Half Dozen High Court Cases Will Have Impact Here
“It's just six of one and half a dozen of the other.”
Frederick Marryat, Midshipman Easy (1836)
By Marshall H. Tanick
Most decisions of the U.S. Supreme Court affect individuals and organizations in Minnesota, as they do in the rest of the country. But now, as the Court nears the trimester of its nine-month Term for 2009-10, an apt period for a tribunal that likes to use that phrase, six cases on its current docket may have particular significance in this state.
One involves a local law firm raising a First Amendment issue concerning the practice of law. Another case addresses a question decided this fall by the State Supreme Court. The others, although not arising in Minnesota, concern issues that occupy important places in Minnesota jurisprudence.
Here’s a look at the half-dozen High Court cases and their impact here
Minnesota Marquee
One of the marquee matters before the Supreme Court this Term is a Minnesota case raising the issue whether attorneys advising a prospective bankruptcy candidate constitutes a “debt relief agency” for purposes of the Federal Bankruptcy statute to a Twin Cities law firm. In Milavetz, Gallop & Milavetz v. United States, No. 08-1119, the Justices are reviewing a ruling of the Eighth Circuit Court of Appeals, which upheld a decision of the bankruptcy panel in Minnesota holding that applied that provision of the bankruptcy law. 541 F.3d 785 (8th Cir. 2008).
The measure provides any “debt relief agency” cannot advise a client to take on more debt prior to filing bankruptcy. The Eighth Circuit held that the lawyers are covered by the statute, which the firm claims constitutes a violation of its First Amendment right of freedom of expression in advising clients of their rights, remedies, and obligations under the law.
The issue has garnered a great deal of attention among the bar because of its impact on the bankruptcy practitioners. See Perspectives: “High Court reverses all six cases from here,” in the October 5, 2009, edition of Minnesota Lawyer. Oral argument, heard at the beginning of December, was unusually animated with the justices seemingly skeptical of the prohibition. But the trial answer will come when a decision is issued later in 2010.
Juvenile Justices
Whether juveniles can be sentenced to life in prison without the possibility of parole is before the justices in a pair of cases from Florida: Sullivan v. Florida, No. 08-7621 (13-year old rapist) and Graham v. Florida, No. 08-7412 (armed robbery by 16-year old). The cases were argued earlier in November. The issue follows the ruling of the High Court four years ago banning execution of juvenile murderers in Roper v. Simmons, 543 U.S. 551 (2005).
The justices on the Minnesota Supreme Court addressed a similar issue this autumn, upholding lifetime incarceration without release of a juvenile convicted, after adult certification, of first degree murder In State v. Martin, 773 N.W.2d 889 (Minn. Oct. 8, 2009), the Court held that the sentences imposed on the offender, who was a few weeks shy of his 18th birthday when the crime occurred, did not violate the cruel and unusual prohibition of the Eighth Amendment to the U.S. Constitution or its counterpart under Article I, § 5, of the State Constitution banning cruel or unusual punishment.
Two justices dissented, on other grounds, not marring the unanimity of the Court's view of the constitutionality of the life sentence.
Monumental Matter
Another monumental matter, although not from Minnesota, but with special interest in this state was argued before the High Court in early October. In Salazar v. Buno, No. 08-472, the justices are revisiting the issue of placement of religious monuments on public property, an issue that has bedeviled the Supreme Court and other tribunals over the years. E.g., Van Orden v. Perry, 545 U.S. 844 854 (2005) (display of 10 Commandments allowed on Texas capitol grounds); ACLU Nebraska Foundation v. City of Plattsmouth, 419 F.3d 772 (8th Cir. 2005); (monument depicting the commandments allowed at city park).
The issue resonates in Minnesota, where for years two 6-foot tall, 2,500 pound granite artifacts containing the Ten Commandments graced the front lawn of the public sector buildings in downtown Duluth. Litigation ultimately led to its removal and movement to another spot in the city. Civil Liberties Union v. City of Duluth, No. 04-CV-1079 (D. Minn. 2004).
The case before the High Court concerns a large pre-World War II cross in the Mojave National Preserve in California constructed as a memorial to deceased soldiers. The land, once publicly-owned, was transferred to private ownership after a Federal judge deemed the cross violative of the Establishment clause of the First Amendment. In a volatile argument during the first week of its Term, the justices focused mainly on standing and transfer of ownership issues, only touching on the First Amendment concerns that were at the heart of the Duluth attack.
Dog Decision
A decision in a dog-fighting case will be made soon by the High Court in United States v. Stevens, No. 08-769. The case, argued during the first week of the Term, concerns the Constitutionality of a Federal law, 18 U.S.C. § 48, which forbids “depictions of animal cruelty.” The issue is whether the law, enacted a decade ago, properly extends to a man convicted for distributing videos of dog-fighting and dog attacks on pigs.
The case pits First Amendment issues against cruelty to animals, an imbroglio that sparked vigorous oral argument, including analogies to human sacrifice videos and other bizarre comments.
The litigation harks back to dog-fighting brouhahas in Minnesota, which bans dog-fighting, as do all other states. A few years ago, a high-profile ring was snagged by law enforcement authorities in the northwestern suburbs of the Twin Cities. But animal fighting, involving dogs and other creatures, continue to exist in Minnesota, and their viability may be affected by the outcome of the Stevens case.
Forfeiture Fracas
A fracas about civil forfeiture of property used in crimes pending before the High Court also has special interest in Minnesota. In Alvarez v. Smith, No. 08-351, the justices are pondering whether property owners are entitled to a prompt judicial hearing when their property, such as vehicles, is seized by the authorities for alleged use as instrumental in criminal behavior.
The decision could have major impact in Minnesota because of the frequent use of civil forfeiture of vehicles in Minnesota's DUI cases, among other forfeitures. See Perspectives, “Forfeiture failures: Court disallows three vehicle seizures,” in the December 1, 2008, edition of Minnesota Lawyer.
But a ruling may not be forthcoming in the case because of procedural flaws. At oral argument early this fall, several justices intimated that they may pass on the case on mootness grounds because all of the underlying claims have been resolved or because trial courts should first observe hearing procedures.
Firearms Furor
Second Amendment litigation tends to attract a particular type of furor, as reflected in the Supreme Court’s latest foray into the scope of the “right to bear arms” clause in that provision. In McDonald v. City of Chicago, No. 08-1521, the Court will consider whether the provision applies to local units of government.
The current Second Amendment case comes on the heels of the decision by the High Court in District of Columbia v. Heller, 128 US Ct. 2783 (2008), in which the Court, by a 5-4 margin, overturned a highly-restrictive firearms possession law in the District of Columbia, which is governed by Federal law. The issue now is whether that proscription extends to local units of government.
The Seventh Circuit held that it does not, as have several other tribunals in upholding restrictive gun ownership measures, enacted by local or state units of government. Perspectives, “Second Amendment shot down in recent firearms cases,” in the July 27, 2009, edition of Minnesota Lawyer.
One of them is the Minnesota Court of Appeals, which earlier this year gave localities the green light in State v. Turnbull, 766 N.W.2d 78 (Minn. App. 2009). The Appellate Court ruled that the statute prohibiting firearm possession by those convicted of violent offenses, Minn. Stat. § 624.713, subd. 1(b), does not transgress the Second Amendment because it only applies to the Federal government.
The Supreme Court has had an incredible shrinking docket in recent years, diminishing the number of cases it hears on the merits by nearly half, to about 80 per year. All of them will have some effect, directly or indirectly, on those who live in Minnesota, do business, or practice law here. But these half dozen cases in particular may have even more interest and importance in Minnesota than the others.
