It’s Not Enough That Trump Lose, His Supporters Must Lose Too
There must be a lesson from this election. A tough one. To be learned by the establishment first, and by the rest of us second.Read More »
In January, the Supreme Court will hear oral arguments 12 cases: 4 criminal law cases, 5 civil law cases and three in the area of administrative law and regulations. First, lets look at the civil cases, only one of which may have any interest here. That case is Maracich vs. Spears and involves liability for breach of privacy issues in the course of a lawsuit. The specifics of this case involve a lawyer who used driver’s license records to track down potential witnesses in a civil lawsuit. The importance of this case is obvious as it will affect general privacy rights of all Americans. As you may be aware, there are a number of websites that, for a fee, give the subscriber a host of information about other people including criminal record, phone numbers, addresses, lawsuits against, etc. A decision here will likely establish some limits on the use of this information, and most likely, civil liability for misuse of these services.
In Standard Fire Insurance vs. Knowles, the Court is confronted with a complicated case involving class action lawsuits and certification that should truly create numerous yawns from the gallery. In Gabelli v. SEC, the Court will determine at what point the statute of limitations begins to run for a specific violation of securities law. Delia vs. EMA will determine whether a North Carolina statute is preempted by a federal prohibition against the use of liens to enforce judgments against fraud in Medicaid. Finally, in Levin vs. United States, the Court will consider an issue for the first time. Levin was a person who was referred to a Naval hospital for cataract surgery and despite signing two consent forms, he claims that he orally tried to back out prior to that surgery. The lower court found that there were factual errors in his rendition of the events, but in any case, the surgery was performed. Levin then sued the United States Navy for battery despite the fact that under the Torts Claims Act, military medical personnel are immune from lawsuits for “tortious acts.”
In the administrative law area, Koontz vs. St. John’s River Water Management District will address the liability of land use agencies and the permit process. In this case, because Koontz failed to abide by a condition to the permit and, in fact, challenged the condition, the general permit was pulled after Koontz had performed some work under that permit. Gunn vs. Minton is a patent law case of little interest, unless you are a patent lawyer.
But, City of Arlington vs. FCC could potentially be an important case in administrative law. In a previous case- Chevron USA v. NRDC- the Court gave great deference to regulatory agencies regarding the promulgation of rules. Of course, the best course of action and understanding is in the original legislation. But, what if the legislation is silent in an area? This is what this case is all about. Can a regulatory agency, through its own processes, determine that it has jurisdiction in a particular area? More specifically, can someone injured by these regulations, predicated upon the agency’s own determination of its jurisdiction, sue the agency in order to force them to publicly justify their jurisdiction? This case is sort of like a potential regulatory power-grab conundrum that Congress often creates by (1) establishing a broad bureaucracy, (2) granting them great powers and (3) then letting them run amok without any checks. Hopefully, the Court will put the brakes on this state of affairs and at least force Congress to write better laws that specifically spell out the jurisdiction and powers of regulatory agencies rather than letting the “prisoners determine the rules.”
In Descamps vs. United States, the question is whether for purposes of determining sentences under the Armed Career Criminal Act, can federal courts study the record of convictions in state courts in order to determine elements of a crime in order to justify a tougher sentence? In a related case- Alleyne vs. United States- the Court is asked to determine whether juries are required to entertain fact-finding in a separate proceeding in order to increase a sentence beyond the minimum sentence required by law. Again, both cases are rather esoteric criminal law cases.
In Boyer vs. Louisiana, an indigent individual was denied counsel for five years. The purported excuse by the state was that they lacked adequate funding. The issue here is whether this failure to provide a public defender for five years violated the defendant’s right to a speedy trial. There is no disputing the facts that (1) the defendant was indigent at the time and (2) the state lacked the funds to adequately fund the public defender system. The question then becomes whether this fiscal reality is a valid excuse to violate a fundamental constitutional right to a speedy trial. The actual case is complicated and involves not the actual crime for which he was found guilty- armed robbery and murder- but the appeals process.
Finally, there is the potentially important case of Missouri vs. McNeely. McNeely was arrested for driving while intoxicated. The arresting officer then took the defendant to the hospital so they can draw blood to determine his blood alcohol content since McNeely refused both a blood test and a breathalyzer test. Fearing that he would lose evidence, the officer chose this course of action. The Court previously dealt with a similar case involving a drunk driver and obtaining a blood sample absent a warrant, but that decision was specific to that case which involved a car accident and the presence of medical personnel at the scene. That was not the case here.
The Fourth Amendment guarantees against unreasonable search and seizure and is rather specific that a warrant be obtained. The Court has carved out some circumstances, notably the “exigent circumstances” exception. Here, police are permitted to conduct a search if they feel that imminent threat exists to human life and other such cases. There certainly was evidence in this case to allow the officer to reasonably conclude that the driver was intoxicated- his driving behavior, the smell of alcohol on his breath, etc. However, there was clearly enough time had he simply arrested the defendant and then sought a warrant to perform the blood test. His argument was that because alcohol is metabolized out of the body over time, the exigent circumstance rule should apply.
This writer has nothing against taking drunk drivers off the road and they do a good job at it. Unfortunately, there are still idiots who persist in driving while intoxicated. But equally important, we have a Constitution that is rather specific in this area of search and seizure. All too often, we hear the strong law-and-order conservatives rail against the courts for protecting defendant rights and claim that the scales have been tipped to heavily in favor of “the criminal.” First, to be a “criminal,” one must plead guilty to a crime or be found guilty by a jury. The mere act of being pulled over in a traffic stop or even being arrested is not a finding of “guilt,” even though the facts of a case may clearly indicate guilt beyond a doubt. After the infamous Miranda decision came down, conservatives predicted a country running amok with criminals. It never happened. In fact, police have adapted rather well and admirably under the Miranda guidelines. Looking at crime statistics, despite these alleged ties binding the hands of law enforcement, arrests and convictions are still being made with regularity. These constitutional rights, many conveniently forget, protect you and me as well as those accused of a criminal act. If one out of a thousand criminals slips through the cracks in order to maintain the constitutional rights of 300 million Americans, it is a small price to pay. There is no other way to say it.
Later this term, this Court will hear another case out of Maryland. There, as part of expanding a DNA database, those arrested for anything are subject to giving a DNA sample. Although the process is not obtrusive (a swab of cheek cells is obtained), this is incredibly wrong. The person arrested has not been found guilty of anything by virtue of being arrested. Why they should give up cheek cells at a police department office or why anyone should give up any body fluid without a warrant even if there is probable cause and reasonableness shown by the officer clearly violates not only the letter of the Constitution, but also its spirit. Many conservatives often state that the government should just abide by the Constitution. I could not agree more, but that includes all the amendments including the one requiring a warrant for searches and seizures. In this case, expediency- not an exigent circumstance- was the motivating factor by the Missouri State Police. If one drunk driver in Missouri must go free in order to preserve the constitutional rights of all, then that is a small price to pay. Just last term, the Court ruled that the police must obtain a warrant to place a GPS tracking device on a vehicle. If they rule against McNeely in this case, then there is something wrong with a Supreme Court that would grant greater constitutional protection to an automobile than to actual body fluids.