First Week of March

Interesting cases next week involving efforts to combat gerrymandering, hearsay in a child abuse case, privacy of hotel guest registries, race discrimination in jury selection, and, again, the Affordable Care Act.

Monday, March 2

A really interesting case—a situation and legal question never before addressed—involving efforts to combat gerrymandering is up first today.  Frustrated with political gamesmanship and claims of racial discrimination in the process of drawing Congressional districts, voters in Arizona amended the state constitution to empower an independent body to draw the districts. From a pool of 25 people selected by a judicial appointment body, the majority and minority leaders of both houses of the legislature each select one person, then the four of them select the fifth and final member, who cannot be registered with either major party and will serve as chair.   Feeling left out, the legislature brought Arizona State Legislature v. Arizona Independent Redistricting Commission.
.    Interestingly, Congressional districts are never mentioned in the U.S. Constitution, but it does state that “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.”  (Art. I § 4.)  Arizona’s legislature seized upon this to challenge the AIRC.  Certainly, most people would not call the AIRC “the legislature,” but arguably the phrase refers to any body that makes statutory laws, and a state constitution can vest the legislative power in one body, in a bicameral system, or broken up among multiple bodies with specially defined legislative functions.  In addition to the question of whether the Constitution permits the people of Arizona to prescribe this system, the Court must decide whether the legislature has standing to bring this case.

The second case involves hearsay and the confrontation clause (related but distinct concepts) in the context of a child abuse case.  The trial court in Ohio v. Clark permitted testimony from a school teacher that when she asked a male student about marks on his face, he identified the defendant.  The three-year-old was found to be too immature to be competent to testify, so the jury could not hear from him directly and the defense could not explore what he meant or whether there were other reasons he might have said this.
  The Constitution provides that defendants have a right to confront “the witnesses against him,” and it should not be easy to render cross-examination ineffective by just keeping the “real” witness off the stand in favor or someone who would just repeat their claims, but nevertheless the Court has historically made some provision for hearsay in instances that don’t raise such concerns (most dramatically, a murder victim’s identification of his killer immediately before dying).  Hearsay is an out-of-court statement “offered for its truth” (i.e., a fact that is relevant to guilt or innocence) and the most recent Supreme Court cases on the confrontation clause require excluding hearsay that is “testimonial.”  Exactly what “testimonial” means is the issue in this case, but presumably it has something to do with whether the statement is primarily designed to be used in a trial.  So was the statement to the teacher part of building a case against the defendant, or was it just a conversation about the child’s well-being?  And from whose perspective?

Tuesday, March 3

Two 4th Amendment rights issues are on deck in Los Angeles v Patel.  The Court has generally held that overnight guests in a hotel have an expectation of privacy and a warrant is required, although a variety of 4th Amendment issues are more complicated in the hotel setting (if someone overstays, registered under a false name, etc.) and at issue here is a city ordinance (one of about 70 similar laws in the country) that allows the police to inspect hotel guest registries without a warrant or permission from the hotel owner or guests.
.    Beyond the question of whether that requires a warrant, this case was brought by people not facing a prosecution but still concerned with privacy of their hotel records, which raises a question of whether there is standing to bring a “facial challenge” to this sort of city ordinance.  The usual way to remedy a 4th Amendment violation is to suppress the evidence that was unconstitutionally obtained, but this has been widely criticized from two perspectives:  suppression of evidence protects only people who are being charged with a crime, and correspondingly, innocent people who were wrongfully searched have nothing to suppress and thus no remedy.  Nevertheless, without an actual search being challenged, courts are reluctant to grant standing and decide the issue on a somewhat theoretical basis.

The death penalty, AEDPA, and Batson (race discrimination in jury selection) are all implicated in today’s second case, Davis v. Ayala.  The prosecutor used his challenges to exclude every potential juror who was Black or Latina/o. This triggered a Batson hearing, but the judge heard the prosecution’s excuses without defense counsel present and upheld the removal of the jurors without giving the defense an opportunity to respond to the prosecution’s preferred justification.  This, almost everyone agrees, was error. But the California Supreme Court held that it was “harmless error” and so did not reverse the conviction and order a new trial.  It found that the defense would have lost the Batson challenge even if counsel had been in the room, and excluding the defense was not the sort of “structural” error that so infects the proceedings as to require reversal.
.    The defense then brought the matter to federal court, but runs up against the Antiterrorism and Effective Death Penalty Act (AEDPA), which allows federal courts to reverse state court findings only under very limited circumstances.  These are notoriously confusing standards…  Most essential for this case is the question of whether the state court ruled on federal questions “on the merits” (which would then be entitled to deference by the federal courts):  the defense claim here is that either the state court relied on state constitutional grounds (and thus there is no adjudication on the merits as to federal questions to defer to) or alternatively, that even due deference to the state court ruling requires a different conclusion as to “harmlessness.”  The 9th Circuit agreed with this reasoning and ordered a new trial, but the 9th Circuit in general and some of the judges on this panel in particular are frequently reversed when the Court accepts cert….
.   This will be a difficult argument to follow.  It also will be important and quite interesting if you can keep up, so take some time to read and digest this article if you plan to attend.  [Also note that one of the party names has changed repeatedly.  Ayala is advancing the case against the warden holding him, and different people have held that job.  So if you’re researching the case, you may see Chappell or Wong instead of Davis; and who is on which side of the v. changes depending on who lost below and therefore brought the case to that court.]

Wednesday, March 4

Affordable Care Act.  Yes, again….  Its constitutionality is established, but there’s a question about whether the specific language in the law allows for tax subsidies for people who get their insurance through the federal exchange instead of through their state.  Useful details in this article.  This case, King v. Burwell, is the only one being argued this morning; there don’t seem to be special orders about time allotments, but expect the case to run at least a little longer than the usual hour.