The 2018-2019 Term A Review of Significant Supreme Court Decisions, 1119 SCBJ, SC Lawyer, November 2019, #24

• Author: By John S. Nichols
• Position: Vol. 31 Issue 3 Pg. 24

The 2018-2019 Term A Review of Significant Supreme Court Decisions

Vol. 31 Issue 3 Pg. 24

South Carolina BAR Journal

November, 2019

By John S. Nichols

This term of the U.S. Supreme Court saw a change in personnel (new Justice Brett Kavanaugh), the passing of a retired member (Justice John Paul Stevens), and a flurry of activity in the waning weeks in June. This article highlights some of the more significant cases from the term.

Criminal Cases

The Court decided four death penalty matters. The most noteworthy capital case was Madison u. Alabama, 139 S.Ct. 718 (2019). The Court held the Eighth Amendment permits a State to execute a prisoner even if the prisoner cannot remember committing the crime. Panetti v. Quarterman, 551 U.S. 930 (2007) asked only about a person's comprehension of the State's reasons for resorting to punishment, not the person's memory of the crime itself; "[t]he one may exist without the other." The Court remanded to evaluate whether Mr. Madison "can reach a 'rational understanding' of why the State wants to execute him."

In Shoop v. Hill, 139 S.Ct. 504 (2019), the Sixth Circuit granted habeas relief to Shoop under 28 U.S.C. § 2254(d)(1), on the basis that Ohio state court decisions finding Shoop was not intellectually disabled were contrary to Moore v. Texas, 137 S.Ct. 1039 (2017) (court may not rely upon prison adaptability when evaluating whether defendant was not death penalty eligible due to intellectual disability). The Supreme Court handed down Moore long after the Ohio decisions, however, and remanded for the Sixth Circuit to evaluate the Ohio decisions based solely on Supreme Court holdings that were clearly established at the relevant times.

In Bucklew v. Precythe, 139 S.Ct. 1112 (2019), the Court noted that under Baze v. Rees, 553 U.S. 35 (2008) and Glossip v. Gross, 576 U.S.___, 135 S.Ct. 2726 (2015), an inmate who raises an Eighth Amendment challenge to a state's method of execution must first identify a "feasible, readily implemented" alternative procedure that would "significantly reduce a substantial risk of severe pain." The Court held the Baze-Glossip rule governs all Eighth Amendment challenges, whether facial or "as-applied," that allege a method of execution inflicts unconstitutionally cruel pain.

The Court revisited Moore v.. Texas following its prior remand for the Texas court to reconsider whether Moore had an intellectual disability making him ineligible for the death penalty. Moore v. Texas 139 S.Ct. 666 (2019). The state court's decision, taken as a whole and read in light of prior opinions and the record, rested upon an analysis that much too closely resembled the analysis the Court had previously held was improper. The Court remanded, adding that Moore demonstrated he is a person with intellectual disability and, as such, was not eligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002).

In other criminal cases, the Court held the presumption of prejudice for counsel’s failure to appeal following a guilty plea applies regardless of whether the defendant signed an appeal waiver in the plea agreement. Garza v. Idaho, 139 S.Ct. 738 (2019). In Gamble v. US, 139 S.Ct. 1960 (2019), the Court declined to overturn the “dual sovereignty” doctrine, meaning a person can be tried again in federal court following a conviction in state court on the same conduct.

The Court fled several Armed Career Criminal Act (ACCA) cases. Under US v. Stitt, 139 S.Ct. 399 (2018), the term “burglary” in the ACCA includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. In Stokeling v. US, 139 S.Ct. 544 (2019), the Court held the ACCA’s elements clause for habitual violent felonies encompasses a Florida robbery offense that requires the defendant to merely overcome the victim’s resistance. And in Quarles v. US, 139 S.Ct. 1872 (2019), the Court ruled that generic “remaining-in” burglary occurs under the ACCA when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.

The Court addressed Batson v. Kentucky in Flowers v. Mississippi, 139 S.Ct. 2228 (2019). The Court stated “All of the relevant facts and circumstances taken together established that the trial court at Mr. Flowers’ sixth trial committed clear error in concluding the State’s peremptory strike of a black prospective juror was not motivated at least in part by discriminatory intent,” especially where the State spent far more time questioning black jurors (145 questions asked of five black jurors, only 12 questions asked of 11 white jurors).

In US v. Davis, 139 S.Ct. 2319 (2019), the Court held 18 U.S.C. § 924(c)(3)(B), which authorizes heightened criminal penalties for using, carrying, or possessing a firearm in connection with any federal crime of violence or drug trafficking crime, is unconstitutionally vague, adding “[i]n our constitutional order, a vague law is no law at all.” In Gundy v. US, 139 S.Ct. 2116 (2019), the Court held that Congress did not unconstitutionally delegate legislative power when it authorized the Attorney General to specify applicability of registration requirements under the Sex Offender Registration Notification Act (SORNA) to pre-Act offenders.

In US v. Haymond, 139 S.Ct. 2369 (2019), the Court ruled that a jury must find beyond a reasonable doubt every fact which the law makes essential to a punishment that a judge may later seek to impose; the judge may not find new facts by a preponderance of the evidence to justify increasing sentence beyond statutory maximum. And in Mont v. US, 139 S.Ct. 1826 (2019), the Court held that pretrial detention later credited as time served for a new conviction is “imprisonment in connection with a conviction” and thus tolls the federal supervised-release period under 18 U.S.C. § 3624(e), even if the court must make the tolling calculation after learning whether the time will be credited.

Finally, in Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019), the Court ruled that when a driver is unconscious and cannot give a breath test, the exigent-circumstances doctrine as an exception to the Fourth Amendment generally permits a blood test without a warrant.

Constitutional Law

The Court addressed First Amendment protections in three cases. In Manhattan Comm. Access Corp. v. Halleck, 139 S.Ct. 1921 (2019), the Court ruled the Manhattan Neighborhood Network (MNN) is not a state actor so that Halleck could not sue MNN for editorial discretion in restricting Halleck’s access to the public access channels on MNN’s network. In American Legion v. American Humanist Assn, 139 S.Ct. 2067 (2019), the Court held that a monument commemorating World War I soldiers that contained the Bladensburg Cross did not violate the Establishment Clause, and therefore was permitted on public lands. And in Iancu v. Brunetti, 139 S.Ct. 2294 (2019), the Court ruled that Brunetti may trademark “FUCT” (pronounced “F-U-C-T”) because the Lanham Act’s prohibition on registration of “immoral or scandalous” trademarks violated the First Amendment.

The Court held the Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the states under the Fourteenth Amendment’s Due Process Clause. Timbs v. Indiana, 139 S.Ct. 682 (2019). The Court also held Tennessee’s two-year durational-residency requirement applicable to retail liquor store license applicants violates the Commerce Clause and was not saved by the Twenty-First Amendment. Tennessee Wine and Spirits Retailers v. Thomas, 139 S.Ct. 2449 (2019).

Finally, the Court addressed the Enumeration Clause of Article I, § 2, cl. 3, in a case in which the U.S. Commerce Department intended to include a citizenship question on the census. Department of Commerce v. New York, 139 S.Ct. 2551 (2019). The Court outlined previous instances where citizenship questions were asked on the census, and held that Congress, and by extension the Commerce Secretary, may inquire about citizenship on the census questionnaire. However, the decision in this case was ruled a pretext and the explanation by the Commerce Secretary was deemed to be “contrived.”

Abortion

In Box v. Planned Parenthood, 139 S.Ct. 1780 (2019), an Indiana law governed the manner in which abortion providers may dispose of fetal remains. The Seventh Circuit invalidated the provision and the Supreme Court accepted review. The Court specifically noted that the Respondents never argued the provision created an undue burden on a woman’s right to obtain an abortion under Planned Parenthood v. Casey, 505 U.S. 833 (1992), instead litigating the case on an assumption that the law did not implicate a fundamental right and was therefore subject to rational basis review. Supreme Court reversed, noting a State has a legitimate interest in t he proper disposal of fetal remains and the provision is rationally related to that interest.

Arbitration

Under Henry Schein, Inc. v. Archer & White Sales, 139 S.Ct. 524 (2019), when the parties’ contract delegates the question of arbitrability to the arbitrator, a court may not override the contract even if the court thinks the argument that arbitration applies is “wholly groundless.” The “wholly groundless” exception to arbitrability is inconsistent with the Federal Arbitration Act (FAA) and Supreme Court precedent.

In New Prime v. Oliveira, 139 S.Ct. 532 (2019), an “independent contractor” brought a class action against New Prime for wage claims. New Prime moved to compel arbitration but the lower courts found § 1 of the FAA, which excludes disputes involving “contracts of employment,” applied to Oliveira’s claims. The Court noted that while the contract contained a “delegation clause,” even that clause was enforceable only if the contract did not trigger a § 1 exception. The exclusion removed both employer-employee contracts and contracts involving independent contractors from the FAA’s coverage.

In Lamps Plus v. Varela, 139 S.Ct. 1407 (2019), an employee brought a putative class action against Lamps Plus after a hacker stole personal information and fled a fraudulent tax return. Lamps Plus sought arbitration and the District Court granted the motion, but authorized arbitration on a classwide rather than an individual basis. Lamps Plus appealed and the Ninth Circuit affirmed. A deeply divided Supreme Court reversed, holding that where the agreement is ambiguous on the issue of class arbitration, a court may not infer that parties have consented to classwide arbitration. The doctrine of contra preferentem, which as a last resort resolves ambiguity against the drafter, cannot substitute for the requisite affirmative contractual basis for concluding that the parties agreed to class arbitration. The employee therefore must arbitrate his claims on an individual basis instead of a classwide basis.

Administrative Law

In Azar v. Allina Health Services, 139 S.Ct. 1804 (2019), the Court held that because the Government has not identified a lawful excuse for neglecting its statutory notice-and-comment obligation, its policy regarding Medicare payment calculations must be vacated. In Virginia Uranium, Inc. v. Warren, 139 S.Ct. 1894 (2019), the Court ruled that although the Atomic Energy Act affords the Nuclear Regulatory Commission considerable authority over the nuclear fuel life cycle, the Act offers no hint that Congress sought to strip States of their traditional power to regulate mining on private lands within their borders. Also, the Court declined to overrule the deference given to agencies under Auer v. Robbins, 519 U.S. 452 (1997), regarding the agencies’ own construction of regulations. Kisor v. Wilkie, 139 S.Ct. 2400 (2019).

Social Security Act

In Culbertson v. Berryhill, 139 S.Ct. 517 (2019), the Court held the attorney fee cap under 42 U.S.C. § 406(b)(1)(A) applies only to fees for court representation and not to aggregate fees awarded under §§ 406(a) and (b). Also, a vocational expert’s refusal to provide private market-survey data upon the applicant’s request does not categorically preclude the testimony from counting as “substantial evidence.” Biestek v. Berryhill, 139 S.Ct. 1148 (2019). And an Appeals Council dismissal on timeliness grounds after a claimant has had an Administrative Law Judge hearing on the merits qualifies as a “final decision … made after a hearing” for purposes of allowing judicial review under § 405(g). Smith v. Berryhill, 139 S.Ct. 1765 (2019).

Property

In Sturgeon v. Frost, 139 S.Ct. 1066 (2019), a hunter sought to use his hovercraft to reach moose hunting grounds as he had done for y ears, but was stopped by a park ranger who informed him the Park Service’s rules prohibited operating a hovercraft on navigable waters “located within [a park’s] boundaries.” The Supreme Court noted that nonpublic lands are exempt from the Park Service’s ordinary regulatory authority and held that navigable waters within Alaska’s national parks are exempt from the Park Service’s normal regulatory authority. Thus, the Nation River is not “public land” for purposes of the Alaska National Interest Lands Conservation Act. Because running waters cannot be owned, the United States does not have “title” to the Nation River in the ordinary sense. Also, in Weyerhaeuser v. U.S. Fish & Wildlife, 139 S.Ct. 361 (2018), the Court held the Secretary of the Interior may designate an area as “critical habitat” under the Endangered Species Act of 1973 only if the area is also a habitat for the species (here, the dusky gopher frog). And under Knick v. Scott Township, 139 S.Ct. 2162 (2019), a property owner may bring a takings claim under 42 U.S.C. § 1983 at the time of the government’s violation and need not seek compensation under state law first.

Torts

In Jam v. Intern. Finance Corp., 139 S.Ct. 759 (2019), the Court held the International Organizations Immunities Act (IOIA) affords international organizations the same immunity from suit that foreign governments enjoy under the Foreign Sovereign Immunities Act. In Obduskey v. McCarthy & Holthus, 139 S.Ct. 1029 (2019), the Court ruled that a business engaged in no more than nonjudicial foreclosure proceedings is not a “debt collector” under the Fair Debt Collection Practices Act except for the limited purpose of 15 U.S.C. § 1692(f)(6) (principle purpose is enforcement of security interests). The Court also ruled the limitations period in the False Claims Act applies in a relator-initiated qui tam suit in which the government has declined to intervene in Cochise Consultancy v. US, 139 S.Ct. 1507 (2019).

In Frank v. Gaos, 139 S.Ct. 1041 (2019), the Court granted review to determine whether the settlement of a cy pres action under the Stored Communication Act satisfied the requirement that class settlements be “fair, reasonable, and adequate.” The Court vacated and remanded, noting under Spokeo v. Robins, 578 U.S. ___, 136 S.Ct. 1540 (2016), article III standing requires a concrete injury, even in the context of a statutory violation.

In Air & Liquid Systems v. DeVries, 139 S.Ct. 986 (2019), the Court ruled that, in the maritime tort context, a manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize the danger. The rule applies when a manufacturer directs that the part be incorporated; a manufacturer itself makes the product with a part that the manufacturer knows will require replacement with a similar part, or a product will be useless without the part. In Dutra Group v. Batterton, 139 S.Ct. 2275 (2019), the Court held that a plaintiff may not recover punitive damages in a Jones Act case on a claim of seaworthiness.

The Court also fled several federal immunity cases. In Republic of Sudan v. Harrison, 139 S.Ct. 1048 (2019), the Court held that most naturally read, the Foreign Services Immunity Act requires a mailing to be sent directly to the foreign minister’s office in the foreign state, and service on the embassy in the United States is insufficient. Also, the waiver of immunity in the Tennessee Valley Authority’s “sue and be sued” clause is not subject to a discretionary function exception of the kind found in the Federal Tort Claims Act. Thacker v. TVA, 139 S.Ct. 1435 (2019). Further, the States retain their sovereign immunity from private suits brought in the courts of another state. Franchise Tax Bd of Cal. v. Hyatt, 139 S.Ct. 1485 (2019) (overruling Nevada v. Hall, 440 U.S. 410 (1979)).

Under products liability law, in Merck Sharp & Dohme v. Albrecht, 139 S.Ct. 1668 (2019), the Court held that pre-emption of a state requirement occurs only where there is “clear evidence” that the Food and Drug Administration (FDA) would not have approved a proposed labeling change to warn of a specific hazard, which means the drug manufacturer fully informed the FDA of justifications for the warning required by state law and the FDA, in turn, refused to approve the change. The Court added that the question of agency disapproval is primarily one of law for the judge to decide.

The Court addressed several tort cases arising out of arrest. For excessive force, the Court held qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, and remanded the matter for the proper analysis. City of Escondido v. Emmons, 139 S.Ct. 500 (2019). In Nieves v. Bartlett, 139 S.Ct. 1715 (2019), the Court ruled that because there was probable cause to arrest Bartlett, his retaliatory arrest claim under 42 U.S.C. § 1983 failed as a matter of law. And in McDonough v. Smith, 139 S.Ct. 2149 (2019), the Court held the statute of limitations for a fabricated evidence claim began to run when the criminal proceedings against a defendant terminated in his favor – that is, when he was acquitted at the end of his second trial.

Miscellaneous

In Herrera v. Wyoming, 139 S.Ct. 1686 (2019), the Court held the Crow Tribe’s hunting rights under an 1868 treaty did not expire upon Wyoming’s statehood in 1890. And in Yovino v. Rizo, 139 S.Ct. 706 (2019), the Court addressed the question, “May a federal court count the vote of a judge who dies before the decision is issued?” The Court answered “no,” adding “Judges are appointed for life, not for eternity.”

John S. Nichols is the Disciplinary Counsel for the Supreme Court of South Carolina in Columbia.