The Court has held that Citizens United v. Federal Election Commission (08-205) will be reargued on Wednesday, September 9 at 10 a.m. The Court has issued the following written order: “The parties should address the following question: ‘For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?’”
08-1196 WEYHRAUCH, BRUCE V. UNITED STATESThe petition for a writ of certiorari is granted limited to the following question: Whether, to convict a state official for depriving the public of its right to the defendant’s honest services through the non-disclosure of material information, in violation of the mail-fraud statute ( 18 U.S.C. §§1341 and 1346), the government must prove that the defendant violated a disclosure duty imposed by state law.
Issue(s): “This is an interlocutory appeal by the government of the district court’s pretrial order excluding evidence from a mail fraud prosecution. It presents a matter of first impression in this circuit – whether a federal honest services mail fraud prosecution under 18 U.S.C. §§ 1341 and 1346 requires proof that the conduct at issue also violated an applicable state law.” Id. at *1.Held: “[W]e disagree with the district court that a state law violation is required, and thus reverse the court’s order excluding certain evidence from trial.” Id. at *1.
Of Note: How many bites of the apple does the government get to properly certify an interlocutory appeal? Four, in this case! Id. at *2. Must be a big apple.
Sure would be nice to get four Mulligans in defense appeals, or four habeas petitions in the post-AEDPA world. The government better shape up, though: the Ninth “shall not be so forgiving in the future.” Id. at *4. The feds may only get three chances to make it right, next time . . . .
How to Use: Weyhrauch creates a new Ninth Circuit rule and deepens a circuit split. Judge Fisher starts by tracing the history of the “intangible rights” theory of honest services fraud. Id. at *5. The Third and Fifth Circuits have adopted rules that require a showing that the public official violated an independent state (or, in the Third, federal) law for an “honest services” conviction. Id. at *5. The First, Fourth, Seventh and Eleventh Circuits, however, have all held that there’s a uniform federal standard for “honest services” (although they haven’t agreed with what that standard is). Id. at *6. In these circuits, there’s no need for an independent state law violation. Although Judge Fisher concedes the policy considerations supporting the Fifth Circuit’s rule, he ultimately rejects the “state law limiting principal.” Id. at *7-*8.
While a disappointing holding, this is a well-written and balanced decision: it seems like an issue the Supremes should take up again, given the controversy over this important new rule.
It seems to me that the US Supreme Court has invalidated the “disparate impact” provision of Title VII of the Civil Rights Acts, 1964 and 1991. Anyone else agree?
I guess that it is of little interest that Judge Sonia Sotomayor was a member of the overturned panal. I hope that she doesn’t carry a grudge.
Yes. It actually is of little interest. She followed the law as set forth in the past by SCOTUS. Then, they changed the law in Ricci. So, you can’t sit there and complain about her following precedent, and then, at the same time, accuse her of being an activist judge.
If anyone’s an activist judge, it’d likely be the Ricci majority.
I agree with Oblivion Haha. Title VII of the 1991 Civil Rights Act (which was derived in part from the Griggs v. Duke Power Co. SCOTUS decision) mandates that when there is prima facie evidence of discrimination (i.e, disparate impact) in using a selection instrument, it is incumbent upon the company (or in this case, firefighters dept.) to validate the selection instrument, or seek other valid selection instruments that don’t numerically discriminate. The New Haven, Conn. firefighters dept. decided to do just that…..throw out the results of the test and move towards using an assessment center. The current SCOTUS decided differently, and in doing so created a new rule. How this squares with the disparate impact provision is beyond my meager understanding. I don’t think there is any doubt that this was a judicially activist decision, overturning Congress’ clear desires and ignoring settled legal precedent (i.e. Griggs).
Conservatives who applaud this decision should really take a hard look in the mirror and ask themselves whether they are in favor of the Supreme Court legislating from the bench. In their eagerness to use this decision against Sotomayor, they are embracing that which they proclaim to detest.
right, she followed estabalished precedent as she swore to do – no problem there. it is curious though (and I am admittedly not totally familiar with Federal Appeals Court procedure which cases get extra attention and which don’t) that when this case came to sotomayor from the district court she didn’t grapple with the constituional issues and gave the district court decision a rubber stamp. there were some important constittional issues at play there and she didn’t even pay them lip-service.
that said, i don’t think this should disqualify her whatsoever from senate confirmation.