Thursday, May 9, 2013

Law school clinics and American law

The April 30, 2013 issue of Law Week (Vol. 81, No. 41: the Supreme Court opinions issue) reports three interesting decisions, but these decisions are also interesting for another reason, visible in the lists of counsel at the end of each case. It turns out that clinical programs were on the briefs for all three cases.

The Stanford Law School Supreme Court Litigation Clinic helped represent Adrian Moncrieffe in his successful challenge to the argument that his conviction for possession of 1.3 grams of marijuana with the intent to distribute (not necessarily to sell) was an aggravated felony barring him from eligibility for certain discretionary relief from deportation. Moncrieffe v. Holder (No. 11-702, decided April 23, 2013)

The Institute for Public Representation, a program of Georgetown University Law Center, helped represent the plaintiffs/petitioners in McBurney v. Young (No. 12-17, decided April 29, 2013), an unsuccessful effort to establish that Virginia’s Freedom of Information Act, which offers access to information only to Virginians, was unconstitutional under either the Privileges and Immunities Clause of the US Constitution’s Article IV, § 2, cl. 1, or under the Constitution’s “dormant commerce clause.”

The George Mason University School of Law Supreme Court Clinic helped represent the State of Louisiana in Boyer v. Louisiana (No. 11-9953, decided April 29, 2013), in which the Supreme Court dismissed the writ of certiorari as improvidently granted. Boyer contended that the prolonged delays in his trial were attributable to the state’s failure to fund the public defender system, and that his right to a speedy trial had been violated, but the Court, over a dissent by Justice Sotomayor (joined by Justices Ginsburg, Breyer, and Kagan) did not rule on the constitutional question.

It may be that no member of the clinical community will agree with the arguments advanced by all three of these clinical programs in these cases. That’s fine, and just as academic freedom gives protection to clinics undertaking controversial cases so it gives protection to debate over what cases clinics ought to take. But what strikes me about this issue of Law Week is the unmistakable illustration of the fact that clinics are now a force shaping American law, in many local courts and offices and also in the highest court in the land. 


And here's another: Levin v. United States (No. 11-1351, decided March 4, 2013): In this case the Supreme Court unanimously overturned a court of appeals decision, and determined that a federal statute, which made suits against the United States itself the exclusive remedy for medical malpractice by armed forces medical personnel, permitted rather than prohibited suits against the US for "medical battery" (the performance of an unconsented-to medical procedure). The veteran who brought this suit had no lawyer in the Supreme Court, and the Court appointed an amicus curiae, James A. Feldman, to brief and argue the veteran's case. Feldman was joined on the briefs by the University of Pennsylvania Law School Supreme Court Clinic (and also by "Georgetown University Law Center" -- perhaps another clinic?) on the briefs. In footnote 5 of its opinion, the court observed that "Amicus Feldman has ably discharged his assigned responsibilities and the Court thanks him for his well stated arguments" -- a compliment that seems well deserved, since the Court unanimously found in the veteran's favor, and that appears to apply not only to Mr. Feldman but to those who were with him on the briefs.


And another: Lozman v. City of Riviera Beach (No. 11-626, decided Jan. 15, 2013): Here again the Stanford Law School Supreme Court Litigation Clinic was involved, this time representing the petitioner Fane Lozman. Lozman owned a rather ungainly houseboat, and "[a]fter various disputes" between him and the marina where he had the houseboat docked, the City of Riviera Beach, Florida brought suit against the houseboat (in rem, against the thing, as the law phrases it) in federal court, invoking the court's admiralty power. But this exercise of admiralty power evidently depends on whether the "thing" being proceeded against is a "vessel" or not. Lozman contended that his houseboat was not a vessel, a term defined by statute to mean "capable of being used ... as a means of transportation on water." Despite the fact that the houseboat had been towed on one occasion across two hundred miles of water, a majority of the Supreme Court agreed with Lozman that his houseboat was no vessel, over a vigorous dissent by Justice Sotomayor, joined by Justice Kennedy (an unusual grouping!). So the Stanford clinic helped represent at least two winning litigants in the Supreme Court this year.


And the most recent I've seen: United States v. Kebodeaux (No. 12-418, decided June 24, 2013): Kebodeaux, who in 1999 "had consensual sex with a 15-year-old girl when he was a 20-year-old Airman in the U.S. Air Force," as Justice Thomas writes in his dissent, was court-martialed, convicted, and served three months in prison. He also received a bad-conduct discharge, and on his return to civilian life became subject to sexual offender registration requirements in a federal statute called the Wetterling Act. Subsequently Congress replaced those requirements with new and in some respects tighter ones, in the Sex Offender Registration and Notification Act (SORNA), passed in 2006. After moving from one Texas city to another, Kebodeaux didn't update his sex offender registration as SORNA required, and as a result he was convicted of the crime of failure to comply with the SORNA requirement, a felony, and sentenced to a year and a day in prison.

There are many things one might want to argue to challenge this conviction, but as the case came to the Supreme Court it apparently did not feature any challenge based on the argument that SORNA's changes in Kebodeaux's legal obligations long after his crime and conviction violated either the ex post facto or the due process clauses of the constitution. Instead, the sole issue the Court addressed (though Justice Thomas spoke about more) was whether Congress had any power to subject Kebodeaux to SORNA at all. Since obviously no provision of the Constitution expressly authorizes Congress to pass sex offender registration laws, the case was a test of the meaning of the "Necessary and Proper" clause, which authorizes Congress to pass any laws necessary and proper to carrying out any of the powers of any branch of the federal government.

That meant that this case became a site of battle over the breadth of federal powers, with four of the conservative justices in one way or another making clear that they were opposed to too broad an understanding of the Necessary and Proper clause (though two of them, Roberts and Alito, found narrower rationales on which to affirm this particular statute's validity). Ironically, it also meant that the liberal justices, who might have been expected to find Kebodeaux's situation disturbing, instead found themselves defending the concept of broad congressional "Necessary and Proper" authority and in the process affirming Kebodeuax's conviction for violating the federal sex offender registration statute.

Among the people responsible for Kebodeaux's briefs, albeit in a losing cause, was the Northwestern University Supreme Court Practicum.


Another case handled by the Stanford Law School Supreme Court Litigation Clinic was Chaidez v. United States (No. 11-820, decided February 20, 2013). The Clinic represented Ms. Rozelva Chaidez, a Mexican citizen and lawful permanent resident in the United States, who pleaded guilty to mail fraud and was sentenced to probation and restitution in a conviction that "became final in 2004." In 2009 the government began removal proceedings against her (ironically triggered by her application for citizenship), based on her conviction, which qualified as an aggravated felony for which removal is mandatory. She then tried to have that conviction overturned on the ground that, as she contended, "her attorney never advised her of that fact, and at the time of her plea she remained ignorant of it." That potentially stated a claim for relief under an important 2010 Supreme Court decision, Padilla v. Kentucky. Padilla decided that criminal defense attorneys had a constitutional obligation "to provide advice about the risk of deportation arising from a guilty plea," as the Chaidez Court put it. But under yet another Supreme Court decision, Teague v. Lane, 489 U.S. 288 (1989), Chaidez could only invoke Padilla retroactively -- her conviction having taken place years before Padilla was decided -- if the decision in Padilla did not count as a "new rule." The Supreme Court decided, 7 - 2, that Padilla did state a new rule, and so Chaidez lost her case.


The University of Pennsylvania Law School Supreme Court Clinic was also on the brief on behalf of the successful petitioner, Jeffrey Lee Chafin, in Chafin v. Chafin (No. 11-1347, decided February 19, 2013). The Chafins were embroiled in a dispute with each other over custody of their very young daughter. Invoking the Hague Convention on the Civil Aspects of International Child Abduction, which the US is a party to and which it implemented through a 1988 statute called the International Child Abduction Remedies Act, Ms. Chafin sued in 2011 in an Alabama federal trial court for an order determining that her daughter's "country of habitual residence" was Scotland. She won, and the court refused to stay (postpone the impact of) its ruling. Ms. Chafin at once took her daughter to Scotland. Mr. Chafin appealed -- but the federal Court of Appeals concluded that since it could not force Ms. Chafin to bring the child back from Scotland the case was now moot and so Mr. Chafin's appeal couldn't be ruled on. (In a particularly ironic twist, Mr. Chafin was subsequently ordered by the trial court to pay $94,000 of Ms. Chafin's expenses based on the proceedings that had taken place at the trial level.) As the case reached the Supreme Court, it didn't raise directly any issues concerning the Child Abduction treaty and statute. Instead, the question was whether the case was truly moot -- a matter of constitutional law, arising from the requirement that federal courts can only rule on "cases or controversies," simple terms that turn out to require a lot of definition. The Supreme Court ruled unanimously that Mr. Chafin's case was not moot, among other reasons because a US court could still order Ms. Chafin to return the child (though she might disobey the order) and because that $94,000 also represented a concrete, continuing matter in controversy.

That's 8 cases last term in which law school clinics helped represent one of the parties -- really quite a remarkable presence in the overall work of the Supreme Court. And that doesn't include the briefs clinics likely also filed as friends of the court (amici) in cases where they weren't representing one of the actual parties.

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