The Influence of the New York View of GPS Surveillance

    Back on May 12, 2009, I noted the decision of the New York Court of Appeals in People v. Weaver, 12 N.Y.3d 433 (2009), in which the Court in an opinion by Chief Judge Lippman for the majority, ruled that the government cannot install a global positioning system device (GPS) on an person's automobile without a warrant.
    The opinion harked back to Justice Brandeis' invocation of "the right to be let alone" in his prescient dissent in Olmstead v. United States, 277 U.S. 438 (1928), and noted the intrusive nature of GPS surveillance which allows the government to obtain all sorts of information about a person's private life such as "trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment, the strip club, the criminal defense lawyer, the mosque, the synagogue or church, the gay bar and on and on."
    This past November I noted that the United States Supreme Court was about to hear oral argument in U.S. v. Jones which raised the question of warrantless GPS surveillance, and I wondered whether the Court would follow Chief Judge Lippman's lead.
    Happlily on January 23rd a unanimous Superme Court did conclude that the warrantless installation of a GPS device in an automobile violates the Fourth Amendment. I will not engage in an extended discussion here of Justice Scalia's opinion for the Court, or Justice Alito's concurring opinion for four Justices. I do note, however, that in her concurring opinion Justice Sotomayor cited the above-quoted language of Chief Judge Lippman's opinion in Weaver to emphasize the intrusive nature of GPS surveillance and what it can disclose about a person's private life. 
    At a recent bar association dinner I congratulated Chief Judge Lippman on his impact on Jones. I write here with the hope that the impact of Weaver is more widely appreciated.  

An Outstanding CLE Program

    Now that Continuing Legal Education is ensconced as a cottage industry, lawyers are deluged with brochures and e-mails assuring us that if we do not immediately enroll in a particular CLE course we surely will be consigned to the dustbin of legal history. 
    Amidst the deluge it is always refreshing to find a CLE program which is not only informative and useful, but actually enjoyable. I attended one last week and I strongly recommend it when it comes around next year.
    For four days I attended an appellate practice program in Washington, D.C., sponsored by the American Bar Association's Council of Appellate Lawyers (I sit on its executive committee), the Appellate Judges Education Institute, and SMU Dedman School of Law. Hundreds of lawyers and appellate judges from across the country attended. Judge Eugene F. Pigott of the New York Court of Appeals was a member of a panel on how appellate judges approach decision making. 
    The program began on Thursday afternoon with two lawyers interviewing Justice Sonia Sotomayor for one hour, and it concluded on Sunday morning with a talk by Harvard Law School Professor Jack Goldsmith on the impact of war (including 9/11) on constitutional law. In between there were talks on developments and trends in civil and criminal law, a luncheon talk by Scott Turow on law and literature, panels on various aspects of appellate practice, and predictions by the attorneys involved in the challenges to the health care law regarding whether and when the Supreme Court would agree to hear the case (the predictions were accurate).
    A fascinating topic was the impact of technology on appellate practice. I learned, for example, that iPads have been distributed to all the judges of the United States Court of Appeals for the Ninth Circuit and the judges use them rather than carry around briefs and records on appeal. Does the fact that judges are reading from a screen affect how attorneys should write and structure their briefs? Should footnotes be avoided?
    Next year this appellate "summit" will be held in New Orleans. It will be one of the very best CLE programs you can attend.  

Kagan Confirmation Hearings to Begin

Patrick Leahy, chairman of the United States Senate Judiciary Committee, has announced that Committee hearings to consider the nomination of Solicitor General Elena Kagan to the United States Supreme Court will begin on June 28.

Senator Leahy's announcement noted that the Committee hearings last year on the nomination of Sonia Sotomayor began 48 days after the nomination was made by President Obama. The hearings on Elena Kagan will begin 49 days after the President's nomination. Senator Leahy's full statement can be found here.

The Senate Committee has also released the bipartisan questionnaire submitted to Solicitor General Kagan and her responses to the questionnaire. The questionnaire, and all the supplemental material transmitted to the Committee, can be found here.

A New Supreme Court Justice

President Obama's nomination of Elena Kagan to the United States Supreme Court has raised the complaint in some quarters that she is not qualified to sit on the Court because she has no judicial experience. The complaint is without merit.

A quick look back at the 20th century shows that the Supreme Court was the first judicial job for the most influential Justices: Louis Brandeis, Felix Frankfurther, William O. Douglas, Hugo Black, Robert Jackson, Earl Warren, and William Rehnquist immediately come to mind. While Benjamin Cardozo arrived at the Supreme Court after many years on the New York Court of Appeals, he began his tenure on the Court of Appeals after only a very brief stint on a Manhattan trial court.

The United States Supreme Court is a policy making body, and it does not appear that prior judicial experience makes one better equipped to set policy than being a former practicing lawyer (Brandeis), a former governor (Warren), a former law professor and chair of the Securities and Exchange Commission (Douglas), a former United States Senator (Black), or a former member of the Department of Justice (Rehnquist). The Supreme Court's recent decision in Citizen United v. Federal Election Commission which declined to limit corporate contributions to elections was a policy determination by five members of the Court on the reach of the First Amendment. The prior judicial experience of the five-person majority did not lead to the result; it was their policy predilections.

It can be helpful for one or more members of a high court to have had prior courtroom experience as a trial judge or a trial attorney. For example, Justice Sonia Sotomayor's experience as a United States District Court Judge is valuable in bringing to the Court an understanding of how particular procedural rulings will play out at the trial level. But I do not think her prior judicial experience necessarily makes her better equipped to address the broad constitutional policy questions with which the Supreme Court deals.

In sum, I am not fazed in the least about the absence of judicial experience in Elena Kagan's resumé.

Finally, much has been made of the fact that with the retirement of Justice Stevens (who attended Northwestern Law School), and the elevation of Kagan to the Court, all the Justices will have graduated from Harvard or Yale law schools. (While Justice Ginsburg did attend Harvard, she actually graduated from Columbia Law School.)

This just tells me that smart, ambitious people have a keen understanding of where political and legal power resides, a notion best captured by the title of the autobiography of westerner Justice Douglas, Go East, Young Man. I would be concerned if graduation from a small circle of schools was producing a single mold of thought, but it is not. The current Harvard and Yale graduates on the Court are on both sides of the ideological divide.

More interesting is that if Elena Kagan is confirmed there will be four New Yorkers on the Court: Chief Justice Roberts (Buffalo), Justice Ginsburg (Brooklyn), Justice Sotomayor (the Bronx), and Kagan (Manhattan). And while Justice Scalia was born in New Jersey, he was raised in Queens from the age of six. Maybe more important than law school is the New York water.

Interlocutory Appeals

Interlocutory appeals are a staple of civil appellate practice in the New York State courts. CPLR § 5701(a)(2)(v) gives a party the right to appeal to the Appellate Division from an interlocutory order which "affects a substantial right."

The New York courts have generously interpreted "affects a substantial right," so that there are few interlocutory orders which are not appealable as of right.

In the federal courts, however, there are few interlocutory appeals as of right. See, 28 U.S.C. § 1292(a). They must be authorized by a district judge. 28 U.S.C. § 1292(b). Litigants must, therefore, ordinarily await final judgment before raising on appeal a district judge ruling earlier in the case. There are two recent reminders of the limits on interlocutory appeals in federal courts.

In Mohawk Industries, Inc. v. Carpentier, ___ U.S. ___, 130 S.Ct. 599 (2009), the Supreme Court ruled that an immediate appeal would not be permitted from a disclosure order of a district judge which arguably impinged on the attorney-client privilege. This was the first full opinion written by Justice Sonia Sotomayor. The opinion can be found here.

Earlier this week in In re Zyprexa Products Liability Litigation the United States Court of Appeals for the Second Circuit restated the limited availability of interlocutory appeals in the federal courts. The decision can be found here.

U.S. Supreme Court Begins New Term

The United States Supreme Court begins its new Term on Monday, October 5. Adding to the interest a new Term of the Court usually brings is Justice Sonia Sotomayor's appearance on the bench.

During the month of October the Court will hear oral argument in 13 cases. The first oral argument of the Term is a case of original jurisdiction, South Carolina v. North Carolina, in which the two states are seeking an equitable apportionment of an interstate river. The second case to be argued on Monday, Maryland v. Shatzer, relates to police interrogation under MIranda v. Arizona, and has attracted amicus briefs from 37 states.

The third case of day, Mohawk Industries, Inc. v. Carpenter, raises the question of whether there can be an immediate appeal of an order of a United States District Court finding a waiver of the attorney-client privilege and directing the production of privileged documents.

Justice Sotomayor's First Oral Argument Tomorrow

Tomorrow at 10 a.m. the United States Supreme Court will hear oral argument in Citizens United v. Federal Election Commission. The case was originally scheduled for oral argument last spring, but was put over by the Court for an unusual September argument to allow for further briefing by the parties.

The case has attracted broad interest. It will be the first oral argument before the Court in which Justice Sonia Sotomayor will participate and there is a natural curiosity regarding how active a questioner she will be. During her confirmation hearings, there were rumblings from some Senators that when she sat on the United States Court of Appeals for the Second Circuit there were reports that she was, at times, curt and discourteous towards counsel.

The case also has attracted considerable interest because the Court will address the question of the limits on corporate financial contributions to candidates.

Judge Sotomayor: Senate Committee Scheduled to Vote Tomorrow

The United States Senate Judiciary Committee is scheduled to vote tomorrow morning on whether to confirm Judge Sonia Sotomayor to be an Associate Justice of the United States Supreme Court. At the request of the minority Republicans on the Committee, the vote was postposed for one week.

If the majority of the Committee, as expected, votes in favor of President Obama's nomination, it is anticipated that a vote of the full Senate will occur prior to the Senate recess in August.

While the Supreme Court begins its new Term with oral arguments on October 5, on September 9 it will hear oral arguments on an election finance case which was set down for reargument from last Term. If Judge Sotomayor's nomination is approved by the Senate in August, she presumably will be on the bench for the September 9 argument.

Judge Sotomayor: Senate Committee Vote Postponed One Week

The Senate Judiciary Committee was scheduled to vote this morning on the nomination of Judge Sonia Sotomayor to be an Associate Justice of the United States Supreme Court. The vote has been postponed one week to July 28.

Judge Sotomayor Confirmation Hearings Begin Monday

Hearings before the Senate Judiciary Committee on whether Judge Sonia Sotomayor should be confirmed to replace Justice Souter on the United States Supreme Court begin on Monday. News accounts indicate that Republicans do not expect they will be able to stall or block the judge's confirmation.

Over the past few weeks a wealth of material has appeared analyzing Judge Sotomayor's rulings on the United States District Court and the United States Court of Appeals for the Second Circuit. The plain intent of much of the material is to present her as a moderate liberal well within the legal mainstream.

One report of particular interest is the study released earlier this week by the majority staff of the Senate Judiciary Committee, "Sonia Sotomayor: The Criminal Justice Record." The report shows that while sitting on the Second Circuit, Judge Sotomayor voted to affirm criminal convictions 92% of the time, and in criminal cases voted with Republican-appointed judges on the court 97% of the time. The full report can be found here.

The Judiciary Committee has posted all the material submitted to the Committee in connection with the confirmation process. The material can be found here.

Yesterday, Senator Patrick Leahy, chairman of the Senate Judiciary Committee released the names of the witnesses who will be called by the majority Democrats and the minority Republicans. The list can be found here.

I have said before that at the confirmation hearings Judge Sotomayor's most discussed decision will be Ricci v. DeStefano, in which the Supreme Court reversed the Second Circuit panel on which Judge Sotomayor sat, and held that New Haven could not decline to certify a fire department promotion examination on the grounds the examination results had a disparate impact on minorities. One of the Republican minority witnesses will be Frank Ricci, the lead plaintiff in the case.

To bolster Judge Sotomayor's moderate liberal and law enforcement credentials, the Democratic majority witnesses will include the national president of the Fraternal Order of Police, former FBI Director Louis Freeh, former United States Attorney for the Southern District of New York Michael Garcia, and Manhattan District Attorney Robert Morgenthau.

Supreme Court to Consider Sotomayor Dissent

While Judge Sonia Sotomayor's Second Circuit ruling in Ricci v. DeStefano undoubtedly will draw much attention at her Senate confirmation hearings, the United States Supreme Court today granted a writ of certiorari in Abbott v. Abbott, the case I discussed on June 1 in which the the Solicitor General of the United States, in an amicus brief urging the Court to grant a writ of certiorari, argued that Judge Sotomayor's reasoning in a dissenting opinion is the correct view of the law.

Abbott raises a question of the correct interpretation of an important clause of the Hague Convention on the Civil Aspects International Child Abduction. The federal circuit courts of appeals have divided on the question, and Judge Sotomayor dissented from the interpretation of the majority on the Second Circuit. Croll v, Croll, 229 F.3d 133.

In a case which brings up for review a decision of the Fifth Circuit, the Solicitor General argued that Judge Sotomayor's interpretation in Croll is correct, and that the Supreme Court should grant the writ of certiorari and adopt Judge Sotomayor's reasoning. See, Abbott v. Abbott.

The Supreme Court Today: Promotion Exams and Race; Preemption

In the much awaited ruling on promotion examinations for the New Haven Fire Department, the United States Supreme Court ruled today that the City violated federal civil rights law by refusing to certify the examination results "solely because the higher scoring candidates were white." Ricci v. DeStefano.

The Court divided along liberal/conservative lines. Justice Kennedy wrote the majority opinion. Justice Ginsburg wrote the dissent for herself and Justices Stevens, Souter and Breyer, and maintained that New Haven did not act solely because the higher scoring candidates were white.

The political impact will be immediate. Judge Sonia Sotomayor sat on the panel of the United States Court of Appeals for the Second Circuit which, in a brief opinion, had upheld New Haven's decision not to certify the promotion examination. Her Senate confirmation hearings begin on July 13, and Ricci undoubtedly will be the focus of much of the questioning and political posturing.

New Haven had declined to certify the promotion examination on the grounds the examination results had a disparate impact on racial minorities, and because it believed it would be subject to liability under federal civil rights law if it did certify the results. While the majority of the Court recognized the disparate impact, it concluded that because there was not "a strong basis in the evidence" to conclude that it would be liable if it certified the test results, New Haven had no grounds to refuse the certification.

The majority noted that even if a test result has a disparate racial impact, an employer would be liable under federal civi rights law only if a promotion examination is not job related, or if there existed an equally valid less discriminatory alternative promotion process that the City refused to adopt. The majority concluded that the New Haven test was fair and job related, and that there was no extant testing alternative the City could have adopted. In the view of the dissent, if New Haven had certified the test results it would have faced "formidable obstacles" in defending itself in a civil rights action brought by those who did not receive a promotion.

Preeemption: to determine whether various national banks had violated New York's fair-lending laws, the State's Attorney General sent them letters "in lieu of subpoena" requesting that they provide certain nonpublic information about their lending practices. The federal Office of the Comptroller of the Currency brought suit to enjoin the request on the grounds that the National Banking Act prohibits the states from taking such actions against national banks.

In Cuomo v, Clearing House Association a divided Court concluded that principles of federal preemption do not prohibit a state from bringing judicial proceedings to enforce state laws against national banks. The majority opinion by Justice Scalia was joined by the liberal members of the Court (Ginsburg, Stevens, Souter, and Breyer).

Finally, the Court was expected to decide a third case today, Citizens United v. Federal Election Commission. Instead, the Court directed reargument in September. The Court will decide whether a feature length documentary movie which was critical of presidential hopeful Hillary Clinton was an advertisement subject to federal electioneering regulations.

U.S. Supreme Court: What's Ahead

With yesterday's release of four opinions by the United States Supreme Court, three cases remain for decision in the Court's current Term. Those decisions presumably will be released on Monday.

The ruling with the most immediate political significance will be Ricci v. DeStefano. This is the case in which Judge Sonia Sotomayor sat on a panel of the United States Court of Appeals for the Second Circuit which, in a brief opinion, upheld New Haven's decision not to certify a fire department promotion examination on the grounds the examination results had a disparate impact on racial minorities. The ruling will attract enormous public attention, and we can expect that Ricci will be Judge Sotomayor's most discussed decision at the Senate confirmation hearings which are scheduled to begin July 13.

The ruling relevant to the financial downturn will be Cuomo v. The Clearing House Association, in which the Court must decide whether the National Bank Act preempts state enforcement of state laws against national banks. The downturn has exposed deep flaws in the federal regulation of banks, and the question is to what extent, if any, will this affect the Court's determination of the preemption question.

Finally, in Citizens United v. Federal Election Commission the Court will decide whether a feature length documentary movie which was critical of presidential hopeful Hillary Clinton was an advertisement subject to federal electioneering regulations.

Sotomayor Confirmation Hearings Scheduled

The United States Senate Judiciary Committee and its chairman Patrick Leahy have announced that Committee hearings on whether the Senate should vote to confirm the nomination of Judge Sonia Sotomayor to the United States Supreme Court will begin on July 13. See, Senate Judiciary Committee and Senator Leahy.

Judge Sotomayor: Senate Questionnaire

The United States Senate Judiciary Committee has released Judge Sonia Sotomayor's responses to the Committee's "Questionnaire For Judicial Nominees." The 172 page questionnaire with Judge Sotomayor's responses can be found at United States Senate Committee on the Judiciary. 

Obama Speeches on Roberts and Alito

With President Obama's nomination of Judge Sonia Sotomayor to the United States Supreme Court and his explanation of what he looks for in a Supreme Court nominee, his 2005 Senate speech opposing the nomination of John Roberts as Chief Justice, and his 2006 Senate speech opposing the nomination of Samuel Alito as an Associate Justice, take on added significance.

Yesterday's Wall Street Journal Op-Ed page printed a long excerpt of the Roberts speech. Then Senator Obama explains that while the background of a Justice will probably make little difference in 95% of the cases which reach the Supreme Court, in 5% of the cases background will matter, and it is those 5% which concern him. While Roberts is qualified to sit on the Supreme Court, Senator Obama states that he will vote against his confirmation because Roberts' background shows that "he has far more often used his formidable skills on behalf of the strong in opposition to the weak." The full speech can be found at http://obamaspeeches.com/031-Confirmation-of-Judge-John-Roberts-Obama-Speech.htm

Similarly, in his 2006 speech explaining why he would vote against confirming Judge Alito, Senator Obama stated: "[W]hen you look at his record - when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans' individual rights." The full text of the speech can be found at http://obamaspeeches.com/046-Confirmation-of-Judge-Samuel-Alito-Jr-Obama-Speech.htm

Judge Sotomayor: Solicitor General Adopts Her Dissent

While conservative critics of Judge Sonia Sotomayor's nomination to the United States Supreme Court have pointed to the number of times her rulings in the United States Court of Appeals for the Second Circuit which reached the Supreme Court have been reversed by the Supreme Court (three times in five cases), it is worth noting that last week the Solicitor General of the United States, in an amicus brief urging the Court to grant a writ of certiorari, argued that her reasoning in a dissenting opinion is the correct view of the law.

The petition before the Court in Abbott v. Abbott raises a question of the correct interpretation of an important clause of the Hague Convention on the Civil Aspects of International Child Abduction. The federal circuit courts of appeals have divided on the question, and Judge Sotomayor dissented from the interpretation of the majority on the Second Circuit. Croll v. Croll, 229 F.3d 133.  

In a case which brings up for review a decision of the Fifth Circuit, the Solicitor General argues that Judge Sotomayor's interpretation in Croll is correct, and that the Supreme Court should grant the writ of certiorari and adopt Judge Sotomayor's reasoning. See, Abbott v. Abbott.   

The Supreme Court: What's Ahead

As we approach the month of June, there are 22 cases remaining for decision by the United States Supreme Court before the Court takes its summer recess.

The cases touch a wide range of interests and concerns, from whether the current Iraqi government has sovereign immunity for the acts of Saddam Hussein, to the continued viability of the Voting Rights Act, to the Right of Confrontation in criminal cases. 

It will be particularly interesting to learn how Justice Souter votes on each case, and to then consider how his proposed successor Judge Sotomayor would have voted had she been sitting on the case instead of Justice Souter. This may provide an early indication of the short term effect, if any, her appointment will have on the Court. 

Judge Sotomayor: Ricci v. DeStefano

A very unusual aspect of President Obama's nomination of Judge Sonia Sotomayor to the United States Supreme Court is that the Court is simultaneously reviewing one of Judge Sotomayor's decisions.

In Ricci v. DeStafano, 530 F.3d 87, Judge Sotomayor was one of the members of the three-judge panel of the United States Court of Appeals for the Second Circuit which, in a brief opinion, upheld New Haven's decision not to certify a fire department promotion examination on the grounds the examination results had a disparate impact on racial minorities. 

The Supreme Court heard oral argument on April 22, and a decision is expected by the end of June. As I noted yesterday, "Whatever the outcome, it will add fuel to Judge Sotomayor's confirmation hearings in the Senate." Today's New York Times ("Sotomayor's Opinions Are Exhaustive But Often Narrow") agrees: DeStafano "will probably attract more questions at her Supreme Court confirmation hearings than any of the many hundreds of much more deeply considered decisions she has written."

Note: The District Court's opinion in DeStefano, which contains a detailed recitation of the facts, is reported at 554 F.Supp.2d 142.   

Supreme Court Reverses N.Y. Court of Appeals

The big news today is, of course, President Obama's nomination of New Yorker Sonia Sotomayor to replace Justice Souter on the United States Supreme Court. The news did not distract the Court from attending to its own business, and it released three opinions today.

First, in Haywood v. Drown the Court reversed the New York Court of Appeals which, as I discussed last week, had upheld the constitutionality of Correction Law § 24 which bars federal 42 U.S.C. § 1983 suits for monetary damages against correction officers in New York trial courts. Under the statute, such suits must be brought against the State in the Court of Claims, which does not have trial by jury and cannot award counsel fees. 

The Court of Appeals had divided 4-3, and I stated we could anticipate a divided Supreme Court, too. The Supreme Court did vote 5-4, with Justice Stevens writing the majority opinion, and Justice Thomas the dissent. Justice Stevens' opinion notes the dissent by Judge Jones in the Court of Appeals, and adopts much of his reasoning.

Justice Stevens' opinion notes that in accordance with § 24, federal § 1983 suits for monetary damages can be brought against all sorts of public officials except correction officers--the state's policy has been to "shield this narrow class of defendants from liability when sued for damages." In accord with its precedents, the Court concluded that under the Constitution's Supremacy Clause New York cannot "shield a particular class of defendants (correction officers) from a particular type of liability (damages) brought by a particular class of plaintiffs (prisoners)." 

The Court also issued two criminal law decisions. In Montejo v. Louisiana the Court overruled Michigan v. Jackson, 475 U.S. 625 (1986), which had barred police interrogation of defendants who requested the appointment of counsel at an arraignment. The Court divided along conservative/liberal lines with Justice Scalia writing the majority opinion, and Justice Stevens writing the dissent. In Abuelhawa v. United States a unanimous Court ruled that one who telephones a drug dealer to purchase cocaine is not, under federal law, "facilitating" a felony sale and guilty of a felony himself. 

Note: Judge Sotomayor was a member of the Second Circuit panel in Ricci v. DeStefano, 530 F.3d 87 (2nd Cir. 2008), which upheld New Haven's invalidation of a civil service fire department promotion test on the grounds the results of the test had a disparate impact on racial minorities. The Supreme Court heard oral argument in the case on April 22, and a decision is expected by the end of June. Whatever the outcome, it will add fuel to Judge Sotomayor's confirmation hearings in the Senate.