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.
Archive for the ‘Sixth Circuit’ Category
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 The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100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 bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.” The Collapse of American Criminal Justice 184 (2011). He recommended that we “redress that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id. at 297.
In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010. The Act should apply to all defendants, including those sentenced prior to its passage. We therefore reverse the judgment of the district court and remand for resentencing.
Judge Gilman’s dissent begins:
I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat. To start with, they “readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.
They further concede that the law establishing the 100-to-1 ratio between powder cocaine and crack cocaine for sentencing purposes was constitutional when enacted . . . So far, so good. But then the majority veers off into the abyss . . .
The majority reaches [its] conclusion without citing a single case in support. This is not due to a lack of diligent research; it is due to the lack of any such cases. The best the majority can do is try to distinguish two Supreme Court decisions (McCleskey v. Kemp, 481 U.S. 279 (1987), and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979)) that even the majority concedes “on first glance might appear to sanction the discrimination at issue here.” Maj. Op. 9. Those efforts at distinguishing McCleskey and Feeney are in vain, however, because binding Sixth Circuit precedent has already foreclosed the majority’s constitutional argument.
Reducing the sentencing disparity between powder and crack cocaine was certainly good policy, whether or not it was constitutionally required. Whatever one thinks of the merits, and the propriety of the court’s decision to reach out for the constitutional question, the issue is certainly cert worthy. And given the Sixth Circuit’s recent record in the Supreme Court, I would think a grant is reasonably likely — unless this opinion were to be overturned en banc.
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 provide payroll deductions” for union activities, id.; and payroll deductions are all that Public Act 53 denies the unions here. Seldom is precedent more binding than Ysursa is in this case.
Judge Kethledge rejected the union efforts to distinguish Ysura and summarily dispatched the Equal Protection claim under rational basis scrutiny.
Judge Stranch dissented, arguing Ysura did not control. Here is how she summarized her dissent:
The majority spills little ink in its dismissal of the school unions’ free-speech challenge. In doing so, it mischaracterizes the First Amendment interests at stake, glosses over key distinctions the Supreme Court requires us to observe, and averts its gaze from Act 53’s blatant viewpoint discrimination. Most concerning to me, however, is the majority’s refusal to engage in an analysis of viewpoint discrimination in light of Michigan’s explicit statement that the law’s purpose is to put a “check on union power.” The foundational requirement of viewpoint neutrality means little if a state may legislate with impunity to cripple the power of an unpopular group whose political views are objectionable to the state. The unanswered constitutional question in this case is whether the government may burden expression it disagrees with by selectively restricting access to public resources that facilitate that expression. The answer is no. The majority wrongly concludes otherwise.
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.
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.
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 all over it. Paging Justice Kennedy. [Update: Of course, as Eugene notes above, if the Supreme Court bars any use of racial preferences in university admissions -- a possible, but I think unlikely, outcome in Fisher -- there would be no need for the Court to consider this case.]
UPDATE: Judge Rogers’ dissent is rather short. Here it is in its entirety:
Under the majority opinion, it is hard to see how any level of state government that has a subordinate level can pass a no-race-preference regulation, ordinance, or law. Doing so would perforce make it harder for one minority or another to obtain a preference at the lower level. That alone can hardly render the no-race-preference act unconstitutional. Whatever Hunter and Seattle hold, the Supreme Court cannot have intended such a ban.
Also, here is the opening of Judge Sutton’s dissent:
Today’s lawsuit transforms a potential virtue of affirmative action into a vice. If there is one feature of affirmative-action programs that favors their constitutionality, it is that they grow out of the democratic process: the choice of a majority of a State’s residents to create race-conscious admissions preferences at their public universities not to benefit a majority race but to facilitate the educational opportunities of disadvantaged racial minorities. Such democratically enacted programs, like all democratically enacted laws, deserve initial respect in the courts, whether the particulars of a program satisfy the Fourteenth Amendment, see Grutter v. Bollinger, 539 U.S. 306, 343 (2003), or violate it, see Gratz v. Bollinger, 539 U.S. 244, 275–76 (2003).
Yet this lawsuit turns these assumptions on their head. Democracy, it turns out, has nothing to do with it. Plaintiffs insist that the Fourteenth Amendment’s guarantee of “equal protection of the laws” imposes two new rules on the policy debates surrounding affirmative action in higher education. Rule one: States not only may establish race-conscious affirmative-action programs, but they must do so to comply with the Fourteenth Amendment. Rule two: even if the Fourteenth Amendment does not mandate that States establish affirmative-action programs at their public universities, it bars them from eliminating such programs through amendments to their constitutions.
SECOND UPDATE: Just a quick clarification on the line up in this case. Judge White was originally nominated to the Sixth Circuit by President Clinton but never confirmed. She was later renominated by President Bush as part of a deal with Michigan’s Senate delegation under which they agree to drop their opposition to one of Bush’s other Michigan nominees.
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) understanding of habeas rights and the Anti-Terrorism and Effective Death Penalty Act (AEDPA) than does a majority of the Supreme Court. Even if a majority of judges on the Sixth Circuit have gotten the message and are ready to apply AEDPA in accord with relevant precedent, a handful of judges can still control the outcome in a significant number of cases. As not all erroneous panel opinions are en banc worthy, these opinions will survive unless reversed by the Supreme Court — and the Supreme Court has not been shy about reaching out to overturn the Sixth.
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.
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.”
Last week, in United States v. Oaks, a divided panel of the U.S. Court of Appeals for the Sixth Circuit held that escaping from a courtroom while in police custody is not a “violent felony” for sentencing purposes under the Armed Career Criminal Act if the courtroom was not a secure facility.” Judge Martin wrote the opinion for the court. District Judge Hood, sitting by designation, dissented, arguing that escape from police custody at a courthouse should be considered a “violent felony.”
Oaks was being held in a secure county jail before being taken by his custodian to the courthouse for an appearance on felony charges of evading arrest, felony reckless endangerment, attempted aggravated robbery, theft over $500.00 and aggravated burglary. Obviously the courtroom is not as secure as the county jail, but I am hard pressed to imagine an individual who is “significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a ‘serious potential risk of physical injury,’” than someone who flees from law enforcement custody during an appearance in a matter in which he is facing felony charges.
This morning the U.S. Court of Appeals for the Sixth Circuit decided what could be the “dog-gonest case ever” to reach a federal appellate court, O’Neill v. Louisville/Jefferson County Metro Government. Judge Gilman’s opinion for the court begins:
This is perhaps the dog-gonest case ever to reach a federal appellate court. In October 2008, several uniformed officers of the Louisville Metro Animal Services (LMAS) intruded into the O’Neills’ home without a warrant and without consent, confiscated the O’Neills’ two adult dogs and the dogs’ litter of seven puppies, neutered and spayed the adult dogs and implanted microchips in all nine animals, and then required the O’Neills to pay over $1,000 to retrieve them, all without any formal charges ever being lodged against the O’Neills.
The district court dismissed all of the O’Neills’ constitutional and state-law claims arising out of this incident, concluding that the O’Neills were operating an unlicensed Class A kennel in violation of the City’s animal-control ordinance, and that none of their constitutional or state-law claims had merit. For the reasons set forth below, we reinstate the majority of the O’Neills’ claims and remand the case for further proceedings consistent with this opinion.
This morning a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued an opinion in Van Hook v. Bobby for the fourth time. On three previous occasions the panel had granted habeas relief to death row inmate Robert Van Hook , and all three times the panel was overturned — twice by an en banc court and once, summarily, by the Supreme Court. This time, it appears, Van Hook was out of arguments, and the panel denied his petition.
Today, a divided panel of the U.S. Court of Appeals for the Sixth Circuit rejected death row inmate Bobby Shepherd’s appeal of the district court’s denial of his petition for a writ of habeas corpus in Shepherd v. Bagley. Among Shepherd’s claims was that his trial was constitutionally defective because one of the jurors had consulted a psychologist during the penalty phase of the trial to understand what “paranoid schizophrenia” means. This was potentially relevant because the defense had argued (unsuccessfully) that Shepherd’s paranoid schizophrenia was a mitigating factor that should weigh against imposition of the death penalty. The juror maintained that this conversation did not affect his or the jury’s deliberations, however, and the trial court concluded there was no prejudice and sentenced Shepherd to death.
One of the issues dividing the Sixth Circuit panel was whether the trial court properly handled the juror’s improper conduct and, specifically, whether the prosecution or the defense should bear the burden of proof in such a situation. Judge Kethledge, writing for the court joined by Chief Judge Batchelder (who also wrote a separate concurrence addressing this issue), concluded that the burden was on the defense to prove prejudice. Judge Merritt, in dissent, forcefully argued the burden must rest on the prosecution.
Judge Merritt argued that the burden was on the proscecution to prove that the juror’s conversation with the psychologist was not prejudicial, and that this burden was never met. In support of his position, Judge Merritt cited the Supreme Court’s decision in Remmer v. United States, 347 U.S. 227, 229 (1954), in which the Court held that ex parte communications with jurors are “presumptively prejudicial. The majority, on the hand, concluded that Remmer had been abrogated by subsequent decisions, including Smith v. Phillips, 455 U.S. 209, 215-17 (1982), a point Chief Judge Batchelder stressed in her concurrence.
I don’t know the case law in this area to know which side offers the better interpretation of the Supreme Court’s precedent or how such ex parte communications should be handled. The dissent notes that the majority of Circuit’s reject the view that Smith abrogated Remmer, and the majority of circuits may be right. Only one circuit disagrees — but therein lies the problem for Judge Merritt’s argument. As he acknowledges in footnote 1 of his opinion, that one circuit is the Sixth. The circuit concluded Smith abrogated Remmer in United States v. Pennell, 737 F.2d 521 (6th Cir. 1984). Moreover, as Judge Batchelder notes, the Sixth Circuit has followed this holding since. Therefore, even if Judge Merritt offers what is ultimately the better argument, the panel was bound to conclude otherwise, as this is the law of the circuit unless and until the question is revisited en banc or reaches the Supreme Court.
Via Ed Whelan comes news that the U.S. Court of Appeals for the Sixth Circuit has voted to rehear Coalition to Defend Affirmative Action v. Regents of the University of Michigan en banc — something I suggested would happen. In this case, a divided panel held that Michigan’s Proposal 2, aka the “Michigan Civil Rights Initiative,” was unconstitutional. The initiative, which voters approved, provides that the state, including state educational institutions, may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.” As I explained in my prior post about this case:
Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” Judge Gibbons dissented.
The outcome of this case will be interesting, particularly because the Sixth Circuit remains closely divided along ideological lines. Moreover, as Whelan reports, two members of the court, Judges McKeague and Kethledge — two Bush appointees from Michigan — have recused themselves from the case. I’ll also venture a further prediction: If the original panel is upheld, this case will go to the Supreme Court, where Justice Kennedy will decide the Michigan Civil Rights Initiative’s fate.
UPDATE: The Detroit Free Press reports here.
Today the U.S. Court of Appeals for the Sixth Circuit granted death row inmate John David Stumpf’s petition for a writ of habeas corpus for a second time – seven years after its first habeas grant, six years after the Supreme Court’s reversal of that decision, and four years after the subsequent oral argument. As one might expect, the panel was divided, just as it had been the first time around. Judge Daughtrey wrote the majority opinion, joined by Judge Moore. Judge Boggs dissented. Although the majority’s rationale is somewhat different this time, the arguments seem familiar. Could this decision prompt another Supreme Court reversal? Perhaps. After all, this is a habeas grant from the Sixth Circuit.
Excerpts from the opinions are below the jump.