SORNA became retroactive on August 1, 2008, 6th Cir. says

In U.S. v. Stevenson, two sex offenders convicted under state law were indicted under the federal Sex Offender Registration and Notification Act (SORNA) when they left Michigan without updating their registrations. They argued it couldn’t be applied retroactively to them because they were convicted of their crimes prior to SORNA’s enactment in 2006. The U.S. District Court (E.D. Michigan) agreed, finding that an Attorney General Interim Rule that made the SORNA requirements retroactive was invalid under U.S. v Cain.

The 6th U.S. Circuit Court of Appeals reversed, finding that the timing between the two cases distinguished them.

In Cain, the problem was that the Attorney General didn’t adhere to procedures for making new rules requiring retroactive application of SORNA under the Administrative Procedure Act in May 2007. The APA required a notice and comment period – a period during which Cain committed his alleged SORNA violation. In another decision, U.S. v. Utesch, the 6th said that the proposed rules couldn’t be applied in any event.

But, the Attorney General restarted the process using the proper procedure, finalizing the new guidelines on August 1, 2008. The court, using the same reasoning as in Utesch, determined that is the date SORNA became retroactively applicable.

Having found no compelling argument to the contrary, we hold today what we first concluded in Utesch: SORNA became retroactive to pre-enactment offenders on August 1, 2008. The district court therefore erred in dismissing the indictments of Flowers and Stevenson, who traveled after the SMART guidelines became final.

6th Circuit: EMU student can sue for religious discrimination

Julea Ward, who was expelled from an Eastern Michigan University counseling program because she refused to counsel gays and lesbians about their lifestyles, can file a religious discrimination suit against the university, the Detroit Free Press reported.

In Ward v. Polite, et al., 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, joined by judges Julia Gibbons and John Adams, wrote that “Ward’s free speech claim deserves to go to a jury.”

“Although the university submits it dismissed Ward from the program because her request for a referral violated the [American Counseling Association] code of ethics, a reasonable jury could find otherwise — that the code of ethics contains no such bar and that the university deployed it as a pretext for punishing Ward’s religious views and speech.”

Judge George Steeh of U.S. District Court for the Eastern District of Michigan had ruled in favor of the university in 2010. The remanded case now goes back to him.

6th Circuit upholds ruling to toss Iraq vet’s $4.4 million jury award

The U.S. 6th Circuit Court of Appeals upheld U.S. District Judge John O’Meara’s decision to throw out a jury’s $4.4 million verdict for James McKelvey, who was subjected to verbal harassment at Selfridge Air National Guard Base because of his disability.

According to the Detroit Free Press, O’Meara decided to take the Army up on its offer to reinstate McKelvey to a job with higher pay at the Tank-Automotive & Armaments Command (TACOM) in Warren.

But the panel reversed O’Meara, concluding that the hostile work environment forced McKelvey to quit his job at TACOM. As a result, the Army must provide McKelvey with about $100,000 in back pay.

McKelvey, who had suffered physical impairments in Iraq during duty with the Army National Guard, commenced his civilian employment with the Army in February 2006. A co-worker initiated the harassment when he asked McKelvey why he used “crippled parking.” After that, McKelvey was called a “cripple” on a regular basis, including by his supervisor, who denied McKelvey’s requests for accommodations such as a touch-screen laptop or voice-activated programming for his computer.

Attorney Kevin Carlson, who co-counseled the October 2009 trial with Joseph Golden, told the Free Press he was glad the appellate court reinstated the jury’s finding that he was forced to quit because of disability discrimination. But he said that going back to the place where McKelvey was mistreated is a lot to ask, and he and Golden aren’t sure it’s legally correct.

An account of McKelvey’s lawsuit can be found at Michigan Lawyers Weekly’s website.

Kethledge slams speedy trial ‘presumption of prejudice’

In U.S. v. Ferreira, the 6th U.S. Circuit Court of Appeals dismissed charges against the defendant for conspiring to sell 500 grams of methamphetamine because of the government’s “gross negligence” causing a three year delay in his arraignment.

Ferriera was in one county in Georgia when originally charged, but was moved before the government filed a superceding petition for habeas corpus ad prosequendum. Georgia had sent notice to the feds that Ferreira had been moved, but the feds lost the notice, sending the superceding petition and ensuing federal detainers to the wrong county.

The 6th Circuit applied the four speedy trial violation factors from Barker v. Wingo, 407 U.S. 514 (1972) — length of the delay; reason for the delay; defendant’s assertion of his right to a speedy trial; and prejudice to the defendant – finding in favor of Ferriera in all four instances.

This didn’t sit well with Judge Raymond M. Kethledge, who let it rip in a vitriolic dissent that criticized the Supreme Court standards that set Ferriera free on a technicality:

The law’s clarity with respect to the issue we decide today is not nearly commensurate with its stakes. The stakes are that, if the government violates a defendant’s constitutional right to a speedy trial, he goes free, forever unpunished even for serious felonies that he openly admits he committed. Such is the case here: John Ferreira was caught red-handed with nearly 900 grams of methamphetamine (which, like crack, is an enormously destructive drug), and admitted in open court that he conspired to sell more than 500 grams of it. And yet he will serve not a single day of the 110-month sentence that the district court thought he should serve—because, in our court’s view, the government took too long to bring him to trial.

Society surely pays a price for decisions like this one. But the law that we apply in making them is an enigma. We apply a four-factor balancing test, three factors of which are of uncertain significance. The one factor that certainly does matter—prejudice—is in turn divided into three subfactors, two of which are overshadowed by the third, which is whether the government’s delay in bringing a defendant to trial actually prejudiced his ability to defend himself there. Such is the law as handed down to us by [Barker].

Actual prejudice is often easy enough to measure, so if the law had been left there the courts could have muddled through their application of this test. But the law has not been left there. In Doggett v. United States, 505 U.S. 647 (1992), the Supreme Court overlaid all these factors and subfactors with something it called a “presumption of prejudice[.]” Id. at 658. Once this presumption applies (or to the extent it does; I do not know which characterization is more accurate), the government bears the burden of proving the absence of actual prejudice, rather than the defendant bearing the burden of proving its existence. And at that point the defendant typically has one foot out the courthouse door, given the government’s difficulty in proving a negative.

He went on to debate the merits of Doggett, which he said has turned speedy trial analysis into simply a numbers game, with the 6th Circuit now approaching the low end of the threshold:

The question of when this presumption shall apply, then, is consequential for both the defendant and society alike. And that is a question, I respectfully submit, on which Doggett provides little guidance. We are told that “such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows.” Id. at 657. I confess I do not know what this passage means. Only marginally more helpful is the statement that “our toleration of such negligence varies inversely with its protractedness[.]” Id. Neither of these statements, and nothing else in Doggett, provides the lower courts with much guidance as to when the presumption of prejudice should apply. …

This whole line of analysis strikes me as arbitrary. That is not surprising: Doggett gives the lower courts little more than a number to work with; and so the analysis in most cases that apply Doggett is, at bottom, simply a conclusion—that one
number is enough and another is not. This is a deeply unsatisfying way of deciding issues as important as this one. A better way of deciding these cases would be to look beyond the numbers, to the reason why Doggett announced a presumption of prejudicein the first place. As I understand it, that reason is that the particulars of actual prejudice can be increasingly hard to prove over time. … But it is one thing to waive proof of particulars; it is quite another to waive the need to show any indication of prejudice at all. And thus, before applying the presumption, we should at least ask whether there is reason to believe that the defendant has suffered significant, albeit unidentifiable, prejudice as a result of the government’s
delay in bringing him to trial. Only if we are confident that the answer to that question is yes—that there is, in fact, significant prejudice in there somewhere—should we take the drastic step of ordering the defendant set free. Perhaps this is what the Court meant when it said that “negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice.” Id. at 657. But if so, the point has been lost on the lower courts.

Kethledge concluded with:

There are few doctrines in criminal procedure as potent as Doggett’s presumption of prejudice. So far as I can tell, in most cases where it has applied, the defendant has gone free. We need more guidance than we now have in applying it. What the lower courts need, I respectfully submit, is a rule of law—so that, before we set a guilty man free on account of prejudice, we first determine whether there actually is some.

6th Circuit reverses itself on habeas case

In an en banc rehearing of the 2010 Davis v. Lafler case, the 6th U.S. Circuit Court of Appeals affirmed the district court’s denial of a defendant’s writ of habeas corpus, reversing itself in the process.

In the case, the defendant was charged with aiding and abetting a carjacking. The prosecution said he acted as a lookout for a friend who pulled off the crime and rode off with the friend after the carjacking.

In the 2010 decision, the court said there wasn’t enough evidence to show he did anything to assist the crime. (For more on the 2010 decision, read our analysis in “6th Circuit overtuns aiding and abetting conviction.” The original majority opinion relied upon another 6th Circuit decision in Brown v. Palmer, in which another defendant was charged with aiding and abetting a carjacking. In Brown, the court also found the evidence was insufficient to show Brown had actually done anything to assist the carjacking.

In the en banc decision, Judge Ronald Gilman wrote for the majority that the two cases aren’t similar enough. In Brown, Gilman noted, the defendant didn’t arrive at the scene with the carjacker. He also noted Davis’s strange conduct in that he entered the restaurant just before the crime, ordered only water and no food, and left immediately after in the stolen car.

Brown engaged in no overt acts to indicate that he was involved in the crime. He simply sat in his car and watched the crime unfold in front of him, to his professed shock and dismay.  Davis, on the other hand, exited the Cavalier with Washington, entered the restaurant, failed to order any food, and stood at the window.  Davis would have had no other way of so closely coordinating his actions with those of Washington if he had not been actively watching what was taking place.  In short, Davis’s behavior during the crime was far closer to that of a coconspirator than Brown’s.

The  fact pattern here is far more incriminating because it indicates that Washington was expecting Davis to enter the SUV (without any contemporaneous communication between them) that Washington had just stolen.  The jury could easily conclude from this evidence that Davis was involved in the planning and execution of the carjacking.  In contrast, the perpetrator in Brown did not wait for Brown to enter the carjacked Buick, did not drive it towards Brown, and did nothing after the crime to indicate that the two were working in tandem.

The majority also found no ineffective assistance of counsel under the Strickland v. Washington standard for not calling the carjacker to testify. Gilman wrote that it was a strategic decision in that he didn’t want his client connected to the carjacker in the jury’s minds. Judge Boyce Martin dissented from this part of the decision only, arguing that he’d remand for an evidentiary hearing on the ineffective assistance claim. Judge Karen Nelson Moore dissented, agreeing with the original panel on the sufficiency of the evidence.

If you’re keeping score, the votes were as follows:

Gilman wrote the majority opinion, joined by Chief Judge Batchelder, and Judges Boggs, Gibbons, Rogers, Sutton, Cook, McKeague, Griffin and Kethledge. Martin wrote a partial concurrence/partial dissent on the ineffective assistance of counsel, joined by Judge Stranch. Moore dissented, joined by Judges Cole and Clay

6th Circuit defines ADA ‘association discrimination’ test

One seldom seen cause of action under the Americans with Disabilities Act (ADA) is the “association discrimination” claim, in which the plaintiff claims he was victim of an adverse decision based on his relationship with someone who has a disability.

How rare is an association discrimination claim? In 20 years of ADA litigation, the 6th U.S. Circuit Court of Appeals has never published a decision in an association discrimination case, until now.

In Stansberry v. Air Wisconsin Airlines Corp., the court laid out the standards for such a case in the circuit:

The legislative history accompanying this section, H.R. Rep. No. 101-485, pt. 2, at 61-62 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 343-44, explains the type of conduct that is prohibited.

“[A]ssume, for example that an applicant applies for a job and discloses to the employer that his or her spouse has a disability.  The employer believes the applicant is qualified for the job.  The employer, however, assuming without foundation that the applicant will have to miss work or frequently leave work early or both, in order to care for his or her spouse, declines to hire the individual for such reasons.  Such a refusal is prohibited by this subparagraph. In contrast, assume that the employer hires the applicant.  If he or she violates a neutral employer policy concerning attendance or tardiness, he or she may be dismissed even if the reason for the absence or tardiness is to care for the spouse.  The employer need not provide any accommodation to the nondisabled employee.  The individuals covered under this section are any individuals who are discriminated against because of their known association with an individual with a disability.”

Importantly, employers are not required to provide reasonable accommodations to nondisabled workers under this section of the Act.  See 29 C.F.R. § 1630.8 App. at 379 (2007); Larimer v. Int’l Bus. Machs. Corp., 370 F.3d 698, 700 (7th Cir. 2004); Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1084 (10th Cir. 1997).

The court described three three types of association discrimination cases: “expense” cases, “disability by association” and “distraction.”

The “expense” theory covers situations where an employee suffers an adverse employment action because of his or her association with a disabled individual covered under the employer’s health plan, which is costly to the employer.  The “disability by association”
theory encompasses two related situations.  Either the employer fears that the employee may contract the disability of the person he or she is associated with (for example the employee’s partner is infected with HIV and the employer fears the employee may become infected), or the employee is genetically predisposed to develop a disability that his or her relatives have.  The “distraction” theory is based on the employee’s being somewhat inattentive at work because of the disability of someone with whom he or she is associated.

Finally, the court found that a claim without direct evidence of the alleged discrimination, the plaintiff can make a prima facie case by showing:

(1) the employee was qualified for the position; (2) the employee was subject to an adverse employment action; (3) the employee was known to be associated with a disabled individual; and (4) the adverse employment action occurred under circumstances that raise a reasonable inference that the disability of the relative was a determining factor in the decision.

In the Stansberry case, the court found the plaintiff couldn’t show a prima facie case because the circumstances didn’t raise a reasonable inference that his wife’s disability was a determining factor in the decision.

Michigan’s affirmative action ban found unconstitutional

The Sixth Circuit is on a roll in dealing with polarizing political issues.

Earlier this week, it made news by finding the health care mandate constitutional under the Commerce Clause. Today, in Coalition of Defend Affirmative Action v Regents of the University of Michigan, it strikes again, finding Proposal 2, Michigan’s ban on affirmative action, to be unconstitutional under the Equal Protection Clause of the 14th Amendment.

Judge Guy Cole, writing for the majority:

Hunter and Seattle thus expounded the rule that an enactment deprives minority groups of equal protection of the laws when it: (1) has a racial focus, targeting a goal or program that “inures primarily to the benefit of the minority”; and (2) works a reallocation of political power or reordering of the decision making process that places “special burdens” on a minority group’s ability to achieve its goals through that process. Seattle, 458 U.S. at 470; Hunter, 393 U.S. at 391.

Applying this rule here, we conclude that Proposal 2 targets a program that “inures primarily to the benefit of the minority” and reorders the political process in Michigan in such a way as to place “special burdens” on racial minorities.

Proposal 2, like Initiative 350 [from Seattle], has a “racial focus,” because the Michigan universities’ affirmative-action programs “inure[] primarily to the benefit of the minority, and [are] designed for that purpose,” for the reasons articulated by the Court in Seattle.  …  Just as the desegregative busing programs at issue in Seattle were designed to improve racial minorities’ representation at many public schools, … race-conscious admissions policies increase racial minorities’ representation at institutions of higher education[.]  Indeed, underrepresented minorities lobbied for the
adoption of such policies at Michigan’s universities in the first place for this reason … and, further, the unrebutted evidence in the record indicates that Proposal 2 will likely negatively impact minority representation at Michigan’s institutions of higher education.  Ample evidence thus grounds our conclusion that race conscious admissions policies “inure[] primarily to the benefit of the minority.”

The 6th Circuit slapped down former Attorney General Mike Cox’s argument that the law affected women, therefore wasn’t racially based.

The court found that Proposal 2 sets up racially based obstacles in that anyone seeking to change the admissions policy based on race must first to convince the public to repeal Proposal 2 before trying to convince the board running the respective university to change its policy, whereas if a person sought to change an admission policy based on other factors, it need only do the latter.

Judge Julia Smith Gibbons dissented from the Equal Protection analysis, finding Proposal 2 didn’t restructure the political process “to burden the ability of minorities to enact beneficial legislation” thus wasn’t unconstitutional.

6th Circuit finds health care mandate constitutional

The Sixth Circuit affirmed the U.S. District Court judge’s finding that the health care mandate of the Patient Protection and Affordable Care Act is constitutional under the Commerce Clause.

U.S. District Court judge George Steeh had found the mandate falls within the Commerce Clause because:

(1) the provision regulates economic decisions regarding how to pay for health care that have substantial effects on the interstate health care market; and (2) the provision is essential to the Act’s larger regulation of the interstate market for health insurance.  Because the district court found the provision to be authorized by the Commerce Clause, it declined to address whether it was a permissible tax under the General Welfare Clause.

In Thomas More Law Center v Obama, a 6th Circuit panel consisting of Judges Boyce Martin, Jeffrey Sutton and U.S. District Court Judge James Graham (Ohio) agreed.

Writing for the majority opinion, Martin said the law falls within the Commerce Clause because it

There is debate over whether the provision regulates activity in the market of health insurance or in the market of health care.  In the most literal, narrow sense, the provision might be said to regulate conduct in the health insurance market by requiring individuals to maintain a minimum level of coverage.  However, Congress’s intent and the broader statutory scheme may help to illuminate the class of activities that a provision regulates.  The Act considered as a whole makes clear that Congress was concerned that individuals maintain minimum coverage not as an end in itself, but because of the economic implications on the broader health care market.  Virtually everyone participates in the market for health care delivery, and they finance these services by either purchasing an insurance policy or by self-insuring.  Through the practice of self-insuring, individuals make an assessment of their own risk and to what extent they must set aside funds or arrange their affairs to compensate for probable future health care needs.
Thus, set against the Act’s broader statutory scheme, the minimum coverage provision reveals itself as a regulation on the activity of participating in the national market for health care delivery, and specifically the activity of self-insuring for the cost of these services. 

By regulating the practice of self-insuring for the cost of health care delivery, the minimum coverage provision is facially constitutional under the Commerce Clause for two independent reasons.  First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce.  In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance.

Martin also said that, even if the mandate wasn’t economic activity under the Commerce Clause, it would still be constitutional because it’s part of a larger regulatory scheme for interstate health insurance markets.

Martin also shot down the challenge based on the idea that Congress can’t regulate inactivity by fining those that choose not to buy insurance:

Similarly, this Court has also refused to focus on imprecise labels when determining whether a statute falls within Congress’s Commerce Power.  For example, we rejected the argument that the Child Support Recovery Act is unconstitutional because it regulates an individual’s failure to place an item in commerce.  Instead, we held that Congress had a rational basis for concluding that a non-custodial spouse’s failure to send court-ordered child support payments across state lines substantially affects interstate commerce. Here, too, the constitutionality of the minimum coverage provision cannot be resolved with a myopic focus on a malleable
label.  Congress had a rational basis for concluding that the practice of self-insuring for the cost of health care has a substantial effect on interstate commerce, and that the minimum coverage provision is an essential part of a broader economic scheme.  Thus, the provision is constitutional notwithstanding the fact that it could be
labeled as regulating inactivity.

Graham dissented from Martin’s Commerce Clause analysis, arguing the law doesn’t regulate “the commercial activity of obtaining health care,” but “the status of remaining uninsured.” His dissent ends like many do, with the slippery slope argument.

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be.  What aspect of human activity would escape federal power?  The ultimate issue in this case is this: Does the notion of federalism still have vitality?  To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does. …  Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people.  A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.

6th Cir. Judge James Ryan retiring in Sept.

DETROIT (AP) — Federal appeals court Judge James L. Ryan of Michigan says he’s stepping down in September.

Ryan has been on the 6th U.S. Circuit Court of Appeals in Cincinnati since January 1986. He was nominated by President Ronald Reagan after 10 years on the Michigan Supreme Court and nine years as a Wayne County judge.

In a statement Wednesday, Ryan says he still loves the work but wants to do other things. Off the bench, he has taught at law schools and given lectures in more than 30 states.

The appeals court hears cases from Michigan, Ohio, Kentucky and Tennessee.

6th Cir. blocks release of Hutaree defendants

DETROIT (AP) — A federal appeals court on Thursday issued an emergency stay blocking, at least temporarily, the release of nine jailed Michigan militia members accused of conspiring to overthrow the U.S. government.

The 6th U.S. Circuit Court of Appeals in Cincinnati issued the stay shortly after the U.S. attorney’s office in Detroit filed a motion seeking the order. Defense attorneys had until 5 p.m. to respond.

The nine had been returned to U.S. District Court in Detroit to be processed for release until trial, but the appeals court halted those proceedings.

"They’re bad losers," defense attorney Mark Satawa told reporters after the hearing, referring to the government. "I fully expect that the 6th Circuit will resolve this quickly."

In a ruling late Wednesday, U.S. District Judge Victoria Roberts said she would not further suspend her Monday order that releases the militia members with strict rules, including electronic monitoring and curfews.

"We don’t think the conditions are satisfactory," U.S. Attorney Barbara McQuade told The Associated Press. "We think the defendants pose a danger to the public and to law enforcement in particular. It’s my duty to protect the safety of the public."

Roberts had ordered the militia members released Monday, then suspended her decision while prosecutors decided whether to appeal. They will appeal, but she was not persuaded to freeze the order any longer.

"Defendants are presumed innocent of all charges against them. … This presumption of innocence is part and parcel of why, ‘In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception,’" Roberts wrote, quoting a 1987 U.S. Supreme Court decision.

The members of the southern Michigan militia, called Hutaree, are charged with conspiracy to commit sedition, or rebellion, against the government and the attempted use of weapons of mass destruction. They have been in custody without bond since late March.

Prosecutors claim the suspects are too dangerous to be released from jail. But Roberts set many restrictions and appointed third-party custodians, mostly family members, to keep watch.

Many were at the courthouse Thursday waiting for their relatives to be released.

"One hundred miles for nothing," said Tina Stone’s father, 64-year-old Tim Kelley of North Adams, Mich., referring to his drive from Hillsdale County.

Stone, 44, the wife of militia leader David Stone, 44, of Clayton, Mich., has been ordered to stay with her father when she is released.

"It’s frustrating, to be sure. She thought she was going home," her attorney, Michael Rataj, said of the delay.

Since the series of raids and arrests about six weeks ago, Hutaree members have been portrayed by the government as homegrown extremists out to strike at authorities.

Roberts found that the secret recordings of militia members by an undercover agent contained "offensive and hate-filled speech," but nothing that signaled a conspiracy to levy war against the government.

"The defendants laugh, make sounds and appear to talk over one another," Roberts said, referring to a Feb. 20 recording. "There is also a discussion of strippers."

Prosecutors have said allowing the militia members to go free pending trial would endanger the public.

"If the defendants were to flee or to cause even a fraction of the harm they have repeatedly and fervently spoken of and planned for, no ruling by the 6th Circuit could undo that damage," Assistant U.S. Attorney Ronald Waterstreet said in a court filing Wednesday.