Word of the day: Dubitante

Many thousands of court opinions have crossed my desk in the nearly 26 years I’ve been with Michigan Lawyers Weekly.

Unanimous opinions. Concurring opinions. Dissenting opinions. Opinions that concur in part and dissent in part. En banc opinions. Memorandum opinions. Plurality opinions.

But until this morning, I never saw an opinion bearing the title “Dubitante.”

Dubitante. I reached for my Black’s Law Dictionary, the Thick-Coating-Of-Dust Edition. Here’s the entry: “Term is affixed to the name of a judge, in the reports, to signify that he doubted the decision rendered.”

Well, then it should be a concurrence, I thought, the sort of concurrence that begins, “I reluctantly concur with the majority.”

But a dubitante opinion, according to law professor Jason J. Czarnezki, is a fairly rare thing, and has a different shade of meaning.

“In the United States,” as of June 30, 2005, says Czarneki, “the term has been used in only 626 written opinions.”

Clearly, concurrences, not dubitante opinions, are the norm when expressing reservations, but deciding to vote with the court’s majority. However, the term is most frequently used to express doubt in general, not to define a judge’s disposition in a given case.

Czarnezki, “The Dubitante Opinion,” March 30, 2006.

Czarnezki says that only a handful of judges have styled an opinion as “dubitante.”

The latest member of the club is Judge Jeffrey S. Sutton of the Sixth Circuit.

Of interest, Sutton’s dubitante opinion follows his unanimous opinion in United States v. Jeffries. In other words, Sutton wrote the opinion, was joined by two other circuit judges, and then wrote a separate, dubitante opinion expressing some general doubt about his majority opinion.

What caused Sutton’s reservations?

Franklin Delano Jeffries was convicted of violating 18 U.S.C. § 875(c), which, in part, prohibits transmitting in interstate commerce “any threat to … injure the person of another.”

Jeffries’ threats came in a song he performed and then posted on YouTube and Facebook a few days before a custody hearing. In his majority opinion, Sutton described the performance.

The song contains sweet passages about relationships between fathers and daughters and the importance of spending time together. The rest boils into an assortment of the banal (complaints about his ex-wife), the ranting (gripes about lawyers and the legal system) and the menacing (threats to kill the judge if he doesn’t “do the right thing” at an upcoming custody hearing). Jeffries set the words to music and created a video of himself performing the song on a guitar painted with an American flag on it. The style is part country, part rap, sometimes on key, and surely therapeutic.

And also illegal under 18 U.S.C. § 875(c), a federal prosecutor decided. A jury agreed.

On appeal, Jeffries argued that the jury should have been instructed that to convict, the jury had to find that he subjectively intended to threaten the judge. Not so, according to Sutton’s majority opinion.

A § 875(c) prosecution … generally requires the government to establish that the defendant (1) made a knowing communication in interstate commerce that (2) a reasonable observer would construe as a true threat to another. Once the government makes this showing, we have held it matters not what the defendant meant by the communication, as opposed to how a reasonable observer would construe it.

Sutton cited precedent from the Sixth Circuit and other jurisdictions to affirm Jefferies’ conviction.

But why is there only an objective component to § 875(c), Sutton asked in his dubitante opinion.

Every relevant definition of the noun “threat” or the verb “threaten,” whether in existence when Congress passed the law (1932) or today, includes an intent component. …

Conspicuously missing from any of these dictionaries is an objective definition of a communicated “threat,” one that asks only how a reasonable observer would perceive the words. If words matter, I am hard pressed to understand why these definitions do not resolve today’s case. The definitions, all of them, show that subjective intent is part and parcel of the meaning of a communicated “threat” to injure another. …

Ever since the Watts decision in 1969, it has been clear as a matter of constitutional avoidance that threat prohibitions like this one cover only “real” threats, threats in other words that a reasonable observer would take as true and real. Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam). That is all well and good, as it makes sense to interpose this objective requirement on the criminalization of speech. But that consideration offers no basis for alchemizing the normal meaning of threat into an objective-intent question alone. What should happen instead is this: The statute should require first what the words say (a subjectively intended threat) and second what constitutional avoidance principles demand (an objectively real threat). …

When some law-making bodies “get into grooves,” Judge Learned Hand used to say, “God save” the poor soul tasked with “get[ting] them out.” Hand, The Spirit of Liberty 241–42 (2d ed. 1954). That may be Franklin Delano Jeffries’ fate — and ours. The Department of Justice, defense lawyers and future courts may wish to confirm that the current, nearly uniform standard for applying § 875(c) is the correct one. I am inclined to think it is not.

The case is United States v. Jeffries.  “SUTTON, J., delivered the opinion of the court in which GRIFFIN, J., and DOWD, D. J., joined. SUTTON, J. (pp. 16–20), also delivered a separate dubitante opinion.”

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