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With the recent additions of Michiganians David McKeague and Richard Griffin, the ranks of the 6th U.S. Circuit Court of Appeals have swelled to 14 active judges, up from a low of eight in 2001. And in light of the Senate’s recent compromise over President George W. Bush’s judicial nominees, the two remaining Michigan nominees to the court may soon be confirmed as well. Even with a number of unfilled seats, however, the 6th Circuit has continued to decide important issues in the area of criminal, constitutional, employment discrimination and intellectual property law. Any discussion of recent developments in criminal law must start with the Supreme Court’s landmark decision in U.S. v. Booker, 125 S. Ct. 738 (2005), in which the the court held that the Federal Sentencing Guidelines were merely “advisory”-not mandatory as they had been applied since their inception in 1984. In light of its watershed holding, Bookerhas generated waves of guidelines-related decisions from the lower courts. The 6th Circuit is no exception, with U.S. v. Oliver, 397 F.3d 369 (6th Cir. 2005), representing perhaps the circuit’s most notable treatment of Booker. Reading Booker“as encouraging [the circuit courts] to review cases like Oliver’s which are currently pending on direct appeal for ‘plain error’ when the Sixth Amendment issue was not raised before the district court,” id. at 378, the Oliverpanel concluded that the district court’s treatment of the guidelines as mandatory and its imposition of “a sentence twelve months longer than the guideline maximum, based upon judge-found fact and the mandates (prior to Booker) of the federal sentencing guidelines,” violated the Sixth Amendment, even under a plain-error analysis. Id. Accordingly, the case was remanded for resentencing consistent with Booker. Proving that often timing is everything, Oliverwas followed the next day by U.S. v. Bruce, 396 F.3d 697 (6th Cir. 2005), where a different panel held that a lower court’s treatment of the guidelines as mandatory in a pre- Bookersentencing did not constitute plain error because the now-understood misapplication of the guidelines did not seriously affect ” ‘the fairness, integrity or public reputation of the judicial proceedings.’ ” Id. at 715. Because the 6th Circuit adheres to the rule that panel decisions, to the extent they conflict, are controlled by the first-issued decision, and because en banc review was denied in Oliver, the 6th Circuit has followed Oliver, not Bruce, routinely remanding cases with pre- Bookersentences for resentencing. No criminal cases are more important than those involving the death penalty, and in House v. Bell, 386 F.3d 668 (6th Cir. 2004) (en banc), the court, sitting en banc, agreed to hear a Tennessee death row inmate’s appeal of the district court’s denial of his habeas petition challenging the conviction and sentence entered by a Tennessee jury. The district court denied Paul Gregory House’s petition in light of his failure to pursue his ineffective assistance claim before the state courts. By an 8-7 vote (with all Republican appointees joining the majority and all Democratic appointees dissenting), the court affirmed, holding that House had “fallen short of showing, as he must,” in light of his procedural default of his ineffective assistance claim, “that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. at 685. In House’s original trial in 1986, the prosecution claimed that semen stains found on the clothing of the murder victim were House’s. When DNA testing 15 years later revealed that the semen was that of the victim’s husband, not of House, House asserted his actual innocence, highlighting the fact that the prosecution claimed that rape was House’s motive for the murder. In rejecting House’s claim, Senior Judge Alan Norris, writing for the court, relied upon Schlup v. Delo, 513 U.S. 298 (1995), which requires a defendant to show that a “fundamental miscarriage of justice” would result were the federal court to fail to hear his defaulted claim. After highlighting the “undisputed” facts implicating House in the murder, the court concluded that House’s was not the type of “extraordinary case” where the default exception may be applied. Id. at 678. The 6th Circuit’s word, however, will not be the last. The Supreme Court recently agreed to hear House’s case during its 2005 term to address what constitutes a “truly persuasive showing of actual innocence” sufficient to warrant habeas relief. See House v. Bell, No. 04-8990, petition for cert. granted, 73 U.S.L.W. 3755 (U.S. June 28, 2005). The high court’s decision will likely address the emerging issue of the role of DNA evidence in post-conviction challenges. Constitutional law The constitutional decision garnering the most attention in the 6th Circuit, and in Congress, is Cuno v. DaimlerChrysler Inc., 386 F.3d 738 (6th Cir. 2004), where plaintiffs who were affiliated with consumer advocate Ralph Nader successfully argued that Ohio’s tax scheme, which allows for tax credits and exemptions to businesses operating in Ohio, and which was projected to benefit DaimlerChrysler to the tune of $280 million in light of its investment in Toledo, granted “preferential treatment to in-state investment and activity,” in violation of the dormant commerce clause. Id. at 741. In striking down Ohio’s income tax credit for new in-state investment, the court held that the law discriminated against interstate commerce by “coercing businesses already subject to the Ohio franchise tax to expand locally rather than out-of-state.” Id. at 743. Because “a competitor that invests out-of-state will face a comparatively higher tax burden because it will be ineligible for” an Ohio tax credit, the law, in the court’s view, violated the commerce clause. Id. Ohio’s personal property tax exemption for new in-state investment, however, fared far better. The court denied the plaintiffs’ challenge to that tax.
Bush has named 6 of 14 judges The 6th U.S. Circuit Court of Appeals is based in Cincinnati and hears cases from Kentucky, Michigan, Ohio and Tennessee. Currently, 14 judges sit on the 6th Circuit. There are two vacancies. The sitting judges are: Chief Judge Danny J. Boggs, born in Havana, Cuba, nominated by President Ronald Reagan and confirmed on March 3, 1986. Boyce F. Martin Jr., nominated by President Jimmy Carter, confirmed on Sept. 25, 1979. Alice M. Batchelder, nominated by President George H.W. Bush, confirmed on Nov. 27, 1991. Martha Craig Daughtrey, nominated by President Bill Clinton, confirmed on Nov. 20, 1993. Karen Nelson Moore, nominated by Clinton, confirmed on March 24, 1995. R. Guy Cole Jr., nominated by Clinton, confirmed on Dec. 22, 1995. Eric L. Clay, nominated by Clinton, confirmed on July 31, 1997. Ronald Lee Gilman, nominated by Clinton, confirmed on Nov. 6, 1997. Julia Smith Gibbons, nominated by President George W. Bush, confirmed on July 29, 2002. John M. Rogers, nominated by George W. Bush, confirmed on Nov. 14, 2002. Jeffrey S. Sutton, nominated by George W. Bush, confirmed on April 29, 2003. Deborah L. Cook, nominated by George W. Bush, confirmed on May 5, 2003. David W. McKeague, nominated by George W. Bush, confirmed on June 10, 2005. Richard Allen Griffin, nominated by George W. Bush, confirmed on June 10, 2005. The senior judges are: Damon J. Keith, nominated by Carter in 1977. Gilbert S. Merritt, nominated by Carter in 1977. Cornelia G. Kennedy, nominated by Carter in 1979. Ralph B. Guy Jr., nominated by Reagan in 1985. David A. Nelson, nominated by Reagan in 1985. James L. Ryan, nominated by Reagan in 1985. Alan E. Norris, nominated by Reagan in 1986. Richard F. Suhrheinrich, nominated by George H.W. Bush in 1990. Eugene E. Siler Jr., nominated by George H.W. Bush in 1991. Former president William Howard Taft may be the most famous judge ever to serve on the 6th Circuit. Taft was the second judge named to the court after its creation in 1891. He later became the nation’s 26th president and its 10th chief justice of the U.S. Supreme Court. President George W. Bush has put his stamp on the 6th Circuit, naming six judges to the court, more than any other appeals court.

The court’s decision striking down Ohio’s income tax credit has not sat well with some in Congress. Earlier this year, a bill was introduced in the Senate to override Cunoand authorize states to provide economic development tax incentives that may otherwise impermissibly interfere with interstate commerce. See Economic Development Act of 2005, S. 1066, 109th Cong. (2005). The 6th Circuit also made its mark on First Amendment jurisprudence, rejecting the American Civil Liberties Union’s free speech challenge to a Kentucky municipality’s ordinance limiting the placement of handbills or posters on automobiles. In Jobe v. Catlettsburg, 409 F.3d 261 (6th Cir. 2005), the court held that an ordinance aimed at prohibiting “individuals from placing leaflets on car windshields and other parts of a vehicle without” the owner’s consent represented a “content-neutral restriction on the time, place and manner of speech.” Id. at 262. In his opinion for the court, Judge Jeffrey Sutton, who himself had tested the contours of the First Amendment before the Supreme Court while in private practice (see Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001)), reasoned that the city’s ordinance did not run afoul of the First Amendment because “the law narrowly regulates the problems at hand (littering, visual blight and unauthorized use of private property) [and] leaves open ample alternative avenues for distributing leaflets in an inexpensive manner (face-to-face on a public street and door-to-door in a neighborhood).” 409 F.3d at 262. With the 6th Circuit’s opinion directly contrasting an 8th Circuit decision, Jobemay be a candidate for high court review during its 2005 term. Employment discrimination On the employment-discrimination front, the 6th Circuit extended protection under Title VII of the Civil Rights Act of 1964 to a transsexual firefighter, reading Title VII as prohibiting discrimination based on both sex (“referring to an individual’s anatomical and biological characteristics”) and gender (“referring to socially-constructed norms associated with a person’s sex”). Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004). Jimmie Smith, a transitioning preoperative transsexual, was employed by the city of Salem, Ohio, as a lieutenant in its fire department. After doctors diagnosed Smith with gender identity disorder, he began to display a more feminine appearance, and fellow employees in turn began “commenting that [Smith's] appearance and mannerisms were not ‘masculine enough.’ ” Id. at 568. After Smith was suspended temporarily from his job for an alleged policy infraction, he asserted claims against the city, invoking Title VII’s prohibition against sex discrimination and retaliation. Failing to gain any relief in the district court, Smith pursued the Title VII claims in the 6th Circuit, where the court, relying on the Supreme Court’s decision in Pricewaterhouse v. Hopkins, 490 U.S. 228 (1989), reversed the district court’s dismissal. Rejecting the city’s argument that transsexuals are not a protected class under Title VII, Judge R. Guy Cole, writing for the court, concluded that “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior.” Id. at 575. For this reason, “a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.” Id. Smithmakes the 6th Circuit the first circuit to extend Title VII protection to transsexuals. Intellectual property Finally, the 6th Circuit weighed in on a number of interesting intellectual property issues, including application of the Digital Millennium Copyright Act (DMCA), a 1998 law that prohibits one from circumventing “a technological measure that effectively controls access to a work protected [by copyright]” and from selling devices that circumvent access-control measures. 17 U.S.C. 1201(a)(1). In Lexmark Int’l Inc. v. Static Control Components Inc., 387 F.3d 522 (6th Cir. 2004), one of the first circuit decisions addressing the types of technology the DMCA was intended to address, the court resolved a dispute between two companies competing in the printer toner cartridge market. After Lexmark “began selling discount toner cartridges . . . that only [it] could re-fill” due to a microchip it built into its printers, Static Control “mimicked Lexmark’s chip and sold it to companies interested in selling remanufactured toner cartridges.” Lexmark sued to enjoin the sale of Static’s chip, asserting that the chip violated the DMCA by circumventing technological measures designed to control access to Lexmark’s computer programs for loading toner and controlling various printer functions. Rejecting Lexmark’s argument that the term “access,” as used in the DCMA, means “use,” a reading that potentially would have expanded the DMCA to protect any technological measure aimed at preventing use of a copyrightable program, the court vacated the injunction previously entered by the district court. Because Lexmark’s “access-control measure left the literal code or text of the computer program or data freely readable,” it was “the purchase of a Lexmark printer that allow[ed] ‘access’ to the program,” not “Lexmark’s authentication sequence.” In the words of Sutton, “[j]ust as one would not say that a lock on the back door of a house ‘controls access’ to a house whose front door does not contain a lock . . . , it does not make sense to say that this provision of the DMCA applies to otherwise-readily-accessible copyrighted works.” Id. at 546-47. Todd S. Swatsler is a partner, and Chad A. Readler is an associate, in the Columbus, Ohio, office of Jones Day. Their practices cover a variety of appellate, constitutional and complex litigation matters.

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