Another Monday came and went without the Supreme Court issuing any of its marquee decisions on same-sex marriage, voting rights or affirmative action. Even without those rulings, though, the court made news on several fronts of interest to lawyers. The court returns Thursday to issue more decisions.
In a 5-4 decision Monday in Maracich v. Speaks, the justices put the kibosh on attorneys using an exception to the federal Driver's Privacy Protection Act to solicit clients.
The Driver's Privacy Protection Act of 1997 prohibits the disclosure of personal information in state motor vehicle records. The law lists 14 permissible uses under which a state may disclose the information in those records, one of which is use in connection with litigation.
A number of plaintiff's lawyers, acting on consumer complaints, decided to pursue a class action against multiple South Carolina dealerships for overcharging fees. In order to find persons who had bought cars from the suspected dealerships during relevant periods of time, the lawyers submitted Freedom of Information Act requests to the state department of motor vehicles seeking names, addresses, telephone numbers and information about the car purchases.
The lawyers used the information to contact the car buyers by mail and to solicit their participation in the litigation. Some of their FOIA requests were made before the lawsuit was filed, and some afterwards. They ultimately obtained 34,000 records.
However, some car buyers who were contacted by the lawyers sued them under the federal law, charging that the attorneys had violated the law. The lawyers countered that their use was permissible under the "in connection with litigation" exception in the law.
Writing for the high court majority, Justice Anthony Kennedy disagreed with the lawyers. If the use of personal information protected by the Driver's Privacy Protection Act is predominantly for solicitation, the justice said, that use is not protected by the litigation exception.
Attorneys may solicit clients through traditional advertising without obtaining personal information from a state motor vehicle department and other avenues, he said. "What they may not do, however, is to acquire highly restricted personal information from state DMV records to send bulk solicitations without express consent from the targeted recipients," he wrote.
Justice Ruth Bader Ginsburg wrote a dissent that was joined by justices Antonin Scalia, Sonia Sotomayor and Elena Kagan. The lawyers did what any good lawyer would do, Ginsburg said.
"I would read that statutory language to permit use of DMV information tied to a specific, concrete proceeding, imminent or ongoing, with identified parties on both sides of the controversy," Ginsburg wrote. The majority's ruling, she warned, exposed the lawyers to "astronomical" damages and criminal fines.
"We're very pleased with the Supreme Court's recognition that Congress did not grant lawyers a unique right to obtain personal information from DMVs in order to solicit clients without their consent," said Joseph Guerra, a co-chair of Sidley Austin's appellate practice, who argued the case on behalf of the car buyers.
Also on Monday, the court ruled on:
- Mandatory minimums: In Alleyne v. United States, the decided by a 5-4 vote that the government should have to prove to a jury that a defendant was brandishing a firearm if that fact would increase the defendant's mandatory minimum sentence. Justice Clarence Thomas said allowing a judge to increase the punishment without the jury would violate the Sixth Amendment's guarantee of a trial by an impartial jury. The decision overruled a 2002 Supreme Court precedent, Harris v. United States. Justice Samuel Alito Jr. authored a dissent warning that the majority's decision "creates a precedent about precedent that may have more precedential effect than the dubious decision on which is relies."
- Miranda rights: The court ruled 5-4 in Salinas v. Texas that a suspect under police interrogation must invoke his or her right to remain silent in order to benefit from that privilege. In this context, an individual can remain silent for many reasons, some of which are not protected by the Fifth Amendment's protection against forced self-incrimination. Justice Alito wrote the opinion, with dissents by Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.