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Supreme Court Weighs Cheney Confrontation Arrest

March 21, 2012 at 12:00 AM EDT
The Supreme Court on Wednesday dealt a blow to the EPA, siding with an Idaho couple in a property-rights dispute. It also heard arguments over whether a Colorado man can sue the Secret Service over a 2006 confrontation with former Vice President Dick Cheney. Jeffrey Brown and Marcia Coyle sift through the justices' busy day.

JEFFREY BROWN: It was a whirlwind day at the U.S. Supreme Court, with a contentious split decision calling for new standards for criminal plea bargains, a unanimous decision in a much-watched property rights case, and arguments in a case involving a public confrontation with then-Vice President Dick Cheney.

Marcia Coyle of The National Law Journal was in the courtroom for all of it, and joins us now.

All of it, a lot of it today.

MARCIA COYLE, The National Law Journal: A lot of it, Jeff, yes.

JEFFREY BROWN: All right, so let’s start with decision number one. Now, this involves new standards for criminal plea bargains. It’s important and interesting because we learned that so many cases today are decided or are resolved in pleas.

MARCIA COYLE: Absolutely, Jeff.

The court — the Sixth Amendment in the Constitution guarantees a right to a lawyer at every critical phase of the criminal justice process, and not just any lawyer, an effective lawyer.

Justice Kennedy, who wrote the majority opinion today, said that that right extends to the plea bargaining process. And he noted that 97 percent of federal criminal convictions stem from pleas, and 94 percent of state conviction stem from pleas.

JEFFREY BROWN: They were looking at two cases, and just to summarize them, one in which a lawyer didn’t tell his client that a plea bargain had been offered, and another one in which the lawyer did tell the client, but gave bad advice.

MARCIA COYLE: Absolutely. And Justice Kennedy said that a lawyer has an obligation to tell the client, and if he gives him bad advice, the client, the defendant, can make a claim of ineffective assistance of counsel.

JEFFREY BROWN: As a constitutional matter?

MARCIA COYLE: That’s right.

And this is not a get-out-of-jail card, because Justice Kennedy said also that the criminal defendant has to show that he was prejudiced. And that’s a very steep hill for just about all prisoners to climb.

JEFFREY BROWN: Now, dissent came from Justice Scalia, and it was blistering. It was some very, very tough language here. He called the decision absurd.

MARCIA COYLE: He doesn’t mince words.



MARCIA COYLE: He read part of his dissent from the bench, which shows how strongly he felt about it.

He said that the Sixth Amendment protects the fairness of convictions, not the fairness of plea bargains. And he predicted that this would open up a whole new world of litigation by prisoners claiming that there were problems with their — in the plea bargaining process.

JEFFREY BROWN: So that — we always like to ask this wider implication, but that’s precisely the debate in these — he says it’s going to open floodgates. The other side, Justice Kennedy, says this can be done in a. . .

MARCIA COYLE: Well, he said, one, it’s a constitutional right, and so you take that risk with a right.


MARCIA COYLE: But, also, it will — these cases will go back to the courts below to decide what kind of a remedy should be given if there is ineffective assistance of counsel. And Justice Scalia thought that that was a bad idea as well, that you’re basically punishing prosecutors, when it’s really defense lawyers who messed up.

JEFFREY BROWN: All right, decision number two. Now, this is one that you and I actually talked about a few months ago when it was first argued. It involves a couple in Idaho that wanted to build on some property on a lake there, and the EPA said, no, it’s wetlands.


This couple wanted to go to court to challenge the EPA’s jurisdiction over their property and they wanted to move under a federal law known as the Administrative Procedure Act. The lower federal court said that the Clean Water Act precludes pre-enforcement challenges to EPA compliance orders.

So the issue before the court was rather technical. Do these orders constitute final agency action? There’s a presumption in favor of judicial review if they do. Justice Scalia was in the majority on this one today, and he. . .

JEFFREY BROWN: He had a busy day, too, today, didn’t he?

MARCIA COYLE: He did. And I think he was much happier with this case.

This was also a unanimous decision. He said that EPA compliance orders have all the elements of final agency action, there was nothing in the Clean Water Act that precludes judicial review, and so the Sacketts, the couple in this case, could go forward to challenge EPA’s jurisdiction over their property.

JEFFREY BROWN: Not clear whether they can build yet, but they go back. . .

MARCIA COYLE: No, that’s right. They do get their day in court.

JEFFREY BROWN: And does this one have wider implications either for EPA or for other regulatory agencies?

MARCIA COYLE: Certainly for EPA, which issues an estimated 1,500 to 3,000 compliance orders every year, and not just to individuals like the Sacketts, but to corporations and companies as well.

Whether it will affect other agencies that issue similar compliance orders, we’re not really sure. A lot will depend on the statute under which those agencies operate.

JEFFREY BROWN: Okay, now, finally, not a decision, but an argument today.

Now, to summarize the facts here, a Denver man went up to then Vice President Dick Cheney at a mall where he was making a public appearance.


JEFFREY BROWN: The man criticized the Iraq war. He apparently tapped — at least tapped. . .

MARCIA COYLE: Or touched.

JEFFREY BROWN: . . . or touched the vice president on his shoulder. Much of whatever happened is in dispute, even apparently among the Secret Service agents at the time.


JEFFREY BROWN: But he was then arrested. The charges were thrown out, but he brought a legal case. Now, what is the legal argument of the dispute here?


He sued the agents, claiming that it was an arrest in retaliation for his exercise of his free speech rights. And he was — the lower courts said that he could go forward with that case. The agents brought the case to the Supreme Court and they argued today, their lawyer argued today that Secret Service agents should be entitled to something known as qualified immunity, not absolute immunity, from these types of lawsuits, as long as their arrest was based on probable cause, more than a reasonable suspicion, but probable cause.

And the arguments today were quite lively. And I will say that it seemed as though the justices were quite sympathetic to the agents’ argument. The lawyer said, for example, that Secret Service agents almost always operate in a free speech zone. Everyone they come in. . .

JEFFREY BROWN: Almost by definition, right?

MARCIA COYLE: Absolutely. And he said they need breathing room, they need to be able to take into account what someone says in order to assess the threat level to the person they’re protecting.

The United States also argued in support of the agents today, but they have asked the court for a broader rule. And this gave some justices pause. The United States would like to see all law enforcement officers get qualified immunity if they are acting in a protective capacity and make an arrest, as long as the arrest had probable cause.

JEFFREY BROWN: But the man who brought the case, the Colorado man, it’s a First Amendment case for him.

MARCIA COYLE: It is a First Amendment case.

He said that, actually, the government was and the agents’ lawyer were offering a solution to a problem that doesn’t exist, that there are so few of these cases in the court system, that it would be a serious curtailment of First Amendment rights to give this kind of immunity to law enforcement officers. It might operate as a pretext to — you might — Justice Breyer brought up that you might arrest someone for jaywalking, when you really were upset about maybe their T-shirt had something on it that you didn’t like.

He didn’t seem to make a whole lot of headway with the justices. But, as I said, they are concerned about a broad rule here.

JEFFREY BROWN: And this one, we will see later on in the term, I guess.

MARCIA COYLE: Probably some time before June.

JEFFREY BROWN: Okay, Marcia Coyle, nice job, three cases.


JEFFREY BROWN: Thanks so much.

MARCIA COYLE: My pleasure.