In just a little over a month, the justices will meet to consider the many petitions for review that have accumulated since the Supreme Court’s summer recess began at the end of June. This post is the first in a series that will take a closer look at some of the petitions that have been distributed for that conference.
In Bolden v. Missouri, the justices have been asked to consider what should happen after a defendant is deprived of his Sixth Amendment right to counsel at a pretrial hearing to determine whether he is competent to stand trial: Is he entitled to have his conviction reversed, or should the court instead simply order a new proceeding?
The issue comes to the court in the case of Darrell Bolden, who was charged with robbery and “armed criminal actions.” He asked to represent himself a trial, and the trial court agreed. But the trial court then held a hearing on the prosecutor’s motion to determine whether Bolden was competent to stand trial. At that hearing, Bolden told the court (among other things) that he was a “Moorish national,” which mean that he did not “allow lawyers because lawyers ain’t nothing but a bounty hunter,” and he demanded to be released, insisting that the court “has no authority over me.”
The trial judge ordered a psychiatric exam, which concluded that Bolden was competent. Representing himself, Bolden was found guilty and sentenced to two life sentences, followed by two 25-year sentences. On appeal, the state court agreed that Bolden’s Sixth Amendment right to an attorney had been violated, because the trial court should have appointed a lawyer to represent him at least until the question of his competency was settled. But the remedy for that violation, the state court ruled, was to hold a competency hearing.
Telling the Supreme Court that the lower courts are divided on the proper remedy in these circumstances, Bolden argues that holding a competency hearing years after the fact is “an utterly inadequate remedy”: A psychiatrist would have to try to evaluate his mental state at the time of his trial, which borders on the impossible; and an attorney could not effectively cross-examine the psychiatrist who conducted the original exam, because she likely would not remember key details about it. Holding “a retrospective competency hearing, even one with counsel,” Bolden concludes, “does not put the defendant in the position he would have occupied” if he’d had a lawyer originally.
Opposing review, Missouri acknowledges the division among the courts of appeals, but it argues that the issue was not sufficiently important to warrant Supreme Court review. Moreover, it adds, because the state court proceedings in Bolden’s case were not final, the Supreme Court lacks jurisdiction to review it.
Education law could return to the court’s docket again this term, in another case involving the interpretation of a provision of the Individuals with Disabilities Education Act. Under the IDEA, children with disabilities are entitled to what is known as a “FAPE”: a free appropriate public education. The FAPE is implemented through an individualized education program (“IEP”), a written document that both outlines the goals for the student each year and specifies what services will be provided to reach those goals. Parents who disagree with an IEP can challenge it, through a series of proceedings that can eventually make their way to court.
The petitioner in the case – known in the litigation by his initials, N.E. – is a bright student with very high standardized test scores, who qualifies for special education services because he was diagnosed with attention-deficit-hyperactivity disorder. Until the end of third grade, N.E. spent most of his time at his public school in general education classes. But shortly before the end of third grade, after N.E.’s behavior at school had at times deteriorated, school officials suggested that he be moved to a self-contained special education class for fourth grade. N.E.’s parents objected to this recommendation, although they did agree to send him to a different school in the same district, where he would receive individualized instruction.
Over the summer between third and fourth grade, the family moved to Seattle, where school officials also proposed a self-contained classroom; N.E.’s parents once again objected to that proposal. They initiated administrative proceedings, in which they argued that a general education program was N.E.’s “current educational placement” for purposes of the IDEA’s stay-put provision. But the administrative judge who heard their case disagreed, concluding instead that a self-contained classroom was his current placement. N.E.’s parents then went to federal court, where they were also unsuccessful: The courts ruled that the IEP proposed in May 2015, at the end of N.E.’s third-grade year, provided for him to attend individual classes for the rest of third grade (which he did) before moving to a self-contained classroom, making that his current placement.
N.E. and his parents have asked the Supreme Court to weigh in, telling the justices that the courts of appeals “exist in a state of perpetual confusion” on the question of what constitutes a current educational placement. Moreover, they add, the question presented by their case is important because the IDEA’s “stay-put” provision is “crucial to ensuring that parents have a say in their child’s placement.” The provision allows a child to stay where he has been going to school while the dispute between his parents and the school is resolved, providing stability and guaranteeing that a school district cannot unilaterally change the child’s placement. And in this case, they continue, the self-contained classroom cannot possibly be N.E.’s current educational placement when his parents had never agreed to it and he “had never attended” school in such a setting.
The Seattle School District urges the court to deny review, telling the justices that the case is moot because the original administrative proceeding had been dismissed, which eliminated the IDEA’s
“stay put” guarantee. The school district rejected the family’s argument that the courts of appeals are divided on the definition of “current educational placement” – but in any event, it argues, the Ninth Circuit’s interpretation of the term is correct.
In Steager v. CSX Transportation, the justices have been asked to return to thorny questions relating to the intersection of state taxes and the Constitution – this time arising from West Virginia’s taxation of motor fuel purchased outside the state but used within it. The case was filed by railway giant CSX Transportation, which uses fuel purchased in other states to move goods through West Virginia. CSX paid state use taxes in West Virginia, but it asked the state to give it a credit (and therefore a refund) for the local taxes it had paid elsewhere. The tax commissioner initially denied that request, but the state’s tax appeals office reversed, concluding that CSX was entitled to a credit for the sales tax it had paid on fuel purchased from cities and counties in other states. The state courts affirmed, prompting West Virginia to seek Supreme Court review.
The state urges the Supreme Court to take on two questions. First, it contends that its tax scheme does not violate the dormant commerce clause – a doctrine developed by the Supreme Court that bars states from favoring intrastate over interstate commerce – because it carefully and fairly applies its use tax only against fuel actually used within the states. Second, it argues, the Constitution does not require it to give companies like CSX a credit against taxes – such as those imposed by out-of-state city and county governments – that it does not allow its own cities and counties to impose.
Title III of the Americans with Disabilities Act bars “public accommodations” from discriminating against someone based on his disability. The term “public accommodation” is in turn defined as a “private entity” whose operations “affect commerce” – for example, a “bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment.” In Magee v. Coca-Cola Refreshments USA, the justices have been asked to decide whether, as the U.S Court of Appeals for the Fifth Circuit ruled, “public accommodations” are limited to physical spaces that people can enter.
The lawsuit was filed by Emmett Magee, who is legally blind, after he was unable to use Coca-Cola’s vending machines because he couldn’t see. Magee argued that the soft-drink giant’s vending machines violated the ADA, but the lower courts ruled for the company, ruling that vending machines are not public accommodations.
In his petition for review, Magee tells the court that its intervention was essential because “the circuits are deeply divided on this issue”: In contrast with the Fifth Circuit, three other courts of appeals have ruled that “public accommodations” are not limited to “actual physical structures” and can instead include service providers. Magee cites a decision by the First Circuit suggesting that it “would be irrational” to conclude that people “who enter an office to purchase services are protected by the ADA, but persons who purchase the same service over the telephone or by mail are not” – especially when Congress enacted the ADA to ensure that people with disabilities have access to the same goods and services available to everyone else. Indeed, Magee points out, under the Fifth Circuit’s rule the ADA would bar discrimination at “a brick-and-mortar store or restaurant but not a kiosk or food truck.” And the question is important, Magee stresses, because of the wide range of products sold in vending machines – everything from lobster and caviar (really!) to emergency birth-control and cars.
In a brief filed at the justices’ invitation, the federal government urges the Supreme Court to deny review, telling it that the Fifth Circuit’s ruling was correct: “Beverage vending machines are not generally perceived as discrete businesses, and they lack the other hallmarks of the statutorily enumerated ‘sales or retail establishment[s].’” Rather, the government contends, “the public accommodation in which a vending machine is located” – in Magee’s case, a hospital and bus station – “bears responsibility for ensuring the machine’s accessibility in accordance with the ADA.” And, the government insists, the courts of appeals are not in fact divided on this question, as other circuits have considered how the ADA applies to “a fundamentally different type of transaction.”