Taking Stock: A Review of Justice Stevens’s Last Book and an Appreciation of His Extraordinary Service on the Supreme Court

RODGER CITRON

Rodger D. Citron, the Associate Dean for Research and Scholarship and a Professor of Law at Touro College, Jacob D. Fuchsberg Law Center, comments on the late Justice John Paul Stevens’s last book, The Making of a Justice: Reflections on My First 94 Years. Citron laments that, in his view, the memoir is too long yet does not say enough, but he lauds the justice for his outstanding service on the Supreme Court.

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Carter v. Davis

Dockets: 13-99003, 13-99007

Opinion Date: December 26, 2019

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

In appeal No. 13-99003, the Ninth Circuit affirmed the judgment of the Central District and denied petitioner's motion to expand the certificate of appealability (COA) as to all claims except claim 6, regarding ineffective assistance of counsel at the penalty phase. The panel held that the conclusion that an irreconcilable conflict did not exist based on the disagreement between petitioner and counsel was reasonable; even if petitioner were successfully able to demonstrate a complete breakdown in communication or prove that an irreconcilable conflict existed under the Moore factors, his irreconcilable-conflict claim would still fail, because the Supreme Court has never held that an irreconcilable conflict with one's attorney constitutes a per se denial of the right to effective counsel; and thus the state court's decision did not unreasonably apply clearly established Federal law as pronounced by the Supreme Court. The panel also held that the state court reasonably determined that counsel did not perform deficiently by refusing to let petitioner testify, and even if counsel was deficient in doing so, petitioner was not prejudiced. In appeal No. 13-99007, the panel affirmed the judgment of the Southern District and denied petitioner's motion to expand the COA. The panel held that petitioner was not deprived of constitutionally adequate representation during the penalty phase and petitioner was not deprived of his right to the competent assistance of a psychiatric expert.

Danielson v. Inslee

Docket: 18-36087

Opinion Date: December 26, 2019

Judge: Nguyen

Areas of Law: Civil Rights, Constitutional Law

The Ninth Circuit affirmed the district court's dismissal of a claim for monetary relief under 42 U.S.C. 1983 brought by public sector employees against their union after the Supreme Court's decision in Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018). Janus held that the compulsory collection of agency fees by unions violates the First Amendment. The panel joined the Seventh Circuit and held that private parties may invoke an affirmative defense of good faith to retrospective monetary liability under 42 U.S.C. 1983, where they acted in direct reliance on then-binding Supreme Court precedent and presumptively-valid state law. The panel also held that the good faith affirmative defense applies as a matter of law, and the district court was right to dismiss plaintiffs' claim for monetary relief.

Zuniga v. Barr

Docket: 16-72982

Opinion Date: December 26, 2019

Judge: Per Curiam

Areas of Law: Immigration Law

The Ninth Circuit filed an amended order granting a petition for review of the IJ's decision affirming an asylum officer's negative reasonable fear determination in expedited removal proceedings. The panel held that non-citizens subject to expedited removal under 8 U.S.C. 1228 have a statutory right to counsel in reasonable fear proceedings before an immigration judge. In this case, the panel held that petitioner had a statutory right to counsel, the colloquy at the beginning of the hearing before the IJ was inadequate to waive that right, and no showing of prejudice is required. Therefore, the panel held that the IJ violated petitioner's right to counsel in his reasonable fear review proceeding by failing to obtain a valid waiver, and petitioner was entitled to a new hearing before an IJ in which his right to counsel is honored. Accordingly, the panel reversed for further proceedings.