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Catching up with SCOTUS

A number of Supreme Court justices have turned out quite differently than the presidents who appointed them counted on.  Felix Frankfurter, picked by FDR, became much more conservative once on the Court.  (He's the one who turned down Ruth Bader Ginsburg for a clerkship because she was a woman.)  Earl Warren, Harry Blackmun, and David Souter came as major surprises.  You might add Anthony Kennedy to the list; I doubt Ronald Reagan would have anticipated that Kennedy would be the lead advocate on the Court for gay rights, and lend his vote this term to upholding affirmative action and striking down abortion restrictions.

Although the decision in Women's Health v. Hellerstadt, nullifying most of Texas' limitations on abortion, got most of the press, Bob McConnell was a happy man, too; the Court unanimously reversed his bribery conviction.  McDonnell, while governor of Virginia, had taken $177,000 in gifts and loans from a businessman, Jonnie Williams, Sr., in return promoting Williams' company's sale of a dietary supplement.  McDonnell argued that his promotion didn't constitute an "official act" under the bribery statute:  all he did was provide Williams access to various agencies and departments who could assist him, and his activities were "constitutionally protected and an intrinsic part of our political system."

The Court didn't buy into the constitutional argument, but it did find that the prosecutors had overreached in trying to apply the Federal bribery statute, and adopted a "more bounded" interpretation of what qualifies as the "official act" required by the law.  "Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an 'official act.'"

The Government's position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame.

As the unanimous vote indicates, there was certainly something to McDonnell's argument.  Still... F. Scott Fitzgerald is supposed to have said to Hemingway, "The rich are different from you and me," eliciting Hemingway's reply, "Yes, they have more money."  A modern Hemingway would have replied, "Yes, when they call the governor, the governor picks up the phone." 

The Court also decided Voisine v. United States, involving the question of whether Federal law precluded possession of guns by someone convicted of misdemeanor domestic violence on the basis of "reckless" conduct.  The Court decided by a 6-2 vote that it does.  Sotomayor dissented on procedural grounds, but Thomas' dissent was more full-throated.  No pun intended; the case prompted him to ask questions in oral argument, the first time he's done so in a decade, inquiring what other misdemeanor offense barred a person from owning firearms.  One might suggest that of all the problems we have with guns in this country, allowing easier access to them by domestic abusers is not one. 

It's the issue of "recklessness" that drives the Court's decision; that a misdemeanor conviction of domestic violence bars firearm possession has been the law, by statute, for twenty years.  The Court looks to the model penal code definitions of mens rea and the "volitional" - opposed to accidental - use of force.  Thus, a forceful act "undertaken with awareness of the substantial risk of causing injury" is sufficient. 

Ohio has two misdemeanor domestic violence violations; it's a 4th degree misdemeanor if the offender "by threat of force" knowingly causes a family member to "believe that the offender will cause imminent physical harm."  There's nothing in 18 USC 922(g), the Federal statute disqualifying certain persons from owning weapons, which indicates that a violation of the lesser version wouldn't preclude firearms possession.  That points to one of the problems with Federal laws:  they often make violation of Federal offenses dependent upon violations of state laws, and those are always passed without regard to what their impact on Federal law is.  Given the elastic nature of what proof the 4th degree misdemeanor requires, I doubt the legislature would have wanted to ban someone who violates it from ever owning a gun.  But that looks like the way it would work out.

That also serves as a warning to defense lawyers about collateral consequences.  An attorney who got the 1st degree misdemeanor reduced to a 4th degree would probably regard it as a significant accomplishment, especially since conviction of the latter wouldn't make a subsequent violation a felony.  He, and his client, might feel differently if the client was subsequently charged with a Federal felon-in-possession offense.

The Court's last criminal decision of the term, Mathis v. United States, similarly involved a felon-in-possession, and similarly involved the application of state law.  In this case, the government sought the minimum mandatory 15-year-sentence under the Armed Career Criminal Act, based upon Mathis' five prior state convictions for burglary.  Burglary is listed as one of the offenses triggering the ACCA, so it looked like bad news for Mathis.

But hold on!  The Court had previously held the "categorical" approach was to be used in determining whether a burglary conviction was a predicate offense; that is, the facts of the offense were ignored.  But it also held that the term was limited to "generic" burglary:  unlawful entry into a building or other fixed structure.  Mathis argued that the state law also permitted conviction for breaking into a vehicle.  The last thing Mathis wanted was for a court to consider the facts, since they showed he'd broken into houses. 

The 5-3 opinion by Kagan holds that courts may examine the underlying facts only if the terms of the statute constitute elements, and not alternative means.  The state supreme court held the latter, so that was that.

The decision poses yet another difficulty for the troubled ACCA.  Two years ago, in Johnson v. United States, the Court struck down the statute's residual clause, holding that it was void for vagueness.  In a number of decisions before Johnson, the Court had warned that Congress' failure to clarify the statute meant trouble.  Kennedy had the same warning in his dissent in Mathis:  "Continued congressional inaction in the face of a system that each year proves more unworkable should require this Court to revisit its precedent in an appropriate case."  We'll see if Congress listens this time.

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