Bold Justice: February 19, 2018

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Bold Justice: The Court returns

The Supreme Court begins its February 2018 arguments calendar this week, and Bold Justice is ready. This week, the court will hear two Fifth Amendment cases, consider the legal scope of wiretaps, and evaluate the plain error standard of review. We also have court news and a roundup of nomination updates. Ready to go?

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As of publication today, the Supreme Court has agreed to hear arguments in 71 cases so far this term; of those 71, the court has heard arguments in 39 cases. The court will continue to hear arguments in cases this term through April 2018. Although it may continue to consider new appeals, its current number of accepted cases--71--is the same as the total number of cases it agreed to hear last term. With arguments scheduled through March, the court has limited number of argument days left to fill. Wondering where the cases are coming from this term? Check out this chart showing the number of appeals from each lower court:

The court is scheduled to hear arguments this week in the following four cases:

On Tuesday, the court will hear arguments in Currier v. Virginia. The issue in this case is the application of the Fifth Amendment's Double Jeopardy Clause. Michael Currier was charged with burglary, grand larceny, and possession of a firearm as a convicted felon. All three charges stemmed from the same burglary incident, during which Currier allegedly helped to steal a safe that contained guns (among other items). The burglary and larceny charges were related to the theft of the safe; the possession charge was related to Currier's alleged handling of the guns inside the stolen safe. The prosecution and defense agreed to sever the trials, trying Currier on the burglary and grand larceny charges in one trial, and trying Currier on the felon in possession of a firearm charge in a subsequent trial. The reason was that the possession charge required the prosecution to introduce evidence of Currier's criminal history, which could have prejudiced the jury as to the burglary and larceny charges.

At the first trial, the jury acquitted Currier on both the burglary and grand larceny charges. Following the acquittals, the prosecutor moved to begin the second trial for the felon in possession of a firearm charge. Currier objected, arguing that his acquittal on the two related charges precluded the second trial. He argued that since he had been acquitted of participating in the theft, the fact of his participation in the theft (and therefore his possession of the guns) could not be re-litigated via a second trial. The prosecution acknowledged that its theory of the crime in the second trial would be very similar to the theory it had offered the jury in the first trial. The trial court judge disagreed, allowing the second trial to go forward. Currier was subsequently convicted on the possession charge. He appealed. On appeal, the Virginia Supreme Court ruled that the Double Jeopardy Clause did not bar Currier's second trial. Adopting a lower court’s opinion, the court reasoned that, in this case, the trials were severed to protect Currier, not so that the prosecutor could gain any advantage. Given that motivation, the court concluded, the reasons that underpin the Double Jeopardy Clause did not apply to preclude the second trial. Currier then appealed to the U.S. Supreme Court.

On Tuesday, the court will also hear arguments in City of Hays, Kansas v. Vogt. This is a case about the scope of the Fifth Amendment's protection against self-incrimination. Former police officer Matthew Vogt argued that his Fifth Amendment protection against self-incrimination was violated when his statements, obtained during an internal police investigation, were used in a criminal probable cause hearing. A probable cause hearing occurs after criminal charges have been filed against someone. Typically, the hearing requires the prosecutor to show a valid basis for having arrested the defendant. If the court agrees that the prosecutor has shown probable cause, the case may proceed.

Although the Fifth Amendment is understood to provide protection from self-incrimination at trial, the United States Court of Appeals for the 10th Circuit had not previously determined whether the protection applied during pretrial proceedings. After a federal district court ruled against him, Vogt appealed to the Tenth Circuit. Reviewing the legislative history of the Fifth Amendment, the Tenth Circuit ruled that the protection against self-incrimination covers criminal pretrial proceedings as well as criminal trials. The city appealed to the U.S. Supreme Court.

On Wednesday, the court will hear arguments in Rosales-Mireles v. United States. This is a case about the plain error standard of review. Rosales-Mireles was convicted of illegal entry into the country. To determine the appropriate range for a criminal sentence, the state calculates a criminal history score for each defendant. In calculating Rosales-Mireles' score, a probation officer accidentally double-counted one of Rosales-Mireles' earlier convictions. As a result of the double-counting, Rosales-Mireles' score was higher than it should have been. With the double-counting, Rosales-Mireles' score placed him in the 77–96 month sentencing range. Without the double-counting, Rosales-Mireles' correct score would have placed him in the 70–87 month sentencing range. The district used the 77-96 score, in part, to determine Rosales-Mireles' sentence of 78 months' imprisonment.

Rosales-Mireles appealed his sentence to the United States Court of Appeals for the 5th Circuit, arguing that the double-counting was plain error and that his sentence was substantively unreasonable. The Fifth Circuit disagreed. While the court agreed that the double-counting was an error, it ruled that in order to reverse and correct the mistake, an error must rise to the level of an error that “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge" in order to justify reversal. The issue before the Supreme Court is how severe an error must be to qualify for reversal under the plain error standard.

The court will also hear arguments Wednesday in Dahda v. United States. This is a case about the scope of a judge’s jurisdiction to grant wiretap authorization to law enforcement. The issue in this case is whether evidence obtained through a wiretap should be suppressed if the wiretap order unlawfully exceeded the granting judge's jurisdiction. Los Dahda was convicted on 15 criminal counts relating to the operation of a marijuana drug distribution network. In the course of the investigation that led to Dahda's arrest, law enforcement authorities obtained a number of wiretap orders from a Kansas federal district court. Those orders did not include geographical limits on law enforcement's interception authority.

Dahda moved to suppress the evidence obtained via the wiretaps. Dahda argued that under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the wiretap orders were facially invalid because they applied outside of the district court's jurisdiction (that is, they extended beyond the state territory over which the district court had jurisdiction). The district court denied Dahda's motion. On appeal, the United States Court of Appeals for the 10th Circuit agreed that the wiretap orders were facially invalid. However, the court affirmed the district court's denial. The court ruled that Title III's territorial requirement did not directly implement Congress' core concerns in creating Title III. Dahda then appealed to the U.S. Supreme Court.

Court news

The West Virginia State Senate passed Senate Bill (SB) 341 in a 23-11 vote. SB 341 would create an Intermediate Court of Appeals composed of a northern and southern district with three judges each. Judges would be appointed by the governor and confirmed by the state Senate to serve 10-year terms. The intermediate court would hear appeals of workers' compensation claims, family court cases, and other administrative appeals. SB 341 was sent to the West Virginia House of Delegates for approval.

Currently, the five-member West Virginia Supreme Court of Appeals is the state's court of last resort and only appellate court. Appeals from the West Virginia Circuit Courts, the state's trial courts, go directly to the supreme court. If created, the new court of appeals would hear initial appeals in most civil cases. Judges on the West Virginia Supreme Court of Appeals and Circuit Courts are chosen in nonpartisan elections for terms of 12 and eight years respectively. In the case of midterm vacancy, the governor appoints a replacement from a list generated by a judicial nominating commission. West Virginia is one of 26 states with a Republican trifecta. Gov. Jim Justice is a member of the Republican Party. The state Senate has a 22-12 majority and the House of Delegates has a 64-36 majority.

The United States Court of Appeals for the 4th Circuit upheld a lower court's ruling against the Trump administration's September 24, 2017, revised travel ban. In a 9-4 decision, the court ruled, "Examining official statements from President Trump and other executive branch officials, along with the Proclamation itself, we conclude that the Proclamation is unconstitutionally tainted with animus toward Islam."

The administration's revised travel ban was previously blocked by the Ninth Circuit Court of Appeals last year. Then, in December 2017, the U.S. Supreme Court ruled that the ban could go into effect while the case proceeded. The Supreme Court is expected to hear the case in April. Because of the Supreme Court's December 2017 order, the Fourth Circuit's ruling will not halt the ban's continued implementation.

United States District Court for the Eastern District of New York Judge Nicholas Garaufis issued a preliminary injunction on Tuesday that temporarily blocks the Trump administration's September 2017 order ending the Deferred Action for Childhood Arrivals (DACA) program. The plaintiffs in the case had challenged the administration's order, arguing in part that it violated the Administrative Procedure Act (APA). They asked the court to issue a preliminary injunction to temporarily block the order while the case proceeded.

Garaufis granted the preliminary injunction. He ruled that while the administration possessed the legal authority to end the DACA program, its stated rationale in its September 2017 order could not survive judicial review. Under the APA, courts asked to review administrative decisions "must set aside action, findings, or conclusions that are, among other things, arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Garaufis wrote, "The question before the court is thus not whether [the administration] could end the DACA program, but whether they offered legally adequate reasons for doing so." The Trump administration's stated rationale for ending the DACA program was its belief that the program was unconstitutional. Garaufis disagreed, ruling that the Obama administration's creation of the program was within its legal authority. Because the Trump administration's stated rationale was legally erroneous, Garaufis concluded, its order ending the program could not survive review under the APA. Garaufis emphasized that his order did not mean that the administration was unable to lawfully end DACA on different grounds. This was the second decision by a federal district court to block the administration's September 2017 DACA order. A federal district court in San Francisco blocked the order in a separate lawsuit earlier this year. The Trump administration appealed that decision to the United States Supreme Court.

Federal court action

Confirmations

The U.S. Senate did not confirm any additional nominees since our last issue.

Nominations

President Trump announced nine new nominations last week:

Mark Bennett, nominated to the United States Court of Appeals for the 9th Circuit
Michael Scudder, nominated to the United States Court of Appeals for the 7th Circuit
Eric Tostrud, nominated to the United States District Court for the District of Minnesota
Peter Phipps, nominated to the United States District Court for the Western District of Pennsylvania
Thomas Kleeh, nominated to the United States District Court for the Northern District of West Virginia
Nancy E. Brasel, nominated to the United States District Court for the District of Minnesota
Amy St. Eve, nominated to the United States Court of Appeals for the 7th Circuit
Andrew Oldham, nominated to the United States Court of Appeals for the 5th Circuit
Charles Williams, nominated to the United States District Court for the Northern District of Iowa

Vacancies

As of publication, there were 146 vacancies in the federal judiciary out of 870 Article III life-term judicial positions. Of those 146 vacancies, 88 have had no nominee put forth as yet during President Trump’s administration. According to the Administrative Office of U.S. Courts and other outlets, an additional 30 judges have announced their intention to leave active judicial status during Trump’s first term. There are 62 pending nominations to life-term, Article III judicial positions. Check out the chart below to see vacancies of four years or more:

Committee action

Last week, the Senate Judiciary Committee met on Tuesday, February 13 and Thursday, February 15 to consider new nominees. On Tuesday, February 13, the Committee held hearings for five nominees:

Joel Carson, to be United States Circuit Judge For The Tenth Circuit
Colm Connolly, to be United States District Judge For The District Of Delaware
William Jung, to be United States District Judge For The Middle District Of Florida
Maryellen Noreika, to be United States District Judge For The District Of Delaware
Ryan Holte, to be a judge on the United States Court Of Federal Claims

On Thursday, February 15, the Committee met for an executive business meeting and voted to advance four nominations for a full confirmation vote in the Senate:

Michael B. Brennan, to be United States Circuit Judge for the Seventh Circuit
Susan Paradise Baxter, to be United States District Judge for the Western District of

Pennsylvania

Daniel Desmond Domenico, to be United States District Judge for the District of

Colorado

Marilyn Jean Horan, to be United States District Judge for the Western District of

Pennsylvania

Love judicial nomination, confirmation, and vacancies information? We figured. Our monthly Federal Vacancy Count, which is published on the last Wednesday of every month, monitors all of the faces, places, and spaces moving in, moving out, and moving on in the federal judiciary.

Need a daily fix? Our Federal Vacancy Warning System’s got you covered with continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we maintain a list of individuals nominated by President Trump.

A judge you oughta know

Every week, we at Ballotpedia want to highlight a federal judge or judicial nominee. We’re in our review of President Donald Trump’s list of 25 individuals from which he indicated he would choose nominees to fill Supreme Court vacancies. This week, let’s get to know Raymond Kethledge, a judge on the U.S. Court of Appeals for the Sixth Circuit and a judge you oughta know. Kethledge joined the court in 2008 after being nominated by President George W. Bush. He graduated from the University of Michigan with his bachelor's degree in 1989 and from the University of Michigan Law School with his J.D. in 1993.

Looking ahead

Here’s what we’re looking ahead to this week:

We expect the U.S. Supreme Court to hear arguments in four cases.
We expect the U.S. Supreme Court to issue orders and possibly opinions this week.

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Bold Justice: February 19, 2018

Contents

Bold Justice: The Court returns

We #SCOTUS, so you don’t have to

Court news

Federal court action

Confirmations

Nominations

Vacancies

Committee action

A judge you oughta know

Looking ahead

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