Archive | Sixth Circuit

Did Judge Martin Retire Because He Was Under Investigation? – UPDATED

Last July, Judge Boyce Martin announced his retirement from the U.S. Court of Appeals for the Sixth Circuit.  Tonight, TPM reports that Martin made his decision “under a cloud of accusations that he had racked up nearly $140,000 in ‘questionable travel expenses.’”

The details came out in a decision filed by five members of a federal panel on judicial conduct. The decision was in response to a petition filed by Boyce in August asking that his name be kept confidential and that his case not be referred to the Justice Department. Both requests were denied. . . .

Before the investigation could go any further, according to Friday’s decision, Martin submitted his letter of resignation to President Obama. Because of that, the court investigators halted their inquiry and never reached a conclusion about the expenses. . . .

In its decision, the panel wrote that the court’s efforts to disclose Martin’s name and refer his case to the Justice Department’s Public Integrity Section were appropriate under federal rules.

UPDATE: A spokesperson for Judge Martin e-mails to note that Judge Martin had offered to repay all travel reimbursements he had received over the relevant period, not merely those that were in question.  This is the source of the $138,500 figure.  The spokesperson did not identify the value of those reimbursements that were in question, however.  According to the ruling, Judge Martin offered to repay this amount in three installments between June and August 2013, but only the first two payments were ever received.

For those interested in more details on this case, here is yesterday’s ruling and a prior ruling in the matter.  Former Sixth Circuit clerk Josh Blackman has also posted a handy timeline of relevant events.

SECOND UPDATE: According to Judge Martin’s spokesperson, he had sent a check to pay [...]

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Interesting Division in Sixth Circuit Qualified Immunity Case

On Wednesday, the U.S. Court of Appeals for the Sixth Circuit decided Kovacic v. Cuyahoga County Department of Children and Family Services.  The panel consisted of Judges Boggs, Moore and Sutton.  The panel split on the question of qualified immunity for social workers who removed children from their mother’s home.  (You know where this is going, right?  Think again.)  Judge Moore wrote the opinion for the court rejecting qualified immunity, joined by Judge Boggs.  Judge Sutton dissented.  That’s hardly the line-up most would expect.

Time permitting, I may have more to say on this case later.  For now, let me just note that decisions like this are a useful reminder that the political affiliation or ideological orientation of a judge is not always a useful predictor of how judges will decide individual cases. [...]

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Sixth Circuit Rejects Class Settlement in Pampers Case

Yesterday, a divided panel of the U.S. Court of Appeals for the Sixth Circuit threw out a proposed settlement in a class-action suit against Proctor & Gamble.  Judge Kethledge wrote the opinion for the court, joined by Judge Thapar (sitting by designation).  Here is how he summarizes the opinion:

Class-action settlements are different from other settlements. The parties to an ordinary settlement bargain away only their own rights—which is why ordinary settlements do not require court approval. In contrast, class-action settlements affect not only the interests of the parties and counsel who negotiate them, but also the interests of unnamed class members who by definition are not present during the negotiations. And thus there is always the danger that the parties and counsel will bargain away the interests of unnamed class members in order to maximize their own.

This case illustrates these dangers. The class is made up of consumers who purchased certain kinds of Pampers diapers between August 2008 and October 2011. The parties and their counsel negotiated a settlement that awards each of the named plaintiffs $1000 per “affected child,” awards class counsel $2.73 million, and provides the unnamed class members with nothing but nearly worthless injunctive relief. The district court found that the settlement was fair and certified the settlement class. We disagree on both points, and reverse.

Judge Cole dissented.

UPDATE: For more on the particulars of this case, see the comments by Adam Schulman of the Center for Class Action Fairness, the attorney who challenged the settlement here and here. [...]

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Boyce Martin’s Final Death Penalty Opinion

Judge Boyce Martin of the U.S. Court of Appeals for the Sixth Circuit is retiring. Martin, a former chief judge, has long been the Circuit’s liberal lion. He was a central player in some of the Circuit’s internecine squabbles and, over time, became a forceful critic of capital punishment. Today in Nichols v. Heidle, a lengthy opinion denying a death row inmate’s habeas claim, Martin wrote a concurrence that will be his last opinion in a capital case.

In this, my last death penalty case as a judge on the Sixth Circuit, I must concur in affirming the judgment of the district court. Despite my concurrence, I continue to condemn the use of the death penalty as an arbitrary, biased, and broken criminal justice tool. The facts of this case make it one of the more tragic and disturbing cases that I have heard in years. While Nichols’ actions are despicable, I cannot ignore the fact that his actions were committed in the late 1980s and that he was convicted in 1990. Nichols’ execution was supposed to take place in 1994. I have been on this bench since 1979, and for twenty-three of my thirty-four years as a judge on this Court this case has been moving through our justice system, consuming countless judicial hours, money, legal resources, and providing no closure for the families of the victims. Retired Supreme Court Justice John Paul Stevens has called for a dispassionate and impartial comparison of the enormous cost that death penalty litigation imposes on society with the benefits it produces. The time, money, and energy spent trying to secure the death of this defendant would have been better spent improving this country’s mental-health and educational institutions, which may help prevent crimes such as the ones we are presented with

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Is Murder in a State Without the Death Penalty a Mitigating Factor in a Federal Death Penalty Case?

In 2002, Marvin Gabrion was convicted of first-degree murder in federal court for the 1997 killing of Rachel Timmerman. Gabrion had allegedly raped Timmerman and she was scheduled to testify against him in state court days before she and her infant daughter disappeared. Timmerman was bound, gagged, and tossed into a lake where she drowned. The body of her infant daughter was never found. After his conviction, a jury found the presence of multiple aggravating factors and Gabrion was sentenced to death.

As it happened, Gabrion killed Timmerman in a National Forest. This made all the difference, as it made Gabrion’s crime a federal offense. Whereas federal law provides for the death penalty for particularly heinous crimes, Michigan does not. Thus had Gabrion committed his crimes somewhere else – perhaps just a few-hundred feet away – he could have looked forward to a long life in the state penitentiary. Instead he’s on death row.

Gabrion argued that Michigan’s lack of a death penalty should have been considered as a mitigating factor during the penalty phase of his trial. The district court did not, and prevented Gabrion’s defense from introducing any evidence to that effect. A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit voided his death sentence on this basis (among others). Yesterday, however, the full circuit, sitting en banc, went the other way. In United States v. Gabrion the court rejected Gabrion’s claim that the murder’s location in a non-death penalty state is a mitigating factor under the either Eighth Amendment or the Federal Death Penalty Act. The vote was 12-4.

Judge Kethledge wrote the opinion of the court, joined by nine of his colleagues (Batchelder, Boggs, Gibbons, Rogers, Sutton, Cook, McKeague, Griffin, and Donald). Judge Clay, joined by Judge Cole, concurred in the [...]

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The Sixth Circuit Wins One

The U.S. Court of Appeals for the Sixth Circuit has had quite a losing streak in the Supreme Court.  For the past few years, on over twenty straight cases, the Supreme court has reversed the Sixth Circuit decision in every case in which the Court accepted cert.  The lion’s share of these cases concerned grants of habeas petitions to convicted criminals in which the Supreme Court found that the Sixth Circuit had been too quick to grant relief, suggesting at least some of the Sixth Circuit’s judges are out of step with the Supreme Court on habeas questions.

Yesterday, however, the Sixth Circuit’s cold snap ended – more or less – and in a habeas case, no less.  In McQuiggin v. Perkins, the Supreme Court agreed with the Sixth Circuit that the district court was wrong to reject a habeas petitioner’s claim of actual innocence made after the expiration of the one-year statute of limitations established under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).  It wasn’t a resounding victory, as the Court split 5-4 (Kennedy and the liberals in the majority) and Justice Ginsburg’s opinion still found fault with Sixth Circuit’s analysis, vacated the court’s opinion, and left open the possibility that the habeas petitioner’s claim will ultimately fail.  Nonetheless, for the first time in quite awhile, the Supreme Court granted certiorari in a habeas case from the Sixth Circuit and did not rule for the state. [...]

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Sixth Circuit Reversed in Another Habeas Case

The U.S. Court of Appeals for the Sixth Circuit has been on quite a losing streak in the High Court, particularly when it comes to habeas cases.  This morning, the Sixth Circuit was reversed again by a unanimous court in Metrish v. Lancaster, vindicating Judge Batchelder who had dissented from the original panel opinion.  As has been the norm, the Supreme Court concluded that the Sixth Circuit was too quick to grant a habeas petition.  SCOTUSBlog has more background on the case here. [...]

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Must the Fair Sentencing Act Be Applied Retroactively?

Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit, in United States v. Blewett, held that the Fair Sentencing Act’s modification of mandatory minimum sentences for crack cocaine must be applied retroactively. Judge Merritt, joined by Judge Martin, wrote for the panel. Judge Gilman dissented.

Judge Merritt’s opinion for the court begins:

This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005. The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years. The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes. The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support. The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio. However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination). As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, “persistent

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Must Public Schools Collect Dues for Public School Employee Unions?

Last week, the U.S. Court of Appeals for the Sixth Circuit decided an interesting case concerning the collection of union dues for public school employees in Michigan. In Bailey v. Callaghan, a divided panel upheld Michigan’s Public Act 53 which provides: ““A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.” In other words, under this law, public school employee unions (including teachers’ unions) cannot rely upon payroll deductions to collect union dues and fees, but must shoulder the burden of collecting member dues themselves.

Unions challenged PA 53 on First Amendment and Equal Protection grounds. Judge Kethledge, joined by Judge Gibbons, made quick work of the union claims. Writing for the court, Judge Kethledge explained,

The theory behind their First Amendment claim runs as follows: unions engage in speech (among many other activities); they need membership dues to engage in speech; if the public schools do not collect the unions’ membership dues for them, the unions will have a hard time collecting the dues themselves; and thus Public Act 53 violates the unions’ right to free speech.

The problem with this theory is that the Supreme Court has already rejected it. “The First Amendment prohibits government from ‘abridging the freedom of speech’; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 355 (2009). Here, Public Act 53 does not restrict the unions’ speech at all: they remain free to speak about whatever they wish. Moreover, “nothing in the First Amendment prevents a State from determining that its political subdivisions may not

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Is the Sixth the New Ninth? – Revisited

The ABA Journal reports that in recent years the U.S. Court of Appeals for the Sixth Circuit has surpassed the Ninth Circuit as the most reversed circuit court. This isn’t news to regular VC readers, as we reported the Sixth Circuit’s 0-5 record in habeas cases in the 2009-10 term and noted the Cincinnati Enquirer‘s 2011 report on the Sixth Circuit’s woes. As of June 2012, the Sixth Circuit was on a twenty case losing streak.

While the Sixth Circuit has seen more than its share of reversals in recent years, there are other ways to look at the circuit’s record. As the ABA Journal notes, if one looks at the “full reversal rate measure” — which looks not only at direct reversals but also includes the outcomes in cases in which the Court considers a question the circuit has considered, the Sixth fares a bit better. Using this measure, according to one analysis, the Sixth Circuit was only the fourth-most-reversed circuit in the 2011 term. Of course considering some of the Sixth Circuit’s recent decisions (e.g. here) it seems more reversals could be coming. [...]

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Litigation Strategy and Coalition to Defend Affirmative Action v. Regents

I will bet anyone (in jurisdictions where it is legal) that the Supreme Court will reverse the Sixth Circuit in Coalition to Defend Affirmative Action v. Regents.  Indeed, my main question is how badly the Coalition to Defend Affirmative Action loses.  My guess is that they get maybe two votes on the Supreme Court.

When Ted Olson and David Boies brought a challenge to California’s Proposition 8 against gay marriage, lots of gay marriage supporters said the litigation was a mistake, because it was too soon.  I don’t recall seeing the same pushback against this Michigan litigation (that is, I don’t recall advocates of affirmative action saying that this litigation was too soon).  I suspect the reason for this difference is that gay marriage advocates believe that time is on their side and affirmative action advocates don’t. But if the groups spearheading the Michigan litigation believe they’ll be in the same position, or in a weaker position, in the future, that still doesn’t explain bringing this litigation if they don’t think they’ll win in the Supreme Court.  So I’m guessing that the Michigan groups bringing this litigation think they will win in the Supreme Court, or they think that the litigation will bring them other benefits (like moving public opinion in their favor) that will outweigh the costs of losing in the Supreme Court.  I’ll take the bet against both propositions. [...]

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En Banc Sixth Circuit Voids Michigan Civil Rights Initiative

By an 8-7 vote, the U.S. Court of Appeals for the Sixth Circuit has held that Michigan’s Proposal 2, aka the Michigan Civil Rights Initiative, is unconstituional. The Court split along predictable ideological lines, with Democratic nominees siding with the plaintiffs, and Republican nominees voting to uphold the initiative.

Judge Cole delivered the opinion for the court, joined by judges Martin, Daughtrey, Moore, Clay, White, Stranch, and Donald. His opinion begins:

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.

In other words, it is unconstitutional for a state constitution to prohibit the consideration of race by state actors.

Several judges filed dissents, including Boggs (joined by Chief Judge Batchelder, Gibbons (joined by Batchelder, Rogers, Sutton, Cook, and Griffin (in part)), Rogers (joined by Cook), Sutton (joined by Batchelder, Boggs and Cook), and Griffin.

My prior posts on this case are here and here.

In case it’s not obvious enough, this case has certiorari written [...]

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Sixth Circuit Smackdown Watch

Today the Supreme Court issued a unanimous per curiam opinion summarily reversing a divided panel of the U.S. Court of Appeals for the Sixth Circuit in Parker v. Matthews. The opinion begins:

In this habeas case, the United States Court of Appeals for the Sixth Circuit set aside two 29-year-old murder convictions based on the flimsiest of rationales. The court’s decision is a textbook example of what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proscribes: “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 12).

The citation to Renico is a clear rebuke to the Sixth Circuit. Renico also reversed a Sixth circuit decision granting a habeas petition. As the Court notes later in its opinion, in Renico the Court corrected “an identical error” to that made by the Sixth Circuit here.

The reversal of the Sixth Circuit in habeas cases has become rather common. In the 2009-2010 term, when Renico was decided, the Supreme Court reversed Sixth Circuit habeas decisions in five separate cases. But it’s not just habeas cases. If I have my numbers right, the Sixth Circuit is 0-20 over the past four terms. This pattern has caused some to wonder whether the Sixth Circuit is (or could become) the “most-reversed” circuit or the “new Ninth.”

How the Sixth Circuit fares in the future will largely depend on how the court’s newest judges approach habeas cases, particularly those confirmed in the past five years. The lion’s share of the Sixth Circuit’s reversals have come from habeas cases and the lion’s share of those have involved opinions written or joined by a handful of judges who clearly have a different (and more pro-petitioner) [...]

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Sixth Circuit Splinters on Michigan Rape-Shield Statute

Yesterday, in Gagne v. Booker, the full U.S. Court of Appeals for the Sixth Circuit splintered along unusual lines over the application of Michigan’s rape-shield statute to exclude evidence relating to the complaining witness’ prior sexual conduct with the defendant. Lewis Rodney Gagne was accused of gang raping his ex-girlfriend and sought to introduce evidence that she had consented to rough, group sex with Gagne and other men on at least one prior occasion. The trial court refused to admit this evidence due to Michigan’s rape shield law. In his habeas petition, Gagne claimed the trial court’s decision violated his constitutional right to present an effective defense. The distrcit court granted Gagne habeas relief and a three-judge panel of the Sixth Circuit affirmed (then with an amended opinion). Sitting en banc, the Sixth Circuit reversed, 11-5.

What makes this decision particularly interesting is the procedural posture of the case, the appeal of a denial of a writ of habeas corpus, as the Sixth often splits along ideological lines in habeas cases. Here, however, the judges did not split along traditional ideological lines. Chief Judge Alice Batchelder delivered the opinion of the court denying habeas relief with an opinion for a seven judge plurality. Judges Boggs, Gibbons, Sutton, Cook, McKeague, and Griffin joinedthe Chief Judge. Judge Moore concurred in the judgment only, joined by Cole and Clay, as did Judge White. Judge Kethledge dissented, joined by Judges Martin, Norris, Rogers and Stranch. [...]

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Unanimous En Banc on Sixth Circuit

The U.S. Court of Appeals for the Sixth Circuit has a reputation for being one of the most divided and contentious courts in the nation.  Many of the courts divided opinions have been chronicled on this blog.  But it’s important not to overstate the degree of division on the court.  Last week, for instance, the court issued a unanimous en banc decision in Chapman v. UAW Local 1005, a case considering whether a GM employee’s suit against both his employer and his union was barred because of his failure to exhause his internal union remedies before filing suit in federal court.  Not only were the judges unanimous in rejecting the employee’s claim, they also united around a decision to overturn one of the circuit’s own precedents, a 1999 decision Williams v. Molpus as “inconsistent with Supreme Court precedent and contrary to national labor policy.” [...]

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