In association with Bloomberg Law

Two of the Justices and several of the groups filing opposition to this appeal had said that review of the case would give the Court a chance, based on the heavy flow of money into this year’s federal campaigns, to reconsider the basic premise of the Citizens United ruling: that is, that corporations’ spending their own money does not cause corruption or its appearance in politics.

But lawyers for three Montana corporations argued in their new brief that this was a “diversion” from the central question of whether the Montana Supreme Court had disobeyed the Supreme Court’s Citizens United ruling by upholding a state law that is said to conflict directly with that decision.  Events since the state court ruling in December, the reply said, “are not part of the record of this case and played no role” in the state court decision.

Without mentioning that Justice Ruth Bader Ginsburg, joined by Justice Stephen G. Breyer, had made the same argument in February that some of the amici filings have now done, the reply argued: “These amici essentialy want this Court to host a trial, to allow creation of a new record, and to rely on new arguments not considered below or even asserted” by the state itself in its opposition brief.   It noted that the state had said there was no need for the Court to reconsider Citizens United, because there was no need for that ruling to be interpreted as broadly as the challengers do in their petition.

In addition, the reply discounted the arguments in the amici briefs that corruption is now apparent in campaign finance, especially in this year’s campaigns.  The new brief called these arguments “doomsday portrayals” that “are overblown.”

In repeating its earlier plea for the Court to overturn the Montana court decision summarily, the new brief cited the widespread controversy across the nation about the Citizens United decision — including calls for a constitutional amendment to overturn that decision, and planned Senate hearings on that question.  But the brief said this only serves to elevate the importance of this case as a vehicle for maintaining the result in Citizens United, which the brief said had resolved “a divisive controversy.”  The pressure against Citizens United, including pleas by amici to overturn it, adds to the pressure now surrounding the issue and gives new importance to deciding the Montana case swiftly, the brief said.

The Court has not yet scheduled this case for Conference, but the earliest that it could go before the Justices appears to be the June 14 Conference.  The prompt filing of the reply brief — just one week after the opposition briefs had come in - enhances the prospect that the case will be considered by the Justices, and perhaps acted upon, before the current Term ends, in late June.   If the Court grants review, rather than summarily overturning the state court ruling, that almost certainly would push the case over into the new Term, starting October 1, but the case probably would not go to an argument before December.   A summary decision could come this Term, but, if it drew dissents (as would be likely), that might delay it.

In association with Bloomberg Law

The strongest thing Freeman had on its side was HUD’s consistent view that the statute’s prohibition on “giv[ing] and * * * accept[ing] any portion, split, or percentage of any charge * * * other than for services actually performed” applies even when the charge is not split.  Unfortunately for Freeman, HUD also has taken the view that the statute applies even when some services are rendered, if the charge exceeds the “reasonable value” of the services.  That aggressive view starkly undermined whatever credibility HUD might have had on the issue before the Court.  Justice Breyer’s virulent opposition at the oral argument to the idea that RESPA could be interpreted to regulate prices is reflected in the Court’s opinion: although the issue is not before it, the Court went out of its way to characterize HUD’s “reasonable value” interpretation as “manifestly inconsistent” with the statute and a “palpable overreach” by HUD.

The Court also emphasized the oddity that Freeman’s view, at least potentially, left consumers open to criminal liability whenever they “give” an unearned fee.  Justice Breyer had chided the Solicitor General’s representative at oral argument for failing to address this argument in the government’s brief.  The failure to attend to the point directly cost the government sorely in the end, because the Court found this point particularly telling. It dismissed out of hand the idea that prosecutorial discretion could narrow the practical reach of the statute, emphasizing that “prosecutorial discretion is not a reason for courts to give improbable breadth to criminal statutes.”

Against that backdrop, the Court’s treatment of the statutory question was predictably cursory.  The Court acknowledged that a “portion” could refer to a one hundred percent share – with no splitting – but argued that the phrase “normally” refers to a share less than one hundred percent.  And given the odd consequences of the use of “portion” as including the entirety of the fee, the Court concluded that the statute would bear only one reading: the statute applies only to cases of fee-splitting.

Perhaps the most significant jurisprudential aspect of the opinion is that the Court once again managed to duck the question of what level of deference is appropriate for informal agency documents like the HUD policy statement at issue here.  Because HUD’s view “goes beyond the meaning that the statute can bear,” the Court explained that it would have rejected HUD’s position even if it had accorded full Chevron deference to it.

PLAIN ENGLISH SUMMARY:  The Court this week in Freeman v. Quicken Loans, Inc. resolved an argument about the fees lenders charge for mortgage loans.  The Court held that unearned fees – fees for which lenders provide no services – violate federal law only if the fees are split between two companies.  This may seem strange, but the Court said that the law Congress passed was only about fee splitting.  To control the level of fees that a single bank charges, Congress would have to be more specific.

[Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents the petitioners in the case.  The author of this post, however, is not involved in the case.]

In association with Bloomberg Law

 How did you wind up in your current position? 

Serendipity and the kind support of others, including my husband and children.

 Only six women in private practice appeared before the Court this Term, and you were the only woman in private practice to argue before the Court more than once. What do you think is responsible for these low numbers, and how can they be improved? 

 Obviously it would help if the Supreme Court’s docket were more active so that there were just statistically more opportunities.  (But I admit that is a self-interested and not very objective answer!)  Beyond that, I think the shortage of women who are both in the Supreme Court bar and in private practice explains a lot.  Many clients with Supreme Court cases now want to have someone with Supreme Court experience handle their cases.  But there are only a handful of women in private practice with concerted Supreme Court experience, and none of them have the title “former Solicitor General.”  And, with Barbara Underwood still in public service, only one, Maureen Mahoney, has the title “former Deputy Solicitor General,” and she has quasi-retired.   Without those types of titles, it is more challenging for women to compete for the limited number of private-party cases in the Supreme Court each year.

There are, of course, many more women in the government, public defenders, and public interest groups and practicing in the Supreme Court.

The shortage in private appellate practices is probably attributable to a number of factors:  (i) it was not until around my generation that women were getting hired in significant numbers in the governmental offices, like the U.S. Solicitor General’s Office, that provide a solid launching pad for developing a Supreme Court or appellate practice later in a private firm; (ii) the concept of a specialized appellate and Supreme Court bar in private law firms is itself a relatively recent phenomenon; (iii) women have only recently arrived in significant numbers in corporate general counsels’ offices; and (iv) all the other factors (whatever they may be) that reduce the number of women in private practice generally.

I am optimistic that this is just a short-term problem, and that we are on the cusp of having women advocates really explode on the Supreme Court scene.  People like Deanne Maynard at Morrison & Foerster, Kathleen Sullivan at Quinn Emanuel, and Lisa Blatt at Arnold & Porter have exceptional reputations in the Supreme Court bar and are doing extremely well spearheading private appellate and Supreme Court practices.  Plus now that there is an increasing number of women in general counsels’ Offices and corporate life generally, businesses seem to be just as comfortable with hiring women as men to handle their important appeals and Supreme Court review.  And now that women are so actively hired,and gaining extensive Supreme Court practice, in government (like the Solicitor General’s Office), and in public interest groups that have a heavy Supreme Court presence (people like Pam Karlan at Stanford and Allison Zieve at Public Citizen), we are getting a deeper bench of women with the required skill set for those private clients to hire.  So I look forward to being quickly overtaken in these numbers, and to the time when no one pays attention to women’s numbers as distinct from men’s numbers.  I hope to become statistically irrelevant soon!

 Have you developed a set way of preparing for arguments, or do you find that still evolves? For instance do you try to do a certain number of moot courts for each argument?  Do you have any personal rituals for how you like to prepare the night before or the morning of an argument?

 Yes and no.  I certainly have a pretty settled pattern at this point of what I do substantively in terms of reviewing briefs, record materials, cases, etc.   I try to do two moot courts for every Supreme Court case (and one to two for courts of appeals), and to ensure I am being mooted by people who know the Supreme Court well and are coming to the case fresh.  I do not need any cheerleaders at my moot court.  And I cannot imagine walking into that Court without the preparation of a few vicious moot courts; it is critical to the development of my thinking.

I don’t have any set rituals the night before other than always wishing I had a bit more time!  I also try to spend time walking around the office halls (it used to be the Justice Department halls) doing a question-and-answer dialogue non-stop for ninety minutes or so in my head.  And the Clerk will tell you that I can always be found pacing and continuing that self-mooting in the Lawyers’ Lounge before arguments.   The main thing for the couple days before argument is to focus on the question-and-answer rhythm, and refining answers until they are just right.

And my set ritual the night after an argument is to have much better answers than the ones I gave and to beat myself up for it.…

Along the same lines, do you have a particular strategy that you always follow for briefing your cases? 

 The strategy depends very much on the case, the issues raised, my sense of the Supreme Court’s receptivity to arguments and how they will fit within the jurisprudence.  I do try very hard to develop themes that are easily understood and that, hopefully, will paint vivid images of the legal principles and implications of the ruling that will stick in the Justices’ heads and will help influence how they think about the case.  Controlling how the case and issues are conceptualized is (at least) half the battle.

What makes for a good argument; alternatively, what should one never do in an argument?

 Oh there are long lists of do’s and don’ts out there.  What makes for a good argument, at bottom, is being more prepared than anyone else in that courtroom, and being willing to fight to tell your client’s story – the story of why the right view of the law and my client’s interests are one and the same.  You can’t let the place or the pace of questioning intimidate you.  By the same token, the most important thing not to do, in my opinion, is to have any gap between you and your client:  never give any hint that you do not believe in your client’s legal position.  In any courtroom appearance, when I stand at a podium, I am all the client has fighting on her/his behalf.  It is the client’s case, not mine.  Being chosen to represent someone in such an important matter is an enormous trust, privilege, and responsibility.  It is my job to stand in the gap against whatever forces are pushing against my client.

What is the hardest lesson you have learned in your appearances before the Court?

Arguments are always unpredictable.  The Justices are so smart and so well prepared that they have an infinite capacity to come at the case from distinctive angles.

In which of your oral arguments do you think that the oral argument was most influential in persuading the Justices to reach the result that they did?   

Oh I would not presume to judge that.  But I can say I always hope the argument I am about to give will be the best and most persuasive ever.

If you could argue any case in history, what would it be and why?

 Marbury v. Madison, of course.  Just because if women had broken into the Supreme Court bar back then, we’d dominate it by now!

In association with Bloomberg Law

In Blueford, the Court held that the Double Jeopardy Clause does not protect a defendant from retrial when the jury has not returned an official final verdict of acquittal. At issue was the murder trial of Alex Blueford, in which a jury reported that it had voted unanimously against capital and first-degree murder charges but eventually deadlocked on the lesser charge of manslaughter, leading the court to declare a mistrial. The Court’s ruling allows prosecutors to retry Blueford on all three charges. Adam Liptak of the New York Times has coverage of the opinion, as do Mike Sacks of the Huffington Post, David Savage of the Los Angeles Times, Peter Urban of Arkansas News, Robert Barnes of the Washington Post, and Reuters.  Justice Sotomayor filed a dissenting opinion, which was joined by Justices Ginsburg and Kagan, in which she argued that the Court’s opinion will give prosecutors a “second bite at the apple.” At Balkinization, Mark Tushnet notes that this may be “the first case in which the Court has divided along gender lines,” but he also concludes that “neither the issue (a double jeopardy problem) nor the underlying facts implicate gender in any direct way.”

The Court also released a unanimous decision in Freeman v. Quicken Loans, holding that the Real Estate Settlement Procedures Act applies only when a mortgage fee is shared between two or more parties, and thus does not apply to a fee charged by the originator of the loan.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represented the petitioners in Freeman, but the author of this post was not involved in the case.]  Greg Stohr of Bloomberg has coverage of the opinion, which he describes as a “victory for the real-estate and banking industries” that “limit[s] the ability of home buyers to sue mortgage lenders for overcharges at settlement.”  Jesse Holland of the Associated Press, Barbara Leonard of Courthouse News Service, and Reuters all have more coverage.

On Thursday, Justice Breyer denied a petition from Rhode Island’s governor seeking to bar the transfer of a state prison inmate to the federal government for prosecution on charges that may result in a death sentence; Lyle Denniston of this blog discusses the petition in more detail.

Yesterday the federal government also recommended that the Court deny certiorari in a dispute over whether stormwater runoff from logging and forest roads is subject to permitting under the Clean Water Act. Lawrence Hurley of Greenwire reports on the two cases on this issue, Decker v. Northwest Environmental Defense Center and Georgia-Pacific West Inc. v. Northwest Environmental Defense Center and the government’s brief, which “told the Supreme Court there’s no need to take the case because EPA and Congress are both working on the matter.”    

Briefly:

• At the National Journal, Margot Sanger-Katz and Meghan McCarthy discuss the implausibility of rumors that the Court was expected to issue its opinions in the Affordable Care Act litigation yesterday.
• Jill Family of this blog analyzes the Court’s opinion in Holder v. Gutierrez and Holder v. Sawyers.
• Writing for the DealBook blog of the New York Times, Andrew Pincus revisits the Court’s decision in AT&T Mobility v. Concepcion one year later and argues that “[w]e need the actual increase in access to justice that arbitration provides.”
• Lyle Denniston of this blog reports on a new mobile device-friendly version of the Supreme Court’s website.
• And at the Volokh Conspiracy, Ilya Somin discusses whether and when the Court should consider how a decision might affect its perceived legitimacy.

In association with Bloomberg Law

In association with Bloomberg Law

—————

Rhode Island’s governor, relying on his state’s opposition to the death penalty, asked the Supreme Court on Wednesday to bar the transfer of a state prison inmate to the federal government for prosecution on bank robbery charges that might lead to a death sentence.  In a stay application (Chafee, et al., v. U.S., 11A1113), Gov. Lincoln D. Chafee was joined by the Rhode Island inmate, Jason Wayne Pleau.  The request for a delay, until the case can be appealed to the Justices, was filed with Justice Stephen G. Breyer.

Pleau was already serving an 18-year prison sentence in Rhode Island for violation of parole and probation when the federal government demanded that he be turned over under a federal bank robbery charge.  In September 2010, Pleau allegedly shot and killed a gas station manager outside of a bank in Woonsocket, R.I., when the man was trying to deposit money.  In the federal case, Pleau is charged with robbery, conspiracy, and using a gun during a violent crime that resulted in death.  He could face the death penalty if convicted, but a decision on that has not yet been made.

The case turns on the meaning of the Interstate Agreement on Detainers Act.  Normally, that law is used to make it easier for one state to obtain custody of an individual who is in another state, for prosecution for a crime in the demanding state.   The federal government, however, is covered by the Act’s provisions, too.

When the federal government formally asked Rhode Island to hand over Pleau, the state — exercising what it believes is its right under the Act — refused, based on the state’s public policy against death sentencing.  The government, however, then went into federal court, and obtained a formal writ commanding Rhode Island to turn over Pleau, despite the governor’s objections.  As of now, the federal government’s argument has prevailed, as the en banc First Circuit Court ruled in May that Rhode Island must obey the writ.  The Circuit Court split 3-2 on the issue.

The governor and Pleau, in their joint plea for delay, sought a stay of the Circuit Court ruling until the Supreme Court could act on separate appeals, which both the governor and Pleau said they plan to file by June 22.   In the meantime, they asked the Court to bar the Circuit Court from implementing its ruling until the Justices can act on the stay request.   As of now, the transfer to federal custody could occur as soon as May 29 — next Tuesday — because the Circuit Court has refused a delay.

While their plea was filed with Breyer as the Circuit Justice for the First Circuit, Breyer has the option of acting on it on his own, or sharing it with his colleagues.

In association with Bloomberg Law

In association with Bloomberg Law

“The Supreme Court will launch new Website capabilities on June 1, 2012 to improve the mobile device user experience. The Court’s Website has always supported a variety of web browsers, but it will now detect the mobile device being used and will automatically adjust the display based on the screen size and orientation. This Website enhancement will make the Court’s site easier to read on a mobile device and improve user navigation on the site.”

In association with Bloomberg Law

In a unanimous decision on Monday, the Court held that the Department of Justice’s Board of Immigration Appeals (BIA) reasonably construed a statute to forbid the imputation of a parent’s U.S. residency and immigration status to a child to compute the child’s eligibility for relief from removal (deportation).  The Court reversed the decision of the Ninth Circuit in Holder v. Gutierrez, consolidated with Holder v. Sawyers.

Congress created a limited form of relief from removal for lawful permanent residents, known as “cancellation of removal,” under 8 U.S.C. § 1229(b)(a).    According to the statute, if a lawful permanent resident (“green card” holder) meets certain statutory criteria, the Attorney General may exercise his discretion to cancel removal.  Cancellation of removal is one of the very few narrow opportunities for a foreign national who is otherwise deportable to ask for permission to stay in the United States.  Even if the statutory requirements are met, however, that does not guarantee that the foreign national may stay in the country; it simply means that the Attorney General may opt to allow him to stay.  Two of the cancellation eligibility criteria were at issue in these cases:  the requirement that an applicant show at least five years of lawful permanent resident status and the requirement that an applicant show at least seven years of continuous residence in the United States after being admitted in any status.

In these consolidated cases, two foreign nationals, Carlos Martinez Gutierrez and Damien Antonio Sawyers, applied for cancellation of removal.  Martinez Gutierrez had come to the United States when he was five, and his father became a lawful permanent resident in 1991, when Martinez Gutierrez was seven.  However, Martinez Gutierrez himself did not become a lawful permanent resident until 2003, when he was nineteen.  Thus, when the government sought to remove him for alien smuggling in 2005, he could not meet either the five-year lawful permanent residence status or seven years of continuous residence requirements on his own.  Similarly, when the government charged Sawyers with removal after a 2002 controlled substance conviction, he fell just short of the continuous residence requirement.  Both Martinez Gutierrez and Sawyers therefore sought to rely on a parent’s residency and/or status to show eligibility for cancellation of removal.  However, the Attorney General, through the BIA, maintained that the cancellation of removal statute did not permit imputation.

The Court upheld the BIA’s interpretation of the cancellation of removal statute under Chevron U.S.A. v. Natural Resources Defense Council.  The Court explained that the statute does not demand imputation, either explicitly or through its legislative history and legislative purpose.  Even if the statute might permit imputation, it does not require it.  Thus, the statute is not clear and leaves room for the BIA’s interpretation as long as it is reasonable.

Martinez Gutierrez and Sawyers argued that the BIA’s refusal to allow imputation was unreasonable because:  (1) the BIA allowed for imputation in other ambiguous circumstances and its refusal to allow cancellation imputation is therefore inconsistent; and (2) the BIA based its decision to refuse imputation on a misconception that the cancellation statute unequivocally forbids imputation.    Neither argument persuaded the Court.  The Court acknowledged that the BIA has allowed a parent’s circumstances to be imputed to a child in other situations, but it determined that the BIA provided a “reasoned explanation” for the differing treatment.  The BIA permits imputation of states of mind, but not “objective conditions or characteristics.”  The cancellation of removal criteria invoke objective conditions (years of residence and years of status), while other scenarios in which the BIA has permitted imputation involve the transfer of a parent’s intent to a child.  Also, the Court did not read the BIA’s opinion as expressing a belief that the cancellation of removal statute absolutely forbids imputation.  Instead, the Court saw an agency invoking its expertise to decide on what it believed to be the best interpretation of the statute.

While the Court’s opinion reads as a run-of-the-mill application of Chevron, the facts and policy behind the cases exhibit the severity of immigration law.  The consolidated cases highlight how little relief from removal is actually available.  Congress has virtually eliminated the concept of proportionality from immigration law.  Cancellation of removal is already a narrow form of relief, and in this instance the BIA interpreted that relief in an even more limiting way.  The Court held the statute to be ambiguous, which indicates that the BIA might have interpreted the statute to allow imputation, but did not. As explored during oral argument, a child’s future eligibility for cancellation of removal now may hinge on when a parent filed paperwork for the child.  If a parent waited too long, the child will not independently satisfy the status and/or residence requirements to be eligible for cancellation of removal.   In contrast, a parent who filed earlier would bestow on her child a chance to remain.  Such harsh consequences from seemingly random actions out of the control of the child surely will be influential as the debate over immigration reform continues.

Plain English Summary

A statute provides that a foreign national may ask the Attorney General to decide, in his discretion, to cancel removal (deportation) if the foreign national meets certain criteria.  Two of the criteria implicate length of U.S. residence and length of immigration status.  The Board of Immigration Appeals, which is a part of the Department of Justice, interpreted the statutory criteria to forbid the transfer of a parent’s U.S. residence and immigration status to a child if the child cannot meet the criteria on his or her own.  The Supreme Court held that the statutory criteria do not make clear whether such imputation is permissible. Because the statute is ambiguous, the Court explained that it would defer to the Board of Immigration Appeals’ reading of the statute as long as that reading is reasonable.  The Supreme Court held the reading to be reasonable.  This means that the interpretation of the Board of Immigration Appeals survives.  A parent will not be able to transfer residency and/or status to a child to determine the child’s eligibility for relief from removal.

In association with Bloomberg Law