Howard J. Bashman's appellate columns, etc.

Report Card from the U.S. Supreme Court: How The Third Circuit And Pennsylvania's Other Courts Fared In The October 2002 Term

By Howard J. Bashman
Monday, July 14, 2003
The Supreme Court of the United States, in its just-completed Term, issued a total of 79 opinions, 71 of which were signed and eight of which were per curiam.

None of those 79 decisions involved cases that reached the Court directly from the U.S. Court of Appeals for the Third Circuit. One case arose on direct appeal from a special three-judge panel of the U.S. District Court for the Eastern District of Pennsylvania, and in that case the Supreme Court reversed. One case arose from the Supreme Court of Pennsylvania, and in that case the U.S. Supreme Court affirmed.

The Supreme Court in nine other decisions noted that it was resolving conflicts that involved the Third Circuit. In five of those cases, the Supreme Court approved of the Third Circuit’s approach; in the remaining four, the Supreme Court disagreed with the Third Circuit’s approach.

In three of those same nine cases, the Supreme Court also noted that the conflict in question implicated a ruling from a Pennsylvania state court. In two of the three instances the Supreme Court sided with the approach that the Pennsylvania state courts had taken, while in the remaining case the Supreme Court reached the opposite conclusion.

1. Library porn filters: In United States v. American Library Association, Inc., the Supreme Court considered on direct appeal the ruling of a special three-judge panel of the U.S. District Court for the Eastern District of Pennsylvania. That three-judge panel had ruled, in an opinion by then-Third Circuit Chief Judge Edward R. Becker, that the U.S. Congress violated the First Amendment when it required libraries, in order to receive federal funding, to install filters that blocked pornography on computers providing patrons with access to the Internet. Joining in Chief Judge Becker's ruling were U.S. District Judge Harvey Bartle, III and Senior District Judge John P. Fullam.

The Supreme Court, in a decision that failed to produce a majority opinion, ruled 6–3 that the federal law in question, the Children’s Internet Protection Act, was not facially unconstitutional. The three–judge panel’s ruling to the contrary was reversed.

2. Double jeopardy and the death penalty: In Sattazahn v. Pennsylvania, the U.S. Supreme Court reviewed a decision of the Supreme Court of Pennsylvania. The defendant in a criminal case was convicted of murder. The prosecution sought the death penalty, but the jury deadlocked over whether to sentence the defendant to death. In accordance with Pennsylvania law, the trial court imposed a sentence of life imprisonment. Thereafter, the defendant appealed and obtained a new trial. In the new trial, the jury unanimously agreed on a sentence of death. The defendant initiated a second round of appeals in which he argued that double jeopardy prohibited the death sentence because the first trial had resulted in a sentence of life imprisonment.

The Supreme Court of Pennsylvania unanimously concluded, in an opinion by Justice Sandra Schultz Newman, that there was no double jeopardy bar, although three of the seven justices would have prohibited the death sentence as a matter of fairness under state common law. The U.S. Supreme Court affirmed by a vote of 5–4, allowing the defendant’s death sentence to stand.

3. Reviving a time–barred criminal prosecution and the Ex Post Facto clause: In 1993, California enacted a law that significantly extended the statute of limitations applicable to prosecutions for sex–related child abuse. The law was intended to subject to prosecution defendants whose offenses could no longer have been prosecuted under preexisting law because the applicable statute of limitations had expired.

In Stogner v. California, the U.S. Supreme Court ruled 5-4 that the U.S. Constitution prohibits the revival in this manner of time-barred criminal prosecutions. The Supreme Court's opinion noted that its holding was in accord with the Third Circuit's per curiam decision in United States v. Richardson (1975). Circuit Judges Max Rosenn and Joseph F. Weis, Jr. were both on the panel in Richardson. The Stogner opinion also noted that its result was in accord with the Pennsylvania Superior Court’s ruling in Commonwealth v. Guimento (1985), a decision in which Superior Court Judge Stephen J. McEwen, Jr. joined.

4. Damages for fear of cancer under FELA: In Norfolk & Western Railway Co. v. Ayers, the U.S. Supreme Court unanimously concluded that the Federal Employers' Liability Act did not require that damages be apportioned among potentially liable tortfeasors, thereby allowing the plaintiff to recover his entire damages from a railroad whose negligence jointly cased an injury. In so ruling, the Supreme Court noted that its holding was consistent with the Third Circuit's decision in Kennedy v. Pennsylvania Railroad Co. (1960) but contrary to the Supreme Court of Pennsylvania’s decision in Dale v. Baltimore & Ohio Railroad Co. (1989).

The case also presented a second issue as to which the U.S. Supreme Court divided 5–4, holding that a railroad worker who had been exposed to asbestos could recover damages under FELA for fear of cancer. The Court noted that its ruling was contrary to the Supreme Court of Pennsylvania’s ruling in Cleveland v. Johns–Manville Corp. (1997), which Justice Newman delivered for a unanimous Court.

5. Untimely assignment of coal industry retirees eligible for benefits: In Barnhart v. Peabody Coal Co., the Supreme Court ruled 6-3 that the untimely assignment of coal industry retirees to companies that would have been responsible for paying the retirees' benefits if only the assignment had been timely did not release the companies from responsibility for paying such benefits. The Supreme Court noted that its ruling was consistent with the Third Circuit's 2002 decision in Shenango Inc. v. Apfel. Circuit Judge Theodore A. McKee wrote Shenango, and Circuit Judges Dolores K. Sloviter and Richard L. Nygaard joined in the ruling.

6. Collateral review of ineffective assistance of counsel claims: In Massaro v. United States, the Supreme Court unanimously ruled that ineffective assistance of counsel claims never have to be raised on direct appeal from a federal criminal conviction in order to be pursued in a later habeas corpus proceeding.

The Supreme Court noted that its ruling was consistent with the Third Circuit's opinion in United States v. Jake (2002). Judge McKee wrote the Jake decision, in which Circuit Judge Samuel A. Alito, Jr. and visiting Senior Eleventh Circuit Judge Phyllis A. Kravitch joined. The U.S. Supreme Court also noted that its ruling was in accord with the Supreme Court of Pennsylvania's recent decision in Commonwealth v. Grant (2002), in which Justice Ralph J. Cappy delivered the opinion of the court.

7. Time for filing a federal habeas corpus petition where the criminal defendant had not sought U.S. Supreme Court review of the ruling on his direct appeal: In Clay v. United States, a unanimous Supreme Court held that the one-year limitation period for filing a habeas corpus petition under 28 U.S.C. § 2255 does not begin to run until the time expires for filing a petition for certiorari challenging the ruling in the defendant's direct appeal. The Court noted that its decision was consistent with the Third Circuit's ruling in Kapral v. United States (1999). Judge McKee wrote the Kapral opinion, in which Circuit Judge Morton I. Greenberg joined and in which Judge Alito separately concurred.

8. May states be subjected to money damages for failing to comply with the Family and Medical Leave Act's family care provision? In Nevada Department of Human Resources v. Hibbs, the Supreme Court by a vote of 6–3 answered that question in the affirmative. The Court's decision disagreed with the Third Circuit's ruling in Chittister v. Department of Community and Economic Development (2000). Judge Alito wrote the decision in Chittister, in which Judges McKee and Fullam joined.

9. Abortion protestors' liability under RICO for extortion: In Scheidler v. National Organization for Women, Inc., the Supreme Court ruled 8-1 that abortion protestors did not commit extortion when their protest activities prevented abortion service providers from remaining open for business. The Supreme Court's ruling in that regard was contrary to the Third Circuit's decision in Northeast Women's Center, Inc. v. McMonagle (1989). Judge Sloviter wrote that opinion, in which Circuit Judge William D. Hutchinson and then-Chief District Judge of the District of New Jersey John F. Gerry joined.

10. Lawfully admitted aliens held in custody pending removal proceedings resulting from criminal convictions: In Demore v. Kim, the Supreme Court ruled 5-4 that lawfully admitted aliens who faced removal due to criminal convictions could be held in prison pending removal proceedings without any right to an individualized determination of their dangerousness or likelihood of flight if released. In so ruling, the Court disagreed with the Third Circuit's contrary conclusion in Patel v. Zemski (2001). Judge Sloviter wrote the opinion in Patel, in which Judges Nygaard and McKee joined.

11. Are local governments "persons" subject to qui tam actions? In Cook County, Illinois v. United States ex rel. Chandler, a unanimous Supreme Court answered that question in the affirmative. In so ruling, the Court overruled the Third Circuit's decision to the contrary in United States ex rel. Dunleavy v. County of Delaware (2002). Circuit Judge Carol Los Mansmann wrote the decision in Dunleavy, and Circuit Judges Jane R. Roth and Julio M. Fuentes joined in it.

Conclusion: Although the Third Circuit's 5–4 record before the U.S. Supreme Court in the October 2002 Term was not as much of a success as its 7–2 record in the October 2001 Term, the Third Circuit nevertheless compiled quite a respectable showing in the Term that just concluded.

This article is reprinted with permission from the July 14, 2003 issue of The Legal Intelligencer © 2003 NLP IP Company.