Maracich v. Spears

Issues

May an attorney obtain an individual's personal information from a state's department of motor vehicles to find plaintiffs for a lawsuit that has already started?

 

In 2006, several individuals who had bought cars contacted a group of lawyers in South Carolina claiming various car dealerships overcharged them. To investigate this claim, the lawyers requested from the state department of motor vehicles the disclosure of the personal information of thousands of people who had bought from dealerships in Spartanburg County. Under the Driver's Privacy Protection Act ("DPPA"), this information is normally protected from disclosure. The Fourth Circuit Court of Appeals found that although the lawyers engaged in mass solicitation without the consent of the person whose information was disclosed, the litigation exception of the DPPA nonetheless protected the lawyers' activity. Petitioner Maracich argues that the DPPA provision requiring the consent of individuals to disclose their personal information imposes a consent requirement onto requests to solicit potential clients for the purpose of litigation. In contrast, Respondent Spears argues that the DPPA exception for litigation waives the consent requirement for solicitation specifically related to litigation. The Supreme Court accepted certiorari on September 25,  2012  to examine the merits of the Fourth Circuit's decision. The outcome of this case may help determine how far lawyers can go to obtain personal information and how far Congress can go to reach into an area traditionally regulated by the States. 

Questions as Framed for the Court by the Parties

The Driver's Privacy Protection Act of 1994 ("DPPA" or "Act"), 18 U.S.C. §§ 2721- 2725, prohibits the obtainment, use, or disclosure of "personal information" maintained in state motor vehicle department ("DMV") databases, unless the use of such information falls within one of several discrete enumerated exceptions.

This case presents an opportunity for this Court to resolve a conflict among the circuits and even state courts as to the circumstances under which the litigation exception to the Act permits lawyers special rights of access to DPPA protected information.

In this case, the Fourth Circuit became the first court to hold that the acquisition and use by lawyers of confidential information from a DPPA-protected database solely for the purpose of soliciting clients, as opposed to searching for evidence or witnesses, qualified as a use "in connection with" litigation, pursuant to 18 U.S.C. § 2721(b)(4).

The Eleventh Circuit, the Third Circuit, and the District of Columbia Court of Appeals, on the other hand, have held that the litigation exception does not permit lawyers to obtain or use DPPA-protected information to find or solicit clients. Instead, these courts have made clear that the litigation exception permits use of private information only when the information is relevant or likely to lead to discovery of evidence or witnesses. The Fourth Circuit has crossed that line, thereby inserting into the DPPA what amounts to a "for use by lawyers" exception, as opposed to a "for use in litigation" exception, and further muddling an already confusing and conflicted area of the law.

This petition asks the Court to consider two questions:

1. Whether the Fourth Circuit erred in holding, contrary to every other court heretofore to have considered the issue, that lawyers who obtain, disclose, or use personal information solely to find clients to represent in an incipient lawsuit—as opposed to evidence for use in existing or potential litigation—may seek solace under the litigation exception of the Act.

2. Whether the Fourth Circuit erred in reaching the conclusion (in conflict with prior precedent) that a lawyer who files an action that effectively amounts to a "place holder" lawsuit may thereafter use DPPA-protected personal information to solicit plaintiffs for that action through a direct mail advertising campaign on the grounds that such use is "inextricably intertwined" with "use in litigation."

In 2006, a few consumers contacted a group of attorneys ("the Lawyers") claiming that various car dealerships had overcharged them for their vehicle purchases. See Maracich v.

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Maples v. Thomas

Issues

Whether a federal court can excuse a lapsed deadline for filing a habeas corpus petition because a court clerk failed to provide notice to two of petitioner’s three counsel of record and petitioner's attorneys could no longer be said to be acting on petitioner's behalf.

 

Upon receiving a state-court-issued death sentence, petitioner Cory Maples submitted a claim of ineffective assistance of counsel in post-conviction proceedings and petitioned for an evidentiary hearing. The court clerk took no action when two of three deliveries giving notice that the petition had been denied were returned because two of Maples’s attorneys of record had left their firm. Shortly thereafter, the deadline to submit a federal habeas claim lapsed. Maples now argues that the court clerk’s failure to notify him that his petition for an evidentiary hearing was denied caused the default and violated his due process rights. Additionally, he argues that the actions of his attorneys also constitute an external cause entitling him to federal habeas review. Respondent, the Commissioner of the Alabama Department of Corrections, argues that the clerk successfully notified one attorney of  record,  and that Supreme Court precedent places the risk of attorney error on the petitioner during the post-conviction phase. This decision could affect how much risk clients bear for poor attorney performance, and whether a court clerk’s failure to take additional steps to notify attorneys of record constitutes an external cause to the defendant and valid excuse for  procedural  default.

Questions as Framed for the Court by the Parties

Whether the Eleventh Circuit properly held - in conflict with the decisions of the Supreme Court and other courts - that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the State's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.

Maples was found guilty of capital murder and sentenced to death for killing two of his friends, each of whom he shot in the head with a .22 caliber rifle after a night of drinking. See Maples v. State, 758 So.2d 1, 14–15 (Ala. Crim. App.

Acknowledgments

The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.

Additional Resources

• New York Times, Sara Rimer: Questions of Death Row Justice for Poor People in Alabama (Mar. 01, 2000),

• LII: Habeas Corpus

• LII: Due Process

• LII: Fourteenth Amendment

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Magwood v. Culliver

Issues

Whether a person, having obtained federal habeas relief from a first habeas petition, may challenge the new sentencing judgment with a second petition, or if that petition is barred as “second or successive,” because its grounds could have been argued in the first petition.

 

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) prohibits the filing of “second or successive” habeas petitions by state prisoners. Petitioner, Billy Joe Magwood (“Magwood”) and respondent, Warden Tony Patterson (“Patterson”), disagree as to whether Magwood, who received habeas relief from an earlier death sentence, may challenge a subsequent state issued death sentence for the same act. Magwood argues that a habeas petition challenging a new judgment for the first time cannot be “second or successive.” In response, Patterson asserts that Magwood had a full and fair opportunity to litigate the “fair warning claim” in the first habeas petition, and it would be an abuse of the writ and a violation of 28 U.S.C. § 2244(b) to raise the same claim in this subsequent petition. The Eleventh Circuit sided with Patterson and held that Magwood’s claim is part of a “successive” petition under § 2244(b). The Supreme Court must now decide whether a petitioner, who already obtained federal relief from an earlier sentence, may challenge a resentence in a subsequent habeas petition if that petitioner could have challenged the first sentence on the same constitutional grounds now used to challenge the second sentence.

The facts of Magwood’s offense are not in dispute. Magwood v. Culliver, 55 f.3d 968, 970 (11th Cir.

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Magner v. Gallagher

Issues

Whether owners of rental properties may claim St. Paul city officials violated the Fair Housing Act by aggressively enforcing the City’s housing codes, which increased rental costs and reduced the supply of low-income housing whose renters are disproportionately African-American.

If such a claim is allowed, whether the appropriate test is the burden-shifting test used by the Eighth Circuit.

 

Thomas J. Gallagher, together with other owners and former owners of rental properties, sued the City of St. Paul, Minnesota for violating the Fair Housing Act, which prohibits discriminatory housing practices. Gallagher claimed that the City’s aggressive and targeted enforcement of city housing codes against rental units reduced the availability of low-income rentals, with a disparate impact upon African-Americans. The Eighth Circuit held that Gallagher stated a valid FHA claim under the disparate impact theory. St. Paul appeals, arguing that, because the FHA requires evidence of discriminatory intent, Gallagher’s disparate impact claim is insufficient to establish a violation under the Act. Gallagher contends that, given the Court’s prior findings regarding disparate impact claims under the similarly-worded Age Discrimination in Employment Act and Title VII, disparate impact claims are cognizable under the FHA. The Supreme Court’s decision may affect the extent to which city officials can use ordinances, code enforcement actions, and other land-use regulations to regulate low-income neighborhoods.

Questions as Framed for the Court by the Parties

The Fair Housing Act makes it unlawful "[t]o refuse to sell or rent after the making of a bona fide offer ... or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(a). Respondents are owners of rental properties who argue that Petitioners violated the Fair Housing Act by "aggressively" enforcing the City of Saint Paul's housing code. According to Respondents, because a disproportionate number of renters are African-American, and Respondents rent to many African-Americans, requiring them to meet the housing code will increase their costs and decrease the number of units they make available to rent to African-American tenants. Reversing the district court's grant of summary judgment for Petitioners, the Eighth Circuit held that Respondents should be allowed to proceed to trial because they presented sufficient evidence of a "disparate impact" on African-Americans.

The following are the questions presented:

  1. Are disparate impact claims cognizable under the Fair Housing Act?

  2. If such claims are cognizable, should they be analyzed under the burden shifting approach used by three circuits, under the balancing test used by four circuits, under a hybrid approach used by two circuits, or by some other test?

This case concerns the proper interpretation of Section 804(a) of the Fair Housing Act (“FHA” or “Act”). Respondents Thomas J. Gallagher, and other owners and former owners of rental properties in St. Paul, Minnesota (collectively, “Gallagher”), sued Petitioners Steve Magner and other city officials of St.

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Luis v. United States

Issues

May the US Government obtain a preliminary injunction under 18 U.S.C. § 1345 to prohibit a defendant from spending assets unrelated to the crime charged without violating a defendant’s right to hire an attorney of choice?

 

The Supreme Court’s decision in this case will determine whether the United States Government can constitutionally obtain a preliminary injunction under 18 U.S.C. § 1345 (“§ 1345”) to prohibit a defendant facing federal fraud charges from spending assets not derived directly from the charged crime. See Brief for Petitioner, Sila Luis at i. Luis argues that such a preliminary injunction violates a defendant’s right to counsel under the Sixth Amendment, and that the language of § 1345 does not allow the Government to restrain spending of untainted assets. See id. at 17–18, 34–35. Luis also asserts that even if a preliminary injunction of untainted assets is constitutional, the district court violated Fifth Amendment Due Process by failing to determine whether the Government was entitled, beyond a reasonable doubt, to the untainted assets. See id. at 44. On the other hand, the United States argues that the Supreme Court has previously held the Government’s restraint of all assets in a defendant’s possession to be constitutional, so long as the Government can show probable cause that the assets are forfeitable even if the defendant needs those assets to pay for counsel. See Brief for Respondent, United States at 25–26. The Court’s decision could significantly impact criminal defendants’ ability to hire private counsel in cases of federal fraud and will also shape U.S. asset forfeiture law. See Brief of Amicus Curiae American Bar Association, in Support of Petitioner at 7; see also Brief of Amici Curiae National Association of Criminal Defense Lawyers et al., in Support of Petitioner at 5–6.

Questions as Framed for the Court by the Parties

Did a pretrial injunction prohibiting a defendant from spending untainted assets to retain counsel of choice in a criminal case violate the Fifth and Sixth Amendments?

Petitioner Sila Luis provided health care to homebound patients through her two businesses, LTC Professional Consultants, Inc.

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Luis v. United States

Issues

May the US Government obtain a preliminary injunction under 18 U.S.C. § 1345 to prohibit a defendant from spending assets unrelated to the crime charged without violating a defendant’s right to hire an attorney of choice?

 

The Supreme Court’s decision in this case will determine whether the United States Government can constitutionally obtain a preliminary injunction under 18 U.S.C. § 1345 (“§ 1345”) to prohibit a defendant facing federal fraud charges from spending assets not derived directly from the charged crime. See Brief for Petitioner, Sila Luis at i. Luis argues that such a preliminary injunction violates a defendant’s right to counsel under the Sixth Amendment, and that the language of § 1345 does not allow the Government to restrain spending of untainted assets. See id. at 17–18, 34–35. Luis also asserts that even if a preliminary injunction of untainted assets is constitutional, the district court violated Fifth Amendment Due Process by failing to determine whether the Government was entitled, beyond a reasonable doubt, to the untainted assets. See id. at 44. On the other hand, the United States argues that the Supreme Court has previously held the Government’s restraint of all assets in a defendant’s possession to be constitutional, so long as the Government can show probable cause that the assets are forfeitable even if the defendant needs those assets to pay for counsel. See Brief for Respondent, United States at 25–26. The Court’s decision could significantly impact criminal defendants’ ability to hire private counsel in cases of federal fraud and will also shape U.S. asset forfeiture law. See Brief of Amicus Curiae American Bar Association, in Support of Petitioner at 7; see also Brief of Amici Curiae National Association of Criminal Defense Lawyers et al., in Support of Petitioner at 5–6.

Questions as Framed for the Court by the Parties

Did a pretrial injunction prohibiting a defendant from spending untainted assets to retain counsel of choice in a criminal case violate the Fifth and Sixth Amendments?

Petitioner Sila Luis provided health care to homebound patients through her two businesses, LTC Professional Consultants, Inc.

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Lozman v. City of Riviera Beach

Issues

Does the definition of “vessel” in 1 U.S.C. § 3 include, and thus grant federal maritime jurisdiction over,  indefinitely-moored structures like Lozman’s houseboat that are capable of transportation where their owners never intend to use them in that way? 

 

The City of Riviera Beach seized Fane Lozman’s houseboat after he did not comply with new city regulations. The Eleventh Circuit Court of Appeals affirmed the district court’s holding that the indefinitely moored houseboat was a “vessel” for purposes of maritime jurisdiction under 1 U.S.C. § 3. Lozman argues that courts should interpret “vessel” purposively and that his houseboat was not a vessel because its purpose was not to transport people or goods. The City of Riviera Beach counters that the definition of “vessel” requires a capability test that asks merely if the structure is capable of transporting people or goods. Additionally, both parties and the U.S. Solicitor General argue the subsequent purchase and destruction of Lozman’s houseboat by the City of Riviera Beach does not render the case moot because of a $25,000 security bond that the City posted. The Supreme Court’s decision in this case may reshape the role of state and federal courts in some maritime matters. The decision could also expand current maritime legislation to apply to structures such as casino boats or floating homes, or remove federal legislative protections for maritime lenders.

Questions as Framed for the Court by the Parties

Whether a floating structure that is indefinitely moored receives power and other utilities from shore and is not intended to be used in maritime transportation or commerce constitutes a "vessel" under 1 U.S.C. § 3, thus triggering federal maritime jurisdiction.

The res in the putative in rem admiralty proceeding was sold at judicial auction in execution of the District Court’s judgment on a maritime lien and maritime trespass claim, Petn. App. 9a-10a, and subsequently destroyed, Petr. Br. 10-11. Does either the judicial auction or the subsequent destruction of the res render this case moot?

From March 2006 to April 2009, Fane Lozman docked his houseboat at the City of Riviera Beach (“the City”) Marina and used the houseboat as his primary residence. See The City of Riviera Beach v. That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, 649 F.3d 1259, 1262 (11 Cir.

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Los Angeles County v. Humphries

Issues

Whether all claims for relief against a municipality under 42 U.S.C. § 1983, including claims for declaratory or prospective relief, are subject to the Monell requirement that the plaintiff prove that the constitutional injury was inflicted as a result of a policy, custom, or practice of the municipality.

 

In 2001, Craig and Wendy Humphries were arrested on child abuse charges and listed in California's Child Abuse Central Index ("CACI"), which is organized under the Child Abuse and Neglect Reporting Act ("CANRA"). All charges against the Humphrieses were dismissed, and the Humphrieses obtained an order declaring them factually innocent. However, the Humphrieses were unable to contest their listing in the CACI. The Humphrieses sued Los Angeles County pursuant to 42 U.S.C. § 1983 seeking declaratory relief establishing that CANRA and policies related to the CACI are unconstitutional because of the lack of procedures to challenge an individual's inclusion based on a substantiated claim. Los Angeles County argued that as a local government it had no control over CACI procedures because the state government created these policies. The Ninth Circuit sided with the Humphrieses and held that Los Angeles County's liability should be determined according the requirements established in Monell v. Department of Social Services. The Supreme Court must now decide whether claims for declaratory relief against a public entity are subject to the requirements of Monell.

Questions as Framed for the Court by the Parties

1. Are claims for declaratory relief against a local public entity subject to the requirement of Monell v. Department of Social Services, 436 U.S. 658 (1978) that the plaintiff demonstrate that the constitutional violation was the result of a policy, custom or practice attributable to the local public entity as determined by the First, Second, Fourth, and Eleventh Circuits, or are such claims exempt from Monell's requirement as determined by the Ninth Circuit?

2. May a plaintiff be a prevailing party under 42 U.S.C. § 1988 for purposes of a fee award against a local public entity based upon a claim for declaratory relief where the plaintiff has not demonstrated that any constitutional violation was the result of a policy, custom or practice attributable to the public entity under Monell?

3. May a plaintiff be a prevailing party on a claim for declaratory relief for purposes of a fee award under 42 U.S.C. § 1988 where there is neither a formal order nor judgment granting declaratory relief, nor any other order altering the legal relationship between the parties in a way that directly benefits the plaintiff?

In March 2001, Craig Humphries' fifteen-year-old daughter S.H. stole his car and drove from California to her mother's home in Utah. See Humphries v. County of Los Angeles, 554 F.3d 1170, 1180 (9th Cir. 2009). S.H.

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Additional Resources

· Los Angeles Times, Carol J. Williams: Abuser List Tags Innocents, Too (Dec. 7, 2008)

· Education Week, Mark Walsh: Civil Rights Case Has Implications for Schools (Feb. 23, 2010)

· Examiner. com, Daniel Weaver: NC Court of Appeals Rules Procedure for Putting People on Child Abuse Register is Unconstitutional (Mar. 4, 2010)

· Cbsnews.com: Child Abuse Registry Hits Stumbling Blocks (Apr. 26, 2010)

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Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc.

Issues

If water from an interstate river travels through a human-engineered stormwater channeling system before it returns into a lower portion of the same river, does the addition of polluted stormwater constitute a “discharge” from an “outfall” as defined under the Clean Water Act, even though the Supreme Court has previously decided that there can be no “discharge” when water is transferred within a single body of water?

 

Between 2002 and 2008, the Los Angeles County Flood Control District repeatedly detected impermissible levels of water pollution in its stormwater channeling system, the MS4, which collects and transports stormwater runoff through rivers flowing to the Pacific Ocean. The levels were impermissible because they exceeded the pollution amounts allowed to the District through a state-issued permit pursuant to the federal Clean Water Act. The Natural Resources Defense Council and Santa Monica Baykeeper commenced an action, seeking to impose liability on the District for its permit violations in four rivers. The District argues that this case is resolved by the Court’s earlier decision that transferring water within a single water body does not add anything. Its opponents argue that the earlier decision does not apply because the District’s permit establishes that the District discharges pollutants. The Supreme Court’s holding will determine what kinds of precautions a municipality must take to design water treatment systems that comply with the permit system of the Clean Water Act. This decision will impact the way that state and local government agencies plan to reduce pollution and allocate their risks and resources.

Questions as Framed for the Court by the Parties

The Clean Water Act regulates the addition of pollutants to the navigable waters of the United States, including pollutants stemming from municipal stormwater systems. 33 U.S.C. §1342(p).

The questions presented by this petition are:

1. Do "navigable waters of the United States" include only "naturally occurring" bodies of water so that construction of engineered channels or other man-made improvements to a river as part of municipal flood and storm control renders the improved portion no longer a "navigable water" under the Clean Water Act?

2. When water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a "discharge" from an "outfall" under the Clean Water Act, notwithstanding this Court's holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004), that transfer of water within a single body of water cannot constitute a "discharge" for purposes of the Act?

After rainstorms, unabsorbed stormwater that flows over urban areas collects pollution, ultimately carrying it into rivers and oceans. Natural Res. Def. Council, Inc. v. County of Los Angeles (“NRDC”), 673 F.3d 880, 883-84 (9th Cir.

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Lopez v. Gonzales; Toledo-Flores v. United States

Issues

If a permanent resident of the United States is convicted in state court of a drug offense that state law classifies as a felony but that federal law classifies as a misdemeanor, should the offense qualify as an “aggravated felony” for the purposes of federal immigration and sentencing law, resulting in deportation and harsher sentencing under federal law?

 

Both Jose Antonio Lopez and Reymundo Toledo-Flores are permanent residents of the United States who were convicted of drug crimes that are felonies at the state level but misdemeanors under federal law. The government argues that both Lopez’s and Toledo-Flores’s crimes qualify as “aggravated felonies.” If that is the case, Lopez will be barred from seeking a waiver of the deportation order issued against him while Toledo-Flores will be subject to a stricter sentence under the mandatory Federal Sentencing Guidelines. Lopez and Toledo-Flores argue that their drug crimes do not meet the definition of an aggravated felony because they are not felonies under federal law. Thus, the Court must decide whether drug offenses that are state felonies but federal misdemeanors satisfy the federal statutory definition of aggravated felony.

Questions as Framed for the Court by the Parties

Lopez v. Gonzales

Whether an immigrant who is convicted in state court of a drug crime that is a felony under the state’s law but would only be a misdemeanor under federal law has committed an “aggravated felony” for purposes of the immigration laws.

Toledo-Flores v. United States

Has the Fifth Circuit erred in holding – in opposition to the Second, Third, Sixth, and Ninth Circuits – that a state felony conviction for simple possession of a controlled substance is a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) and hence an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B), even though the same crime is a misdemeanor under federal law?

Lopez v. Gonzales, 417 F.3d 934 (8th Cir. 2005)

Jose Antonio Lopez is a permanent resident of the United States. A South Dakota state court convicted Lopez of aiding and abetting the possession of a controlled substance, a felony crime in South Dakota. Lopez v. Gonzales, 417 F.3d 934, 935 (8th Cir. 2005).

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