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Sam Heldman


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Tuesday, November 19, 2002
No. 01-1067 United States v. White Mountain Apache Tribe

Monday, December 2, a mere four days after Thanksgiving, is the day for Indian cases at the Supreme Court. First up is U.S. v. White Mountain Apache Tribe. In this case, the government operated a school for Indians on the former military site, Fort Apache, on the Fort Apache Indian Reservation in Arizona. In 1960, Congress passed an act declaring that the site, and the improvements thereon, would be held in trust for the Tribe, subject to the government's right to operate a school there for as long as the government felt like operating a school there.

Some time later, after some of the buildings on the site fell into disrepair, the Tribe created a plan to repair and restore the site, with an estimated price tag of $14 million or so. The Tribe filed this suit, claiming that the government had violated its trust responsibility to maintain the buildings on the site while it was using them for school purposes. The Court of Federal Claims dismissed the case on the basis that the government's fiduciary responsibility did not give rise to a claim for money damages for breach of that responsibility. The Court of Appeals for the Federal Circuit reversed. In the opinion of the panel (with one dissent), whether the government's fiduciary duty extended to the buildings depended on the extent to which the government exclusively controlled the buildings in trust for the Tribe. The appellate court remanded to determine to what extent the government controlled the buildings in question.

The court went on to determine that, according to common law trust principles, the United States would have an affirmative duty to maintain the subject of the trust, and that allowing the buildings to fall into disrepair would violate that duty. This reasoning seems pretty sound to me. If the government controls the buildings to the exclusion of the Tribe, for whom the government holds the buildings in trust, it must take reasonable steps to make sure that the buildings are not lost. The court went on to find that if the United States had allowed the buildings to fall into disrepair, thereby breaching its fiduciary duty, it would be liable for money damages resulting from its breach.

I think that the court's reasoning is very solid, but there is something missing that I can't put my finger on, and it doesn't appear in the government's brief. The United States set up the trust for the benefit of the Indians, but I doubt that it intended that it would be responsible to repair and refurbish the buildings after 40 years of use. Unfortunately, my knowledge of trust law is even more limited than my knowledge of Indian law. Nevertheless, I boldly, but with minimal confidence, predict that the Court will REVERSE.

In your spare time

All you Supreme Court junkies who haven't already seen the profiles of the Justices on C-SPAN's show, "America and the Courts" can find those episodes archived online here. The links are on the right hand side of the page.

Tuesday, November 12, 2002
He's at it again

Sean Carter, the originator of the Fantasy Supreme Court League, has come up with a new Supreme Court-based contest. This time, it's the Most Valuable Justice Contest. This contest is fascinating. Each participant chooses a Justice and is awarded points based on that Justice's participation in and opinions in cases that are handed down. The points are awarded as follows:

    Winning Votes

    2 points for being on the majority side of the case

    1 additional point for casting a tie-breaker vote (i.e., the case is decided 5-4)


    2 points for authoring an opinion in a case

    1 additional point for authoring a "maverick opinion" (the opinion of the sole dissenter)

    2 additional points for authoring the court's lead opinion


    However, a justice loses 3 points for not participating in a particular case.

    Bonus Points

    Points (and penalties) will be doubled for each bonus case.

Note that there is no special bonus for authoring the "narrowing concurrence," (the fifth vote that narrows the holding of the 4-Justice plurality) probably because such a bonus could be characterized as the "O'Connor multiplier."

Participants can change their Justice as often as they wish, with the change being effective the following Monday. At the end of the term, the person with the highest total will win $500.

Unlike the Fantasy Supreme Court League, which I described as "too silly to take seriously," this could be really interesting. Among the things that would have to go into the calculation: 1) What cases are likely to come down in a given week; 2) Who is likely to be in the majority; 3) Who is likely to author a case; 4) Which Justices have authored cases from particular conferences; 5) Who is likely to dissent, especially the "lone dissenter" (the "Stevens Bonus").

As a matter of full disclosure, I should mention that Sean Carter offered to send me a free copy of his book as thanks for the first mention of his site on this blog, but I haven't gotten the book yet. Also, this paragraph is not intended to guilt him into sending the book.

This week's chart

The Court starts off a short week today. Here is how Sam Heldman and I are predicting the cases:

Tuesday, Nov. 12
Moseley v. Victoria's SecretAFFIRMREVERSE
Wednesday, Nov. 13
Conn. Dept. Pub. Safety v. DoeREVERSEREVERSE

Monday, November 11, 2002
No. 01-729 Smith v. Doe

No. 01-1231 Connecticut Dept. Pub. Safety v. Doe

On Wednesday, November 13, the Court will consider two cases having to do with sex offender registration laws, also known as "Megan's Laws." The first, Smith v. Doe, or Ex Post Fact Doe, asks whether Alaska's Sex Offender Registration Act violates the Ex-Post Facto Clause of the Constitution. The second Doe case, Connecticut Department of Public Safety v. Doe ("Doe Process"), presents the question of whether Connecticut may list convicted sex offenders in a public directory without first giving them individualized hearings as to dangerousness.

Surprisingly, both Does won below. In Smith, the Ninth Circuit held that the Alaska's act was punitive in effect, despite that the state's legislature declared in the law that it was not meant to be punitive. Because the act applied to sex offenders who were convicted before the Act was passed, the Ninth Circuit panel found the retroactive punishment violated the Ex Post Facto Clause.

After reading soon-to-be-D.C.-Circuit-Judge John Roberts Jr.'s brief, I am convinced that the Ninth Circuit was wrong. Although sex offenders might feel punished by the statute, the purpose was to track these offenders to provide protection to the communities in which they reside. I predict the Court will REVERSE.

In the second case, Conn. Dept. Pub. Safety, the Doe in question asserts that his Procedural Due Process* rights are violated because publishing his information along with potentially dangerous sex offenders implies that he is more dangerous than the general public. Doe asserts that he must be afforded a hearing as to his present dangerousness. The Second Circuit agreed.

    * Note: I only reluctantly use the term, "Procedural Due Process." I do so only because the Second Circuit characterized the claim as such in its opinion. To me, certain terms should only need a qualifier when they deviate from the norm. Thus, "Due Process" should normally refer to some matter of procedure (the word "process" is the big signal that this should be true), while "Substantive Due Process" can be used to indicate that something other than a procedural issue is at stake. "Procedural Due Process" is redundant, as is "Gin Martini" or even worse, "Gin Martini, straight up." You might as well order "ice water, with water ice cubes."

I think the court will disagree that this case meets the "stigma plus" standard articulated in Paul v. Davis, 424 U.S. 693 (1976). In that case, the Court stated that a plaintiff complaining of government defamation must show that the government made a false statement about him and some additional state-imposed burden. The Second Circuit found that the implication that Doe was dangerous was sufficient to meet the "stigma" requirement, and the registration burdens met the "plus" requirement.

I think the Court will find that publishing true information about convicted sex offenders is not the sort of stigmatizing statement that can give rise to a Due Process right to have a hearing as to dangerousness. For that reason, I predict the Court will REVERSE.

No. 01-1015 Mosley v. Victoria Secret Catalog, Inc.

This case can be characterized both as a sexy claim of copyright dilution and as a claim of dilution of a sexy copyright. The petitioner opened a store called "Victor's Secret," selling lingerie and sex toys. Victoria's Secret, the well-known maker of women's lingerie, sent Mosley a letter insisting he stop using that mark. Mosley responded by changing the name of his store to "Victor's Little Secret." Vickie's sued to enjoin the use of "Victor's Little Secret," claiming that it dilutes their mark, "Victoria's Secret."

Personally, I have always wondered about people who open sex shops. Do they sit around thinking, "What this town really needs is a place to buy blow-up love dolls!"? Further, a male, naming his sex shop should, in most cases, be unwilling to use a name that tends toward the diminutive. Shoppers in the mall where Mosley operates his store could be expected to note the name change thusly: "Oh look! Turns out 'Victor's Secret' is actually only a little secret."

In any case, the question here is whether a plaintiff must show actual dilution in order to enjoin the use of a mark. That is, whether Victoria's Secret must show that it is actually harmed by "Victor's Little Secret," or whether it is enough that consumers mentally associate the mark in question with the famous mark.

It seems to me that behemoth companies with incredibly famous trademarks would be hard pressed to show actual harm from small-time diluters. That is, the effect of "Victor's Little Secret," is likely to be pretty small compared to Victoria's Secret's overall business. Nevertheless, the catalog should be able to enjoin this use. If actual economic harm is required, protecting trademarks would become that much more difficult, and would leave trademark owner's with a hobson's choice. If they attempt to enjoin the use, they could lose because they could not show present economic harm. If they decide to wait, they could be charged with failing to protect their mark. For these reasons, I think the Court will AFFIRM.

No. 01-1184 United States v. Recio

I am getting a late start to this week's predictions. Luckily, there is no argument today because it is Veteran's Day. This fact also ensures that today is one of those rare days in the nation's capital when commuting is a breeze, despite even that it is raining heavily. On to the prediction:

I would have to put the case of U.S. v. Recio in the "I can't believe it's a precedent" category. The Ninth Circuit apparently held, in U.S. v. Cruz, 127 F.3d 791 (9th Cir. 1997), that a defendant cannot be guilty to conspiracy to possess and distribute drugs if he joins the conspiracy after the government has seized the drugs in question. A conspiracy exists when two or more people agree to commit a crime. Usually, a person is guilty of conspiracy if there is an agreement and some overt act furthering the conspiracy by that person.

In this case, the government seized a truck of marijuana. The driver of the truck cooperated, calling his contact and saying the truck was ready to be picked up. Recio is the person who eventually showed up and drove the truck away. Recio says, and the Ninth Circuit agreed, that there wasn't enough evidence that he joined the conspiracy before the drugs were seized. While that may or may not be true, I think the Court took this case to correct the error it made when denying cert to the Cruz case.

A conspiracy is not destroyed because, as here, its purpose is impossible. Nor is it destroyed by a mistake of fact ("We agreed to buy cocaine but all we got was powdered sugar."). The reason that conspiracy is a crime is not that the government wants another way to prosecute people for committing crimes, it is that the act of agreeing to commit a crime itself harms society. I do not think the Court will agree that there should be a temporal impossibility exception to formation of a conspiracy, and that it therefore will REVERSE.

Tuesday, November 05, 2002
First two actual decisions come down.

Both Sam Heldman and I correctly predicted the results of Yellow Transp. v. Michigan and Syngenta Crop Protection, Inc. v. Henson. As Sam says, good for us.

Monday, November 04, 2002
This week's chart

Monday, Nov. 4
Pierce County v. GuillenREVERSEREVERSE
Sattazahn v. PennsylvaniaREVERSEREVERSE
Tuesday, Nov. 5
Ewing v. CaliforniaAFFIRMAFFIRM
Lockyer v. AndradeAFFIRMREVERSE
Wednesday, Nov. 6
Norfolk & W. Ry. Co. v. AyersREVERSEREVERSE
Abdur'Rahman v. BellAFFIRMREVERSE

In case you are new to this blog, this chart represents my predictions versus Sam Heldman's. Sam was the one who came up with the idea to compete on Supreme Court predictions. Sam is pretty smart (obviously, because he predicts almost all the cases the same way I do), and I want to thank him for summarizing his predictions for this week this morning, which saved me searching through his blog for them.

By the way, by my scoring technique, I am ahead 1-0. By Sam's scoring, the game is tied at 0-0.

No. 01-9094 Abdur'Rahman v. Bell

The last case to be argued this week is a combination death penalty and civil procedure case. The Petitioner was convicted of murder and sentenced to death. He raised certain errors in his appeal, which were denied, and he then applied for an appeal to the Tennessee Supreme Court. However, he only raised "a subset of [his] prosecutorial misconduct claims." His petition was denied, at which point he applied for federal habeas corpus relief. In his habeas petition, Rahman brought up the full set of prosecutorial misconduct claims, most of which were denied for not having been raised to the Tennessee Supreme Court.

The case went through various and sundry other proceedings, including a denial of cert by the Supreme Court. Meanwhile, the Tennessee Supreme Court came out with a rule that stated that for federal habeas purposes, a claim need not be raised to that court in order for a defendant to have exhausted his state remedies. Thus, if that rule had been around when Rahman raised his first habeas petition, the federal courts would have considered the prosecutorial misconduct claims that were denied for failure to exhaust state remedies. Rahman then filed a Rule 60(b) motion, usually used to remedy extraordinary injustices like fraud on the court, in order to get the district court to consider his prosecutorial misconduct claims. The district court considered the motion to be a successive habeas claim and sent it to the Sixth Circuit. The panel agreed and denied the relief sought. Simultaneously, Rahman asked the circuit to remand the decision to the district court for consideration in light of the new Tennessee rule. The Sixth Circuit denied that request as well.

Rahman says that the courts below erred by holding that his 60(b) motion was a successive habeas petition, because he never had a ruling on the merits of the claims in that petition. I do not think that the Court will create loophole in current habeas jurisprudence through the use a Rule 60(b) motion. The second question is whether the Sixth Circuit erred by not sending the case back down for consideration of the prosecutorial misconduct claims. I do not think the Court will be convinced that it did. Therefore, I think the Court will AFFIRM.

There is, once again, a supplemental question jurisdiction as to whether the Sixth Circuit had jurisdiction to review the district court's order, and of the Court's own jurisdiction. Without looking too closely, I predict that the Court will find there was jurisdiction.