Anyone working today?

Schools are open but courts are closed, so this is a weird Monday morning. Here's what's happening:

1. Judges win cost of living increase case that they brought in the Federal Circuit.

SCOTUSBlog says that the case is likely headed to the Supremes (because, of course, the Executive branch is opposing the COLA increases):

After battling for years to get a pay raise that they say Congress had once promised them, six federal judges finally won in a specialized federal court on Friday.  If the ruling withstands a likely trip to the Supreme Court, those judges – and presumably others – will get annual cost-of-living increases that have been specifically vetoed by Congress.   The ten-to-two decision by the Federal Circuit is here.
The Court ruled that, in a 1989 law upon which the judges have been relying, Congress triggered the judges’ right under the Constitution not to have their pay level diminished.  The Compensation Clause itself, the decision said, creates “basic expectations and protections” on judges’ pay.
Thus, it concluded, “in the unique context of the 1989 act, the Constitution prevents Congress from abrogating that statute’s precise and definite commitment to automatic yearly cost of living adjustments for sitting members of the judiciary.”
In reaching its decision, the Federal Circuit overruled a decision it had reached in 2001 – one that the Supreme Court had refused to disturb in 2002– and it found that it was not bound by a 1980 decision of the Supreme Court.  Both of those rulings had gone against judges claiming that they were unconstitutionally denied pay raises.

2.  Justice Sotomayor is a nice person.  Here's a letter she sent after eating at a DC restaurant.

3.  Shouldn't federal agencies track whether informants are committing crimes?  According to this USA Today article, many don't:

The nation's top drug and gun enforcement agencies do not track how often they give their informants permission to break the law on the government's behalf.
U.S. Justice Department rules put strict limits on when and how agents at the FBI, Drug Enforcement Administration and Bureau of Alcohol, Tobacco, Firearms and Explosives can authorize their informants — often drawn from the ranks of the criminals they are investigating — to commit a crime. But both the ATF and DEA acknowledged, in response to open-records requests and in written statements, that they do not track how often such permission is given.
That routine, if controversial, tactic has come under renewed scrutiny in the wake of the bungled "Fast and Furious" gun-trafficking investigation, which allowed 2,000 weapons to fall into the hands of Mexican drug cartels and other criminals. A report by the Justice Department's Inspector General found that ATF agents failed to get authorization from their superiors before they allowed gun dealers to sell weapons to suspected cartel operatives.
The report, delivered in September, is the latest internal probe to find agents ignoring the rules. And the department continues to face accusations that its agents overlook crimes by their informants, including one case this year involving an alleged Boston mob captain who was working for the FBI.
"The way we use confidential informants is a huge aspect of the daily operation and also the legitimacy of the criminal justice system," said Alexandra Natapoff, a professor at Loyola Law School Los Angeles. "It's insane that even the law enforcement agencies that actually carry out this policy may not always know how their operatives are doing it."

 4.  REVOLUTION!  Well, at least another potential sentencing revolution.  The Supreme Court is taking another look at Harris, the case that says that prosecutors need not prove to a jury facts that increase minimum mandatories.  From SCOTUSBlog:

Just as the Supreme Court set off a revolution in criminal sentencing with its 2000 ruling in Apprendi v. New Jersey, on Friday it set the stage for another — tied directly to the Apprendi precedent.  The Court agreed to consider overruling one of its own precedents that allowed judges, rather than juries, to rule on facts that would allow more than a minimum sentence to be imposed.  Until now, the “Apprendi rule” had only insisted that juries find the facts to raise a sentence beyond a maximum, not a minimum.
At issue is the continuing validity of the 2002 decision in Harris v. United States, in which the Court was widely splintered.  The strength of that ruling as a precedent now appears to depend upon whether the Justice who cast the fifth vote to make a majority for the result there – Justice Stephen G. Breyer  — has changed his mind.  There have been signs that he may have done just that.  In any event, there were at least four votes to face the issue anew.
The one facet of this issue that might limit the scope of an overruling of Harris is whether a decision that a jury must find the facts necessary to raise a sentence only applied to an enhancement of a minimum that was mandatory, but not necessarily to any increase in the floor sentence within a range.  The Court might have to confront, if it were to cast Harris aside, whether such a ruling would apply across the board to enhanced sentencing, above any floor even if not mandated as the minimum.   The new case does involve a mandatory minimum.

The newly granted case is Alleyne v. United States (docket 11-9335), growing out of the robbery of a convenience store owner in Richmond, Va.   Allen R. Alleyne got eighty-four months added to his basic sentence for the robbery, on the theory that he would have known that his accomplice in the robbery would wield a gun as they carried out the robbery.  The added sentence was based upon the finding by the judge, not the jury, that Alleyne would have known about the plan to “brandish” a gun — a factor that leads to a mandatory minimum sentence beyond a basic sentence for the crime itself.

5.  Your moment (hour and a half) of Zen.  The Rumble in the Air-Conditioned Auditorium:

Maybe Obama needs to have his tie cut before the next debate

Debate night (UPDATED)

Should be a fun debate tonight.  I always enjoy watching these debates to see how persuasive speakers work their craft.  Here's a clip from last night's debate between Elisabeth Warren and Scott Brown.  Who do you think gave the better, more persuasive answer:



UPDATE -- I find it really interesting to read the comments to see how people interpret the same video.  So, who do you think got the better of this exchange:

News & Notes

I wish I had a little more District news for everyone, but it's fairly quiet in the SDFLA.  But here's what's up:

1.  Here's a very interesting article from Slate about the two times people snuck cameras into the Supreme Court.  Can you imagine if that happened now?  Here's one of the pictures from 1937. Really neat.

2.  Lots of coverage of the houseboat argument from the High Court.  Here's SCOTUSBlog:

It used to be said that the way to identify whether a stream was navigable was whether a log would float in it.   Seems a bit old-fashioned.  Perhaps it now could be said that the way to know whether a floating structure is or is not a “vessel” is to ask whether, if it were a styrofoam sofa, would it float?   Seems a bit silly, but that is sometimes the way it goes when the Supreme Court Justices try to outdo each other in imagining homely illustrations in order to make legal points.   It was Justice Stephen G. Breyer (usually to be counted upon to go from the ridiculous to the sublime with homely examples) who wondered on Monday about that lightweight sofa bobbing on the surface, perhaps with a retiree sitting back and enjoying being carried along.  At least it was funnier than Chief Justice John G. Roberts, Jr., wondering if an inner tube is a boat.

Breyer and the Chief Justice were reacting to Washington lawyer David C. Frederick, who had urged the Court in Lozman v. Riviera Beach to rule that a floating structure is a “vessel” in a legal sense “if it floats, moves, and carries people or things on water.”  Frederick was going for the purest of simplicity as the Court tried to untangle the case of a Florida floating home that wound up in a maritime court on the theory that it was a “vessel,” legally speaking — even though the only way it could move was to be towed, like a garbage scow.  (A garbage scow did not actually get into the oral argument, but Justice Anthony M. Kennedy made it clear, with abundant sarcasm, that this lowly structure was far from a mansion: said he, it was “a magnificent structure” that had been “mercifully destroyed.”)
The definition of a “vessel,” for purposes of maritime law is, indeed, a very big deal for the maritime industry, for the Coast Guard, and for lawyers who practice in the arcane field of admiralty law.  While the Justices were having boatloads of fun with the Lozman case, they knew that the outcome of it will shape maritime commerce in a very important way.  Because the Court’s precedents on the point seem to meander like so many leaves on a brook, it would be quite important if the Court could say — once and for all — what the word “vessel” means.  That’s why the Court reached out and took the case of the eccentric South Florida millionaire, Fane Lozman, and his floating home — of which, it was said Monday, there was not another like it in all of Florida.

And here's the PBP article, which is also interesting.

3.  How conservative is this Supreme Court?  Very, according to the NY Times, but it could move even further to the right if Romney is elected:

Professors Epstein and Martin have also brought up to date their annual analysis of the justices’ ideologies—their relative conservatism or liberalism based on their voting records. The news is that Justice Samuel Alito Jr. moved even farther to the right.
It’s no surprise that the upcoming presidential election could be very significant for the court. But Epstein-Martin’s ideology analysis allows us to measure how different it would likely be if Mitt Romney gets to replace Ruth Bader Ginsburg compared with President Obama replacing Antonin Scalia or Anthony Kennedy.  A Roberts-Alito-like replacement for Justice Ginsburg would move the court dramatically to the right. But a Kagan-Sotomayor-like replacement for Justice Scalia or Justice Kennedy would move the court to the moderate left, with the center somewhere around Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer.
As this term begins, however, the line-up’s the same as last year, and there’s every reason to expect the court to continue along its conservative path.

SCOTUS Monday

Everyone is covering the first Monday in October today.  I will point out two local cases--

1)  The houseboat question presented by Fane Lozman (previous coverage here).  

John Pacenti has coverage today:

Fane Lozman made a boatload of money off the tech bubble and appropriately decided to live the good life with his dachshund Lady on a houseboat at a Riviera Beach marina.
The city, though, had a $2.4 million redevelopment plan for the public marina with its easy access to the ocean. Lozman stood in the city's way and was determined to fight the city's use of eminent domain.
Now the former Chicago financial trader is a cause celebre for fellow houseboat residents around the country, fighting his eviction all the way to the U.S. Supreme Court. The high court opens its fall session today by hearing arguments in the case.
The question for the nine justices is a simple one: whether a houseboat is a house or a boat. Their answer could have wide-ranging consequences for houseboat owners, floating casinos and government agencies.
"I think it's amazing this little landlord-tenant dispute made it all the way to the Supreme Court," said renowned appellate attorney Jeffrey Fisher, a Stanford University law professor handling the case for Lozman.
Amicus briefs have been filed in favor of Lozman's position by the U.S. solicitor general's office, the American Gaming Association and the floating home associations of Seattle and Sausalito, California.

This reminds me of the question Scalia raised in his recent book about what counts as a vehicle in the park....

2.  The dog sniff question: This one won't be heard till Halloween, but local public defender Howard Blumberg will be arguing it.  Here's his brief.  And here is a nice post by Lyle Denniston explaining the issues presented:

Suppose, though, that police use a dog to check for narcotics on the exterior of a home that they suspect is being used for drug trafficking.  Does the fact that the site of the search is a private home make a constitutional difference?  That is one of the new factual situations that the Supreme Court is now preparing to confront.  In the case of Florida v. Jardines, Florida’s state supreme court ruled that the U.S. Supreme Court’s past rulings on the use of drug-sniffing dogs did not apply at all when a dog was used at a home, even if the dog only sniffed exterior surfaces of a house.   Nowhere is the right of privacy stronger than in a private home, the state court said.
That case originated when police in Miami got a tip from a “crime stopper” source that the home of Joelis Jardines was being used to grow marijuana.  Police went to the home, based on that tip alone, and used a trained detection dog named Franky to check out the front porch of the house.  After circling for a few minutes, Franky sat down, near the front door.  That indicated to his police handler that the dog had detected an odor of marijuana coming from under the front door.  At that point, the officers obtained a search warrant, which the officers then carried out, finding a marijuana-growing operation inside the house.  Jardines was charged with growing illegal marijuana plants, but his lawyer contended that the search was unconstitutional because it intruded on the privacy of the home.
The state’s highest court relied primarily upon a 2001 Supreme Court decision, in the case of Kyllo v. United States, a ruling that it is unconstitutional for police to use a heat-sensing device aimed at the outside walls of a house, to check to see if marijuana was being grown inside with the use of high-intensity lamps.   When the government uses a device that the general public does not employ, and the police use it to explore the details of a home, the state court said, that is a “search” under the Fourth Amendment.   A trained dog’s sniff test fits into that category, it concluded, adding that such a test reveals not only the presence of something illegal, but it also is capable — when carried out in public view — of exposing the homeowner to public humiliation and embarrassment, and further is capable of being used in a discriminatory way.   Before police may conduct such a sniff test, it ruled, they must be able to show in court — after the fact — that they had more than mere suspicion that a crime was being committed in the crime; they had to have information indicating that it was ”probable” that there was such criminal wrongdoing taking place in the home.   The bottom line of the ruling: the use of Franky at the Jardines home was “unreasonable,” so the marijuana evidence could not be used against him.
That ruling is being challenged by state officials of Florida in their appeal to the Supreme Court.   They have the support of the federal government for their challenge.   Their basic claim is that a sniff test by a drug is not a search at all, at a home or elsewhere.

3.  Also congrats to SCOTUSblog for 10 years of blogging.  No one covers the High Court better than Tom Goldstein and Amy Howe.

Awesomeness

ABT covers Lil Wayne's depo here, but I couldn't resist showing you this clip:



Okay, okay, here's more. I love the last line -- "I was just talking to myself."

Supreme Court back in session

It's not the first Monday of October yet, but the Supreme Court had its first conference after the summer and granted cert in six cases, including two pro se petitions written in long hand. From the AP:

Well-heeled clients pay tens of thousands of dollars to hit the legal jackpot - Supreme Court review of their appeals. But on Tuesday, the court decided to hear cases filed by two people who couldn't afford or didn't bother to hire an attorney.


One was written in pencil and submitted by an inmate at a federal prison in Pennsylvania. The other was filed by a man with no telephone living on Guam.
***
Kim Lee Millbrook, a prisoner at the federal prison in Lewisburg, Pa., sued the government after accusing prison guards at the Special Management Unit of sexually assaulting him in May 2010. Prison officials said Millbrook's claim was unsubstantiated.


The lower courts threw out Millbrook's lawsuit, but justices said they would use his appeal - carefully written in longhand - to decide the narrow issue of when the government can be sued for claims of abuses by federal prison guards. Millbrook wrote on a form that can be printed off the Supreme Court website that he was proceeding without a lawyer because he couldn't afford to pay one. He is not scheduled to be released from prison until 2033.

Steven Alan Levin, the petitioner on Guam in the other case granted by the Supreme Court, did not say whether he couldn't afford a lawyer or just wanted to proceed on his own. Levin did not file as a pauper; he paid the $300 fee required to file a petition.

Levin sued over a Navy surgeon's performance of unsuccessful cataract surgery on him. He was operated on in March 2003 at the United States Naval Hospital in Guam. Levin said he withdrew his consent for the surgery before the operation began but doctors proceeded anyway. Levin suffered complications, which require ongoing treatment.

Levin sued the U.S. government for medical malpractice and battery. The courts threw out the medical malpractice complaint and kept the battery charge. But the 9th U.S. Circuit Court of Appeals said the government is also immune from being sued for battery. The high court will now decide whether the government can be sued for improper actions committed by military medical personnel while on the job.

How many people are going to be calling these two to take their cases pro bono?  Problem is that Levin doesn't have a phone and Millbrook is in a maximum security prison.  So it's not going to be so easy to sign these guys up...

According to SCOTUSBlog, the other cases are:

Gabelli — calculation of the five-year limitation on the SEC’s power to impose a penalty for securities fraud.


McNeely – police authority to take a blood sample from a driver who allegedly was drunk, when the officer has no warrant but wants to act quickly because of the chemical fact that alcohol in the blood dissipates over time.

Maracich — lawyer’s legal right to obtain personal information from driver’s license records, when the attorneys plan to use it in lawsuits and federal law supposedly insulates such information from disclosure.

Delia — state power to recover funds spent on providing medical care to the poor or disabled under the federal Medicaid law, when the patient has received funds from another source.

In news closer to home, Judge Zloch sentenced a man who was on the lam for 20 years to 21.5 years (20 of which are on the original case).  From the Sun-Sentinel:

 Most convicted criminals go to prison, then get a chance to prove they can be rehabilitated: Martin James Malone says he did it the other way around.
Malone was a fugitive from justice for 22 years after fleeing from South Florida just before the criminal case against him went to a jury in Miami in 1990.

He sat through much of his trial but by the time the verdict was delivered, he had fled to Ecuador with his pregnant wife. In his absence, the jury found him guilty of conspiring to import cocaine but acquitted him of a second charge that he actually imported the drug.

During the next 22 years, he said he created several successful businesses and employed some 80 people in the beautiful coastal town of Montanita where he lived. He built houses, renovated old properties, donated computers to local schools and was even taught how to be a "medicine man" by the indigenous people. Dozens of people wrote to the judge and the newspaper to praise his good works.

Malone, 51, was starting to slow down – less working, more surfing – when Ecuadorean police surrounded his vehicle in February of this year and extradited him to the U.S. on the old warrant.

"My past is an island I've sailed away from long ago. Nevertheless it's still with me ... we cannot outrun our past no matter how hard we try," Malone wrote to a Sun Sentinel reporter earlier this year.

Monday morning

I wish I had some exciting stuff to post this Monday morning.  But it's fairly quiet after the soggy weekend. 

1.  Brian Tannebaum covers the politicizing of the judiciary here:

Yesterday the Republican Party of Florida voted unanimously to oppose the retention of three Florida Supreme Court Justices. For those (most people) not paying attention, there is a movement afoot to remove Justices Pariente, Quince, and Lewis because they are viewed as too liberal.

From The Miami Herald:

“The announcement that the Republican Party is engaged in this effort would shock those wonderful Republican statesmen who helped create the merit selection and merit retention processes,” said Talbot “Sandy” D’Alemberte, former president of the American Bar Association who, as a former legislator, helped to craft the law in the early 1970s."

This effort strikes at the heart of the "independence of the judiciary" talk that lawyers are engaging in at every Bar luncheon, conference, and in letters to the editor of bar publications. The jist of it is that judges should not be removed solely based on their rulings. If they commit misconduct or otherwise are not fit to serve, OK, but to campaign against the retention of judges merely because you disagree with their interpretation of the law, is to say that judges should not decide matters on the law but on the will of the public (most of whom believe that the problem with the death penalty is that it's not imposed enough and that the problem with prisons is that they are not full.)

2.  BLT covers the ongoing fight over judicial nominees:

Judicial nominees are still stuck in the Senate, and both political parties are again blaming the other.
Republicans blocked an attempt by Democrats Thursday afternoon to have confirmation votes on 17 non-controversial nominees for U.S. district courts across the nation, including 12 who would fill seats in districts considered to be "judicial emergencies."
Senate Minority Leader Mitch McConnell (R-Ky.) raised the objection to the votes, which means Democrats would have to go through a time-consuming cloture process to force a vote on each nominee. McConnell said the Senate already has met historic norms for confirming judges in this presidential year.

"Not only is President Obama being treated fairly in absolute terms, but the Senate is also treating him fairly relative to the number of nominees he has submitted," McConnell said on the Senate floor. "I am happy to work with the majority leader, but we cannot allow the majority to jam us here at the end of this session."
Majority Leader Harry Reid (D-Nev.) pushed for the votes on every district judge nominee awaiting action on the Senate floor, 14 of whom were non-controversial and approved from the Senate Judiciary Committee by voice vote.
"No matter how we try to juggle the numbers, we still have 12 emergencies," Reid said on the floor. "I hope my friends on the other side would at least look at some of those emergencies and see if we could get some help for those beleaguered judges out there and the court personnel."

3.  Justice Kagan's clerks write the first drafts of opinions (via WSJ):

 In a discussion Thursday at the University of Richmond School of Law, Justice Elena Kagan described clerks as having essential duties, such as helping choose the cases the court will consider each year, as well as talking them over with her to get a wide range of views, the Associated Press reported. Her opinions, she added, come from a first draft written by a clerk.
“I know the clerks improve my work,” Justice Kagan said, but added, “They are by no means junior varsity judges.”
The court receives about 8,000 to 9,000 petitions each year, according to Justice Kagan, and clerks help get the number down to about 75 which will be considered.