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.”

In their opinions …

“My effort is in the direction of simplicity.” once wrote the namesake of the Henry Ford Hospital. Henry Ford, My Life and Work 13 (Garden City Publ’g Co. 1922). Mr. Ford apparently had nothing to do with the creation of the Medicare program.

— Sixth Circuit Judge Jeffrey S. Sutton, in Henry Ford Health System v. Department of Health and Human Services.

The case required Sutton to reconcile a provision of the Patient Protection and Affordable Care Act of 2010 with a regulation promulgated under it.

At issue was whether Henry Ford Hospital, a teaching hospital, was entitled to Medicare reimbursement for the time residents spend doing “pure research.”

The act requires the “Secretary of Health and Human Services to reimburse teaching hospitals for ‘all the time spent by an intern or resident …. in non-patient care activities … as such time and activities are defined by the Secretary.'”

One of the Secretary’s regulations “exclud[es] from hospitals’ Medicare reimbursements the time residents spent conducting pure research.”

Sutton concluded there was a clear delegation of authority from Congress to the Secretary to define “non-patient activities.” He also ruled the Secretary’s exclusion of “pure research” from those activities did not exceed Congress’ delegation of authority.

This is a pure financial headache for Henry Ford Hospital. The ruling affects the hospital’s Medicare reimbursements for Fiscal Years 1991–96 and 1998–99.

In their opinions

“It should take more than a shoebox to vitiate a resident’s consent to search the premises.”

Judge Jeffrey S. Sutton, 6th U.S. Circuit Court of Appeals, dissenting in United States v. Taylor.

The cops had an outstanding warrant for Mark Taylor and thought he might be at Sabrina Arnett’s apartment. They sent a heavy-duty task force to find out.

Arnett said he wasn’t there but, sure, they could come in and look around. When they took her up on the invitation, she changed her story and admitted he was inside.

In the second-floor master bedroom, they found him stripped to his underwear. They cuffed him and took him downstairs. Arnett then gave oral and written permission for more searching. They didn’t ask her or Taylor if they could look through Taylor’s stuff. And the only warrant they had was for Taylor’s arrest.

Upstairs in a spare bedroom, men’s clothes were lying about. In the closet, there was an assortment of men’s clothes, children’s clothes and toys. In a closet corner, partially covered by men’s clothes, there was a closed shoebox for a pair of basketball shoes.

Inside was a jail-identification bracelet for Taylor, and the handgun and ammo that later formed the basis of a felon-in-possession charge against him.

What’s this all about, the cops asked Arnett. She said that Taylor didn’t live there but kept some of his stuff in the spare bedroom. And, she said, Taylor never said she could look in the shoebox.

In the federal district court, Taylor argued the shoebox’s contents should be suppressed. That’s right, said the judge. From the majority opinion in Taylor:

First, the court determined that Arnett did not have actual or common authority to consent to a search of Taylor’s belongings because Taylor had not granted Arnett access to his property.

Next, the court held that Arnett did not have apparent authority to consent to a search of the shoebox. The court reasoned that because the spare bedroom and the closet contained men’s clothes and because the shoebox was partially covered with a piece of men’s clothing, the ownership of the shoebox was ambiguous.

In reaching this conclusion, the court found that the task-force officers in fact believed that the shoebox belonged to Taylor when they opened it.

The government appealed, solely on the basis that Arnett had the apparent authority to consent to the shoebox search.

Nothing doin’, wrote Judge Ronald Lee Gilman:

The apparent-authority doctrine excuses otherwise impermissible searches where the officers conducting the search “reasonably (though erroneously) believe that the person who has consented” to the search had the authority to do so. …

Although Arnett had no children, the closet in the spare bedroom contained a mix of children’s clothes, toys, and men’s clothes. Underneath an item of men’s clothing lay the closed shoebox. In short, nothing in the closet indicated that the items within it belonged to Arnett or were regularly used by her.

Under these circumstances, when the officers discovered and were considering whether to open the shoebox, a reasonable person would have had substantial doubts about whether the box was subject to mutual use by Arnett. …

Although many items that belong to a houseguest like Taylor might also be used by the dwelling’s resident (such as books, compact discs, magazines, or a portable stereo), a shoebox that is surrounded by the guest’s clothes and that sits in the corner of a closet in a little-used room is not likely to be such an item.

Gilman cited United States v. Waller, 426 F.3d 838 (6th Cir. 2005), in which Waller stored a suitcase and several filled garbage bags at a friend’s apartment. The friend had no idea what was in them and never looked inside.

After the cops arrested Waller on a bond violation, the friend okayed a search of the apartment. There were two guns in the suitcase but the Sixth Circuit threw them out, “holding that whether Waller’s suitcase was ‘subject to mutual use’ by Waller’s friend was unclear under the circumstances.”

Gilman said Taylor’s guns and ammo should be suppressed because his situation was even murkier than Waller’s. In Waller, wrote Gilman:

the main argument for ambiguity was that the police found a packed suitcase and were told that Waller was storing items in his friend’s apartment. But there is no description in Waller of where the suitcase was found, other than in “a closet,” or whether the suitcase was next to other items that obviously belonged to Waller or whose ownership was unclear.

Here, the appearance of the shoebox itself and the items in the room where the shoebox was found indicated that the box did not belong to Arnett. There were apparently no such surrounding items in Waller, yet this court still suppressed the contents of Waller’s suitcase.

In his dissent, Sutton conceded that the majority’s result was legally correct but he still wasn’t buying it:

The majority today extends to shoeboxes a degree of Fourth Amendment protection that our court has previously afforded to luggage. I agree that our precedents permit this extension, but I do not think they compel it. I dissent because I think the extension unwise.

The apartment’s tenant here gave consent for the officers to search it. I think that consent ought to be effective as to an unsecured container on the premises, absent a clear indication that some other person exclusively controls the container.

Luggage might routinely meet that test, but shoeboxes I think should not, absent some unusual circumstance not present here.

Sutton said the cases in other circuits are all over the map. Some hold that the cops can never search a closed container unless they positively know it is controlled by the person who consented to the search. Others hold the cops can have a look if they “do not have reliable information that the container is not under the authorizer’s control.” Said Sutton:

To my knowledge, the Supreme Court has never decided specifically the extent to which a resident’s consent to search her premises is effective as to containers within it.

The result has been appreciable entropy among the circuits.

In their opinions

“An allision occurs when a moving vessel strikes a stationary object, and a collision occurs when two moving vessels strike each other. See Fischer v. S/Y NERAIDA, 508 F.3d 586, 589 n.1 (11th Cir. 2007). (An elision occurs when lawyers mistakenly lump the two concepts together.)”

– Some clever parenthetical word play by 6th U.S. Circuit Court of Appeals Judge Jeffrey S. Sutton, in Bessemer & Lake Erie Railroad, et al. v. Seaway Marine Transport, et al.

Sutton was sailing through the stormy seas of admiralty law. A moving cargo ship operated by Seaway struck Bessemer’s land-based coal-loading machine, which had a movable boom. Seaway and Bessemer debated whether an allision occurred.

The point was important to Bessemer because under the rule of The Oregon, 158 U.S. 186 (1895), when a moving object strikes a stationary object, there is a rebuttable presumption that the moving object is at fault.

Sutton said both parties were off course.

Seaway has admitted some negligence, but not full responsibility, for the accident. What matters then is not whether the vessel bears some responsibility for the accident. It admits that it does. The question is whether, even if the vessel was negligent, may it still shift some responsibility for the accident to the dock owner due to its alleged comparative fault?

Any olde salty dog should know the answer to this one, said Sutton, while dusting off an 860-year-old authority:

[C]omparative and contributory negligence not only are venerable doctrines in general, but they also turn on principles that have centuries of relevance in the context of admiralty law. See Rolls of Oleron, Article XIV (circa 1150 A.D.) (fault should ordinarily be apportioned between moving vessel and stationary object).

Harr, maties! And blow me down!