Friday, June 25, 2010

Kagan Confirmation Hearings Begin Monday

On Monday, June 28, the Senate Committee on the Judiciary begins hearings into President Obama's nomination of Elena Kagan to sit on the United States Supreme Court.

The run-up to the hearings has brought no surprises or revelations which would derail the nomination, and even the expected Republican opposition has been rather muted.

It certainly appears that Kagan's ascension to the Court would not change voting patterns among the Justices, and if she votes as retiring Justice Stevens voted this year, the outcome of cases would be the same. I suspect the real fight will come when a vacancy among the conservative members of the Court arises, because replacing a conservative with a more liberal vote will change the direction of the Court.

Documentary material related to the nomination has been posted by the Judiciary Committee. It is available here.

Thursday, June 24, 2010

Who Can Appeal? Who is "Aggrieved"?

One of the fundamentals of appellate practice is the requirement that only an "aggrieved party" can appeal. CPLR § 5511.

What this has come to mean is that a party who has successfully obtained a judgment or order in his favor cannot appeal although he may disagree with the findings of fact made by the lower court, or with the rationale of the lower court's decision. Parochial Bus Systems, Inc. v. Board of Education of the City of New York, 60 N.Y.2d 539, 544-545 (1983).

There are exceptions to the rule as when, for example, a party secures a favorable judgment or order but the judgment or order does not grant him the "complete relief" he sought.

But when there are multiple parties on each side, or alleged joint tortfeasors, the concept of who is "aggrieved" becomes more complex and uncertain because, for example, relief granted to one party making a motion may adversely affect another party who was not involved in the specific motion.

The Appellate Division, Second Department, in a major opinion, Mixon v. TBV, Inc., has now sought to make sense of the aggrievement requirement and to reconcile various lines of authority addressing the issue. After a detailed review of the case law, the Court formulates this two-pronged definition of aggrievement for appellate purposes:

"First, a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. Second, a person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part."

Because aggrievement is fundamental to appellate law, Mixon is essential reading. The ruling also contains a valuable discussion of the limitations imposed on an appellate court in granting relief to a party which has not appealed. The decision can be found here.

Tuesday, June 22, 2010

New Technology and the Constitution

The law often must play catch-up with technology, and in constitutional law this is probably no more apparent than in the continuing efforts of the United States Supreme Court to delineate what exactly the Fourth Amendment's prohibition against "unreasonable searches and seizures" is designed to protect.

Technology has enhanced the government's ability to intrude through wiretapping, eavesdropping, and other electronic means. In Olmstead v. United States, 277 U.S. 438 (1928), the Court, over Justice Brandeis' famous dissent, took the narrow approach that the Fourth Amendment only protects a person against searches or seizures of "material things"--his person, his house, his papers and effects--but not his words overheard on telephone wires outside his home. Eventually in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), the Court concluded that the Fourth Amendment does protect against the seizure of words by electronic means even when the government does not physically trespass or intrude on a person's private space.

But technology marches on, and in Kyllo v. United States, 533 U.S. 27 (2001), the Court had to address the Fourth Amendment implications of the government's warrantless use of thermal imaging devices outside a person's home to determine what is occurring inside the person's home.

Last week in City of Ontario, California v. Quon the Court addressed the Fourth Amendment in the context of another technological advance: text messaging. While the case raised the narrow issue of whether a police officer had any rights of privacy in the text messages sent and received on his alphanumeric pager issued by the police department, the Court recognized this new technology was forcing it to enter unchartered territory.

"The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear." The very ubiquity of cell phone and text messages raises new and serious constitutional questions regarding privacy. Rather than sweeping pronouncements on privacy rights, "prudence counsels caution" by the Court until society's use of rapidly changing communications--and society's privacy expectations regarding those communications--become clearer.

Quon is an important statement on how an appellate court proceeds when it is asked to make policy determinations without knowing what technology will emerge and how society will use that technology. The subtext is that the Court understands new technology will emerge. The case can be found here.

Friday, June 4, 2010

Justice Souter on Constitutional Interpretation

Over the past few decades critics of the United States Supreme Court have complained of its purported "judicial activism"--ignoring the plain words of the Constitution, or established precedent, in order to arrive at decisions which reflect a predetermined policy judgment which is unpalatable to the critics.

The complaint was initially hurled at the Warren Court of the 1960s which not only broadened the reach of the Bill of Rights by imposing its requirements on the states, but which used remedies such as the exclusionary rule of evidence and the Miranda warnings to put teeth into the Court's rulings.

More recently, liberal critics have complained that the Roberts Court is guilty of conservative judicial activism--a complaint publicly echoed by President Obama.

In this context it is valuable to read the Harvard Commencement speech given on May 27 by retired Justice David H. Souter. Without naming Justice Scalia, the speech criticizes Justice Scalia's notion of "originalism"--that in deciding cases judges should simply look to the original intent of the framers of the Constitution. Justice Souter calls this the "fair reading model," and he dismisses it as "simplistic" because, in Justice Souter's view, the Constitution is comprised of often open-ended competing values which must then be accommodated by courts:

"The explicit terms of the Constitution...can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises. The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary. A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice."

Justice Souter's view that the Supreme Court must often choose "between one constitutional good and another one" explains many 5-4 votes on the Court which are often viewed as conservative-liberal splits: the legitimate need of society to gather evidence of criminality versus the right of the suspect to remain silent; the right to bear arms versus the right of society to protect its members from harm. Different "constitutional goods" are in conflict and the plain words of the Constitution do not resolve the conflict--judges must.

Justice Souter's speech reinforces the view that the values, predilections, and background of who sits on the Supreme Court do make an enormous difference in constitutional interpretation. With a Senate confirmation hearing to begin later this month, it is, therefore, fair to try to determine the values and predilections of Elena Kagan, because those values and predilections will make a difference.

The full text of Justice Souter's speech can be found here.