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Greetings, sportsfans. Three signed decisions were released Monday by the U.S. Supreme Court, plus the anticipated summary reversal in the Garvey case. The candlelight vigil for Justice Souter’s majority opinion in Mead continues. Delays of this sort in the release of an opinion by the verbose Yankee Justice can mean only one thing: When the opinion is ultimately released, its length will precipitate a worldwide “toner” shortage. 1. United States v. Oakland Cannabis Buyers’ Cooperative, No. 00-151. When smokey catches you with a cigar-box full of cheeba, don’t be claiming you’ve got glaucoma. That may work with your mom, but it won’t work with John Law anymore. A unanimous Court held that there was no cognizable medical necessity defense to the crime of manufacturing and distributing marijuana under the Controlled Substances Act, fulfilling the Magic 8-ball’s prophesy last November and surprising no one. Except respondent’s treasurer, who couldn’t be reached for comment because he is trying to find Jim Morrison, believed to be enormously overweight and hiding out in Tahiti with Richard Nixon. After California voters passed the medical marijuana initiative in November 1996, Respondent was organized to distribute marijuana to qualified patients for medical purposes, such as “Dude, it’s Friday!!” The government sued to enjoin the Cooperative under the Controlled Substances Act, 21 U.S.C. �801 et seq. The district court — Justice Breyer’s brother Charles, also a jurist, but lacking the Junior Justice’s uncanny resemblance to Homer Simpson’s boss — enjoined the Cooperative, and when the Cooperative failed to stop distributing, he found it in contempt, rejecting its assertion of a medical necessity defense. The district court later rejected the Cooperative’s motion to modify the injunction to permit medically necessary distributions. The Cooperative appealed, and the 9th U.S. Circuit Court of Appeals (Shroeder, Reinhardt, Silverman) (per curiam) reversed and remanded, stating that medical necessity was a legally cognizable defense likely applicable in the circumstances, and the district court should have weighed the public interest and considered factors such as the serious harm in depriving patients of marijuana in deciding whether to modify the injunction. Justice Thomas delivered the opinion of the Court, which was joined by the Chief, O’Connor, Scalia and Kennedy. The Court acknowledged that it was an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute, noting that the defense of necessity (for when “physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils”) was “somewhat controversial” at common law. In any event, that question didn’t have to be answered because the Controlled Substances Act itself leaves no doubt the medical necessity defense is unavailable. Under any conception of legal necessity, the defense cannot succeed when the legislature itself has made a determination of values. The Court concluded that the Act reflects a determination that marijuana has no medical benefits worthy of an exception other than government-authorized research. Whereas other drugs can be dispensed and prescribed for medical use (21 U.S.C. �829), the same is not true for marijuana, which under �811 of the Act, has “no currently accepted medical use.” Although agreeing with the 9th Circuit that courts of equity traditionally possess discretion in fashioning relief, courts are not free to consider any and all factors that related to the public interest; equity courts cannot ignore Congress’ judgments expressed in legislation. Consequently, the district court’s discretion does not include discretion to weigh the advantages and disadvantages of enforcing the statue, but only the advantages and disadvantages of employing the extraordinary remedy of an injunction. Because the Controlled Substances Act covers even those who have what could be termed a medical necessity, it precludes consideration of the evidence that the 9th Circuit deemed relevant. Justice Stevens concurred only in the judgment, joined by Justices Souter and Ginsburg. He refused to join the opinion because it was written more broadly than he thought necessary, casting into doubt the viability of a medical necessity defense by individual users, when this case only raised the question of a necessity defense to distribution. He argued that the Court’s precedent “has expressed no doubt about the viability of the common-law defense,” and sure enough, the majority in United States v. Bailey (US 1980), albeit in dicta, did disclaim any lack of belief in the availability of the “necessity” defense in a prison escape case. Finally, employing an argument he increasingly relishes using against the Federalist Five, he expressed disappointment at the majority’s failure to “respect the sovereign States that comprise our Federal Union” by calling into question the validity of California’s attempt to allow individuals to use marijuana for medical purposes. To support his view — and with barely disguised delight — he cited an article written during the last Presidential campaign, entitled “Bush Backs States’ Rights on Marijuana: He Opposes Medical Use But Favors Local Control.” (The section heading “Pot is an herb; Bush is a dope” was edited out in early drafts.) Justice Breyer didn’t participate in view of his brother’s involvement in the case. As the district court judge. Along with Lujan v. G&G Fire Extinguishers, Shaw v. Murphy, and Clark County School District v. Breeden, this case represents Judge Reinhardt’s fourth reversal by the Court in a month (if you count cases in which he was in the majority of the panel opinion). 2. Judge Reinhardt finally got his free danish today as the Court reversed him for the fifth time in a month in Major League Baseball Players Assn v. Steve Garvey, No. 00-1210, which the Court decided today without argument. And to think his high-school guidance counselor said he’d never amount to anything! In the late 1980s, the Major League Baseball Players Association brought a grievance against the Major League Baseball clubs claiming that they had colluded in the market for free agents during the 1985-87 seasons, which left players barely able to afford a third Ferrari. Arbitrators found collusion, and the clubs established a $280 million fund to be doled out to injured players. The Association designed a framework for evaluating an individual player’s claims that sent claims to an arbitrator. Former Padres first-baseman Steve Garvey submitted a claim for $3 million claiming collusion in 1988-89, backed up by a 1996 letter from the former Padres’ President and CEO Ballard Smith that said the Padres had refused to negotiate with Garvey because of collusion. There has GOT to be a good story there, and I suspect it has something to do with the fact that Smith left the Padres in 1987. In any event, the arbitrator concluded that Smith’s testimony was not credible and denied Garvey’s claim. The district court refused Garvey’s motion to vacate the arbitral award, but the 9th Circuit (Reinhardt, Hawkins [concurring], Whyte [district judge, dissenting]) agreed, finding that the arbitrator had “dispensed his own brand of industrial justice” and found that the record provided strong support for the truthfulness of Smith’s 1996 letter. The 9th Circuit reversed and remanded with directions to vacate the award. The district court remanded for further arbitral proceedings, and on appeal, the 9th Circuit said that its earlier holding had “left only one possible award — the result our holding contemplated — an award in Garvey’s favor.” The 9th Circuit reversed with directions to remand the case to an arbitral panel with instructions to enter an award for Garvey in the amount he claimed. The Court summarily reversed in a per curiam opinion. Under Paperworkers v. Misco, Inc. (US 1987), courts are not authorized to review an arbitrator’s decision on the merits despite allegations the decision rests on factual errors, and even the arbitrator’s “improvident, even silly factfinding” does not provide a basis for a reviewing court to refuse to enforce the award. Ordinarily, the Court does not intervene in cases to correct misapplication of correctly-stated legal principles, but the Justices appear to have long employed a tacit exception to this rule for cases involving certain 9th Circuit judges who they perceive to be lawless, Judge Reinhardt most prominent among them. That exception has never been so explicit as today, when the Court acknowledged, “[t]o be sure, the [9th Circuit] here recited these principles [of law], but its application of them is nothing short of baffling.” The Court also held that the 9th Circuit erred on the second go-round by itself ordering a judgment for Garvey. Even if there’s misconduct by the arbitrator, under Misco, “courts must not foreclose further proceedings by settling the merits according to its own judgment of the appropriate result.” Justice Ginsburg concurred in part and concurred in the judgment to note that the Court needed to say nothing more than that the 9th Circuit should not have disturbed the arbitrator’s award. Justice Stevens dissented, arguing that Misco involved only an arbitrator’s “procedural aberrations,” a distinction the Court rejected. So who is this “per curiam” guy? It largely reads like a Chief opinion, although he is an infrequent user of the word “baffling.” It also reads a lot like the work of a bigger fan of that word, Justice Thomas, but I just don’t see him getting the ball rolling on a per curiam on this subject. If you have ideas about the opinion’s likely author, please write them in extraordinarily small print on a piece of cardboard and parade up and down in front of the White House carrying it, with a strainer on your head. I’ll look for you there. Judge Reinhardt seems to be taking his recent pummeling in relatively good spirits. Indeed, when the 9th Circuit recently decided after an en banc argument to abide by the earlier panel decision, he used it as an opportunity to make a subtle swipe at the nine who strive so industriously to keep his words from being law. See John v. United States, No. 00-35121 (9th Cir. May 7, 2001) (“Courts make mistakes too. Given the volume of the judicial workload these days, the Ninth Circuit makes remarkably few — indeed, fewer than some in even the judiciary may think.”). I could be making that up, but for once I am not. 3. Rogers v. Tennessee, No. 99-6218, has been kicking around the Court since November 1. In it, a surprising lineup of the Court held 5-4 that a state supreme court’s retroactive application of a rule to increase punishment for certain conduct did not deny defendant Wilbert K. Rogers of due process of law or violate the ex post facto clause. Basically, the Court today declined Wilbert’s invitation to subject both legislatures and courts to the same standards for ex post facto laws. Wilbert Rogers stabbed James Bowdery, who fell into a coma as a result of his injuries and died 15 months later as a result of a kidney infection. On appeal after his conviction for murder, Rogers asserted the old common-law “year and a day rule” as a defense, which provided that no defendant could be convicted of murder unless his victim died by the defendant’s act within a year and a day of the act. (This undoubtedly explains the complete absence of stabbings on Pluto, where application of the rule, in light of the alleged planet’s 91,250-day year, has draconian implications. Some people attribute it to a complete absence of life there, but they’re just being naive.) A handful of Tennessee cases had recognized the rule in dicta, but on appeal, the Tennessee Supreme Court abolished the year and a day rule and affirmed Rogers conviction. Wilbert, who wobbles but doesn’t fall down, sought cert., claiming that retroactive abrogation of the rule violated the principle of Bouie v. City of Columbia (US 1964), in which the Supreme Court held that the South Carolina Supreme Court’s novel construction of a trespass ordinance against civil-rights protestors violated the Due Process Clause. A bare majority of the Supreme Court affirmed his conviction. The Court disagreed with Rogers’ claim that Bouie incorporated the specific prohibitions of the ex post facto clause. The majority wrote that Bouie was based more on basic due process concepts of foreseeability and fair warning rather than the ex post facto clause; accordingly, Bouie doesn’t prohibit EVERY judge-made change in the law, just judicial construction of “a criminal statute [that] is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue.” (emphasis added.) The Court declined to apply the stricter standards of the Ex Post Facto Clause to judge-made changes in the law, arguing that doing so would circumvent the text of the Ex Post Facto Clause, which applies only to legislative enactments, and disregard important differences between legislating and incremental common-law decisionmaking, most notably that judges do the latter, and this opinion was written by a judge. But seriously now, the Court explained that the common law “presupposes a measure of evolution that is incompatible with stringent application of ex post facto principles.” In a section of the opinion that was a little thin on precedent, in the sense of not having any at all, the Court determined that the “unexpected and indefensible by reference to [pre-existing] law” standard struck the right balance, allowing courts a bit of flexibility while prohibiting retroactive application of really big changes. The Court then concluded that the Tennessee Supreme Court’s abolition of a pre-existing defense was not “unexpected and indefensible”; the year and a day rule had already been abolished most places as advances in technology provided better ways of proving causation, and more importantly, the rule had only the most tenuous foothold in lower-court dicta in Tennessee at the time of its abolition. Do not read the following lineup if you are operating heavy machinery. Justice O’Connor delivered the opinion of the Court, and was joined by the Chief and Justice Kennedy and — are you sitting down? — Justices Souter and Ginsburg, who clearly have been captured and replaced by flunkies of that dark and omnipotent cabal, the Federalist Society. Evidently Justice Souter has been so effective as understudy in the role of Crossover Sensation that the director has chosen to keep him on in lieu of Justice Breyer indefinitely. Compounding the weirdness, Justice Scalia delivered the primary dissent, reprising for Summer Stock his role of “Let ‘em go Nino” from last Term’s performance in Apprendi. Joined by those two ideological peas-in-a-pod, Justices Stevens and Thomas, he argued that the majority had created “a curious constitution that only a judge could love,” under which “the elected representatives of all the people cannot retroactively make murder what was not murder . . . but in which unelected judges can do precisely that.” He read Bouie to incorporate more fully the protections of the Ex Post Facto Clause. He argued at length that common-law courts didn’t “change” law; they declared the law, but once announced, the law remained unchanged, unlike the 180-degree turn performed by the court below. In a portion of his dissent that was also joined by his old soulmate Justice Breyer, he argued that merely showing that an element of a crime is “outmoded” is not fair warning that its elements are likely to change. Justice Stevens also dissented separately to emphasize that it didn’t matter precisely when the common-law idea that judges couldn’t change law began to die out, the basic point was the same: “whenever the criminal law is changed retroactively” it poses a “threat to liberty.” Justice Breyer also dissented separately, to say that while he agreed with the majority’s basic approach, he disagreed with its application, and agreed with Scalia that Rogers did not have fair warning that the Tennessee courts would abolish the year and a day rule, thereby upgrading his crime from attempted murder to murder. 4. Finally, white-shoe appellate lawyers around the country were given a tremendous boost as the Court held in Cooper Industries v. Leatherman Tool Group, No. 99-2035, that courts of appeals should apply a de novo standard when reviewing district court determinations of the constitutionality of punitive damage awards. Justice Stevens, who wrote the opinion that first held that punitive damages awards could be so grossly excessive as to violate the Due Process Clause ( BMW v. Gore (US 1996)), delivered the opinion of the Court. The vote was 7-1-1, but two of the eight votes to reverse were holding their noses to varying degrees. Can you guess which ones? The underlying controversy involved petitioner’s copying of the Leatherman Pocket Survival Tool, which, despite all of Leatherman’s huffy claims of originality, is basically a Swiss Army Knife with pliers. (Unless Leatherman is a firm client, in which case it is right up there with the wheel in the pantheon of original devices.) While waiting for its factory to produce an actual working copy, Cooper used a Leatherman PST that it had modified to make look like its own tool would eventually look. Leatherman sued, alleging violations of the Lanham Act and state laws and won a compensatory verdict and a $4.5 million punitive damages award. The Ninth 9th Circuit (Canby, Nelson, Fogel) affirmed, applying a forgiving “abuse of discretion” standard in making its determination. After noting that punitive damages were, well, punitive, the Court began its analysis by suggesting sort of a Grand Unified Theory of Punishment in the 14th Amendment. Under this, the States have substantial discretion in imposing punishments, within the Amendment’s substantive limits on the states’ ability to impose excessive fines and cruel and unusual punishments � la Furman v. Georgia (US 1972) and United States v. Bajakajian (US 1998) and prohibits states from imposing “grossly excessive” punishments on tortfeasors � la Gore. In deciding whether the constitutional line has been crossed, the Court has looked to the same three general factors in all cases: (1) the degree of the defendant’s reprehensibility or culpability; (2) the relationship between the penalty and the harm to the victim; and (3) the sanctions imposed in other cases for comparable conduct. Bajakajian itself applied de novo review, suggesting it would be appropriate here. Now, Bajakajian relied on Ornelas v. United States (US 1996), in which the Court held that trial judges’ determination of reasonable suspicion and probable cause for searches and seizures should be reviewed de novo. The same reasons Ornelas said de novo review was appropriate are equally applicable here, most notably that independent review is necessary for appellate courts to maintain control and clarify legal principles and because it tends to unify precedent and stabilize the law. Because an award of punitive damages was not a “finding of fact,” appellate review of such an award does not implicate the Seventh Amendment right to jury trials in civil cases. Finally, the Court helpfully went through the three factors appellate courts should consider and pointed to errors in the district court’s reasoning in denying a reduction in the punitive damages award. The Court claimed its intent was not to “prejudge the answer to the constitutional question, but [only] to illustrate why we are persuaded that the [9th Circuit's] answer to that question may depend on the standard of review.” As Justice Stevens read this portion of his bench statement today, his rapidly growing nose poked the Chief sharply in the ribs; the ensuing commotion woke several tourists from Dubuque. The opinion was joined by the Chief and Justices O’Connor, Kennedy, Souter, Thomas, and Breyer. Justice Thomas concurred to note that he didn’t join BMW v. Gore and continues to think the Constitution does not constrain the size of punitive damages awards. In the first use of his newly debugged automatic-precedent-questioning software, he went on to note that “given the opportunity,” — absent from this case — “I would vote to overrule BMW.” Justice Scalia concurred only in the judgment. One-upping Thomas, he noted that he dissented from Gore, Ornelas, AND Bajakajian, but since he was stuck with them, he thought the Court’s decision was right. Justice Ginsburg alone dissented. She noted that in Gasperini v. Center for Humanities (US 1996), the Court held that appellate review of a federal trial court’s refusal to set aside a compensatory damages award was limited to “abuse of discretion” by the Seventh Amendment right to jury trial. Just as with a compensatory award, a jury’s verdict on punitive damages fundamentally depended on factfindings (for example, the extent of harm, the defendant’s good faith, whether the misconduct was isolated or part of a pattern, etc.), so that “[o]ne million dollars’ worth of pain and suffering does not exist as a fact in the world any more or less than one million dollars’ worth of moral outrage.” And on the orders list, three new grants: 1. The Court granted in McKune v. Lile, 00-1187, which was relisted during the last conference. That case out of the 10th Circuit raises the question whether a prisoner’s Fifth Amendment right against self-incrimination is violated by a prison sex-abuse treatment program that requires participants to disclose past sexual misconduct. As noted last week, this case sounds very close to Montana v. Imlay, 91-687 from the Court’s October 1991 term, which presented the question whether a convicted criminal defendant’s privilege against self-incrimination was violated when his probation was revoked as a result of his refusal to admit he’d molested the victim in his case as part of a sexual therapy and counseling program. That case was DIGged [dismissed as improvidently granted] after argument when it came out that Imlay was about to be paroled (and thus wouldn’t benefit from a ruling in his favor) and that Imlay couldn’t have been prosecuted as a result of any statement during counseling (undermining his claim of privilege). 2. The state of Alabama, which has been enjoying quite a string of successes in the Court under AG Bill Pryor (and with the assistance of would-be Sixth Circuit judge Jeff Sutton) had another grant today in Alabama v. Shelton, No. 00-1214. It raises the question whether in light of the “actual imprisonment” standard established in Argersinger v. Hamlin (US 1972) and refined in Scott v. Illinois (US 1979), imposition of a suspended or conditional sentence in a misdemeanor case implicates a defendant’s Sixth Amendment right to counsel. Oh sure, it may not sound exciting to you, but Pryor has blackmail photos of Justice Souter throwing away a paper bag that he’d only used once. 3. The Court also granted cert. in United States v. Knights, No. 00-1260, which presents the question whether a defendant’s agreement to terms of probation that authorized any law enforcement officer to search his person or premises with or without a warrant, and with or without individualized suspicion of wrongdoing, constitutes valid consent to search by law enforcement officer investigating crimes. A panel of the 9th Circuit (Canby, Reinhardt, Fernandez) held that notwithstanding those terms of probation, the search violated the Fourth Amendment. Magic 8-ball says “doesn’t look good.” Finally, on the relist patrol, the Court evidently relisted in City of Elkhart v. Wm. Books, No. 00-1407. The case presents the question whether the city of Elkhart, Indiana’s display of the Ten Commandments on the municipal building’s front lawn violates the Establishment Clause, as the 7th Circuit says it does. The circuit split is fairly shallow (it conflicts with a 1973 10th Circuit opinion and a 1995 holding of the Colorado Supreme Court), so the delay may portend a dissent from denial of cert. rather than a grant, but we’ll probably find out next week. If the Justices have any sense, it will duck this one, lest they be forced to explain why it’s okay for them alone to plaster the Ten Commandments about their courtroom. The Court will be back with more opinions on Monday the 21st with some of the 36 remaining cases. Until next time, that’s today’s baseball! John Elwood is a partner with Baker Botts L.L.P in Washington, D.C. specializing in appellate practice and white collar criminal defense. Prior to commencing private practice, Elwood clerked for Associate Justice Anthony M. Kennedy of the Supreme Court of the United States. He can be reached at [email protected].

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