A Busy January for the Supreme Court

    Since the start of the new year the United States Supreme Court has been busy. Through today, the Court has issued five full rulings in January. 

    In Mayo Foundation for Medical Education and Research v. United States, the Court ruled that the wages paid medical residents are subject to Social Security withholding. The opinion can be found here.

    In Ransom v. FIA Card Services, the Court determined when a debtor in bankruptcy can deduct from his disposable income certain automobile expenses. The opinion can be found here.

    In two habeas corpus cases, Harrington v. Richter and Premo v. Moore, the Court reversed determinations by the United States Court of Appeals for the Ninth Circuit granting the writ in favor of state inmates. The cases address when a federal habeas court can determine that a state court ruling is an unreasonable application of federal constitutional law. Harrington can be found here, and Premo can be found here.

    Finally, in National Aeronautics and Space Administration v. Nelson the Court ruled that even assuming there is a constitutional privacy interest in avoiding disclosure of personal matters ("informational privacy"), NASA did not violate that privacy interest with the detailed background questionnaire required of the employees of private government contractors.    

End of the Year: No Top 10 from Me

    At the end of December it is fashionable to select the top events of the past year: the best sporting events of 2010, the best motion pictures, the most important political events, and the like.
    I will, however, avoid the temptation to select the top appellate decisions of 2010. The prospect of making such a selection is unwelcome: each jurisdiction across the United States has its own candidates, as does each area of law. A decision such as Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010), which addresses campaign financing, has an obvious importance to all of us, but less well-known rulings may still be of enormous importance to particular groups in society or to a certain segment of the Bar. 
    In addition, the terms for appellate courts are often not coterminous with the calendar year. For example, the Term of the United States Supreme Court begins in October and generally concludes at the end of June the following year. The sitting of the New York Court of Appeals, the state's highest court, is similar.
    So rather than wade through many appellate rulings, I will simply say that the most important appellate event of 2010 was the appointment of Elena Kagan to the United States Supreme Court. Supreme Court appointments have a very long term effect, and that effect will be even more pronounced because of the ideological divide on the Court. Justice Sonia Sotomayor has been on the Court for about 16 months but already, as a recent New York Times article noted, her presence is felt. That article can be found here.
    It is, of course, far too soon to measure Justice Kagan's impact on the Court and, therefore, the nation. Because I believe it will be significant and long-term, it receives my vote for the top appellate event of 2010.       

A Tie Vote in the Supreme Court

    When Elena Kagan was nominated for the United States Supreme Court some opposed the nomination on the grounds that as a Justice she would be required to recuse herself from all the cases with which she had contact while serving as Solicitor General of the United States. This could lead, it was argued, to 4-4 ties in some of these cases. 
    At the time, and now, I considered such opposition as simply conservatives looking for some ground to oppose a liberal nominee. The other eight justices will not grant the writ of certiorari in most of the cases with which she may have contact as Solicitor General, and within a reasonable period of time there will simply be fewer and fewer cases reaching the Court with which she had any contact during her tenure as Solicitor General.
    When there is a tie vote in the Supreme Court the Court simply announces that the Court is evenly divided and affirms the lower court decision which is under review. The decision has no precedential value; the affirmance is issued to afford finality for the litigants in that particular case. 
    Yesterday in Costco Wholesale Corp. v. Omega, S.A., a copyright case, Justice Kagan did recuse herself and an evenly divided Court affirmed the decision of the United States Court of Appeals for the Ninth Circuit. As is usual in such cases the brief Per Curiam opinion does not identify which Justices were on which side of the 4-4 tie. The copyright and patent bar will undoubtedly be rife with speculation over how each Justice voted. The opinion can be found here. 
    While Justice Kagan has recused herself from other cases the Court has already heard this Term, the possibility of a rare tie vote is hardly grounds to deny a nominee a seat on the high court.


The New York Court of Appeals: the Court of Appeals released opinions in six cases today, all criminal cases. The cases address either the constitutionality of New York's procedure for determining whether a defendant is a persistent felony offender, or whether in a particular instance multiple sentences must run concurrently with each other or consecutively to each other. Taken together the six cases contain an almost dizzying lineup of judges on different sides of the issue. The cases can be found here.

The Law and Technology

    It is always fascinating to watch the law play catch-up with technological change.
   Under New York's Statute of Frauds a contract for the conveyance of real property is not enforceable unless it is in writing. General Obligations Law § 5-703. There is an extensive body of case law on what constitutes a "writing" which satisfies the Statute of Frauds.
    Last week the Appellate Division, First Department, addressed the question of whether an e-mail can constitute a writing which meets the requirements of the General Obligations Law. Justice David Friedman's careful analysis concludes that it can. I recommend the opinion as a good example of how courts seek to fit new technologies into existing law. The ruling, Naldi v. Grunberg, can be found here .  

Coming Up in the Supreme Court: Protests at Military Funerals

     The United States Supreme Court will hear oral arguments next week in eight cases which will address matters of bankruptcy, cross-examination at a criminal trial, federal sentencing, and the liability of prosecutors for failure to disclose exculpatory evidence to a defendant.
     The most interesting case for me will be Snyder v. Phelps which addresses protests at military funerals. 
     After Marine Lance Corporal Matthew A. Snyder was killed in Iraq his family arranged for a private Christian burial at a Catholic Church in Maryland.
     Reverend Fred W. Phelps, a pastor of a Baptist Church in Kansas, who has protested at other military funerals, decided to protest at the Snyder funeral. Phelps espouses the view that God hates America because it tolerates homosexuality, particularly in the armed services. 
     The day of the funeral Phelps, two of his daughters, and four of his grandchildren carried signs at a distance from the funeral with messages such as "Pope in Hell," "God Hates the USA," and "Thank God for dead soldiers." After the funeral, on his website, Phelps accused the Snyder family of teaching their son irreligious beliefs. 
     The soldier's father sued Phelps and his daughters for intentional infliction of emotional distress, intrusion into their private event, and conspiracy. A jury awarded him $5 million, but the United States Court of Appeals for the Fourth Circuit reversed the judgment, concluding that funeral protest speech is protected by the First Amendment. 
     The case raises fascinating issues such as a conflict between the First Amendment's freedom of speech and freedom of religion; whether the protection the Supreme Court has accorded speech directed at "public figures" should apply when, as here, the speech is directed at private individuals at a private funeral; and whether those attending a private funeral are a "captive audience" who should be accorded some protection against unwelcome speech by uninvited individuals.
     The case will be argued on Wednesday, October 6.      

The Summer Is Over

According to the calendar summer was over a week ago, but for me the summer came to an end yesterday when the United States Supreme Court announced that it had granted writs of certiorari in fourteen cases.

The summer is different for appellate lawyers and appellate court watchers. The Supreme Court takes a three month recess at the end of June, the New York Court of Appeals does not hear oral arguments in July and August, and in New York City the Appellate Divisions for the First and Second Departments also do not sit for oral arguments. 

Summer does begin to fade early in September when the Court of Appeals and the Appellate Divisions resume oral arguments, but for me the summer is over when the Supreme Court is back in session. The Court traditionally reconvenes the first Monday in October, but yesterday it jump started the new Term by issuing decisions on the many petitions awaiting its attention. 

On Monday, October 4, the Court will hear oral arguments in three cases, followed by three cases on Tuesday, and two on Wednesday. The summer is now officially over.

Update on Kagan Nomination

The hearings of the Senate Committee on the Judiciary into the nomination of Solicitor General Elena Kagan to the United States Supreme Court concluded on July 1. There is a consensus that nothing said at the hearings will derail her nomination.

The Senate committee is in recess this week. It will meet again on July 13. First on the agenda is the Kagan nomination. It is expected that the nomination will be voted out of committee and head for a vote by the full Senate.

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.

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.

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.

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.

Justice Scalia: "Happy" Kagan Is Not a Judge

One of the criticisms of President Obama's nomination of Solicitor General Elena Kagan to the United States Supreme Court, particularly from conservative quarters, focuses on the nominee's lack of judicial experience.

I previously noted that I think the absence of judicial experience is not a drawback (May 11). ABC News reports that in a speech in Washington, Justice Antonin Scalia, a conservative hero, stated that he is "happy" that Kagan is not a judge. The ABC report can be found here.

Post-Judgment Interest in Diversity Actions

Under New York law interest on judgments secured in state court runs at the rate of 9% per annum. CPLR § 5004. But what is the rate of interest when a judgment is secured in a diversity action in a federal court located in New York? Ordinarily, interest on a federal judgment is based on the yield on a Treasury note, 28 U.S.C. § 1961(a), a rate which these days is considerably lower than 9%.

In FCS Advisors, Inc. v. Fair Finance Co., Inc., the plaintiff brought a diversity suit in the United States District Court for the Southern District of New York and was awarded summary judgment for $1.5 million. The District Judge awarded prejudgment interest at the New York rate of 9%. He also awarded post-judgment interest at the New York rate of 9%, and not at the lower federal rate, because the parties' contract had a choice-of-law provision that the contract would be governed by New York law.

The United States Court of Appeals for the Second Circuit reversed the award of post-judgment interest at the New York rate, and directed that the federal interest rate applies. The Circuit made several points.

First, in diversity actions state law governs the award of prejudgment interest.

Second, in diversity actions the federal rate applies to post-judgment interest.

Third, parties by contract can agree in "clear, unambiguous and unequivocal language" that a different rate of post-judgment interest will apply to federal judgments.

Fourth, the standard choice-of-law provision of a contract will not alter the federal rate of post-judgment interest because it does not contain "clear, unambiguous and unequivocal language" expressing an intent that a rate other than the federal rate will apply post-judgment. The parties must be more precise. The decision can be found here.

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.

"Meet the Justices": Appellate Division, Second Department

Yesterday afternoon I was a member of a three-lawyer panel which quizzed eight Justices of the Appellate Division, Second Department, on appellate practice as part of the "Meet the Justices" program sponsored by the Committee on Courts of Appellate Jurisdiction of the New York State Bar Association. About 130 attorneys attended the two hour program which was held in the Second Department's courtroom in Brooklyn.

The questions covered a wide range of topics from brief writing and oral argument, to the internal operations of the Court. Depending on the year in question, the Second Department is either the busiest appellate court in the United States, or among the three busiest (the other two are in California and Texas). Of particular interest to me were the following points made by the judges.

First, all of the Justices present agreed with Presiding Justice A. Gail Prudenti that oral argument is important (a topic I have commented on before). A number of the Justices stated that while half of the cases are relatively easy to resolve, the other half are "close," and in these close cases oral argument is important in resolving the matter. There was agreement among the judges that no appellant should forego oral argument, and agreement that when an attorney does not appear for oral argument this sends a message to the Court that the attorney thinks little of his client's case.

The Justices also emphasized the importance of counsel's knowledge of the record at oral argument ("We should not know the record better than you do"). From personal observation I can confirm that the Justices on the Second Department come onto the bench with a thorough understanding of the record.

Second, with respect to brief writing, all of the Justices criticized the use of footnotes as a distraction ("If it is important enough to put it in the brief, it is important enough to put it in the body of the brief"). Because most cases are fact driven, a detailed statement of the facts is important, but they criticized the extended discussion of facts not relevant to the legal issues raised in the brief. They emphasized that an appellate brief is not a law review article, and that "string citations"--citing many cases for the same legal proposition--have no place in a brief. They all thought a brief should contain a preliminary statement setting out the "nub" of a party's contentions.

Third, and most interesting to me, was the acknowledgment that prior to oral argument Justices may discuss among themselves a case (or more) on the forthcoming calendar. I had seen an interview with Justice John Paul Stevens in which he stated that the Justices of the United States Supreme Court do not discuss cases prior to oral argument, and that the first sense he has of his colleagues' views comes at oral argument. That is not the practice in the Second Department.

Fourth, Presiding Justice Prudenti indicated that there is a greater willingness now than in the past for the Court to grant leave to appeal to the New York Court of Appeals in a civil case. The perception among members of the Bar is that the Appellate Divisions prefer to let the Court of Appeals determine its own calendar rather than have an Appellate Division send the high court a case. Justice Prudenti's remarks suggest that her Court may now be more open to a leave application.