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Tuesday, March 06, 2007

Supreme Court Roundup from Aaron Streett

Greetings, sportsfans! A rather low-key day at the Court yesterday, featuring a civil-procedure lesson for the Third Circuit from Professor Ginsburg and a per curiam dismissal in the long-awaited Colorado redistricting case. The Court also halted its heretofore humming cert-granting machine, adding no new cases to the OT 2007 docket.

Sinochem International Co. Ltd. v. Malaysia International Shipping Corp., 06-102

If you love Steel Co. and Ruhrgas (and who doesn’t?), you’ll adore Sinochem. If you don’t know what I’m talking about, your finger is probably already hovering over the delete key. More power to you. The wonderfully named Steel Co. v. Citizens for Better Environment (1998), which is not, contrary to popular belief, the subtitle of An Inconvenient Truth, held that a court could not assume hypothetical subject-matter jurisdiction and proceed to address the merits of a case. The 1999 Goliath v. Goliath classic, Ruhrgas AG v. Marathon Oil Co., held, however, that a court could dismiss a case for lack of personal jurisdiction without first determining that it has subject-matter jurisdiction. Sinochem asked whether a court could dismiss a case for forum non conveniens without first establishing that it has subject-matter and personal jurisdiction. Reversing the CA3, the Court unanimously answered yes.

Justice Ginsburg authored the Court’s 12-page opinion, nicely tidying up the law in this area.

She first helpfully explained that forum non conveniens—the most self-explanatory non-made-up Latin phrase since defendant perpetuum wrongum (which is, technically speaking, a complete fabrication) is the doctrine that allows a court to dismiss an action “on the ground that a court abroad is the more appropriate and convenient forum for adjudicating the controversy.” This requires an inquiry into where the parties, witnesses, and evidence are located, and into the respective interests of the competing fora in resolving the case. RBG easily concluded that forum non conveniens is the type of nonmerits issue that a court may decide before determining jurisdiction without running afoul of Steel Co. It is like other non-jurisdictional, nonmerits “threshhold grounds” that the Court has allowed district courts to decide before jurisdiction (e.g., Younger abstention, Totten doctrine, discretionary adjudication of state-law claims). “The critical point,” the Court held, is that “resolving a forum non conveniens motion does not entail any assumption by the Court of substantive law-declaring power.” Or as the 7th Circuit succinctly summarized (and the Court echoed): “Jurisdiction is vital only if the court proposes to issue a judgment on the merits.”

RBG called this a “textbook case” for immediate dismissal on forum non conveniens grounds. It involved a dispute between a Chinese importer and a Malaysian shipping company that had already been tried in Chinese court. The only U.S. connection was that the goods were loaded at the Port of Philadelphia, and that suing here would be great leverage for extorting a good settlement. While this made for an easy forum non conveniens dismissal, RBG said, there were tricky questions about subject-matter and personal jurisdiction. It makes no sense to burden parties with jurisdictional discovery when the case will be dismissed anyway for forum non conveniens. Finally, RBG emphasized that ordinarily a court should address jurisdiction before forum non conveniens, but in cases like this a court could work in reverse order.

Lance v. Coffman, 06-641

After the 2000 census, a Colorado state court redrew congressional districts after the legislature was unable to complete the job in time for the 2002 election. In 2003, the legislature finally put forth its own map, triggering litigation over which map was binding. The Colorado Supreme Court upheld the judicially drawn map, rejecting the legislature’s claim that doing so would violate the Constitution’s Elections Clause (which provides that congressional election procedures “shall be prescribed in each state by the Legislatures thereof”) The U.S. Supreme Court denied cert back in 2004, over the dissents of the Old Chief, Scalia, and Thomas, the same three who accepted an Elections Clause argument in Bush v. Gore. Sadly, this case is not nearly as interesting. It involves the second round of litigation, in which private Colorado citizens brought a federal lawsuit claiming that the Colorado Supreme Court’s decision itself violated the Elections Clause. The three-judge district court dismissed on issue preclusion grounds.

In a 6-page per curiam, the Court found that the citizens lacked Article III standing. The opinion recounts a century’s worth of overly creative constitutional litigation in which the Court had “consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his . . . interest in proper application of the Constitution and laws”—but no unique harm to himself, does not state an Article III case or controversy. The plaintiffs here simply claimed that they, as citizens, wished to see the Elections Clause followed; they were not congressional candidates or anyone else who would have had a unique stake in the redistricting process. “This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past,” the Court concluded. The Court easily distinguished cases such as Baker v. Carr, where plaintiffs alleged that their votes had been diluted by malapportioned congressional districts.

Opinion Watch: We’ll see more opinions in two weeks (Mar. 20). Yesterday’s opinions shed no light on who has the partial-birth cases from November because Sinochem was a January case and Lance was an unargued direct appeal. Last week, I noted Justice Alito’s slowness in issuing his unanimous opinion in Whorton v. Bockting. One possibility is that he was busy writing a major dissent in the partial-birth cases, which would mean that the ban is being struck down. Another possibility is that Justice Breyer lost his majority in October’s lone holdout, Global Crossing v. Metrophones, and that Justice Alito has been busy converting a dissent into an opinion for the Court. Or it could mean nothing.

Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts LLP; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author. If you would like to subscribe to these updates, please send an e-mail to [email protected]

Posted by Administrators on March 6, 2007 at 08:25 PM in Constitutional thoughts | Permalink


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