Archive for June, 2010

U.S. Sup. Ct. Voids Honest Services Law

Tuesday, June 29th, 2010


The Supreme Court on Thursday sharply curtailed prosecutors’ use of an anti-fraud law that was central in convicting politicians and corporate executives in many of the nation’s most prominent corruption cases. The ex-CEO of disgraced energy giant Enron and a Canadian media mogul, both in prison, are among the figures who could benefit from the ruling.

The justices voted 6-3 to keep the law in force, even as they joined unanimously in weakening it, and left it to a lower court to decide whether Jeffrey Skilling, the former Enron boss, and Conrad Black, the former newspaper owner, should have their convictions stemming from “honest services” fraud overturned.

The “honest services” law has been criticized by defense lawyers as the last resort of prosecutors in corruption cases that lack the evidence to prove that money is changing hands. It also has been called vague, subjecting people to prosecution for mistakes and minor transgressions in the business and political worlds. But watchdogs consider it key to fighting white-collar and public fraud.

Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, said the decision “deprives prosecutors of an important tool in their efforts to fight public corruption. Previous convictions may be vacated and corrupt officials will have an easier time escaping accountability for their misdeeds.”

The court, in an opinion written by Justice Ruth Bader Ginsburg, said prosecutors may continue to seek honest services fraud convictions in cases where they put forward evidence that defendants accepted bribes or kickbacks.

“Because Skilling’s misconduct entailed no bribe or kickback, he did not conspire to commit honest-services fraud under our confined construction” of the law, Ginsburg said. Three justices, Anthony Kennedy, Antonin Scalia and Clarence Thomas, would have found the law unconstitutional.

Thursday’s decision does not necessarily mean that any of the 19 counts against Skilling or four counts against Black will be thrown out, Ginsburg said. At the same time, by a 6-3 vote, the court rejected Skilling’s claim that he did not get a fair trial in Houston because of the harsh publicity surrounding the case in Enron’s hometown.

It is unclear whether any convictions will be overturned or prison sentences reduced as a result of the decision, lawyers familiar with the fraud law said. Determinations will have to be made case by case.

But there is no doubt how important the law has been to prosecutors. Supreme Court nominee Elena Kagan said recently that the honest services cases at the high court were the ones that mattered most to the Justice Department.

Justice Department spokeswoman Tracy Schmaler said prosecutors would continue to urge that honest services convictions for Skilling, Black and others be upheld. “While we are disappointed that today’s Supreme Court decisions narrowed the honest services statute, we are pleased that the Court upheld many of the core provisions that have been used for decades to prosecute corrupt public officials and corporate executives who have breached their duties to their constituents, clients, and investors,” Schmaler said.

Honest services charges have figured in convictions won against former Govs. George Ryan of Illinois and Don Siegelman of Alabama, and former Reps. Randy “Duke” Cunningham of California, William Jefferson of Louisiana and Bob Ney of Ohio.

Honest services charges also have been used regularly in public corruption cases stemming from the Jack Abramoff lobbying scandal, including in the pending retrial of former Abramoff associate Kevin Ring.

The new limits will lead to another hearing for Black and could mean the end of federal prosecutors’ case against former Alaska lawmaker Bruce Weyhrauch.

Donald Ayer, a Washington lawyer who represented Weyhrauch, said the ruling will put the brakes on prosecutors’ increasingly aggressive and creative efforts to win convictions under the 28-word fraud law that makes it a crime “to deprive another of the intangible right of honest services.”




NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.





No. 08–876. Argued December 8, 2009—Decided June 24, 2010

Petitioners (hereinafter Defendants)—executives of Hollinger International, Inc. (Hollinger), a publicly held U. S. company—were indictedfor mail fraud, 18 U. S. C. §§1341, 1346, and other federal crimes. At trial, the Government pursued alternative mail-fraud theories, charging that (1) Defendants stole millions from Hollinger by fraudulently paying themselves bogus “noncompetition fees”; and (2) by failing todisclose those fees, Defendants deprived Hollinger of their honest services. Before jury deliberations began, the Government proposed special-verdict forms that would reveal, in the event that the jury voted to convict on a mail-fraud count, the particular theory or theories accounting for the verdict. Defendants resisted, preferring an unelaborated general verdict. The Government ultimately acquiesced. The District Court instructed the jury on each of the alternative theories. As to honest-services fraud, the court informed the jury, over Defendants’ timely objection, that a person commits thatoffense if he misuses his position for private gain for himself and/or a co-schemer and knowingly and intentionally breaches his duty of loyalty. The jury returned general verdicts of “guilty” on the mail-fraud counts, found that one Defendant was also guilty of obstruction of justice, and acquitted Defendants on all other charges. On appeal, Defendants urged the invalidity of the honest-servicesfraud jury instructions. Seeking reversal of their mail-fraud convictions, Defendants relied on Yates v. United States, 354 U. S. 298, 312, which held that a general verdict may be set aside “where the verdictis supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” The Seventh Circuit found no infirmity in the honest-services instructions, but further determined that even if those instructions were wrong, Defendants could not pre2 BLACK v. UNITED STATES Syllabus

vail. By opposing the Government-proposed special-verdict forms,the Court of Appeals declared, defendants had forfeited their objection to the instructions. Their challenge would have become moot, the court observed, had the jury received special-verdict forms separating the alternative fraud theories, and reported on the forms that Defendants were not guilty of honest-services fraud. Defendants, the Court of Appeals therefore reasoned, bore responsibility for the obscurity of the jury’s verdict.


1. In Skilling v. United States, decided today, ante, p. __, this Courtvacated a conviction on the ground that the honest-services component of the federal mail-fraud statute, §1346, criminalizes onlyschemes to defraud that involve bribes or kickbacks. That holdingrenders the honest-services instructions given in this case incorrect.

P. 5.

  1. By properly objecting to the honest-services jury instructions attrial, Defendants secured their right to challenge those instructions on appeal. They did not forfeit that right by declining to acquiesce inthe Government-proposed special-verdict forms. The Federal Rules of Criminal Procedure do not provide for submission of special questions to the jury. In contrast, Federal Rule of Civil Procedure 49 provides for jury interrogatories of two kinds: special verdicts, Rule 49(a); and general verdicts with answers to written questions, Rule49(b). While the Criminal Rules are silent on special verdicts, they are informative on objections to instructions. Criminal Rule 30(d)provides that a “party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court ofthe specific objection and the grounds for the objection before the jury retires to deliberate.” Defendants here, it is undisputed, complied with that requirement. The Seventh Circuit, in essence, added a further requirement for preservation of a meaningful objection to juryinstructions. It devised a forfeiture sanction unmoored to any federal statute or criminal rule. And it placed in the prosecutor’s hands authority to trigger the sanction simply by requesting a special verdict. To boot, the appeals court applied the sanction to Defendants, although they lacked any notice that forfeiture would attend their resistance to the Government’s special-verdict request. Criminal Rule 57(b) is designed to ward off such judicial invention. It provides: “Nosanction . . . may be imposed for noncompliance with any requirement not in federal law [or] federal rules . . . unless the alleged violator was furnished with actual notice of the requirement before thenoncompliance.” Pp. 5–8.
  2. As in Skilling, the Court expresses no opinion on whether the honest-services instructional error was ultimately harmless, but

3 Cite as: 561 U. S. ____ (2010)


leaves that matter for consideration on remand. P. 8. 530 F. 3d 596, vacated and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and STEVENS, BREYER, ALITO, and SOTOMAYOR, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment,in which THOMAS, J., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. _________________ _________________ 1 Cite as: 561 U. S. ____ (2010)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.


No. 08–876




[June 24, 2010]

JUSTICE GINSBURG delivered the opinion of the Court.

In Skilling v. United States, decided today, ante, p. __,we vacated a conviction because the indictment rested, in part, on an improper construction of the “honest services” component of the federal ban on mail fraud, 18 U. S. C.§§1341, 1346. A similar infirmity is present in this case.Here, too, the Government and trial court advanced an interpretation of §1346 rejected by the Court’s opinion in Skilling. Nevertheless, the Government urges, the convictions of the defendants below, petitioners here, should beaffirmed for an independent reason. At trial, the Government pursued alternative theories: (1) money-or-property fraud; and (2) honest-services fraud. To pinpoint whetherthe jury based its verdict on money-or-property fraud, orhonest-services fraud, or both, the Government proposed special interrogatories to accompany the verdict. The defendants resisted, preferring an unelaborated general verdict, and the Government ultimately acquiesced in that standard form of submission.

The Court of Appeals held that the defendants, by opposing the Government-suggested special interrogatories, 2 BLACK v. UNITED STATES Opinion of the Court

forfeited their objection to the honest-services-fraud instructions given to the jury. 530 F. 3d 596, 603 (CA7 2008). We reverse that ruling. A criminal defendant, we hold, need not request special interrogatories, nor need heacquiesce in the Government’s request for discrete findings by the jury, in order to preserve in full a timely raised objection to jury instructions on an alternative theory ofguilt.

I Petitioners Conrad Black, John Boultbee, and Mark Kipnis, as well as Peter Atkinson,1 (collectively, Defendants) were leading executives of Hollinger International,Inc. (Hollinger), a publicly held U. S. company that,through subsidiaries, owned newspapers here and abroad.In 2005, the Government indicted Defendants on multiple counts, of prime concern here, three counts of mail fraud in violation of §§1341 and 1346.2 Two theories were pursued by the Government on each mail-fraud count. The Government charged that (1) Defendants stole millionsfrom Hollinger by fraudulently paying themselves bogus “noncompetition fees”; and that (2) by failing to disclose their receipt of those fees, Defendants deprived Hollinger of their honest services as managers of the company. Pet. for Cert. 24a–54a. At the close of the four-month trial, the U. S. District Court for the Northern District of Illinois instructed the jury, discretely, on the theft-of-money-or-property and —————— 1Peter Atkinson is a respondent in support of petitioners who qualifies for relief under this Court’s Rule 12.6. See Letter from Michael S. Schachter to the Clerk of Court (July 29, 2009). 2Section 1341 criminalizes use of the mails to further “any scheme or artifice to defraud, or for obtaining money or property by means of falseor fraudulent pretenses, representations, or promises.” Section 1346 defines the §1341 term “scheme or artifice to defraud” to include “ascheme or artifice to deprive another of the intangible right of honestservices.” 3 Cite as: 561 U. S. ____ (2010)

Opinion of the Court

honest-services deprivation theories advanced by theGovernment. Id., at 235a. As to the latter, the District Court informed the jury, over Defendants’ objection, that aperson commits honest-services fraud if he “misuse[s] hisposition for private gain for himself and/or a co-schemer”and “knowingly and intentionally breache[s] his duty of loyalty.” Id., at 235a–236a.

Before jury deliberations began, the Government asked the District Court to employ a special-verdict form, whichwould reveal, in the event that the jury voted to convict on a mail-fraud count, the theory or theories accounting forthe verdict—money-or-property fraud, honest-services fraud, or both. See App. 430a.3 Defendants opposed theGovernment-proposed special interrogatories and urged,instead, standard general-verdict forms. Id., at 432a. Comprehending, however, that in the event of a guilty verdict, “the jury’s specification of the [mail-]fraud theory might [aid] appellate review,” ibid., Defendants proposedan accommodation: Upon return of a guilty verdict on anymail-fraud count, jurors could be asked to specify the theory on which they relied, id., at 433a.

The Government objected to special interrogatoriespresented to the jury postverdict, App. to Pet. for Cert.222a, and the District Court declined to adopt that procedure, id., at 225a.4 When the court rejected postverdict

—————— 3The Government proposed this language for each defendant on each mail-fraud count: “If you find the defendant . . . Guilty with respect to [this Count], you must answer the following question by checking the applicable lines. “With respect to [this Count], we, the jury, find the following hasbeen proven beyond a reasonable doubt (check all that apply): “Defendant engaged in a scheme to defraud [Hollinger] and itsshareholders of money or property ____ “Defendant engaged in a scheme to defraud [Hollinger] and itsshareholders of their intangible right to honest services ____.” App. 430a. 4In her years at the bar and on the bench, the trial judge commented, 4 BLACK v. UNITED STATES Opinion of the Court

interrogatories, the Government represented that it would not object to submission of the mail-fraud counts for jurydecision by general verdict. Id., at 228a. The jury returned general verdicts of “guilty” on the three mail-fraud counts;5 it also found defendant Black guilty of obstruction of justice in violation of 18 U. S. C. §1512(c)(1), and it acquitted Defendants on all other charges.

On appeal, Defendants urged the invalidity of the jury instructions on honest-services fraud. Under the rule declared by this Court in Yates v. United States, 354 U. S. 298, 312 (1957), a general verdict may be set aside “wherethe verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Relying on that rule, Defendants urged reversal of their mail-fraud convictions. The Court of Appealsfound no infirmity in the honest-services instructions, 530

F. 3d, at 600–602, but further determined that Defendants could not prevail even if those instructions were wrong, id., at 602–603. For this determination, the court homed in on the Government’s special-verdict proposal.

The challenge to the honest-services instructions would have become moot, the court observed, had the jury received special-verdict forms separating money-or-propertyfraud from honest-services fraud, and reported on the forms that Defendants were not guilty of honest-servicesfraud. Defendants, the Court of Appeals reasoned, boreresponsibility for the obscurity of the jury’s verdict. True, the court acknowledged, it was not incumbent on Defendants to request special verdicts. But by resisting the Government’s proposal for separate findings on money-orproperty fraud and on honest-services fraud, and request

—————— she had “absolutely” never seen the postverdict procedure used. App. toPet. for Cert. 225a. 5The District Court later granted Kipnis’ motion for judgment of acquittal on one of these counts. 5 Cite as: 561 U. S. ____ (2010)

Opinion of the Court

ing general verdicts instead, the Seventh Circuit concluded, Defendants had “forfeited their objection to the[honest-services] instruction[s].” Id., at 603. Defendants’ suggestion of postverdict interrogatories did not, in the Court of Appeals’ view, overcome the forfeiture, for“[q]uestioning the jurors after they have handed downtheir verdict is not a good procedure and certainly not one that a district judge is required to employ.” Ibid.6

We granted certiorari in this case, 556 U. S. ___ (2009), along with Skilling v. United States, 558 U. S. ___ (2009), and Weyhrauch v. United States, 557 U. S. ___ (2009), todetermine what conduct Congress rendered criminal byproscribing, in §1346, fraudulent deprivation of “the intangible right of honest services.” We also agreed to consider in this case the question whether Defendants forfeited their objection to the honest-services juryinstructions by opposing the Government’s request for special verdicts.

II We decided in Skilling that §1346, properly confined,criminalizes only schemes to defraud that involve bribes or kickbacks. See ante, p. __. That holding renders thehonest-services instructions given in this case incorrect,7 and brings squarely before us the question presented by the Seventh Circuit’s forfeiture ruling: Did Defendants, byfailing to acquiesce in the Government’s request for special verdicts, forfeit their objection, timely made at trial, to the honest-services instructions? ——————

6See, e.g., Jacobs Mfg. Co. v. Sam Brown Co., 19 F. 3d 1259, 1267 (CA8 1994) (“Postverdict interrogatories may imply the jury’s verdict is unjustified and cause the jury to answer the interrogatories in a manner inconsistent with the verdict.”); cf. Yeager v. United States, 557

U. S. ___, ___ (2009) (slip op., at 11) (“Courts properly avoid . . . explorations into the jury’s sovereign space.”).

7The scheme to defraud alleged here did not involve any bribes orkickbacks. 6 BLACK v. UNITED STATES

Opinion of the Court

In addressing this issue, we note first the absence of anyprovision in the Federal Rules of Criminal Procedure forsubmission of special questions to the jury. See Stein v. New York, 346 U. S. 156, 178 (1953) (“Our own Rules ofCriminal Procedure make no provision for anything but a general verdict.”), overruled on other grounds, Jackson v. Denno, 378 U. S. 368 (1964).8 The sole call for special findings in the Criminal Rules concerns nonjury trials.Rule 23(c) provides: “If a party [in a case tried without a jury] requests before the finding of guilty or not guilty, the court must state its specific findings of fact in open court or in a written decision or opinion.”

In contrast, the Federal Rules of Civil Procedure providefor jury interrogatories of two kinds: special verdicts,which instruct the jury to return “a special written finding on each issue of fact,” Rule 49(a); and general verdictswith answers to “written questions on one or more issuesof fact,” Rule 49(b).9 Although not dispositive,10 the absence of a Criminal Rule authorizing special verdictscounsels caution.11

—————— 8The absence of a special verdict or interrogatory provision in theCriminal Rules is hardly accidental. See Skidmore v. Baltimore & Ohio

R. Co., 167 F. 2d 54, 70 (CA2 1948) (L. Hand, J., concurring) (“I should like to subject a verdict, as narrowly as was practical, to a review whichshould make it in fact, what we very elaborately pretend that it shouldbe: a decision based upon law. In criminal prosecutions there may be,and in my judgment there are, other considerations which intervene to make such an attempt undesirable.”).

9Although the special interrogatories requested by the Governmentin this case have been called “special verdicts” by the parties and the courts below, they more closely resemble what Civil Rule 49(b) describes as “general verdict[s] with answers to written questions.”(Capitalization omitted.)

10See Fed. Rule Crim. Proc. 57(b) (when there is no controlling law, “[a] judge may regulate practice in any manner consistent with federallaw, these rules, and the local rules of the district”).

11By calling for caution, we do not mean to suggest that special verdicts in criminal cases are never appropriate. See United States v. 7 Cite as: 561 U. S. ____ (2010) Opinion of the Court

While the Criminal Rules are silent on special verdicts, they are informative on objections to instructions. Rule 30(d) “clarifies what . . . counsel must do to preserve aclaim of error regarding an instruction.” Advisory Committee’s Notes on 2002 Amendment on Fed. Rule Crim. Proc. 30(d), 18 U. S. C. App., p. 915. The Rule provides: “A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate.” Defendants here, it is undisputed, complied with that requirement.12

The Court of Appeals, in essence, added a further requirement for preservation of a meaningful objection tojury instructions. It devised a forfeiture sanction unmoored to any federal statute or criminal rule. And it placed in the prosecutor’s hands authority to trigger thesanction simply by requesting a special verdict. See 530

—————— Ruggiero, 726 F. 2d 913, 922–923 (CA2 1984) (in complex RacketeerInfluenced and Corrupt Organizations Act cases, “it can be extremelyuseful for a trial judge to request the jury to record their specificdispositions of the separate predicate acts charged, in addition to theirverdict of guilty or innocence”); id., at 927 (Newman, J., concurring inpart and dissenting in part) (“[A] District Court should have the discretion to use a jury interrogatory in cases where risk of prejudice to thedefendant is slight and the advantage of securing particularized factfinding is substantial.”). 12The Government asserts that Defendants’ opposition to a specialverdict resulted in forfeiture not of their jury-instruction objection, butof their “Yates argument” that any instructional error may “requir[e] reversal.” Brief for United States 52, and n. 21 (internal quotationmarks omitted). The Government thus appears to concede that Defendants preserved their instructional challenge, but maintains that theyare powerless to ask a court to assess the prejudicial effect of any error they may be able to demonstrate. See Reply Brief 29, n. 10 (on Government’s view, “[Defendants] could still ‘claim’ they were wronglyconvicted, they just could not ask a court to do anything about it”). We see little merit in the Government’s attempt to divorce preservation ofa claim from preservation of the right to redress should the claim succeed. 8 BLACK v. UNITED STATES

Opinion of the Court

F. 3d, at 603.13 To boot, the Court of Appeals applied the sanction to Defendants, although they lacked any notice that forfeiture would attend their resistance to the Government’s special-verdict request. There is a Rule designed to ward off judicial invention of the kind present here. Federal Rule of Criminal Procedure 57(b) admonishes: “No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law[or] federal rules . . . unless the alleged violator was furnished with actual notice of the requirement before the noncompliance.”

We hold, in short, that, by properly objecting to thehonest-services jury instructions at trial, Defendants secured their right to challenge those instructions onappeal. They did not forfeit that right by declining to acquiesce in the Government-proposed special-verdict forms. Our decision in Skilling makes it plain that thehonest-services instructions in this case were indeed incorrect. As in Skilling, ante, at 40–41, we express noopinion on the question whether the error was ultimatelyharmless, but leave that matter for consideration on remand.14

* * * For the reasons stated, we vacate the judgment of theCourt of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

—————— 13Rendering the Seventh Circuit’s forfeiture ruling all the more anomalous, at the time the trial court settled on the general verdict form, the Government was no longer pressing its special-verdict request. See App. to Pet. for Cert. 228a. 14Black contends that spillover prejudice from evidence introduced on the mail-fraud counts requires reversal of his obstruction-of-justice conviction. Brief for Petitioners 47–49. That question, too, is one on which we express no opinion. _________________ _________________ 1 Cite as: 561 U. S. ____ (2010)

Opinion of SCALIA, J.


No. 08–876




[June 24, 2010]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,concurring in part and concurring in the judgment.

I join the Court’s opinion with two exceptions. First, I do not join in its reliance, ante, at 7, on the Notes of the Advisory Committee in determining the meaning of Federal Rule of Criminal Procedure 30(d). The Committee’s view is not authoritative. See Krupski v. Costa Crociere

S. p. A., 560 U. S. ___, ___ (2010) (SCALIA, J., concurring inpart and concurring in judgment) (slip op., at 1). The Court accurately quotes the text of the Rule, see ante, at 7, the meaning of which is obvious. No more should be said.

Second, I agree with the Court, ante, at 5, 8, that the District Court’s honest-services-fraud instructions to the jury were erroneous, but for a quite different reason. In my view, the error lay not in instructing inconsistentlywith the theory of honest-services fraud set forth in Skilling v. United States, ante, p. ___, but in instructing the jury on honest-services fraud at all. For the reasons set forth in my opinion in that case, 18 U. S. C. §1346 is unconstitutionally vague. Skilling, ante, p. ___ (SCALIA, J., concurring in part and concurring in judgment). _________________ _________________ 1 Cite as: 561 U. S. ____ (2010)

Opinion of KENNEDY, J.


No. 08–876




[June 24, 2010]

JUSTICE KENNEDY, concurring in part and concurring in the judgment.

I join the Court’s opinion except for those parts statingthat 18 U. S. C. §1346 “criminalizes only schemes to defraud that involve bribes or kickbacks.” Ante, at 5. For the reasons set forth in JUSTICE SCALIA’s separate opinionin Skilling v. United States, ante, p. ___ (opinion concurring in part and concurring in judgment), §1346 is unconstitutionally vague. To convict a defendant based on an honest-services-fraud theory, even one limited to bribes orkickbacks, would violate his or her rights under the Due Process Clause of the Fifth Amendment

Oldham County Attorney John Fendley Suffers Fatal Injury

Tuesday, June 29th, 2010

Fendley, 64, sustained fatal head injuries from a blow to the head by a horse he was loading into a horse trailer.   Fendley had served as County Attorney for 21 years.  Funeral arrangements have not yet been set.   The County Judge will appoint a replacement who will serve until the end of the current term  this November.   Fendley had recently been nominated as the Republican Candidate in this fall’s election. The Republican County Committee will appoint a replacement to face Democratic candidate Stuart Ulferts.   Oldham officials have praised Fendley as a hard working official.  We recall him as being a very decent man.  He will be missed.

U.S. Supreme Court Extends 2nd. Amendment Gun Rights to Strike Down Restrictive State Gun Regulation

Monday, June 28th, 2010

The U.S. Supreme Court today found that the constitutional right to bear arms applies to local and state efforts to regulate guns, a ruling that could place limits on some gun control laws across the country.

The 5-4 ruling could be particularly important in California, which has some of the strictest gun laws of any state. Legal experts have predicted that a ruling applying the Second Amendment to the states could open the door to a rash of legal challenges to California gun regulations, including the long-standing assault weapons ban.

The Supreme Court ruling also could have a direct impact on a lengthy legal battle over Alameda County’s ordinance banning gun possession on county property. The 9th U.S. Circuit Court of Appeals last year put that case on hold pending the outcome of the decision in the Supreme Court.

In today’s ruling, the justices did again emphasize that the Second Amendment does not preclude “common sense” gun regulation by local and state governments. The decision, however, puts some limits on how far such regulation can go, which gun rights advocates are expected to try to exploit in challenging other laws.

Justice Samuel Alito wrote the majority opinion, concluding that a Chicago-area ban on handguns in the home may violate the constitutional right to bear arms. Specifically, the high court found that the Second Amendment does apply to a law such as Chicago’s, the first time the justices have applied that right to local and state governments. The courts will now have to evaluate whether Chicago’s law does indeed go too far under the Second Amendment.

The Supreme Court in 2008 ruled that the Second Amndment applies to federal gun regulations in striking down a Washington, D.C., handgun ban, but that left the state and local issue unresolved because the District of Columbia is a federal enclave.

In deciding that issue, the Supreme Court was split down its traditional liberal vs. conservative lines. Alito wrote that there is a long history of precedent to suggest the right to bear arms should apply to the states, calling that right “among the most fundamental rights necessary to our system of ordered liberty.”

The majority emphasized that the right is particularly important in the home, and that Chicago’s law is the type that is most intrusive and that such restrictions are uncommon. There are no current bans on handguns in the home in Northern California cities.

Justice John Paul Stevens dissented from today’s ruling, and Justice Stephen Breyer wrote a separate dissent joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Stevens warned that the court had left state and local efforts to reduce gun violence vulnerable, saying the “consequences could prove far more destructive — quite literally — to our nation’s communities and to our constitutional structure.”

Quoted from Mercury News Service

U.S. Supreme Ct. Voids Business-Method Patents

Monday, June 28th, 2010

The long-awaited ruling in Bilski v. Kappos was finally handed down on Monday, giving you all some 66 meaty pages to sink your teeth into. Click here for the early WSJ story on the ruling.

The bottom line: the Supreme Court, in an opinion written largely by Justice Anthony Kennedy, invalidated the patent at issue — one on a method for hedging weather-based risk in commodities trading.

To many followers, the outcome wasn’t all that surprising. The U.S. Court of Appeals for the Federal Circuit had earlier struck down the patent, and many saw the Supreme Court’s decision to review the decision as reflecting a desire to push the bar even higher on business-method patents, perhaps relegating them to the dustbin forever.

But that didn’t happen. On Monday, the Court ruled that the method at issue was too abstract to be patented. But ratcheted back the ruling of the Federal Circuit, possibly making business-method patents easier to receive than they were before.

Here’s the nitty-gritty. The Federal Circuit had struck down the patent and cast into doubt many like it, finding that the method didn’t pass the so-called “machine-or-transformation test.” That is, ruled the Federal Circuit, the method 1) wasn’t sufficiently tied to a machine and 2) failed to transform an article from one state to another.

The “machine-or-transformation test,” in the eyes of many, was too stringent. Applied strictly, the test would knock out too wide a swath of patents.

On Monday, the Supreme Court held that the “machine-or-transformation test,” was not the proper one to apply to business-method patents. Wrote Justice Kennedy:

Adopting the machine-or-transformation test as the sole test for what constitutes a “process” (as opposed to just an important and useful clue) violates . . . statutory interpretation principles. . . . The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those in the Industrial Age — for example, inventions grounded in a physical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals.

Okay, so what sort of limiting principle should lower courts attach to patent-application review? The Supreme Court on Monday didn’t offer up a new one. Rather, it fell back on an old principle which bars the patenting of abstract ideas. In finding the method for risk-hedging invalid, the court relied on existing Supreme Court case law. Continued Kennedy:

Rather than adopting categorical rules that might have wide-ranging and unforeseen impacts, the Court resolves this casenarrowly on the basis of this Court’s decisions in Benson, Flook, and Diehr, which show that petitioners’ claims are not patentable processes because they are attempts to patent abstract ideas. Indeed, all members of the Court agree that the patent application at issue here [fails] because it claims an abstract idea.

So what to make of this? We checked in with a couple of patent experts to make more sense of the ruling.

To Shearman & Sterling’s Michael Bednarek, the ruling comes a “big relief.” Bednarek says that “there was a big possibility that the patent system was going to get gutted, that the court would go too far and put up too many hurdles to getting anything patented.”

Had the court clung to the “machine-or-transformation test,” in Bednarek’s opinion, lower courts would have been forced to wipe out many, many patents, and that would have hurt the U.S. economy. “Look, the smartest people are going into financial services, medical technologies, computer technologies,” he said. “This isn’t the industrial age anymore, and the innovation in this country isn’t solely in the rust belt. To hold that would be to help foreign economies at our own expense.”

Jones Day’s John Biernacki thinks the ruling affords courts “greater flexibility” when looking at business-method patents. “The district courts were using the Federal Circuit’s ruling to strike down a lot of patents, especially those pertaining to e-commerce,” said Biernacki. “Patentees and courts now will have greater latitude.”

Fair enough. But does the court’s relatively brief opinion provide enough for lower courts to go on? Bednarek isn’t sure. He says that while the ruling is certainly helpful and is very pro-patent, lower courts are largely going to have to take the ball from here and run with it.

“It’s really back to the drawing board for the Federal Circuit,” says Bednarek. “The lower courts are really going to have to follow up on this.”

Law Schools Are Inflating Grades – Loyola by 1/3, Others alter traditional grades to make all graudates more attractice to employers…..So if that young Harvard Grad says he was an A student….maybe he just got B’s like you

Wednesday, June 23rd, 2010


One day next month every student at Loyola Law School Los Angeles will awake to a higher grade point average.

But it’s not because they are all working harder.

The school is retroactively inflating its grades, tacking on 0.333 to every grade recorded in the last few years. The goal is to make its students look more attractive in a competitive job market.

In the last two years, at least 10 law schools have deliberately changed their grading systems to make them more lenient. These include law schools like New York University and Georgetown, as well as Golden Gate University and Tulane University, which just announced the change this month. Some recruiters at law firms keep track of these changes and consider them when interviewing, and some do not.

Law schools seem to view higher grades as one way to rescue their students from the tough economic climate — and perhaps more to the point, to protect their own reputations and rankings. Once able to practically guarantee gainful employment to thousands of students every year, the schools are now fielding complaints from more and more unemployed graduates, frequently drowning in student debt.

They have come up with a number of strategic responses. Besides the usual career counseling measures, many top schools have bumped up their on-campus interview weeks from the autumn to August, before the school year even starts, because they want their students to have a chance to nab a job slot before their counterparts at other schools do.

Others, like Duke and the University of Texas at Austin, offer stipends for students to take unpaid public interest internships. Southern Methodist University’s Dedman School of Law even recently began paying profit-making law firms to hire its students.

“For people like me who have good grades but are not in the super-elite, there are not as many options for getting a job in advance,” said Zachary Burd, 35, who just graduated from Southern Methodist University. A Dallas family law firm will receive $3,500 to “test drive” him this August.

“They’ll get me for a month or two, for free, to try me out,” he said. “It’s safer for them, and it’s a good foot in the door for me.”

But the tactic getting the most attention — and the most controversy — is the sudden, deliberate and dubiously effective grade inflation, which had begun even before the legal job market softened.

“If somebody’s paying $150,000 for a law school degree, you don’t want to call them a loser at the end,” says Stuart Rojstaczer, a former geophysics professor at Duke who now studies grade inflation. “So you artificially call every student a success.”

Unlike undergraduate grading, which has drifted northward over the years because most undergraduate campuses do not strictly regulate the schoolwide distribution of As and Bs, law schools have long employed clean, crisp, bell-shaped grading curves. Many law schools even use computers to mathematically determine cutoffs between a B+ and a B, based on exam points.

The process schools refer to as grade reform takes many forms. Some schools bump up everyone’s grades, some just allow for more As and others all but eliminate the once-gentlemanly C.

Harvard and Stanford, two of the top-ranked law schools, recently eliminated traditional grading altogether. Like Yale and the University of California, Berkeley, they now use a modified pass/fail system, reducing the pressure that law schools are notorious for. This new grading system also makes it harder for employers to distinguish the wheat from the chaff, which means more students can get a shot at a competitive interview.

Students and faculty say they are merely trying to stay competitive with their peer schools, which have more merciful grading curves. Loyola, for example, had a mean first-year grade of 2.667; the norm for other accredited California schools is generally a 3.0 or higher.

“That put our students at an unfair disadvantage, especially if you factor in the current economic environment,” says Samuel Liu, 26, president of the school’s Student Bar Association and the leader of the grading change efforts. He also says many Loyola students are ineligible for coveted clerkships that have strict G.P.A. cutoffs.

“We just wanted to match what other schools that are comparably ranked were already doing,” he said.

Nearby University of California, Los Angeles, made its grading curve more lenient in the fall of 2005, in part to keep up with “nationwide shifts in grading,” said Elizabeth Cheadle, the dean of students at U.C.L.A.’s law school.

The University of Southern California and the University of California Hastings College of the Law responded by increasing their own curves last school year.

What’s more, U.S.C.’s law school dean, Robert K. Rasmussen, said he was partly inspired by the school where he previously worked, Vanderbilt University Law School, which had also changed its curve a few years ago.

These moves can create a vicious cycle like that seen in chief executive pay: if every school in the bottom half of the distribution raises its marks to enter the top half of the distribution, or even just to become average, the average creeps up. This puts pressure on schools to keep raising their grades further.

Loyola Law School’s dean, Victor J. Gold, said he had already received a plea for advice from a student group at Chapman University School of Law, which will have the toughest grading curve in California after Loyola acts.

One notable school has managed to maintain the integrity of its grades through an idiosyncratic grading rubric. The University of Chicago Law School grades its students on a scale of 155-186, a system so bizarre that employers are unlikely to try to match it against the 4.0 scale or letter grades used almost everywhere else.

It is unclear whether grade inflation is particularly effective at helping students get jobs, especially because many large firms adjust their expectations accordingly.

Many hiring partners say they read Above the Law, a legal blog, that gleefully reports (and mocks) grade changing efforts — from leaked student memos — even when schools themselves don’t announce the changes.

Employers say they also press law schools for rankings, or some indication of G.P.A.’s for the top echelon of the class. And if the school will not release that information — many do not — other accolades like honors and law journal participation provide clues to a student’s relative rank.

“Every year we do our homework,” says Helen Long, the legal recruiting director at Ropes & Gray, a firm with more than 1,000 lawyers. “And besides, if a school had a remarkable jump in its G.P.A.’s from one year to the next, we receive a big enough group of résumés every year that we’d probably notice.”

Smaller firms, however, may not have the resources to research every school’s curve, and may see too few students from any given school to track changes from year to year.

James Wagner, the hiring partner at the 29-lawyer Boston firm Conn Kavanaugh Rosenthal Peisch & Ford, said he hadn’t noticed any grade inflation in the last couple of years. But he has noticed something else new from applicants.

“About a third to half of the résumés I’ve been getting now profess a love of the Red Sox,” he chuckles, wondering if the students had been coached by their schools.

“But I’ll bet that if you compared résumés for those same candidates,” he says, “when they apply to New York firms they love the Yankees, and for Chicago firms, it’s the Cubs.”

Judge Who Overturned Drilling Ban Has Significant Oil Holdings – Possible Ethics conflict

Wednesday, June 23rd, 2010

The federal judge who overruled the administration’s six-month moratorium <> on deepwater drilling, stating that the government did not made a strong enough case for the ban, “has reported extensive investments in the oil and gas industry,” the Associated Press <> reported.* In his ruling, U.S. District Judge Martin Feldman wrote that the administration had acted “arbitrarily and capriciously in issuing the moratorium,” *and sided with corporations who said that the ban would cost the region thousands of jobs. The “blanket moratorium, with no parameters,” Feldman <> wrote, “seems to assume that because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger.” While Feldman, a Reagan appointee, described oil revenue as “elemental” to the Gulf, ThinkProgress <> points out that it may also be elemental to the judicial system: “Like many judges presiding in the Gulf region, Feldman owns lots of energy stocks, including Transocean, Halliburton, and two of BP’s largest U.S. private shareholders—BlackRock (7.1%) and JP Morgan Chase (28.3%).” Further investigations into Feldman’s financial disclosure reports show that, while he claimed less than $15,000 in Transocean stock back in 2008, he also holds shares of Houston-based Ocean Energy, Peabody Energy, Atlas Energy Resources, Parker Drilling, Quicksilver Resources, Prospect Energy and others. “If Judge Feldman has any investments in oil and gas operators in the Gulf, it represents a flagrant conflict of interest,” Josh Reichert, managing director of the Pew Environmental Group, told the Associated Press. Reichert added that the ruling should be rescinded. *The challenge was backed by Louisiana corporate leaders and Governor Bobby Jindal, who worried that lucrative oil jobs would disappear to other countries during the ban.* The moratorium was first issued on May 6—several weeks after the April 20 spill—and Obama extended it for six months on May 27. The White House says it will appeal the decision. 
Read original story in The Associated Press <> | Tuesday, June 22,


U.S. Dist. Judge Bertlesman Grants Summary Judgment in Favor of Kenton Com. Attn. Rob Sanders

Saturday, June 19th, 2010

COVINGTON – A lawsuit claiming that a former Dayton High School teacher – accused of having sex with a 16-year-old student – was maliciously prosecuted has been thrown out of federal court.


Nicole Howell, who was acquitted of the criminal charge, claimed in the suit filed in November that Kenton Commonwealth’s Attorney Rob Sanders violated her constitutional rights.

U.S. District Judge William Bertelsman ruled that Sanders could not be sued because, as a prosecutor, he has immunity.

Howell’s attorney, Eric Deters, said he would appeal the decision to the 6th. Circuit Court of Appeals.

“Prosecutor immunity is under attack across this country,” Deters said. “The United States Supreme Court and circuits across this country have been more willing to hold prosecutors accountable than they have in the past.” Bertelsman wrote in his opinion that he was not second-guessing the verdict. A jury took 70 minutes to find Howell not guilty of first-degree sexual abuse, a crime punishable by up to five years in prison.

Judge Bertelsman based his ruling on the legal theory that there was sufficient probable cause for the arrest and that the allegations that Sanders prosecuted the case for political reasons was not relevant even if they were found to have been true.

A recent case in which prosecutorial immunity was argued before the U.S. Supreme Court was settled before the high court could rule on it.  It was widely believed by court watchers that the oral arguments before the Sup. Ct. went so bad for the State of Iowa prosecutor  that they were not willing to risk an adverse ruling, so they settled with the plaintiff for $12 million dollars. 

Recently the Supreme Court granted certiori for another case from the Dist. of Columbia in which a prosecutor is relying on the doctrine of absolute immunity.  It is thought by some that the Sup. Ct. is looking for an opportunity to limit the immunity of prosecutors that has been imposed by the various Circuits.

The landmark case on prosecutorial immunity Imbler v. Pachman granted immunity for actions of a prosecutor taken during the “judicial” phase of their work, but granted only qualified immunity for actions taken during the investigatory phase of their work.  The Imbler case made an exception for constitutional rights violations by prosecutors such as knowingly using perjured evidence.

Prosecutors are absolutely immune from liability in §1983 suits brought against prosecutorial actions that are “intimately associated with the judicial phase of the criminal process,” Imbler v. Pachtman, 424 U. S. 409, 428, 430, because of “concern that harassment by unfounded litigation” could both “cause a deflection of the prosecutor’s energies from his public duties” and lead him to “shade his decisions instead of exercising the independence of judgment required by his public trust,” id., at 423. However, absolute immunity may not apply when a prosecutor is not acting as “an officer of the court,” but is instead engaged in, say, investigative or administrative tasks. Id., at 431, n. 33

Imbler v. Pachman was based on violations brought under the Federal Civil Rights Act, but the courts have recognized common law theories which allow civil damages against prosecutors.  (Bivens v. Six Unnamed FBI Agents.)

Another Circuit Ruling has allowed a civil action against former Attorney General John Ashcroft to proceed thereby denying his claim of prosecutorial immunity.

U.S. Supreme Court rejects workers’ text privacy – Employers may access worker’s messages

Friday, June 18th, 2010


Employees who want to send highly personal notes to a romantic partner were given a word of warning by the Supreme Court on Thursday: Do not use the messaging system supplied by your employer if you want to avoid embarrassment.

In a 9-0 ruling, the justices rejected a broad right of privacy for workers and said a supervisor may read through a public employee’s text messages if he or she suspects work rules are being violated.

The decision was the high court’s first to consider the privacy rights of employees who send messages on the job. It comes at a time most U.S. workers spend at least part of their day talking on phones or sending messages on computers or cellphones, many of which are supplied by their employers.

At issue was whether the Fourth Amendment’s ban on “unreasonable searches” puts any limits on searches by public employers. The court said the limits were minimal, so long as the employer had a “work-related purpose” for inspecting an employee’s desk or reading the messages sent by the employee on its paging system.

This decision applies directly to the more than 20 million employees of state and local governments, and federal workers. In the past, the court’s decisions on the right to privacy have influenced decisions in the private sector.

The ruling tossed out a privacy suit brought by a former police sergeant against the police chief in Ontario, Calif. Concerned that officers were using their text pagers mostly for personal messages, Chief Lloyd Scharf decided in 2002 to read some of them.

Quon’s personal messages. They noted Quon’s commanding officer had told him he could use the pager for personal messages, so long as he paid the cost.

The Supreme Court disagreed and said the law tilts the balance in favor of the employer, not the employee. A public employee has at most “a limited privacy expectation” when using a text pager supplied by the police department, the justices said.

“Because the search (by the police chief) was motivated by a legitimate work-related purpose and because it was not excessive in scope, the search was reasonable,” said Justice Anthony Kennedy in City of Ontario v. Quon.

U.S. Supreme Court finds hundreds of labor cases were improperly decided due to lack of sufficient quorum

Friday, June 18th, 2010

Marcia Coyle   National Law Journal  June 17, 2010

The vacancy-plagued National Labor Relations Board did not have authority to issue nearly 600 decisions in the last two years with only two board members, the U.S. Supreme Court ruled on Thursday.

In New Process Steel v. National Labor Relations Board, a 5-4 Court upended the NLRB’s attempt, dating back to 2007, to continue functioning when it foresaw that its membership was in imminent danger of dropping from four to two.

The immediate effect of the Court’s decision will be to return to the board an estimated 75 to 80 cases pending in the lower courts that are challenging the legitimacy of two-member board decisions. Another 500 or so cases involve appeals not raising the two-member board issue; cases where the parties already have complied with a board decision; and cases where the parties are in the process of complying and did not appeal.

All of those decisions are void, but whether the aggrieved parties petition the board or the courts of appeals to review their cases as a result of the Supreme Court decision, may depend on the facts of those cases, according to labor and management attorneys.

“I think it’s going to be very difficult for those employers or unions that had cases decided but didn’t challenge the decisions on the ground that the two members lacked authority to try to go back and revisit the issues,” said Peter Conrad, a partner in the labor and employment department of New York’s Proskauer Rose and a former NLRB hearing officer.

Conrad said, for example, that many board orders in discrimination cases require reinstatement and back pay for the employee. If that has been done, he said, “It is conceivable, but not likely, an employer is going to terminate that employee because the order is now invalid. Even if the case were revisited by the board, it is unlikely the board would reach a different outcome.”

Those decisions, he said, were made by one member from each of the two major political parties. “If they were able to reach a decision in those cases, most of which were fairly routine matters, when these cases are reassigned to a three-member panel of the now four-member board, adoption of those decisions is not difficult to foresee,” Conrad said.

John Raudabaugh, a former NLRB member and now counsel to the Washington office of Nixon Peabody, said he believes that parties who did not appeal their two-member board decisions have waived any opportunity for reconsideration. “That would leave a much smaller number affected,” he said.

But no one really knows how many cases ultimately may go back to the board.

The New Process Steel case involved a steel processing plant in Butler, Ind., that unilaterally withdrew recognition from the International Association of Machinists. The two-member board had ordered the employer to recognize the union, honor a contract negotiated in fall 2007 and make employees whole for any income lost while the employer failed to honor the contract.

In the Supreme Court, the justices faced a classic statutory interpretation challenge.

Section 3(b) of the National Labor Relations Act states that the “Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.” It also provides that “three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group” to which the board has delegated its powers.

Toward the end of 2007, the five-member board had four members and one vacancy. Anticipating that the terms of two of the four members were about to expire, the board delegated powers to three of its four members. Two of that three-member group — Chairwoman Wilma Liebman, a Democrat, and Peter Schaumber, a Republican — would remain in January 2008 and be the quorum needed to do business.

The question before the Supreme Court was whether two members constituted a quorum in this instance, or whether three members were still required to issue a decision.

Writing for the majority, Justice John Paul Stevens said interpreting the law to require that the board’s powers be vested at all times in at least three members harmonizes and gives effect to the law’s quorum, delegation and vacancy clauses.

“Secondly, and relatedly, if Congress had intended to authorize two members alone to act for the Board on an ongoing basis, it could have said so in straightforward language,” he wrote.

The law, as it currently exists, he added, “does not authorize the Board to create a tail that would not only wag the dog, but would continue to wag after the dog died.”

Justice Anthony Kennedy, joined by justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, dissented. He said there was nothing in the law’s text to support the majority’s conclusion.

“The Board’s delegation to a three-member group that ultimately dwindled to two was a thoughtful and considerate exercise of its reasonable discretion when it was confronted with two imperfect alternatives,” he wrote. “During the past two years, events have turned what Congress had undoubtedly thought would be an extraordinary circumstance into an ordinary one.”

New Process Steel’s counsel, Sheldon Richie of Richie & Gueringer in Austin, Texas, said, “We believe the decision is correct and we’re pleased we got it in our favor.”

Liebman said in a statement, “When the Board went to two members in January 2008, Member Schaumber and I made a difficult decision in difficult circumstances. In proceeding to issue decisions in nearly 600 cases where we were able to reach agreement, we brought finality to labor disputes and remedies to individuals whose rights under our statute may have been violated. We believed that our position was legally correct and that it served the public interest in preventing a Board shutdown. We are of course disappointed with the outcome, but we will now do our best to rectify the situation in accordance with the Supreme Court’s decision.”

The term of board member Schaumber will expire at the end of August. Three nominations for board seats are currently pending before the Senate, including those of members Craig Becker and Mark Pearce, who were recess-appointed by President Barack Obama in late March.

In a statement after the ruling, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) blamed the board’s “vacancy crisis” on “continuing obstruction in the Senate” of confirmation of Obama’s nominations.

“More than 500 disputes resolved by the Board are now called into question, including disputes involving allegations of unfair labor practices, secret ballot elections relating to union representation and challenges to requiring workers to pay union dues,” Leahy said. “It is unfortunate that there has long been a vacancy crisis in the National Labor Relations Board, but it was never the intent of Congress that the Board cease operating entirely when three vacancies arise.”


Thursday, June 17th, 2010

The Kentucky Supreme Court issued 37 rulings on Thursday June 17, 2010.   All cases are synopsized in LawReader.   You must be a member to access these important cases.

In one case the Court upheld a trial court who dismissed a charge against a mother who ingested drugs while pregnant.  The Court ruled that the legislature has specifically prohibited such prosecutions. It would be a slippery slope to begin regulation by criminal law of maternity issues.

In another important case they overruled a Worker’s Comp. case in which an Airtran pilot who lived in Lexington was traveling on a Comair flight that crashed.  The pilot was a passenger heading to Atlanta where he was assigned to fly an Airtran plane.  The Ct. of Appeals had held that the going and coming rule exempted the employer from Worker’s Comp. liability.  The Sup. Ct. remanded this case for addtional findings which may lead to an expansion of the rule in similar situations.  The issue to be reviewed is whether the employer benefited from allowing it employees to live in other communities there where they flew out of.


Thursday, June 17th, 2010

Review by Judge Stan Billingsley (Ret.)

Justice Wintersheimer has published a 384 page book which details his career on the court and reveals many anecdotes about his work and relationship with other  Justices and court personnel. 

We particularly enjoyed one story about Justice Leibson who was walking near the  Juniper Hills Golf Course in Frankfort, and found an apparently abandoned golf ball which he retrieved.   He was quickly approached by  some angry golfers and returned their ball to them before quickly exiting the area.

(Anyone who had the experience of trying a case before Justice Leibson will recognize how lucky the golfer was for not offering due respect to Justice Leibson.)

Justice Wintersheimer provides in insightful look at the court and the procedures of the court.  He writes about his deep commitment to the Catholic Church.  He discusses  other justices  with whom he disagreed philosophically but always does so respectfully.   Justice Wintersheimer was one of the most prolific authors of decisions on the court.   He was noted for his writing skill which was enhanced by his career as a writer for a Cincinnati newspaper before going on the bench.

Justice Wintersheimer  was noted for his conservative view point in criminal cases.  He doesn’t mention one case for which we believe he should be recognized.  He was one of three Justices  (Wintersheimer, Sara Combs, and Charles Leibson) who prevented the extension of absolute immunity to prosecutors for the investigatory phase of their work.  Compton v. Romans, Ky., 869 SW.2d 24 (1993). That decision is now being made the law of the land by the U.S. Supreme Court.   It would be to simply to tag the former Justice as a “conservative” jurist, although many of his decisions were indeed predicable conservative.  The prosecutors immunity case proves that he reviewed cases more on the merits than on some doctrinaire philosophy.

The book delivers on the promise of the title, and our review of the book answered a lot of questions about how the court advances cases, schedules hearings, etc.    The book is well worth the $25 purchase price.

The book can be purchased through

Adams Avenue Books

224 Adams Ave.

Covington, Ky. 41014

Phone  859-581-8781


Friday, June 11th, 2010


Lesson to criminals don’t try to bribe a Commonwealth’s Attorney!!!  Relatives of a convicted drug dealer plotted to offer the commonwealth’s attorney $20,000 to get the man out of prison, police have charged.

Those charged are Everett Hyden, 64; Noble Hampton, 63; his daughter Virginia “Carol” Hampton, 44; and Walter Creekmore, 62, all of Somerset.

Darmus “Bubby” Dalton

They are charged with bribery of a public servant, a Class C felony punishable by five to 10 years in prison, police said.

Authorities said the investigation started Monday after Hyden stopped Commonwealth’s Attorney Eddy Montgomery outside his office on Main Street about 8:45 a.m. and offered him money to get Brandon Compton out of prison.

Compton is serving a 20-year sentence for drug trafficking, according to the state Department of Corrections Web site.

“I was surprised, and kind of insulted,” Montgomery said. “One of the campaign promises I made is I’m not going to go to federal prison.”  ( A previous Commonwealth Attorney from Somerset had gone to prison on a bribery charge.)

Montgomery put the man off, telling him he would check on the case, and reported the solicitation to police.

Working with police, Montgomery made recorded calls to Hyden, and met with him Wednesday morning to discuss delivery of the money.

About 4 p.m. Wednesday, with officers secretly shooting video, Hyden approached Montgomery in the parking lot of his office and gave him a brown paper bag containing $20,000, police said.

Attn. Gen. Jack Conway is Correct On l4th. Amendment and Citizenshhip of Children Born in U.S. to illegal alien parents. Rand Paul is wrong on the law.

Friday, June 4th, 2010

LawReader legal opinion by LawReader’s Senior Editor Stan Billingsley:                        June 4, 2010

Attorney General Jack Conway recently responded to a question regarding Rand Paul’s suggestion that the l4th. Amendment did not grant citizenship to a child of parents who were illegally in this country.  Conway commented that was a “well settled issue” and that such a child was indeed a citizen.

The following landmark U.S. Supreme Court case issued in 1898 (United States v. Wong Kim Ark) discusses the case of a child born in California to “Chinese citizens who resided in California.  It clearly holds that natural birth alone determines the citizenship of the child under the l4th. Amendment.

At the time of the child’s birth, state and federal laws known as ‘Chinese Exclusion Acts,  were in effect, but they could not override the language of the l4th. Amendment.  

The U.S. Supreme Court cited three hundred years of English Common law which supports the long held rule that children born within England (or its colonies) became citizens upon their birth regardless of the citizenship of their parents.   In no provision of this ruling is the distinction of the parents entry right to the U.S. relevant.  The issue is the actual birth within this country.  Clearly Attorney General Jack Conway was correct. Indeed this is settled law.  Rand Paul is completely incorrect in his reading of the l4th. Amendment and hundreds of years of law.

The court in United States v. Wong Kim Ark (1898) held:

“… It is conceded that, if he is a citizen of the United States, the acts of congress known as the ‘Chinese Exclusion Acts,’ prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot  apply to him.”


United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898)

   ’Because the said Wong Kim Ark, although born in the city and county of San Francisco, state of California, United States of America, is not, under the laws of the state of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons, and subjects of the emperor of China, and the said Wong Kim Ark being also a Chinese person, and a subject of the emperor of China.

          ’Because the said Wong Kim Ark has been at all times, by reason of his race, language, color, and dress, a Chinese person, and now is, and for some time last past has been, a laborer by occupation.

          ’That the said Wong Kim Ark is not entitled to land in the United States, or to be or remain therein, because he does not belong to any of the privileged classes enumerated in any of the acts of congress, known as the ‘Chinese Exclusion Acts,’1 which would exempt him from the class or classes which are especially excluded from the United States by the provisions of the said acts.

          ’Wherefore the said United States attorney asks that a judgment and order of this honorable court be made and entered in accordance with the allegations herein contained, and that the said Wong Kim Ark be detained on board of said vessel until released as provided by law, or otherwise to be returned to the country from whence he came, and that such further order be made as to the court may seem proper and legal in the premises.’

          h e case was submitted to the decision of the court upon the following facts agreed by the parties:

          ’That the said Wong Kim Ark was born in the year 1873, at No. 751 Sacramento street, in the city and county of San Francisco, state of California, United States of America, and

Page 651

that his mother and father were persons of Chinese descent, and subjects of the emperor of China, and that said Wong Kim Ark was and is a laborer.

          ’That at the time of his said birth his mother and father were domiciled residents of the United States, and had established and enjoyed a permanent domicile and residence therein, at said city and county of San Francisco, state aforesaid.

          ’That said mother and father of said Wong Kim Ark continued to reside and remain in the United States until the year 1890, when they departed for China.

          ’That during all the time of their said residence in the United States, as domiciled residents therein, the said mother and father of said Wong Kim Ark were engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the emperor of China.

          ’That ever since the birth of said Wong Kim Ark, at the time and place hereinbefore stated and stipulated, he has had but one residence, to wit, a residence in said state of California, in the United States of America, and that he has never changed or lost said residence or gained or acquired another residence, and there resided claiming to be a citizen of the United States.

          ’That in the year 1890 the said Wong Kim Ark departed for China, upon a temporary visit, and with the intention of returning to the United States, and did return thereto on July 26, 1890, on the steampship Gaelic, and was permitted to enter the United States by the collector of customs, upon the sole ground that he was a native-born citizen of the United States.

          ’That, after his said return, the said Wong Kim Ark remained in the United States, claiming to be a citizen thereof, until the year 1894, when he again departed for China upon a temporary visit, and with the intention of returning to the United States, and did return thereto in the month of August, 1895, and applied to the collector of customs to be permitted to land; and that such application was denied upon the sole ground that said Wong Kim Ark was not a citizen of the United States.

Page 652

          ’That said Wong Kim Ark has not, either by himself or his parents acting for him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom.’

          The court ordered Wong Kim Ark to be discharged, upon the ground that he was a citizen of the United States. 71 Fed. 382. The United States appealed to this court.

… It is conceded that, if he is a citizen of the United States, the acts of congress known as the ‘Chinese Exclusion Acts,’ prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him.

…  The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment of the constitution: ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.’

          I. In construing any act of legislation, whether a statute enacted by the legislature, or a constitution established by the people as the supreme law of the land, regard is to be had, not only to all parts of the act itself, and of any former act of the same lawmaking power, of which the act in question is an amendment, but also to the condition and to the history

Page 654

of the law as previously existing, and in the light of which the new act must be read and interpreted.

          The constitution of the United States, as originally adopted, uses the words ‘citizen of the United States’ and ‘natural-born citizen of the United States.’ By the original constitution, every representative in congress is required to have been ‘seven years a citizen of the United States,’ and every senator to have been ‘nine years a citizen of the United States’; and ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of president.’ Article 2, § 1. The fourteenth article of amendment, besides declaring that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,’ also declares that ‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ And the fifteenth article of amendment declares that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color, or previous condition of servitude.’

          The constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that ‘all persons born r naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.‘ Amend. art. 14. In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U. S. 417, 422, 5 Sup. Ct. 935; Boyd v. U. S., 116 U. S. 616, 624, 625, 6 Sup. Ct. 524; Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564. The language of the constitution, as has been well said, could not be understood without reference to the common law. 1 Kent, Comm. 336; Bradley, J., in Moore v. U. S., 91 U. S. 270, 274.

Page 655

          In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the fourteenth amendment now in question, said: ‘The constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.’ And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.

          In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said: ‘There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several states each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes.’ ‘There is, however, one clear exception to the statement that there is no national common law. The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.’ 124 U. S. 478, 8 Sup. Ct. 569.

          II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance—also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’—of the king. The principle embraced all persons born within the king’s allegiance, and subject to his protection. Such allegiance and protection were mutual,—as expressed in the maxim, ‘Protectio trahit subjectionem, et subjectio protectionem,’—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.

      … He evidently used the word ‘citizen,’ not as equivalent to ‘subject,’ but rather to ‘inhabitant’; and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.

          Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said: ‘By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.’ Cockb. Nat. 7.

….   It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.

…  In the early case of The Charming Betsy (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying: ‘Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can devest himself absolutely of

Page 659

that character, otherwise than in such manner as may be prescribed by law, is a question which it is not necessary at present to decide.’ 2 Cranch, 64, 119.

…           In Inglis v. Sailors’ Snug Harbor (1830) 3 Pet. 99, in which the plaintiff was born in the city of New York, about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said: ‘It is universally admitted, both in the English courts and in those of our own country, that all persons born within the colonies of North America, while subject to the crown of Great Britain, were natural-born British subjects.’ Id. 120.

… Two things usually concur to create citizenship: First, birth locally within the dominions of the sovereign; and, secondly, birth within the protection and obedience, or, in other words, within the ligeance, of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign, …

…  Again, in Levy v. McCartee (1832) 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the state of New York, where the statute of 11 & 12 Wm. III. had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that by that law a child born in England of alien parents was a natural-born subject; quoting the statement of Lord Coke in Co. Litt. 8a, that ‘if an alien cometh into England, and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm’; and saying that such a child ‘was a native-born subject, according to the principles of the common law, stated by this court in McCreery v. Somerville, 9 Wheat. 354.’

   The supreme judicial court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was ‘to be governed altogether by the principles of the common law,’ and that it was established, with few exceptions, ‘that a man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born

…That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, does not appear to have been contested or doubted until more than 50 years after the adoption of the constitution, when the matter was elaborately argued in the court of chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clarke (1844) 1 Sandf. Ch. 583.

… The same doctrine was repeatedly affirmed in the executive departments, as, for instance, by Mr. Marcy, secretary of state, in 1854 (2 Whart. Int. Dig. [2d Ed.] p. 394); by Attorney General Black in 1859 (9 Ops. Attys. Gen. 373); and by Attorney General Bates in 1862 (10 Ops. Attys. Gen. 328, 382, 394, 396).

          Chancellor Kent, in his Commentaries, speaking of the ‘general division of the inhabitants of every country, under the comprehensive title of ‘Aliens’ and ‘Natives,” says: ‘Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are, in theory, born within the allegiance of the foreign power they represent.’ ‘To create allegiance by birth, the party must be born, not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a state, while

Page 665

abroad, and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.’ 2 Kent, Comm. (6th Ed.) 39, 42. And he elsewhere says: ‘And if, at common law, all human beings born within the ligeance of the king, and under the king’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States in all cases in which there is no express constitutional or statute declaration to the contrary.’ “Subject’ and ‘citizen’ are, in a degree, convertible terms as applied to natives; and though the term ‘citizen’ seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, ‘subjects,’ for we are equally bound by allegiance and subjection to the government and law of the land.’ Id. 258, note.

It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.

          But at the time of the adoption of the constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, ‘citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,’ and ‘mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicile’; and children born in a foreign country, of a French father who had not established his domicile there, nor given up the intention of returning, were also deemed Frenchmen, as Laurent says, by ‘a favor, a sort of fiction,’ and Calvo, ‘by a sort of fiction of exterritoriality, considered as born in France, and therefore invested with French nationality.’ Poth. Trait e des Personnes, pt. 1, tit. 2, § 1, Nos. 43, 45; Walsh-Serrant v. Walsh-Serrant (1802) 3 Journal du Palais, 384, 8 Merlin, Jurisprudence, ‘Domicile’ (5th Ed.) § 13; Pr efet du Nord v. Lebeau (1862) Journal du Palais 1863, 312, and note; 1 Laurent, Droit Civil, No. 321; 2 Calvo, Droit International (5th Ed.) § 542; Cockb. Nat. 13, 14; Hall, Int. Law (4th Ed.) § 68. The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions from the one adopted by the constituent assembly in 1791 to that of the French republic in 1799. Constitutions et Chartes (Ed. 1830) pp. 100, 136, 148, 186.

Page 667

The Code Napoleon of 1807 changed the law of France, and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code ‘appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe,—’De la vieille regle francaise, ou plutot meme de la vieille regle europ eenne,’—according to which nationality had always been, in former times, determined by the place of birth.’ 1 Demolombe, Cours de Code Napoleon (4th Ed.) No. 146.

There is, therefore, little ground for the theory that at the time of the adoption of the fourteenth amendment of the constitution of the United States there was any settled and definite rule of international law generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.

Page 668

          Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship

 So far as we are informed, there is no authority, legislative, executive, or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory, or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country which have gone the furthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent, Comm. 39, 50, 53, 258, note; Lynch v. Clarke, 1 Sandf. Ch. 583, 659; Ludlam v. Ludlam, 26 N. Y. 356, 371.

… The first section of the fourteenth amendment of the constitution

Page 676

begins with the words, ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.’ As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Tae y in Scott v. Sandford (1857) 19 How. 393; and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States. Slaughter House Cases (1873) 16 Wall. 36, 73; Strauder v. West Virginia (1879) 100 U. S. 303, 306; Ex parte Virginia (1879) Id. 339, 345; Neal v. Delaware (1880) 103 U. S. 370, 386; Elk v. Wilkins (1884) 112 U. S. 94, 101, 5 Sup. Ct. 41. But the opening words, ‘All persons born,’ are general, not to say universal, restricted only by place and jurisdiction, and not by color or race, as was clearly recognized in all the opinions delivered in the Slaughter House Cases, above cited.


… In 1871, Mr. Fish, writing to Mr. Marsh, the American minister to Italy, said: ‘The fourteenth amendment to the constitution declares that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.‘ This is simply an affirmance

Page 690

of the common law of England and of this country, so far as it asserts the status of citizenship to be fixed by the place of nativity, irrespective of parentage. The qualification ‘and subject to the jurisdiction thereof was probably intended to exclude the children of foreign ministers, and of other persons who may be within our territory with rights of extraterritoriality.’ 2 Whart. Int. Dig. p. 394

…  ‘The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to duties with regard to this country which do not attach to the father.

  To hold that the fourteenth amn dment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.

     Accordingly, in Quock Ting v. U. S. (1891) 140 U. S. 417, 11 Sup. Ct. 733, 851, which like the case at bar, was a writ of habeas corpus to test the lawfulness of the exclusion of a Chinese person who alleged that he was a citizen of the United States by birth, it was assumed on all hands that a person of the Chinese race, born in the United States, was a citizen of the United States. The decision turned upon the failure of the petitioner to prove that he was born in this country, and the question at issue was, as stated in the opinion of the majority of the court, delivered by Mr. Justice Field, ‘whether the evidence was sufficient to show that the petitioner was a citizen of the

Page 697

United States,’ or, as stated by Mr. Justice Brewer in his dissenting opinion, ‘whether the petitioner was born in this country or not.’ 140 U. S. 419, 423, 11 Sup. Ct. 851.

‘The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.’ ‘We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the constitution of

Page 699

the United States to be entitled to civil rights and to equal protection before the law with others.’ Cong. Globe, 39th Cong. 1st Sess. pt. 4, pp. 2890-2892. It does not appear to have been suggested, in either house of congress, that children born in the United States of Chinese parents would not come within the terms and effect of the leading sentence of the fourteenth amendment.

Doubtless, the intention of the congress which framed, and of the states which adopted, this amendment of the constitution, must be sought in the words of the amendment, and the debates in congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves, and are, at the least, interesting as showing that the application of the amendment to the Chinese race was considered and not overlooked.

          The acts of congress, known as the ‘Chinese Exclusion Acts,’ the earliest of which was passed some 14 years after the adoption of the constitutional amendment, cannot control its meaning, or impair its effect, but must be construed and executed in subordination to its provisions. Ad the right of the United States, as exercised by and under those acts, to exclude or to expel from the country persons of the Chinese race, born in China, and continuing to be subjects of the emperor of China, though having acquired a commercial domicile in the United States, has been upheld by this court, for reasons applicable to all aliens alike, and inapplicable to citizens, of whatever race or color. Chae Chan Ping v. U. S., 130 U. S. 581, 9 Sup. Ct. 623; Nishimura Ekiu v. U. S., 142 U. S. 651, 12 Sup. Ct. 336; Fong Yue Ting v. U. S., 149 U. S. 698, 13 Sup. Ct. 1016; Lem Moon Sing v. U. S., 158 U. S. 538, 15 Sup. Ct. 967; Wong Wing v. U. S., 163 U. S. 228, 16 Sup. Ct. 977.

 It is true that Chinese persons born in China cannot be naturalized, like other aliens, by proceedings under the naturalization laws. But this is for want of any statute or treaty authorizing or permitting such naturalization, as will appear by tracing the history of the statutes, treaties, and decisions upon that subject, always bearing in mind that statutes enacted by congress,a § well as treaties made by the president and senate, must yield to the paramount and supreme law of the constitution.

… him, ever renounced his allegiance to the United States, and that he has never done or committed any act or thing to exclude him therefrom.’

          The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

          Order affirmed.


U.S. Supreme Ct. Rulings for Tuesday June 1, 2010

Tuesday, June 1st, 2010

The Supreme Court on Tuesday:


_ Ruled 5-4 that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations.

_ Unanimously held that a former Somali official could not use the federal foreign sovereign immunity law to protect himself from a lawsuit filed in a U.S. court by alleged Somali victims of persecution.

_ Said, in a 6-3 vote, that a federal law that requires sex offenders to register with authorities when they move to another state does not apply to people who moved before the law took effect.

_ Agreed to decide whether student doctors are students or employees when it comes to collecting Social Security taxes, a question worth $700 million annually to the retirement system.

_ Rejected an appeal from a federal death row inmate who said his death sentence should have been thrown out because of a juror’s misconduct that included calls to five news organizations and 71 other calls to two fellow jurors, despite repeated warnings from the judge not to discuss the case with anyone.

_ Turned down an appeal from an Ohio death row inmate, convicted of killing three people, who raised questions about eyewitness testimony against him and said courts never heard evidence that includes the boast of another man that he was going to carry out the killings.

_ Stayed out of the dispute over a measure approved by voters in agricultural Kern County that is intended to stop treated human waste, generated in the Los Angeles area, from being applied as fertilizer on farms in Kern.

In a 5-4 decision the U.S. Supreme Court weakened Miranda rights by holding that a suspect must explicitly tell police they want to be silent

Tuesday, June 1st, 2010

In a 5-4 decision the U.S. Supreme Court weakened Miranda rights by holding that a suspect must explicitly tell police they want to be silent to invoke their Miranda protection during interrogations.

 A right to remain silent and a right to a lawyer are the first of the Miranda

rights warnings, which police recite to suspects during arrests and

interrogations. But the justices said Tuesday suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer.

 The ruling comes in a case where a suspect remained mostly silent for a

three-hour police interrogation before implicating himself in a murder. He

appealed his conviction, saying that he invoked his Miranda right to remain

silent by remaining silent.

 Hours after he was read the Miranda warning and thereafter remained silent







No. 08–1470. Argued March 1, 2010—Decided June 1, 2010

After advising respondent Thompkins of his rights, in full compliance with Miranda v. Arizona, 384 U. S. 436, Detective Helgert and another Michigan officer interrogated him about a shooting in whichone victim died. At no point did Thompkins say that he wanted toremain silent, that he did not want to talk with the police, or that he wanted an attorney. He was largely silent during the 3-hour interrogation, but near the end, he answered “yes” when asked if he prayedto God to forgive him for the shooting. He moved to suppress hisstatements, claiming that he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. The trial court denied the motion. At trial on first-degree murder and other charges, the prosecution called Eric Purifoy, who drove the van in which Thompkins and a third accomplice were riding at the time of the shooting, andwho had been convicted of firearm offenses but acquitted of murderand assault. Thompkins’ defense was that Purifoy was the shooter. Purifoy testified that he did not see who fired the shots. During closing arguments, the prosecution suggested that Purifoy lied about not seeing the shooter and pondered whether Purifoy’s jury had made the right decision. Defense counsel did not ask the court to instruct the jury that it could consider evidence of the outcome of Purifoy’s trial only to assess his credibility, not to establish Thompkins’ guilt. The jury found Thompkins guilty, and he was sentenced to life in prisonwithout parole. In denying his motion for a new trial, the trial court rejected as nonprejudicial his ineffective-assistance-of-counsel claim for failure to request a limiting instruction about the outcome of Purifoy’s trial. On appeal, the Michigan Court of Appeals rejected both Thompkins’ Miranda and his ineffective-assistance claims. The Fed2 BERGHUIS v. THOMPKINS Syllabus

eral District Court denied his subsequent habeas request, reasoningthat Thompkins did not invoke his right to remain silent and was not coerced into making statements during the interrogation, and that itwas not unreasonable, for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see 28 U. S. C. §2254(d)(1), forthe State Court of Appeals to determine that he had waived his right to remain silent. The Sixth Circuit reversed, holding that the statecourt was unreasonable in finding an implied waiver of Thompkins’ right to remain silent and in rejecting his ineffective-assistance-ofcounsel claim.


1. The state court’s decision rejecting Thompkins’ Miranda claim was correct under de novo review and therefore necessarily reasonable under AEDPA’s more deferential standard of review. Pp. 7–17.

(a) Thompkins’ silence during the interrogation did not invoke his right to remain silent. A suspect’s Miranda right to counsel must be invoked “unambiguously.” Davis v. United States, 512 U. S. 452,

459. If the accused makes an “ambiguous or equivocal” statement orno statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused’s intent, id., at 461–462. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protectthe privilege against compulsory self-incrimination by requiring aninterrogation to cease when either right is invoked. The unambiguous invocation requirement results in an objective inquiry that “avoid[s] difficulties of proof and . . . provide[s] guidance to officers” on how to proceed in the face of ambiguity. Davis, supra, at 458–459. Had Thompkins said that he wanted to remain silent or that he didnot want to talk, he would have invoked his right to end the questioning. He did neither. Pp. 8–10.

(b) Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to police. A waiver must be “the product of a free and deliberate choice rather than intimidation,coercion, or deception” and “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U. S. 412, 421. Such a waiver may be “implied” through a “defendant’s silence, coupled withan understanding of his rights and a course of conduct indicating waiver.” North Carolina v. Butler, 441 U. S. 369, 373. If the State establishes that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver. The record here shows that Thompkins waived his right to remain silent. First, the lack of any contention 3 Cite as: 560 U. S. ____ (2010)


that he did not understand his rights indicates that he knew what he gave up when he spoke. See Burbine, supra, at 421. Second, his answer to the question about God is a “course of conduct indicating waiver” of that right. Butler, supra, at 373. Had he wanted to remain silent, he could have said nothing in response or unambiguously invoked his Miranda rights, ending the interrogation. That he made a statement nearly three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course ofconduct indicating waiver. Third, there is no evidence that his statement was coerced. See Burbine, supra, at 421. He does not claim that police threatened or injured him or that he was fearful. The interrogation took place in a standard-sized room in the middleof the day, and there is no authority for the proposition that a 3-hour interrogation is inherently coercive. Cf. Colorado v. Connelly, 479

U. S. 157, 163–164, n. 1. The fact that the question referred to religious beliefs also does not render his statement involuntary. Id., at

170. Pp. 10–15.

(c) Thompkins argues that, even if his answer to Helgert could constitute a waiver of his right to remain silent, the police were notallowed to question him until they first obtained a waiver. However, a rule requiring a waiver at the outset would be inconsistent with Butler’s holding that courts can infer a waiver “from the actions andwords of the person interrogated.” 441 U. S., at 373. Any waiver, express or implied, may be contradicted by an invocation at any time,terminating further interrogation. When the suspect knows that Miranda rights can be invoked at any time, he or she can reassess hisor her immediate and long-term interests as the interrogation progresses. After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived Miranda rights. Thus, the police were not required to obtain a waiver of Thompkins’ Miranda rights before interrogating him. Pp. 15–17.

2. Even if his counsel provided ineffective assistance, Thompkinscannot show prejudice under a de novo review of this record. To establish ineffective assistance, a defendant “must show both deficient performance and prejudice.” Knowles v. Mirzayance, 556 U. S. ___, ___. To establish prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors,the result of the proceeding would have been different,” Strickland v. Washington, 466 U. S. 668, 694, considering “the totality of the evidence before the judge or jury,” id., at 695. Here, the Sixth Circuit did not account for the other evidence presented against Thompkins. The state court rejected his claim that he was prejudiced by evidenceof Purifoy’s earlier conviction. Even if it used an incorrect legal standard, this Court need not determine whether AEDPA’s deferential 4 BERGHUIS v. THOMPKINS


standard of review applies here, since Thompkins cannot show prejudice under de novo review, a more favorable standard for him. De novo review can be used in this case because a habeas petitioner willnot be entitled to relief if his or her claim is rejected on de novo review. See §2254(a). Assuming that failure to request a limiting instruction here was deficient representation, Thompkins cannot showprejudice, for the record shows that it was not reasonably likely thatsuch an instruction would have made any difference in light of other evidence of guilt. The surviving victim identified Thompkins as theshooter, and the identification was supported by a surveillance camera photograph. A friend testified that Thompkins confessed to him,and the details of that confession were corroborated by evidence that Thompkins stripped and abandoned the van after the shooting. The jury, moreover, was capable of assessing Purifoy’s credibility, as it was instructed to do. Pp. 17–19.

547 F. 3d 572, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, J