Won't Always Know It If They See It, But This Isn't It

A city government gets text pagers and service for some of its cops. The city asks— without a warrant—for a transcript of a cop’s texts. During work hours, few of the texts are work-related and some are sexually explicit. The city disciplines the cop. Did the provider violate the Stored Communications Act? Did the city or the provider violate the Fourth Amendment?
The Supreme Court of United States said no to both questions on June 17, 2010 in City of Ontario, California v. Quon, No. 08–1332. The court did not make any general rules as to what such violations might be.
Petitioner City of Ontario, California got pagers that could send and get texts from Arch Wireless. Arch charged Ontario a fixed price for a specified amount of use. More use would cost extra. Ontario let respondent Jeff Quon and other Ontario cops use the pagers. For several months, Arch charged extra for Quon’s use. Ontario asked for and got transcripts of some of Quon’s texts. Internal affairs investigated Quon. That officer redacted out Quon’s off-duty texts. Much of what remained was not work-related; some was sexually explicit. Ontario disciplined Quon. Quon and the people he was conversing with by text sued in federal district court for violation of the Fourth Amendment and the Stored Communications Act. Senior Federal District Judge Robert J. Timlin sent part of the case to trial. He appears to have ruled that if Ontario had audited to check if Quon had been wasting time, then that would have been improper. The jury okayed Ontario’s audit, finding that the audit was to make sure that the cops were not paying for work texts. The trial case resolved by judgment for Ontario and the other defendants. The Ninth Circuit reversed, holding that Ontario should have used less intrusive methods for the audit. It also held that Arch had violated the Stored Communications Act by giving Ontario the transcript.
In the Supreme Court Justice Kennedy wrote the opinion. All the other justices joined, except that Justice Scalia did not join part of the opinion. In a partial concurrence and concurrence in the judgment, he said that the question should not be whether the Fourth Amendment applies to messages on public employees’ employer-issued pagers, but whether it applies in general to such messages on employer-issued pagers. Justice Stevens concurred to highlight that the court did not decide whether the plurality opinion in O’Connor v. Ortega, 480 U.S.709 (1987) showed the right way to determine an employee’s reasonable expectation of privacy.
Do the texts of a public employee obtained without a warrant come in over objection? Not if the texts were gotten just to see if the employee is wasting time. Not if the seeking of them is over broad. Redaction of non-work-texts completely or in part is well advised. Of course, a warrant based on probable cause is a prosecutor’s best friend.

American Constitution Society's Method v. Federalist Society's Method

That the American Constitution Society holds votes among its members on policy positions, and the Federalist Society does not-- I am a member of the latter group-- says much about the two groups' respective processes for interpreting the constitution.
Hat tip to the Wall Street Journal law blog.

National Attention to Presiding Judge Sharon Keller

AP's story is here. Hat tip to Howard Bashman's How Appealing blog.

Inside Baseball or; The Education of Elena Kagan

Linda Greenhouse of the New York Times describes how United States Supreme Court Justices Harry A. Blackmun and Thurgood Marshall-- the latter on the advice of his law clerk Elena Kagan-- caused the court to decide DeShaney v. Winnebago County Social Services Department. The decision that resulted not only set a precedent that they would not have wanted, but a precedent that has stood as a bulwark against any tendency to reconsider this conservative decision.
Remember, if you go to an appellate court that chooses its cases-- that has discretionary jurisdiction-- such as the Supreme Court of the United States, the Texas Supreme Court or the Texas Court of Criminal Appeals, you may be able to forecast that if such a court takes your case, it may not only decide against you, but that its decision against you will become an ironclad precedent against any future client you might try to help. I bet that Justice Kagan will be a lot more sophisticated on this point than Justices Brennan, Thurgood Marshall and Blackmun were.

Vacation Letter

I expect that this blog will be on vacation until June 21, 2010. Have a good solstice!

Christopher Hitchens on Holy See v. Doe

Christopher Hitchens's take on the brief of the Office of the Solicitor General supporting the Vatican's position in favor of sovereign immunity in Holy See v. Doe is here.
I don't know that I'm in favor of the State Department's preparing a human rights report every year for every government on the globe, but if that's the law, I am not presently aware of any reason that the Vatican shouldn't get a report like everyone else.
The Wall Street Journal law blog's posting on this story is here. The Vatican's PR people should try to get rid of the photo the WSJ uses in this story. It makes the Holy Father look like a perv.

No Life without Parole for Juveniles Committing Noncapital Crimes

United States Supreme Court Justice Anthony Kennedy, writing for a majority of the court which included Justices Stevens, Ginsberg, Breyer, and Sotomayor held on May 17, 2010 in Washington, D.C. that sentencing ajuvenile offender to life imprisonment without the possibility of parole for a nonhomicide crime violates the U.S. Constitution's prohibition of cruel and unusual punishment. Stevens wrote a concurrence that Ginsberg and Sotomayor joined. Chief Justice Roberts concurred in the result. Justice Thomas dissented, joined by Justice Scalia for all of his opinion and Justice Alito for Parts I and III. Alito also filed his own dissent.
Kennedy reasoned that to determine whether a punishment is cruel and unusual, courts must look to the evolving standards of decency that mark the progress of a maturing society. The Constitution's ban on cruel and unusual punishments requires that punishment for crime should be graduated and proportioned to the offense. SCOTUS has considered proportionality challenges two ways. In non-death-penalty case , the court has examined whether a term-of-years may be too long given all the circumstances in a particular .In death penalty cases, overruling some categories of punishment have been considered. This case is the first categorical proportion challenge in a noncapital case. That the Feds and many states allow life sentences for juvenile offenders doesn't address the immorality of this practice. Only the U.S. does this; other countries don't.
I had not known that Florida did not have parole. The Chief Justice's opinion pieces together a ruling in this case from prior decisions as opposed to the majority's building a new analytic framework. Stevens's opinion was a snippy attack on Thomas's.