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Animal rights and the First Amendment, due process and a confession of error

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The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

We have a fair amount of movement on the relist rolls this week. To begin with, one familiar nine-time relist is leaving us: Love v. Texas, involving allegations that a racially biased juror, who commented during voir dire that “non-white” races were statistically more violent than whites, served on petitioner Kristopher Love’s capital sentencing jury.  The court denied cert on Monday. Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, filed an opinion dissenting from the court’s denial of summary vacatur.

We have four new relisted cases this week, raising basically three issues.

The due process clause of the 14th Amendment limits where defendants can be sued. Defendants can be sued in states where they are “at home” (which, for corporations, is where they are incorporated or have their principal place of business or headquarters) — a concept known as “general” personal jurisdiction. Corporations can also be sued if they have certain minimal contacts in a state related to the conduct giving rise to the suit — known as “specific” personal jurisdiction. Two pending petitions raise the question of the constitutionality of state statutes providing that corporations are deemed to have consented to “general” personal jurisdiction by virtue of having registered to do business in a state. Some older Supreme Court decisions support that theory of consent. But as Justice Neil Gorsuch recently wrote, “It is unclear what remains of the old ‘consent’ theory. Some courts read [Supreme Court precedent] as effectively foreclosing [this consent-by-registration theory of jurisdiction], while others insist it remains viable.” 

In Cooper Tire & Rubber Company v. McCall, a tire manufacturer resists Georgia courts’ exercise of jurisdiction on the basis of the state’s registration statute for foreign corporations. Tyrance McCall, a Florida resident, filed suit in Georgia against Cooper Tire & Rubber Company, a Delaware corporation with its headquarters in Ohio, after a 2016 accident in Florida resulted from the alleged failure of a tire that Cooper manufactured in Arkansas. Cooper’s activities in Georgia had no connection to McCall’s claims against Cooper, meaning that Georgia courts lacked “specific jurisdiction” over Cooper. Instead, the Georgia Supreme Court upheld “general jurisdiction” over Cooper on the ground that Cooper, by registering as a foreign corporation in Georgia, had consented to suit in Georgia as a condition of doing business in the state. The court ruled that the Supreme Court had not formally overruled earlier case law supporting the theory that registration supports general jurisdiction.

The petition in Cooper was filed by the defendant in a lawsuit resisting personal jurisdiction. By contrast, the petition in Mallory v. Norfolk Southern Railway Co., was filed by a plaintiff seeking to enforce a similar registration statute. Robert Mallory worked for Norfolk Southern Railway for almost 20 years and claims he developed colon cancer because of his workplace exposure to asbestos and other toxic chemicals. Although the railroad’s principal place of business is Virginia, it is registered to do business in Pennsylvania as a foreign corporation, and Mallory sued there. However, the Pennsylvania Supreme Court held that state’s consent-by-registration statute to be unconstitutional under the due process clause. Mallory notes the petition in Cooper Tire raises the same issue with the support of business groups as amici. But Mallory contends that “Cooper Tire suffers from serious problems that render it an inferior vehicle to address the question presented,” because the Georgia statute does not explicitly provide notice that obtaining authorization subjects them to general jurisdiction in the courts. Norfolk Southern takes the position that the court shouldn’t take either case — but if the court is going to review the issue, it should do so in the Mallory case. It seems like the odds of a grant are good in one or both cases.

Next up is Kelly v. Animal Legal Defense Fund. A Kansas law provides criminal penalties for trespassing at “animal facilities” with intent to damage the enterprise, and defines “trespass” to include entering the facility with the consent of the owners when gained by deception. The law defines an animal facility as any place that houses or breeds animals used for food production, agriculture, or research. In 2018, the Animal Legal Defense Fund sought a declaratory judgment and permanent injunction on the ground that the law violates the First Amendment’s free speech clause. According to the petitioner, Kansas Gov. Laura Kelly, the group planned to use deception to gain access to animal facilities in order to gain information about them.

The district court agreed with the defense fund that the law violates the First Amendment because it “targets negative views about animal facilities.” A divided panel of the U.S. Court of Appeals for the 10th Circuit affirmed. To the majority, the law regulates speech because it excludes consent obtained by deception, and the law implicates speech because “speech-creating activity,” such as taking pictures, would occur at the animal facility. The majority held that the law impermissibly discriminates on the basis of viewpoint because it targets those who wish “to damage the enterprise conducted at the animal facility,” not those who wish “to laud the facility” or who act for “neutral reasons.” In her petition, Kelly argues that the 10th Circuit ruled incorrectly because trespass by deception is not speech, or at least not protected speech, and because the “intent to damage” component of the law is not viewpoint discrimination. Kelly further claims the circuits are divided on the issue, with a decision of the U.S. Court of Appeals for the 8th Circuit upholding a similar Iowa law.

Last up is Grzegorczyk v. United States. Zenon Grzegorczyk, perhaps embittered that neither of his names had ever been spelled correctly on a Starbucks cup or dinner reservation, hired two people to commit a series of six murders. Unfortunately for Grzegorczyk (but fortunately for a half-dozen other people), they were federal agents. Grzegorczyk pleaded guilty to one count of using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. § 1958(a), and one count of possessing a firearm in furtherance of a crime of violence (namely, the Section 1958(a) count), in violation of 18 U.S.C. § 924(c). Section 924(c) defines crime of violence as a felony offense that either “has as an element the use, attempted use, or threatened use of physical force” (the “elements clause”) or that “by its nature, involves a substantial risk [of] physical force” (the “residual clause”). The plea agreement stated that Grzegorczyk’s Section 1958(a) offense was a “crime of violence” under Section 924(c). He was sentenced to 211 months of imprisonment.

In Johnson v. United States, the Supreme Court held that the “residual clause” of the Armed Career Criminal Act (which is phrased similarly to the “residual clause” of Section 924(c)) was unconstitutionally vague. Grzegorczyk argued that the residual clause of Section 924(c) was likewise unconstitutionally vague. The district court agreed but held that Grzegorczyk had waived the challenge by agreeing that his Section 1958(a) offense was a crime of violence. The U.S. Court of Appeals for the 7th Circuit affirmed. 

Before the Supreme Court, Grzegorczyk renews his claim that his Section 1958(a) offense does not qualify as a crime of violence.  The government has filed a confession of error, agreeing the offense does not qualify. Further, the government states that it has determined that, consistent with its practice in similar cases, it will forgo reliance on Grzegorczyk’s guilty plea as a bar to postconviction relief. Accordingly, it argues that the Supreme Court should grant the cert petition, vacate the court of appeals’ judgment, and remand for further proceedings in light of the government’s new position. In the past, some members of the court have expressed some disagreement with the practice of vacating and remanding absent a showing the judgment below is erroneous (perhaps missing here because Grzegorczyk’s unconditional plea to the offense arguably waives any claim the charge was insufficient). But that view doesn’t command a majority, so the odds are good Grzegorczyk will be getting good news shortly.

That’s all for this week. Until next time, stay safe!

New Relists

Kelly v. Animal Legal Defense Fund, 21-760
Issue: Whether Kan. Stat. Ann. § 47-1827(b), (c), and (d) violate the free speech clause of the First Amendment by criminalizing trespass by deception at animal facilities with intent to damage the enterprise.
(relisted after the April 14 conference)

Cooper Tire & Rubber Co. v. McCall, 21-926
Issue: Whether the due process clause of the 14th Amendment permits a state to assert personal jurisdiction over an out-of-state corporation, for claims not arising from or related to any contacts between the corporation and the forum state, on the ground that the corporation’s registration to do business in the state is deemed consent to general jurisdiction there.
(rescheduled before the March 25 conference; relisted after the April 14 conference) 

Mallory v. Norfolk Southern Railway Co., 21-1168
Issue: Whether the due process clause of the 14th Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.
(relisted after the April 14 conference)

Grzegorczyk v. United States, 21-5967
Issue:  Whether Zenon Grzegorczyk is entitled to relief on his claim that knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. § 1958(a), is not a crime of violence under 18 U.S.C. § 924(c).
(relisted after the April 14 conference)

Returning Relists

Reed v. Goertz, 21-442
Issue: Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).
(relisted after the Feb. 18, Feb. 25, March 4, March 18, March 25, April 1 and April 14 conferences)

Andrus v. Texas, 21-6001
Issues: (1) Whether, on remand, the Texas court rejected the Supreme Court’s conclusions in Andrus v. Texas, which were amply supported by the habeas and trial records, and whether the Texas court disregarded the Supreme Court’s express guidance for conducting a prejudice analysis pursuant to Strickland v. Washington; and (2) whether the Texas court’s failure to adhere to the Supreme Court’s decision conflicts with our constitutional system of vertical stare decisis and creates widespread confusion regarding the proper legal standard that courts must use in assessing whether the Sixth Amendment right to effective assistance of counsel is violated in death-penalty cases.
(rescheduled before the Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, and March 18 conferences; relisted after the March 25, April 1 and April 14 conferences)

Cope v. Cogdill, 21-783
Issues: (1) Whether jail officials who are subjectively aware of a substantial risk that a pretrial detainee will attempt suicide and respond to the harm unreasonably may be held liable when their violation was obvious — as the U.S. Courts of Appeals for the 1st, 4th, 7th, 8th, 9th, and 11th Circuits have held — or whether jail officials who respond unreasonably to the obvious risk should be granted qualified immunity in the absence of a case involving the same facts — as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether the objective standard the Supreme Court announced in Kingsley v. Hendrickson applies to inadequate-care claims brought by pretrial detainees — as the U.S. Court of Appeals for the 2nd, 6th, 7th, and 9th Circuits have held — or whether the subjective standard that applies to convicted prisoners also applies to pretrial detainees — as the U.S. Courts of Appeals for the 8th, 10th, and 11th Circuits have held and as the 5th Circuit held below; and (3) whether the judge-made qualified immunity doctrine requires reform.
(relisted after the April 1 and April 14 conferences)

Recommended Citation: John Elwood, Animal rights and the First Amendment, due process and a confession of error, SCOTUSblog (Apr. 20, 2022, 10:09 AM),