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The U.S. Supreme Court on Jan. 22 rendered the following decisions: The justices ruled, 6-3, that California’s “determinate sentencing law” violates the Sixth and 14th amendments to the U.S. Constitution because it allows judges, not juries, to find facts to increase criminal sentences. Cunningham v. California, No. 05-6551. John Cunningham was tried and convicted of sexually abusing a child under the age of 14. Under the determinate sentencing law, this offense is punishable by imprisonment for a lower term of six years, a middle term of 12 years or an upper term of 16 years. The law obliged the trial judge to sentence Cunningham to 12 years unless he found one or more additional “circumstances in aggravation.” Based on a post-trial sentencing hearing, the judge found by a preponderance of the evidence that the aggravating circumstances far outweighed the one mitigating circumstance, and sentenced Cunningham to the upper term of 16 years. An intermediate state appellate court affirmed. The California Supreme Court denied review. The justices reversed. Writing on behalf of the court, Justice Ruth Bader Ginsburg said that California’s determinate sentencing law resembles, in all material respects, the sentencing systems the high court had invalidated in Blakely v. Washington, 542 U.S. 296 (2004), and U.S. v. Booker, 543 U.S. 220 (2005). In Blakely, the justices struck down the Washington state sentencing system because the Sixth Amendment right to a jury trial doesn’t allow judges to make factual findings that increase a sentence beyond the ordinary range for the crime. In Booker, the justices extended Blakely to the Federal Sentencing Guidelines, making them advisory, rather than mandatory. In addition, because California’s law authorizes a judge to find aggravating facts by a preponderance of the evidence only, it violates the high court’s ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), which said that under the Sixth Amendment, any fact (other than a prior conviction) that increases a sentence beyond the relevant statutory maximum must be found by a jury, and established beyond a reasonable doubt, not by a preponderance of the evidence. Ginsburg’s opinion was joined by Chief Justice John G. Roberts Jr., and justices John Paul Stevens, Antonin Scalia, David H. Souter and Clarence Thomas. Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. dissented. CIVIL RIGHTS The justices ruled unanimously that the Prison Litigation Reform Act (PLRA) does not require an inmate challenging prison conditions to show in his suit that he has exhausted all alternative remedies. Jones v. Bock, No. 05-7058, and Williams v. Overton, No. 05-7142. Michigan prison inmates filed grievances using the Michigan Department of Corrections grievance process. After unsuccessfully seeking redress through that process, Lorenzo Jones filed a 42 U.S.C. 1983 suit against six prison officials. A Michigan federal court dismissed on the merits his complaints against four of them and found that he had failed adequately to plead exhaustion in his complaints against the other two. Timothy Williams also filed a Section 1983 suit. The court found that he had not exhausted his administrative remedies with regard to one of the grievances. The court said that his other claim was properly exhausted, but it dismissed his entire suit under the 6th U.S. Circuit Court of Appeals total-exhaustion rules for PLRA cases. The rules require a prisoner to allege and demonstrate exhaustion in his complaint, permit suit only against defendants identified in his grievance, and require courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his complaint. The 6th Circuit affirmed in each case. The justices reversed, holding that that though exhaustion is mandatory under the PLRA, it doesn’t mean a prisoner must plead and demonstrate exhaustion in his complaint. Writing on behalf of the court, Roberts said that the procedural rules the 6th Circuit, and other courts, adopted to implement the PLRA’s exhaustion requirement “are not required by the PLRA, and . . . crafting and imposing them exceeds the proper limits on the judicial role.” Roberts said PLRA claims are typically brought under Section 1983, which does not require exhaustion at all. In addition, the PLRA doesn’t require dismissal of the entire complaint if a prisoner has failed to exhaust some of the claims in the complaint. CIVIL PRACTICE The justices held, 7-2, that a declaration by the U.S. attorney general that a federal employee was acting within the scope of his official duties is sufficient, under the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the “Westfall Act”), to justify transferring a case against that employee from state to federal court and substituting the federal government as the defendant. Osborn v. Haley, No. 05-593. Pat Osborn sued Barry Haley, a U.S. Forest Service employee, in state court. Osborn alleged that Haley conspired to cause her wrongful discharge. The U.S. attorney general certified that Haley was acting within the scope of his employment at the time of the conduct alleged in the complaint. The AG removed the case to a Kentucky federal court, denied the alleged conduct ever took place and sought to substitute the federal government for Haley. Osborn claimed that Haley’s conduct was outside the scope of his employment, hence the Westfall Act afforded him no immunity. The court rejected the Westfall Act certification, denied the government’s motion to substitute itself as the defendant, and remanded the case to the state court. The 6th Circuit reversed. The justices affirmed, holding that the district court had misconstrued the Westfall Act. Writing on behalf of the court, Ginsburg said, “Substitution of the United States is not improper simply because the Attorney General’s certification rests on an understanding of the facts that differs from the plaintiff’s allegations. The United States . . . must remain the federal defendant in the action unless and until the District Court determines that the employee, in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of his employment. On the jurisdictional issues, we hold that the Attorney General’s certification is conclusive for purposes of removal.” Ginsburg’s opinion was joined by Roberts, Stevens, Kennedy, Souter, Breyer and Alito. Scalia and Thomas dissented.

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