 The Federal Judicial Center presents Supreme Court 1997-98 The Term in Review, an FJTN program for judges, staff attorneys and law clerks. Now from the television studios of the Federal Judicial Center in Washington, D.C., your moderator, Russell Wheeler. Hello, and welcome to this third and final part of the Federal Judicial Center's review of the Supreme Court's just completed term. We're dealing, all told, with 52 cases from the over 90 decided this term. Cases we think will most affect the litigation in your courts. Your written materials have summaries of the cases we'll discuss, in the order we'll discuss them, and brief biographies of the law professors who will be describing and commenting on the cases. This third part of our review will last about 30 minutes. Petitions by prisoners, including those seeking habeas review, are a substantial part of federal court dockets. Let's turn to seven cases the court decided involving habeas procedure or substance. Like last term, several aspects of the habeas reform act were before the court. Joining us are Susan Herman of Brooklyn Law School, and Evan Sunlee of the University of California, Hastings College of the Law. Evan. In this term's habeas case, as we see the act, as I mentioned, we also see procedural default issues. Some cases we see both. Some people think the court made it a little easier for habeas petitioners to get into federal court under the act, and they point to this case of Stuart V. Martínez-Viel-Rial. Here you have an opinion by the Chief Justice and dissents by Justices Thomas and Scalia. Justices Scalia, really, quite a forceful dissent. Yes. I think it's probably true that this case does make it a little bit easier to get into federal court on habeas corpus. This case holds that a habeas claim is not a second or successive application within the meaning of the habeas reform act if it was previously dismissed without prejudice. As you know, the new habeas statute places pretty severe restrictions on when a federal habeas court can entertain a second or successive habeas corpus application. The death row inmate in this case had presented a number of claims to the federal district court, including a claim that he was incompetent to be executed. At that time, the district court refused to dismiss the claim because it was premature. So the inmate went back, and after further state habeas corpus proceedings returned to federal district court, at which time he presented the incompetency claim, and this time the federal district court said, well, now it's a second or successive application within the meaning of the act, and therefore it can't be heard. The Supreme Court disagreed and analogized the second or successive application provision of this habeas reform act to what it referred to as a modified race judicata rule. When applying principles of preclusion law, it was able to say, well, since this was not an adjudication on the merits, it is not a second or successive application within the meaning of the act. Well, you, Stuart, was really almost caught in a very strange kind of catch 22, or you might say a catch 2254, if he had been too early and then too late to raise the claim, but the holding really goes beyond the unusual facts of Stuart's claim, doesn't it? Oh, yes, because if you think about it, and the court actually brought this up in the opinion, is every time a court dismisses for failure to exhaust, this case is going to apply. It's not a second or successive application. That's a dismissal without prejudice, right? That's right. Thanks, Evan. And Susan, I mentioned procedural default issues as well. We had this case of trust v. Cain in which the Court of Appeals, Sue Esponte, took on the procedural question. What did the court say there? Well, they said, very limited holding. They said that the courts are not required to Sue Esponte raise procedural default, not answering the more difficult and interesting question, a longstanding question of what kind of defense procedural default really is. Is it an affirmative defense that's waived if not raised by the state? What happened in this case? Trust petition was dismissed in the district court, and then the Fifth Circuit ruled against him on procedural default, even though the state of Louisiana had not raised that defense, either in the Court of Appeals or in the court below. Now, the Supreme Court thought that there was some suggestion in the Fifth Circuit opinion that they thought they were required to do that, and therefore didn't get to the question of, is it permissible? A question which you can note would apply not only to appellate judges, but also to district judges and magistrate judges considering habeas petitions. Is there anything in the, this rather cryptic line of justice briars opinion where he seems to chide the Court of Appeals a bit for not letting the parties argue the case, and then he says, refers to that somewhat longer and often fairer way round, which is the shortest way home. Is that a, we know it's coming from that at all? Well, I think one thing that comes from that that also appears in another case, this term, home versus United States, where the Supreme Court essentially lets the Courts of Appeals know that it's watching. Home was a case, a petitioner who raised a claim under Bailey, which seems to keep coming up, claiming that his sentence for using a firearm should be vacated once the law had changed. He lost below, and then the government claimed that he shouldn't be able to get a certificate of appealability, as is required under the Reform Act, because he hadn't shown yet a substantial constitutional claim. So the Court of Appeals denied the certificate. The government then changed its position and conceded that he did have a substantial constitutional claim, and the question was whether the Supreme Court had certiorari jurisdiction to review the Court of Appeals denial of the certificate, and the Court, in a really, you know, narrowly split decision five to four overruling an old case, held that they did have jurisdiction. So they'll be watching. As part of the softening of the Act, perhaps, that we've been talking about. I think, yeah, a little bit. Evan, could you very quickly, just in a sentence or two, tell us whether this case of Calderon v. Ashmus, it came from California and involved Chapter 154? That's right. And all the Court did here was to refuse to decide whether California qualified for the fast-track procedure under the, for capital cases under the Habeas Reform Act. This just wasn't a proper case for him. Okay. We can spend a little more time on Spencer v. Chemna. That's the next case in our list. And this case further restricts who can raise Habeas Corpus claims in federal court. It also further explicates the relationship between Habeas Corpus and Section 1983. What the Court held in this case was that a Habeas petitioner who has served his entire sentence, his entire prison term, generally cannot challenge a prior parole revocation on federal Habeas Corpus because it's moot. Now in this case, the former inmate argued that, well, it's not really moot in my case because I continue to suffer actual negative consequences from my parole having been revoked. But the Supreme Court didn't buy that argument. It said it was too speculative as to whether he would suffer future parole revocations on the basis of this parole revocation because after all there's only one factor to be taken into account by the parole board. And also said it was too speculative as to whether he would have to stand trial in the future and suffer the use of the parole revocation as impeachment evidence. Another consequence that Spencer was trying to argue was that he wouldn't be able to bring a 1983 action as he was mentioning because he wouldn't be able to satisfy the favorable termination rule of HEC versus Humphrey. And another very notable part of the Spencer holding is that there are now five justices in the concurring and dissenting opinions who now agree with Justice Souter's position in HEC versus Humphrey that that termination rule shouldn't apply to people who aren't in custody. Well, watch that one. Thanks, Evan. And Susan, just in a word, the case of Hopkins v. Rees from Nebraska. From Nebraska. This case was about the rule from Beck versus Alabama where the court said that a jury in a capital case should be permitted to consider lesser included offenses, which are consistent with some view of the evidence. Reeves wanted the jury charged a lesser offense that was a non-capital offense. But the court looked at the Nebraska statutory scheme and found that, in fact, what he was asking for in the instructions was not technically a lesser included offense and that therefore the rule of Beck didn't apply. And the Nebraska law. Because of the Nebraska law. Thanks. Evan, when we were in part one, we said we'd be getting to the Bowsley case. Right. And we're there now. We'll spend a little time on that because this is probably going to have a lot of impact, day-to-day impact on federal courts. Came down the same day as Stuart, May 18th. Same lineup. The Chief Justice wrote the opinion, and again, Justice Scalia and Justice Thomas dissented. What can we anticipate coming from this case? Well, this case is the first time that the Supreme Court has extended the actual innocence exception to the procedural default rule to a guilty plea situation. And Justice Scalia in his dissent sounded a strong warning that this might open the floodgates because the Supreme Court, because this may come up every time the Supreme Court narrowly construes a federal criminal statute. What the court specifically held in this case was that people who pleaded guilty to using a firearm, but who did not actively employ a firearm and pleaded guilty prior to Bailey v. United States in 1995, that these people can attack their guilty pleas as involuntary even if they procedurally defaulted those claims during direct appeals. But so this is a situation that's not covered by Teague v. Lane? No, and in fact, that was argued before the Supreme Court, and the court said that Teague does not apply because Bailey v. United States did not create a new rule of criminal procedure. It was a narrowing construction of a substantive federal criminal statute. So the bottom line is that if a petitioner can demonstrate actual innocence to the firearm charge, he can attack the guilty plea. But establishing actual innocence is enough of a problem, but there's also some dicta by Chief Justice Rehnquist where he says that it's possible that the defendant might have to prove not only that he's innocent of the particular charge, but also of charges that the government has foregone as part of the plea bargain. I think what's important there is that it's dicta. I don't think it is clear from the totality of the opinion that really a petitioner has to prove his actual innocence of charges that might have been brought, but were in fact not brought. And in fact, kind of playing off of Muscarello, the government here wanted to go back and charge Kerry and the Supreme Court said, but that's not the indictment you can't charge. That's true. But the court does make it clear that the government can adduce any evidence of guilt whether or not it was brought up in the plea colloquy, whether or not it would have been brought up in a pre-Bailey trial. Good enough. Thanks, Evan. Thanks, Susan. We'll watch how those things develop in the Courts of Appeals and the District Courts. And in a moment, we'll take up the court's decisions that fall generally within the area of civil and commercial litigation. Standing, jurisdiction, Daubert questions. Federal judges face these issues regularly, at least where criminal cases haven't crowded them out. Bankruptcy cases, too, are an important element of federal court work. To conclude this review of the 1997 term, we'll look at 14 cases starting with the trilogy interpreting the removal statute. Joining us again are Erwin Chemerinsky of the University of Southern California, John Garvey of Notre Dame, and Susanna Sherry of the University of Minnesota. Susanna, I referred to this removal trilogy. Let's talk about those three cases. Rivet v. Regions Bank is the first of them. Yes, and I think Rivet is the most important of them. In Rivet, the court cut back on federal, lower court federal jurisdiction. Federal courts had been taking jurisdiction in what are called reverse removal cases, where a federal court had issued a ruling, and then the losing party filed again in state court, but only raising state questions, but the federal court would be race judicata. The federal court ruling would have preclusive effect. And instead of enjoining the state suit under the re-litigation exception to the Anti-Injunction Act, sometimes lower federal courts would instead allow the case to be removed to federal court, even though it apparently raised no federal question, and then they would dismiss the case. And in Rivet, the Supreme Court cut that off. They said, no, you cannot take jurisdiction unless there is a federal question in the well-pleaded complaint. And since preclusion is an affirmative defense, it's not part of the well-pleaded complaint, and there is no jurisdiction. Susanna, what are district judges going to do in these cases? Is enjoining their only option now? Well, some lower courts have been using the All Rits Act to allow removal. And in fact, the Eighth Circuit recently reaffirmed a case that it had decided before Rivet using the All Rits Act. The case was remanded after Rivet and the Eighth Circuit reaffirmed its decision. And several other circuits have done it as well. And eventually the Supreme Court, I think, is going to have to decide that issue. Okay, so that issue can come back at some point. We want to talk briefly about Wisconsin Department of Corrections v. Shack. Now, this was an easier case, I think. Yes, I think this was much easier. The question in Shack is a case that the lower courts have been using for some time. What happens if a case removed from state to federal court has some claims that are barred by the Eleventh Amendment sovereign immunity doctrine? Does the federal court still have jurisdiction over the remaining claims? And in Shack, the court said, yes, it does. It was a very straightforward, common-sense interpretation of the removal statute. Though I think there's an interesting question of whether a state's removal of a case from state to federal court is a wave of its Eleventh Amendment immunity. Do you think the majority raised this in a concurrence? Ultimately, I think whether or not its waiver is determined by state law, but the Supreme Court's yet to clarify that. So we can watch for that, also. Definitely. I said we had a trilogy. The third case is Chicago v. College of Surgeons. And this wasn't a medical dispute. College of Surgeons had a building. They wanted to tear down the Chicago Landmark Commission. Wouldn't let them do it for historic preservation reasons. Justice Ginsburg said in the dissent that this case was going to open the floodgates of removal cases into federal courts. Should district courts be worried about that? I don't think so. I think Justice Ginsburg was worrying unnecessarily. This was really a fairly routine case. The only question was whether you can remove from state court to federal court a state suit that just happens to be a review of a state administrative decision. There were straightforward constitutional questions on the face of the complaint so it met all the requirements for federal jurisdiction and for removal. The only question was whether you can remove from state court a state suit that were reviewing administrative state administrative decisions and the Supreme Court majority said no, there doesn't need to be an exception. And presumably not a flood of litigation coming in, we can assume. I don't think so because these cases have pretty routinely been before the federal courts. Okay. Thanks, Suzanna. Irwin. The judicial panel on multi-district litigation. That's not a household word, but every judge knows about the panel because as more litigation goes national, the panel recognizes judges for pre-trial, but transfer judges have been keeping these cases. The Supreme Court had to decide in lexicon whether the statute allowed her to do that. There was exactly the issue in lexicon versus Milberg. The question there was, when a case is transferred by the multi-district panel, can the receiving court conduct the trial what is only of jurisdiction for the pre-trial proceedings? And the Supreme Court said it only has authority for the pre-trial proceedings. This is a case that arose out of the securities and loan problems of the 1980s. The case was filed in Illinois. It was transferred by the multi-district panel from the northern district of Illinois to a federal district court in Arizona. After the pre-trial proceedings were completed, the Arizona court over the plaintiff's objection said it was going to keep the case for trial. The Supreme Court looked at the literal language of section 1407a said the federal district court that receives the case only can handle the pre-trial proceedings, not the trial proceedings. This happens fairly often, too. I was very surprised at how often there were statistics in the case that indicated that over 200 times a year, the receiving case court keeps the case for the trial proceedings. Irwin, if this happens so often and if now the Supreme Court has told the district courts they can't do this, do you think this might be something Congress would be interested in fixing? In fact, there's already legislation that's gone through the House of Representatives that would give the authority for the receiving court to keep the case for trial proceedings. We'll keep an eye on that, obviously. Thanks, Susanna. Thanks, Irwin. And, John, Susanna made the point earlier that we seem to see the court this term, her phrase, reigning in the lower courts in certain areas. We have this case of steel company versus citizen for a better environment, which that appeared to happen again. This involves when courts have to take up and decide the jurisdictional issue before they get to the substantive issue. This was a case sort of like Rivet, the case that Susanna was discussing a minute ago where lower courts had been finding jurisdiction in Rivet. It was race-judicata removal jurisdiction. In this case, it was an issue of what we call hypothetical jurisdiction. The lower courts had been finding it, and the Supreme Court said you can't do it anymore. It was a suit under an environmental statute, the emergency planning and community right to no act. And the claim on the merits the issue was whether the act provided a cause of action for purely historical violations. This was a failure to file some environmental forms that citizens was complaining about. The closely related standing question was whether a plaintiff like citizens had a right to sue when the violation was already over and they couldn't get any fees, the fines were paid to the federal government. So the question, the jurisdictional or a standing question was could they, what were they suing about. Now, Justice Stevens, who decided was willing to go ahead and answer the question on the merits, which he viewed as an easier question than the jurisdictional question. So there's some efficiency in doing things that way, but the Supreme Court said that that was a violation of Article 3, that you have to decide these cases, these questions in the right order. You got to do jurisdiction first because hypothetical jurisdiction produces hypothetical judgments and that's a violation of Article 3. You mentioned the efficiency argument. Justice Breyer concurred only in part and resided the rather dreary statistics about appellate court caseload and said it just doesn't make any sense in some cases not to let them go ahead and spend their time deciding the issue, avoid the jurisdictional issue, it's obvious how it's going to come out anyway. And tell me this, Justice O'Connor seemed to indicate that the few exceptions to this rule that Justice Scalia mentioned in the opinion actually were there to be exploited and there might be other exceptions. Is there much there? I'm not sure what Justice O'Connor had in mind. The possibilities that she was pointing to weren't things that are going to happen all the time. There was a case called Norton against Matthews and another one called Secretary against Avrak where the court in fact passed over the jurisdictional question but in each of those cases there was a companion case where the merits was decided so there was really literally no point in going ahead and deciding the jurisdictional thing. But I don't think that something's going to happen all the time. So Susanna's reigning in probably was reigning in. Yeah, right. Thanks, John. Irwin, the media gave a fair amount of attention to the case of National Credit Union Association versus First National Bank because obviously it has implications for the credit industry and the banking industry. There were some jurisdictional questions though and we might spend our time on those. Specifically what the Supreme Court had to consider was standing and in particular the zone of interest prong of the standing doctrine. In that sense I think it was an unremarkable reaffirmation and application of the zone of interest test. Specifically what was involved here was that bankers and bankers associations brought a suit against the National Credit Union for its decision to allow credit unions to cover employees of small businesses even though the business had no affiliation with the credit union. The question was that bankers and bankers associations have standing under the Administrative Procedures Act and the Supreme Court said bankers and bankers association were within the zone of interest that the statute was intended to protect and thus they had standing. That's why I say it was a reaffirmation and application that the zone of interest test is a prudential standing requirement. Erwin I think this case and the case last term Bennett V. Speer on standing are very interesting because they seem to be reversing the recent trend toward cutting back on standing. In both this case and in Bennett the court applied the zone of interest test to find standing and not only to find standing but to find it for plaintiffs we might not ordinarily have thought the statutes were designed to benefit. In this case it was the competitors of the credit unions and in Bennett V. Speer it was people who were opposing environmental regulations. That's a good point. And more of that may happen. We'll watch it. Thanks very much. John while we're on jurisdictional matters say a word about the text run case. This involves a jurisdictional provision in the labor management relations area. Right. The labor management relations act as you know has a provision that says that gives the federal courts jurisdiction in section 301 over suits for violation of contracts between an employer and a labor union. And in this case the United Auto Workers sued not because anybody had breached the collective bargaining agreement but because they said they'd been induced by fraud to enter into the agreement and they wanted to declare it voidable and the Supreme Court said that's not what we mean by suits for violation. It's got to be you can't undo the agreement. That's what the statute says. I also said at the very start of this program we're going to talk about the line item veto case Clinton v. New York but we should just make a brief mention of the jurisdictional issue there especially because the court threw it out on the state. There is an interesting procedural point that's related to the observation that Suzanne and Erwin were making about expanding jurisdiction or expanding standing in a few of the cases this term. Last term you remember in Reigns Against Bird they threw out a challenge to the line item veto. This year they found plaintiffs that they were satisfied with that had standing but oddly enough they were plaintiffs who in the past might not have been given standing. They were plaintiffs who were making a complaint about some third party's tax liability. There was a farmer's co-op that wanted to acquire a food processing group and their claim was that the line item veto had canceled had imposed capital gains taxes on their seller and so the purchase was going to be more expensive than they had intended so that's they were complaining about the taxes that someone else was going to have to pay and the court said they could go ahead. So that's how they got in. These are all separation of these issues we've been discussing. We're going to turn to the federalism case not a really big case but it's the full faith and credit clause of Baker v. General Motors, Michigan State Court case and the federal diversity case. It's a case that received a lot of media attention but it's a factual situation that's unlikely to come up very often. Specifically the issue is the state trial court issues in order that precludes somebody from being a witness against a particular defendant does the federal court have to give full faith and credit to that order. What was involved here was a Michigan trial court. It's part of a settlement issued in order that a former General Motors employee could not testify against General Motors in the future. Turns out there was a federal district court case in Missouri, person to diversity jurisdiction where this individual was going to come testify against General Motors. The issue is should the federal court give full faith and credit to the state trial court ruling? In the United States Supreme Court reversed the court of appeals and the United States Supreme Court said full faith and credit doesn't apply here. The enforcement of the Michigan trial court should be in Michigan court. So the individual could testify in federal court that he's likely to face another court date in Michigan state court when it goes about enforcing its order. We may not see that case cited an awful lot, but one case we have seen a lot of is this case, the 1993 case of Dow versus Merrill Dow, and the court revisited that issue or part of it in the case of GE versus Joyner this term. I think GE versus Joyner is one of the more important cases of the term. The issue is when a federal court of appeals is reviewing a district court decision with regard to the admissibility of scientific evidence, what's the standard of review? The Supreme Court said it's an abusive discretion standard of review. What was involved here was an individual who got small cell lung cancer and he sued his employer saying exposure to PCBs on the job caused him to get the lung cancer. I wanted to introduce expert testimony that the trial court judge precluded. The district court said there's two graded variants between the testimony and the data for it to be admissible. The United States Court of Appeals reversed and said under Daubert it should have been admitted. The United States Supreme Court reversed the Court of Appeals. The Supreme Court said that it's an abuse of discretion standard. Only if the trial court decision is unreasonable or unsupported by any view of the record should it be reversed. It's great discretion granted to the trial courts in this area. Which plays right into the phrase in Daubert, the gatekeeping function of the district court. There was allusion to that, John, also in a case from the Military Appeals Court involving polygraphs. Spend less time on that than the references to the Daubert question in that case. Right. This is consistent with the gatekeeping function of the district courts, I think, in a funny way. The Military Rules of Evidence say that you can't use polygraph evidence. And this case involved an airman who was charged with having methamphetamines after they were found in a urine test, and he wanted to introduce... Sheffer, I'm sorry. He wanted to introduce favorable polygraph evidence on his own behalf, and the Military Rules kept it out. So his claim was that this was unconstitutional, that it violated his sixth amendment, right, to put on a fair trial. And the Court said that that wasn't so. That at least the admission of polygraph evidence wasn't compelled by the Constitution. So the admission of polygraph evidence is not a constitutional right. You have no constitutional right to admit this, but is it admissible if both parties want to? In a sense, Sheffer wanted to take a step too far because I think that there are some pretty clear indications in the opinion, although it doesn't hold this, that it's in the discretion of the district courts. There's an opinion by Justice Kennedy in which there were four members of the Court voting for that, an opinion by Justice Stevens dissenting, all of which can point to the discretionary authority of the district courts to allow this in. Finally, John, you recall we talked in the first part of the program about Bragg and the Abbott, and that part of the, we reserve that part of the opinion that dealt with how courts assess the objective reasonableness of health care providers' decisions that to treat someone with a disability may threaten the health and safety of others. Did you pick up on that discussion? Right. You remember me saying questions in the Braggdon case, one of them was whether asymptomatic HIV was a disability, and the other one was whether it was one of those infections that posed a direct threat to health and safety, and so there was an exemption or an exception from the ADA. And on that second question, the Court said whether it poses that kind of threat is a question of objective reasonableness. The Court didn't decide whether, in fact, the dentist's action in Braggdon was objectively reasonable, but the interesting evidentiary point about it was that they sent it back to the Court of Appeals for a review of that question and suggested that the Court of Appeals should give special weight to the evidence offered by public health authorities like the National Institute of Health, the Center for Disease Control, the Public Health Service, and groups like that. A majority of the courts seemed to think that it was appropriate. There were four dissents on that point, and the dissenters said, look, what kind of weight this scientific evidence ought to get should depend on how good the science is, not whether these people are hired by the public or not. In fact, Chief Justice Rink was made a reference to politically appointed heads of these agencies. We'll see. Thanks, John. We'll see additional developments in this whole Dobber area. I should mention, first, the Court granted certain a case involving the testimony of a tire safety expert. In the last term, the District Court excluded the testimony because it satisfied none of Dobber's criteria. The Court of Appeals reversed holding that the testimony, the tire safety expert testimony, wasn't scientific and thus not subject to Dobber. That case is Kumbotire Company versus Carmichael. Second, the Judicial Conference's Advisory Committee on Evidence Rules has approved for public comment and amendment to Rule 702, which would extend Dobber's gatekeeping function to all expert testimony. Finally, Congress is considering two proposals that would essentially codify Dobber. The Evidence Advisory Committee believes that its proposed rule change would accomplish the same goal without some serious problems that it sees in the legislation. Let me add that next year, the Senate will publish the second edition of its scientific evidence reference manual and includes a forward by Justice Breyer. It's important to know two straightforward unanimous opinions that resolve conflicts and discharge. Cohen v. Adela Cruz involved 523A2A, which accepts from discharge any debt for money to the extent obtained by fraud. Does that exception reach treble damages? Yes. Justice O'Connor had little trouble concluding that the provision reached treble damages of 90,000 awarded under a state fraud statute and not just the 30,000 that a landlord owed in overcharged rent. If Congress would have covered the recovery, it would have said so. The other case, Cahu gained a malpractice judgment against Geiger, a physician for inadequate treatment that eventually required her leg's amputation. Geiger who didn't have any malpractice insurance filed for bankruptcy and sought to have the malpractice term parsed the statutory language held that willful modifies injury and thus that debt was dischargeable because Dr. Geiger did not intend the injury that his malpractice caused. She pointed out that to read section A6 otherwise would render superfluous the drunk driving exception in section 523. That concludes our third and final program on the subject. Thank you helpful and we hope that you will complete the evaluation forms to tell us how we might improve future programs. Many thanks to the faculty for their summary and analysis and thanks to you for joining us. Good day.