the company is headquartered. But why, he queried somewhat rhetorically, should a worker be able to sue anywhere?

In more troubling news for Tyrrell and Nelson, some of the court’s more liberal justices also appeared dubious. Ginsburg noted that the language in the FELA provision on which the plaintiffs rely is found in “200-odd” other laws dealing with venue – that is, the place where lawsuits may be filed. It sounds like a venue provision, Ginsburg declared.

Murray added that even if the justices were to decide that FELA does not confer jurisdiction over BNSF, the Montana courts would still have jurisdiction over BNSF because of the company’s contacts with Montana. The railroad has a “gigantic footprint” in the state, she emphasized, and BNSF and its predecessor have been in Montana since before it even joined the Union.

This discussion led to one of the lighter moments of the morning. Agreeing that a railroad would have a “large physical plant” in a state, Roberts asked Murray whether other industries, like the trucking industry, could also be “at home” under this theory. How, he inquired, do we make that decision?

Murray told Roberts that her clients’ argument was limited to railroads, which she characterized as “unique” because of their reliance on fixed tracks. Trucking companies, she seemed to suggest, would be different because trucks could use roads to travel all over the state.

Roberts was unconvinced. No, he retorted, trucks would all generally use the same interstate highways to traverse the state. “They’ll take I-95,” he said, before hesitating. “What is it, I-90?”

The court’s newest justice, who hails from Colorado, chimed in. “It’s I-80, across Montana.”

Roberts then quipped, “It’s that geographic diversity.”

A few minutes passed, during which some of the justices apparently requested – and then passed around – atlases from the justices’ library. After some animated conversations with his neighbors on the bench, Sotomayor and Justice Stephen Breyer, Gorsuch interrupted Murray to apologize for an error. “It’s I-90 across Montana, and I-80 across Wyoming.”

Breyer then had a question that did not seem to portend well for Tyrrell and Nelson either. He asserted that, in the court’s earlier decision in Daimler, the company had an extensive operation in California, where the plaintiffs sought unsuccessfully to sue it. You’re “making a valiant effort,” he told Murray, “but I don’t really see a difference.”

Tulumello used only a few minutes of his remaining time when he returned to the lectern for his rebuttal. Due process, he contended, does not depend on what line of business you are in. Based on today’s argument, a clear majority of the court seems to agree with him.

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Court denies stay to Arkansas inmate (UPDATED 8:55 pm)

Court denies stay to Arkansas inmate (UPDATED 8:55 pm)[Note: This post was updated to report on the execution of Jack Jones and to add additional information about the case of Marcel Williams, including the court’s denial of his application for a stay of execution.] Less than 12 hours after a Texas death row inmate found apparently sympathetic ears for his plea that he […]

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Court denies stay to Arkansas inmate (UPDATED 8:55 pm)

[Note: This post was updated to report on the execution of Jack Jones and to add additional information about the case of Marcel Williams, including the court’s denial of his application for a stay of execution.]

Less than 12 hours after a Texas death row inmate found apparently sympathetic ears for his plea that he was entitled to have assistance from his own psychiatrist at his trial, the Supreme Court turned down a request by an Arkansas inmate to put his execution, one of two scheduled for tonight at a prison in southeast Arkansas, on hold.

Inmate Jack Jones was scheduled to die at 7 pm local time for the brutal robbery, rape and strangulation of Mary Phillips. Jones argued that subjecting him to the state’s lethal injection protocol would violate the Eighth Amendment’s ban on cruel and unusual punishment because he suffers from diabetes and hypertension and has taken several medications for his chronic pain. The net effect of these chronic conditions, he contended, is that “he is likely to be either not rendered unconscious and thus suffer a painful death,” or he will “be left alive but brain damaged.” Justice Sonia Sotomayor was the only justice to dissent publicly from the court’s denial of a stay. Jones was pronounced dead at 7:20 pm local time.

Jones’ execution was one of eight originally scheduled over an 11-day period. The state had wanted to carry out all of the executions before the end of the month, when one of the three drugs that it uses in its lethal injection protocol is set to expire. Some of those inmates obtained stays of their executions, but the Supreme Court last week rejected a broader challenge by a group of inmates, including Jones, to the state’s protocol. On Friday morning, one of the eight inmates, Ledell Lee, was executed.

Another inmate, Marcel Williams, was scheduled to be executed at 8:15 pm local time tonight. Williams had also asked the Supreme Court to step in, but the justices denied his request as well, less than 30 minutes before his execution was scheduled to begin. Sotomayor was the only justice to publicly dissent from that order as well. Williams was sentenced to death for the 1994 kidnapping, rape, and murder of Stacy Errickson, a 22-year-old mother and military spouse.

Like Jones, Williams suffered from a variety of chronic health conditions, including diabetes, hypertension, morbid obesity, and sleep apnea. He too argued that executing him using the state’s lethal injection protocol would violate the Eighth Amendment; a physician who examined him attested that, if the current protocol is employed, “it is unlikely that the State will succeed in killing him.” The “more likely result,” the physician said, “will be that he is left with disabling, irreversible injuries.”

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Argument analysis: Nine justices, with five votes for death row inmate?

Three decades ago, James McWilliams was convicted of the robbery, rape and murder of convenience store clerk Patricia Reynolds. An Alabama judge sentenced McWilliams to death, rejecting both his pleas to consult with an independent psychiatrist about psychiatric records that his attorney had recently received and his argument that he suffered from serious mental health […]

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Three decades ago, James McWilliams was convicted of the robbery, rape and murder of convenience store clerk Patricia Reynolds. An Alabama judge sentenced McWilliams to death, rejecting both his pleas to consult with an independent psychiatrist about psychiatric records that his attorney had recently received and his argument that he suffered from serious mental health issues. That denial of an independent expert, McWilliams’ attorney told the justices today, violated his client’s constitutional rights, established in a Supreme Court decision, Ake v. Oklahoma, issued just a few months after Reynolds’ murder. After an hour of oral argument this morning, the court’s four more liberal justices seemed to agree. And perhaps most critically for McWilliams, Justice Anthony Kennedy also seemed persuaded.

Stephen B. Bright for petitioner (Art Lien)

Under federal laws governing efforts by state prisoners like McWilliams to obtain relief from their convictions and sentences in federal courts, the right that they contend was violated must have been clearly established when their convictions became final in state court. Arguing for McWilliams, Stephen Bright emphasized that the court’s 1985 opinion in Ake had “clearly established” that a defendant is entitled to help from “an expert independent of the prosecution” when his mental health is a “significant factor” in the case.

Kennedy pressed Bright to explain exactly how the court should make that determination. If, at least for the sake of argument, Kennedy suggested, Ake was actually ambiguous on whether the defendant is entitled to help from an independent expert, but “over time, it became clear that” the expert should only be “consulting with the defense and not with the prosecution,” should the court say “that the basic right was clearly established, and that over time, we are simply making a refinement,” or would a ruling for McWilliams instead be “establishing a new right”?

Bright initially resisted, responding that the ruling was “quite clear.” But later on, he seemed to realize that Kennedy may have been throwing him a lifeline, and he assured the justices that “what really has happened here is refinement” of the principle first announced in Ake.

Chief Justice John Roberts was skeptical. McWilliams, Roberts observed, had pointed to several examples of how the right to an independent expert was clearly established in Ake, through the court’s descriptions of the kind of assistance an expert would provide. But some of those examples, Roberts suggested, did not “entail partisanship of any kind.” And a few minutes later, Roberts noted that a well-respected criminal law treatise had described the court’s decision in Ake as “deliberately ambiguous” on the question presented by McWilliams’ case.

And Justice Samuel Alito was dubious that, even if the state made an expert available to defendants like McWilliams, an expert “who is chosen by the court and paid by the court can ever” be truly “part of the defense team.” At most, Alito seemed to say, the expert would be a neutral expert.

The court’s newest justice, Neil Gorsuch, chimed in with what he viewed as another potential problem with the rule that McWilliams was advocating. If the court were to rule that a defendant has a right to a partisan expert, where should it draw the line in terms of other assistance for defendants? “Would we also have to apply the same rule in other kinds of medicine, perhaps? Forensic science?” And would it mean that the defendant is also entitled to a partisan lawyer, rather than just a competent one?

The court’s four more liberal justices tried to bypass some of these potential problems by shifting the focus of the conversation away from labels like “neutral,” “partisan” and “independent” to a more straightforward rule that, in their view, was grounded squarely in Ake. As Justice Stephen Breyer put it, “The defense has to have somebody who will conduct an appropriate examination, assist in evaluation, preparation, and presentation of the defense. So why do we have to say more than” that? In this case, Breyer continued, “it seems to me that this defendant certainly did not get that help.”

Andrew L. Brasher, Alabama solicitor general (Art Lien)

Justice Elena Kagan made a similar point, telling Alabama Solicitor General Andrew Brasher, who argued on behalf of the state, that the “theme” of the court’s decision in Ake was that “you have to give the indigent defendants, just as you give the wealthier defendant, the tools that they need to establish what they want to establish about mental health. And then that’s consistent with these words that are repeated in the holding and elsewhere” in Ake.

Bright echoed these ideas in his rebuttal, reminding the justices that “what we come back to at the end on this case, is the proper working of the adversary system. And this certainly doesn’t put the defense in an equal position with the prosecutor, not by a long shot, but it at least gives the defense a shot, at least gives them one competent mental health expert that they can talk to, understand what the issues are, present them as best they can.”

In what McWilliams could view as a positive sign, Justice Ruth Bader Ginsburg asked Bright whether, if his client were to prevail, he would get a new sentencing hearing. (The answer was yes.) If – as it appears – McWilliams can pick up a vote from Kennedy in addition to the four more liberal justices, that new hearing might not be too far away.

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Today’s orders

Today’s ordersFor the second week in a row, the Supreme Court did not add any new cases to its merits docket for next term. The dearth of new grants is likely attributable to the fact that Justice Neil Gorsuch – who did not participate at all in last week’s conference – only participated in a handful […]

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Today’s orders

For the second week in a row, the Supreme Court did not add any new cases to its merits docket for next term. The dearth of new grants is likely attributable to the fact that Justice Neil Gorsuch – who did not participate at all in last week’s conference – only participated in a handful of the orders issued today.

Even if the court did not grant certiorari in any cases, however, today’s order list was nonetheless full of news. First, the justices did not act on one of the most closely watched cases on their current cert docket: Masterpiece Cakeshop v. Colorado Civil Rights Commission, the challenge by a Colorado “cake artist” with religious objections to creating a cake for a same-sex wedding. At this point, there is no way to know why the case has been relisted several times without any action from the justices, although two of the more likely possibilities are that one or more justices could be dissenting from the denial of review or that the justices are waiting for Gorsuch to weigh in.

The justices turned aside, without comment, renewed requests by death row inmates in Alabama and Arkansas to review their cases. In February, the justices had denied review in the cases of Thomas Arthur and Stacey Johnson, whose challenges arose from the lethal injection protocols in their respective states. Justice Sonia Sotomayor, joined by Justice Stephen Breyer, dissented from the February denials, but today the court denied the two inmates’ petitions for rehearing without comment.

Breyer did file a statement respecting the denial of review in the case of an Arizona death row inmate, Joe Clarence Smith, who was sentenced to death 40 years ago and has been incarcerated, mostly in solitary confinement, ever since. “What legitimate purpose,” Breyer asked, “does it serve to hold any human being in solitary confinement for 40 years awaiting execution?” “The facts and circumstances of Smith’s case,” Breyer continued, reinforce his “conclusion that this Court should hear oral argument as to whether capital punishment as currently practiced is consistent with the Constitution’s prohibition of cruel and unusual punishment.”

Justices Samuel Alito and Sonia Sotomayor both filed opinions regarding the court’s announcement that it would not review Salazar-Limon v. City of Houston, an excessive-force claim by a man who was shot and seriously injured by a police officer during a traffic stop. The police officer contended that he shot at Salazar-Limon only after Salazar-Limon turned and reached for his waistband, which the officer interpreted as an effort to pull out a gun. Based on the police officer’s testimony, a federal district court granted him qualified immunity, and the court of appeals affirmed.

Joined by Justice Ruth Bader Ginsburg, Sotomayor dissented from the denial of certiorari. Because Salazar-Limon’s case “turns in large part on what Salazar-Limon did just before he was shot,” Sotomayor explained, “it should be obvious that the parties’ competing accounts of the event preclude” the lower court from entering a judgment for the police officer based solely on the record, without a trial. What’s more, Sotomayor complained, the court has not treated the victims of police misconduct as well as it has treated the officers: “We have not hesitated to summarily reverse courts for wrongly denying the protection of qualified immunity in cases involving the use of force,” she observed, but “we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.”

Justice Clarence Thomas joined Alito’s opinion concurring in the denial of review. Alito agreed that Salazaro-Limon’s case was “undeniably … tragic,” and that “we have no way of determining what actually happened in Houston on the night Salazar-Limon was shot.” But, he emphasized, “regardless of whether the petitioner is an officer or an alleged victim of police misconduct, we rarely grant review where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case.”

The justices’ next conference is scheduled for Friday, April 28. The orders from that conference are expected to follow on Monday, May 1, at 9:30 a.m.

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Argument preview: Jurisdiction, precedent and the Federal Employers’ Liability Act

Three years ago, in Daimler AG v. Bauman, the Supreme Court ruled that the Constitution’s due process clause barred a lawsuit in California against the German car company for the actions of its Argentinian subsidiary, which allegedly worked with security forces in Argentina during the country’s “Dirty War” to kidnap, torture and kill some of […]

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Three years ago, in Daimler AG v. Bauman, the Supreme Court ruled that the Constitution’s due process clause barred a lawsuit in California against the German car company for the actions of its Argentinian subsidiary, which allegedly worked with security forces in Argentina during the country’s “Dirty War” to kidnap, torture and kill some of the subsidiary’s workers. Tomorrow, the justices will hear oral argument on how broadly that 2014 ruling sweeps – and, in particular, whether it prohibits lawsuits by two U.S. railroad workers in Montana for injuries that happened in other states.

The plaintiffs in the two cases are Robert Nelson of North Dakota, who alleges that he suffered a serious knee injury while working for BNSF Railway Co. in Washington state as a fuel truck driver, and Kelli Tyrrell of South Dakota, who contends that her husband, Brent, contracted cancer and died as the result of his exposure to chemicals while working for BNSF in South Dakota, Minnesota and Iowa. Nelson and Tyrrell filed lawsuits in state court in Montana under the Federal Employers’ Liability Act, a federal law that allows railroad workers to sue their employers when they are injured. The Montana courts had jurisdiction over BNSF, they argued, because of the company’s extensive operations in the state: BNSF operates nearly 3,000 miles of railroad tracks and employs over 2,000 people there.

BNSF argued that both cases should be dismissed. One of the state courts agreed. It concluded that BNSF, which is incorporated in Delaware and has its principal place of business in Texas, was not – as the Supreme Court’s precedents require — “at home” in Montana. But the other court allowed the case to go forward, based on what it described as BNSF’s “substantial, continuous and systematic activities within Montana.” The Montana Supreme Court agreed with the latter court, explaining that Montana courts had jurisdiction over BNSF because FELA gives state courts jurisdiction over a defendant wherever the company does business – which, it ruled, BNSF does in Montana. In January of this year, the justices agreed to weigh in.

For BNSF, the Supreme Court’s decision in Daimler makes this case an easy one. In Daimler, it maintains, the court held that, when a plaintiff’s cause of action does not “arise” in the state where the lawsuit is filed, the 14th Amendment’s due process clause allows a state court to assert personal jurisdiction over the defendant only if the defendant is “at home” in that state. Here, BNSF emphasizes, Tyrrell’s and Nelson’s cases do not “arise” in Montana: The employees did not live in Montana, they “never worked a day in Montana, were not injured in Montana, and do not allege that BNSF was negligent in Montana.” Tyrrell and Nelson cannot meet the second part of the Daimler test either, the company stresses, because – as a Delaware corporation with its principal place of business in Texas – BNSF is not “at home” in Montana. BNSF suggests that the only reason why Nelson and Tyrrell are suing BNSF in Montana is because they believe it will be a friendlier forum.

Tyrrell and Nelson respond that, under the court’s ruling in Daimler, the states where a corporation is incorporated and has its principal place of business are not necessarily the only places where a corporation can be “at home.” Instead, they contend, a corporation can also be “at home” where its operations are “so substantial and of such a nature as to render the corporation at home” there as well. BNSF has precisely those kinds of connections to Montana, they reason, because the company “has earned more than $1.7 billion in a single year from its ability to do business in Montana.” Given the scope of BNSF’s operations in Montana, they conclude, it would not violate “traditional notions of substantial justice and fair play to expect BNSF to answer to claims there.” Whatever Daimler may say about a state court’s jurisdiction generally, Tyrrell and Nelson continue, here Montana state courts have jurisdiction over BNSF based on FELA, which allows railroad workers to “bring a FELA claim in any jurisdiction where the railroad is ‘doing business’ at the time of the suit.”

BNSF counters that Congress passed FELA to govern venue – that is, where the lawsuits may be heard – in suits filed by railroad workers; it does not give state courts jurisdiction over lawsuits like these. This is clear, BNSF argues, from both the text of the statute – whose reference to cases being brought “in a district court of the United States” applies only to federal courts – and the law’s history, which “confirms that Congress intended to provide an expansive choice of venue, because the general federal venue statute at that time limited venue in cases against corporations to the defendant’s place of incorporation.”

BNSF stresses that Congress did not need to “create special rules of personal jurisdiction so that injured workers would not be forced to travel to a railroad’s state of incorporation” – here, Delaware – to file their lawsuits. The plaintiffs in these cases, BNSF suggests, have several options: In addition to Delaware, they can also bring their lawsuits in the states where they were injured or in Texas.

Tyrrell and Nelson complain that BNSF’s reading of FELA would not actually provide much of a choice for a plaintiff who lives, for example, in North Dakota. Nor, they contend, can the railroad’s reading be squared with the text of FELA, which was intended to allow railroad workers to sue where “it is actually carrying on business.” By contrast, they stress, their reading is consistent with Congress’ intent to “load the dice a little in favor of workers” by enacting FELA; if BNSF doesn’t like the result that the law dictates, they conclude, it can take the issue up with Congress.

During his confirmation hearing, now-Justice Neil Gorsuch repeatedly stressed the need for courts to adhere to the plain text of a statute, and he reiterated that principle several times during his first week on the bench. Will the justices, including Gorsuch, focus on the text of FELA tomorrow, or instead on what the court meant by its unanimous ruling in Daimler three years ago – in which all of the current justices but Gorsuch participated? We’ll know more after the argument.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the respondents in Daimler AG. I was affiliated with the firm at that time, but I am no longer affiliated with the firm, and the firm was not involved in this case.]

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Court divides on Arkansas executions

Court divides on Arkansas executionsThe battle over efforts by Arkansas to execute eight inmates in 11 days returned to the Supreme Court this evening. Earlier this week, the justices declined to step in and overturn a stay issued by the state supreme court that resulted in a reprieve for two inmates whose cases involved issues similar to those the […]

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Court divides on Arkansas executions

The battle over efforts by Arkansas to execute eight inmates in 11 days returned to the Supreme Court this evening. Earlier this week, the justices declined to step in and overturn a stay issued by the state supreme court that resulted in a reprieve for two inmates whose cases involved issues similar to those the justices will consider next week in an Alabama capital case. But another group of inmates did not fare as well in their challenges relating to Arkansas’ death penalty protocol. The inmates needed at least five votes to block the upcoming executions, but they could only get four votes (those of Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) in one case and three votes (Breyer, Sotomayor, and Kagan) in another.

Arkansas had hoped to carry out the executions before the end of the month, when the state’s supply of midazolam – a sedative used in the state’s lethal injection protocol – expires. One inmate, Ledell Lee, was scheduled to be executed tonight for the 1993 murder of Debra Reese, whom he robbed, strangled, and beat with a tire iron. Justice Samuel Alito, who is responsible for emergency appeals from the geographic area that includes Arkansas, issued a temporary stay to allow the U.S. Court of Appeals for the 8th Circuit and the Supreme Court to consider new filings by Lee, who argues (among other things) that he should be allowed access to DNA testing that would prove his innocence. The 8th Circuit denied relief late tonight, but the Supreme Court’s stay remained in effect as of 11:30 p.m. Eastern – approximately 90 minutes before the warrant for Lee’s execution is set to expire.

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Argument preview: Lies, damned lies, and citizenship

Until recently, 53-year-old Divna Maslenjak lived in Akron, Ohio, with her husband, Ratko. Ethnic Serbs who were raised in what is now Bosnia, the couple came to the United States with their children as refugees, fleeing ethnic strife in the former Yugoslavia. Divna became a U.S. citizen seven years later, but in October of last […]

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Until recently, 53-year-old Divna Maslenjak lived in Akron, Ohio, with her husband, Ratko. Ethnic Serbs who were raised in what is now Bosnia, the couple came to the United States with their children as refugees, fleeing ethnic strife in the former Yugoslavia. Divna became a U.S. citizen seven years later, but in October of last year she was stripped of her U.S. citizenship and deported (along with Ratko) to Serbia, because of false statements that she had made during the naturalization process. Divna concedes that she lied to U.S. immigration officials, but she argues that she should still be able to remain a U.S. citizen because the false statements were not material – that is, they would not have been important to the officials deciding whether to grant her citizenship application. On April 26, the Supreme Court will hear oral argument in Divna’s case, to decide whether her interpretation of U.S. immigration law is correct.

The Maslenjaks’ saga began in April 1998, when Divna met with U.S. immigration officials in Serbia, where she told them that she and her family would be in danger if they returned to their Bosnian village. She also told officials that she and her children had at one point returned to a Serb-controlled part of Bosnia, but without her husband, who feared that he would be forced to serve in the Bosnian Serb army. That part turned out not to be true: In fact, the entire family had all been together in Bosnia, where Ratko did serve in the Bosnian Serb military. The Maslenjaks were given refugee status in 1999 and came to the United States in 2000.

A few years later, U.S. immigration officials initiated proceedings to remove Ratko from the United States, based on his conviction for failing to report that he had served in the Bosnian Serb military during the war. The federal government points out that, during Ratko’s service, the Bosnian Serb army was involved in the “genocide of 8000 Bosnian Muslim civilians in and around the town of Srebrenica.” “Although the records did not directly implicate Ratko in war crimes,” the government adds, they nonetheless “contained significant evidence of his involvement.”

Shortly after Ratko’s arrest, Divna began the process of seeking U.S. citizenship. During the naturalization process, she indicated that she had neither provided “false or misleading information to any U.S. government official while applying for any government benefit” nor “lied to any U.S. government official to gain entry or admission into the United States.” She became a citizen in 2007, but six years later she was indicted on charges that she had violated 18 U.S.C. § 1425(a), which authorizes both a fine and a prison sentence of 10 to 25 years for anyone who “knowingly procures or attempts to procure, contrary to any law, the naturalization of any person.” The federal government contended that Divna had made “material false statements” because she knew when she applied for citizenship that she had lied to immigration officials when she applied to come to the U.S. as a refugee.

At Divna’s trial, she maintained that any lies she may have told about her husband’s military service were irrelevant, because the government granted her refugee status based on her fear that she would be persecuted by Bosnian Muslims. The government countered that she had been awarded refugee status precisely because of her statements about her husband’s fears of military service. But that didn’t matter, the government continued, because Divna’s false statement didn’t need to be material. The trial judge agreed and instructed the jury that, even if “a false statement did not influence the decision to approve the defendant’s naturalization, the government need only prove that one of the defendant’s statements was false.”

The jury convicted Divna of violating Section 1425(a), which automatically strips her of citizenship. On appeal, the U.S. Court of Appeals for the 6th Circuit affirmed her conviction, holding that proof of a material false statement is not required. In January, the justices agreed to weigh in.

In its brief in the Supreme Court, the federal government once again argues that Divna’s false statements do not have to be material; all that matters is that they are lies. If Congress had wanted a materiality requirement to apply to Section 1425(a), the government suggests, it would have said so specifically – as it has done in other statutes, either by using the word “material” or by using other terms, such as “perjury,” that are “understood to include a materiality requirement.” But it didn’t do so here, the government continues, which “provides compelling evidence that the statute does not require such proof.”

Reading a “materiality” requirement into the law would also make it difficult to apply the law consistently, the government adds, because Section 1425(a) is an “umbrella” statute that applies to anyone whose naturalization is obtained through methods that are “’contrary to’ other laws.” The statute applies to a wide range of underlying offenses, some of which – such as making a false statement under oath with regard to a material fact – already require materiality, while others – such as bribing an immigration official – do not or cannot.

Divna sees this reasoning as a point in her favor. She counters that the absence of the word “material” from Section 1425(a) is “particularly unilluminating,” precisely because it would not have made sense for Congress to include it when the statute “applies to any actions ‘contrary to law’ that procure naturalization, not just false statements that do so.”

Her interpretation of Section 1425(a) to include a materiality requirement is also more consistent, she argues, with the civil statute that authorizes the government to revoke citizenship that was obtained through the “concealment of a material fact or a willful misrepresentation.” It would be “anomalous,” she maintains, for Congress to “authorize denaturalization in a criminal proceeding but not a civil proceeding based on the very same statement.”

But the government dismisses any alleged inconsistencies in the two statutes. First, it tells the justices, another part of the same civil statute allows citizenship to be revoked if it was “illegally procured” – a term that does not require materiality. Second, it observes, the civil and criminal denaturalization statutes are not coextensive. Under the criminal statute, a defendant can face not only the prospect of losing his citizenship, but also the possibility of fines and jail time. At the same time, though, the criminal denaturalization statute also requires the government to meet a higher standard than is imposed under the civil statute: It must bring the charges within 10 years of the false statement, prove its case to the jury “beyond a reasonable doubt,” and provide the defendant with due process.

For her part, Divna tells the justices that Section 1425(a) requires a causal connection between the false statements and efforts to obtain American citizenship. “It would be odd indeed,” she reasons, “to say that a person procures (or attempts to procure) something contrary to law if the violation, in fact, has no effect on the proceeding.” For false statements, she says, this means that the government must show that the statement was material, because a statement that is not material “cannot ‘procure’ an official decision.” This interpretation is most consistent with common sense, she suggests, because there is no reason “Congress would want to punish (with criminal fines and imprisonment of up to five years) conduct that has no tendency to influence official decisionmaking.” If anything, she continues, “the natural assumption would be just the opposite: that Congress meant to reserve such heavy punishment for statements of consequence.”

The federal government retorts that Section 1425(a) does not require any kind of causal link. Instead, the government maintains, the text of the statute is “most naturally read to mean precisely what it says: A person who knowingly procures naturalization in an unlawful manner (e.g., by violating the laws Congress has enacted governing the eligibility and conduct of those seeking to become U.S. citizens) has violated the statute.” In the government’s view, the text of the statute cannot be reconciled with Divna’s reading, which would require qualifying offenses involving false statements to be material but not other kinds of qualifying offenses. Divna, the government contends, cannot explain how her interpretation could be correct if the phrase “procures ‘contrary to law’”—which applies to all violations of Section 1425(a)—itself requires proof of materiality.”

Even if federal laws do require false statements to be material, the government concludes, Divna’s conviction should still stand because her lies to immigration officials meet that high bar. If U.S. government officials had known that Ratko was in fact “a commanding officer in a military unit that committed acts of persecution culminating in genocide,” and that Divna had “perpetuated those lies in her naturalization proceedings,” it would have affected their decisions, the government says, on both her application to come to the United States as a refugee and her citizenship application – particularly because anyone who had participated in such persecution could not qualify as a refugee.

The stakes in this case are high, not just for Divna Maslenjak but also for the millions of people who became naturalized U.S. citizens in recent years. Most of those naturalized citizens, of course, did not make false statements during the process of securing citizenship. But a ruling in the government’s favor could potentially expose many new citizens to the possibility of losing their right to live in the United States, even if their false statements did not necessarily influence the government’s decision to give them citizenship.

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Argument analysis: Justices leaning toward a ruling for Trinity Lutheran on the merits

When the Supreme Court heard oral argument this morning in Trinity Lutheran Church of Columbia v. Comer, a Missouri church’s challenge to its exclusion from a state program that provides grants to nonprofits to allow them to resurface their playgrounds with recycled tires, all eyes were on the court’s newest justice, Neil Gorsuch. After all, […]

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When the Supreme Court heard oral argument this morning in Trinity Lutheran Church of Columbia v. Comer, a Missouri church’s challenge to its exclusion from a state program that provides grants to nonprofits to allow them to resurface their playgrounds with recycled tires, all eyes were on the court’s newest justice, Neil Gorsuch. After all, the conventional wisdom went, the other eight justices were likely deadlocked on the case and were expecting him to cast the tiebreaking vote, which is why they waited nearly 15 months after granting review before hearing oral argument. That may well have been true, but it was certainly not how it seemed to play out in the courtroom today. After roughly an hour of oral argument, the state seemed to have only two certain votes – those of Justices Ruth Bader Ginsburg and Sonia Sotomayor. Moreover, the justices seemed inclined to go ahead and decide the case even though Missouri had announced last week that it had changed the policy at issue in the case to allow churches to compete for the grants in the future. The end result could be an important ruling on the disbursement of funds by state and local governments to religious institutions.

David A. Cortman at lectern for petitioner (Art Lien)

Arguing on behalf of Trinity Lutheran, David Cortman reiterated that the church’s preschool had been excluded from the state-run grant program solely because it was operated by a church. Ginsburg didn’t seem to see a problem with that proposition. She noted that in 1947, in a case called Everson v. Board of Education, the court had ruled that the Framers didn’t want tax money going to maintain churches or property. Shouldn’t that principle, she asked, govern here?

Cortman responded that this case is different, because the state can’t deprive religious groups of general government benefits like funding for playground resurfacing. But Sotomayor expressed doubt that the playground could be separated out from the church’s religious work. The playground is part of the ministry of the church, she suggested. Cortman urged the justices to focus on where the money goes; here, he emphasized, the money goes only to the playground resurfacing.

Sotomayor also observed that there has been a long history in the United States of states not wanting to fund churches; they should be free to do that in cases like this. We seem to be confusing funding, she suggested, with the practice of religion. The church isn’t going to close without a new playground surface, she stressed, so she was skeptical that this case actually implicates the right to free exercise of religion.

Justice Samuel Alito pushed back against the idea that provisions like the state constitutional amendment on which Missouri relied to deny funding to Trinity Lutheran reflect some sort of “honorable historical tradition.” Instead, he asked somewhat rhetorically, aren’t they based on “anti-Catholic bigotry”?

David A. Cortman for petitioner

James Layton, who is now an attorney in private practice but was the solicitor general of Missouri when the state filed its briefs in the case last year, argued on behalf of Missouri. Layton told the justices that the state had barred funding from going to religious institutions because it wanted to avoid the appearance that it was both choosing among different churches and making physical improvements to churches.

Layton’s argument did not seem to resonate with most of the justices. Citing a variety of federal programs that provide funding that could flow to religious institutions – for example, a Department of Homeland Security program to improve security near high-risk targets like synagogues or mosques and a program to repair buildings damaged by the bombing at the federal building in Oklahoma City – Alito pressed Layton on whether the state’s policy would bar similar programs. Layton held firm, telling Alito that it would because state money cannot be used for religious institutions.

That response prompted Kagan – who during Cortman’s argument had seemed to be leaning toward the state – to ask whether the state’s position would also bar the state from providing police and fire protection to churches. Layton responded that it would not, reasoning that public safety is a service, rather than something for which the state gives funding to a religious group.

Justice Stephen Breyer seemed unconvinced. He first asked Layton whether the U.S. Constitution would allow a state to declare that it wouldn’t provide a church with police or fire protection. When Layton responded that would not, Breyer then moved on to what seemed to him to be the logical next step: How does the Constitution then allow Missouri to deny money for a new playground surface to a daycare center, whose students could face all kinds of potential hazards – ranging from a skinned knee to tetanus and a broken leg – from the older, less safe playground?

Alito seized on what he clearly viewed as a potential weakness in the state’s defense of its policy. How do you distinguish, he asked Layton, between a program that is open to everyone who wants the funding and a program like the playground resurfacing program that awards grants based on purely neutral criteria?

Other justices seemed to agree. Kagan suggested to Layton that, at bottom, the playground resurfacing program is open to everyone; the state is just depriving one specific group of nonprofits – religious ones – from applying. In a statement that bodes poorly for the state, she declared that “this is a clear burden on a constitutional right” because religious individuals and groups are barred from competing for an otherwise neutral benefit.

Gorsuch followed up on this line of questioning, asking Layton to explain why excluding religious groups from selective programs would be preferable to excluding them from a general benefit. Layton responded that selective programs tend to have more public visibility than the general ones, and can effectively amount to a government endorsement of the religious group and its mission. But Gorsuch was dubious. How, he asked, do we draw those lines?

James R. Layton, lawyer for Missouri, responds to question from Justice Gorsuch; petitioner’s lawyer, David A. Cortman, seated left foreground (Art Lien)

Breyer worried aloud that Layton’s reliance on the differences between selective and general benefits would create its own set of problems. If we accept your argument, he told Layton, we will see “litigation forever.” “I am afraid of that one,” he concluded.

The justices spent relatively little time exploring the question that they had asked both sides to brief in an order issued last week: What effect, if any, should the Missouri governor’s recent announcement that the state would, going forward, make grants available to religious groups have on this case? In the briefs that they filed yesterday, both the church and the state urged the justices to go ahead and decide the case anyway, and the justices today seemed to agree. Breyer raised the issue first, well into Cortman’s argument. Breyer asked Cortman why the case wouldn’t be moot. The church, Breyer noted, will receive its grant. And it didn’t ask for money to compensate for the earlier denial of the grant; instead, the church was simply seeking an order directing the state to award the grants in the future.

Cortman responded that the “political winds” could still change, especially because the new policy will almost certainly be challenged in court and could be struck down. The key question for the court is whether the state is “free to return to its old ways” – which, he suggested, it is.

The issue did not surface again until late in Layton’s argument, when Sotomayor hinted that the state’s about-face on the underlying policy indicated that the state attorney general now actually supported the church’s position. If the state is not willing to fight this case, Sotomayor suggested, had it appointed Layton (who no longer works for the state) to “manufacture” the kind of adversity that the case would need for the court to rule on it? Tellingly, Sotomayor’s statement came immediately after Kagan had signaled a willingness to vote for the state, and may reflect a last-ditch effort to try to avoid a ruling in the church’s favor by convincing her colleagues that the case is moot.

Will Sotomayor succeed in getting the case dismissed without a ruling on the merits? If today’s oral argument is any indicator, it seems unlikely. If the justices were to dismiss the case, we could know in the next few weeks. But the more likely scenario – even if the justices are not closely divided – is that the court will issue a decision on the merits sometime in late June.

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