Compelling Histories - Mine and Theirs:

Before taking on my current assignment, I was part of the legal team that sought review in the Minnesota Supreme Court of a set of habeas corpus cases – State ex rel. Henderson and State ex rel. Johnson. At issue in these consolidated cases was the extent to which the Department of Corrections could modify, outward, the presumptive release date of inmates who had refused to participate in sex offender treatment.

The cases involve the intersection of some important facts about state prison and sex offender treatment: First, in Minnesota, it is presumed that an offender who is given a determinate prison sentences under our sentencing guidelines will serve two-thirds of that sentence in state prison and the last one-third of the sentence being supervised in the community. This presumption can be modified, and an offender held for a larger fraction of that sentence if, for example, the offender violates prison rules while incarcerated.

Likewise important, prison-based sex offender treatment as practiced in this state, obliges that the offender discuss (and confront the etiology of) the offense that sent him or her to state prison. A refusal to discuss the underlying crime could have one drummed out of the treatment program – and bombing out of the program could result in an unwelcome change in the presumptive release date. As the Commissioner of Corrections reasoned, offenders who refuse treatment present higher risks of re-offense and are not the best candidates for prompt return to the community.

Henderson and Johnson claimed that because of either a direct appeal, or a pending habeas petition, or the threat of a later perjury conviction, they could not be sanctioned with adjustments in their release dates for refusing to discuss the events that led to their convictions. The inmates argued that a change in the presumptive release date amounted to compulsion of self-incriminating testimony under the Fifth Amendment.

Agreeing, the Minnesota Supreme Court yesterday held that an earlier decision of the Court which permitted such adjustments in the released dates “was no longer good law.” Moreover, the Court appears to have added to the law in an important way; apparently holding that an offender who earlier testified at his trial, and asserted his innocence, may not be sanctioned for refusing to discuss his conviction before the limitations period for a perjury charge elapses.

Chief Justice Russell Anderson’s detailed analysis, and a spirited dissent from Justices G. Barry Anderson and Lorie Gildea, is accessible here.

Actually, it is an ivory tower ....

Regular readers of Within the Scope, please accept my heartfelt apologies for the long gap between case law updates. In the past few weeks, every spare moment that I had – even cutting short the kiddles' chorus of Happy Birthday – was spent on completing some important writings for my day job.

With that work completed, I will be sure to add a few posts on some of the really interesting cases that have been handed down in June. And there have been quite a few.

As so reader, if you are still here despite my sudden and unexplained disappearance, you have my grateful thanks. And please stay tuned.

D.C. Circuit: Article III Jurisdiction Not Always the First Question

Sometimes the case law is like a trip to the museum – joyful because of the interesting narratives that are presented, and with real learning that happens, almost effortlessly, as one glides past the display.

Last week’s opinion in Public Citizen v. United States District Court for the District of Columbia is just such a decision. In that case, the consumer advocacy organization, Public Citizen, sued to set aside the higher federal court filing fees that were enacted as part of the Deficit Reduction Act of 2005 – a jump from $250 to $350 in order to file a suit-opening Complaint.

Public Citizen charged that the application of the new fee schedule was unconstitutional because the version of the Deficit Reduction Act that was passed by the U.S. House of Representatives was not identical to the version approved by the U.S. Senate and signed by President Bush. Public Citizen noted that the Senate version of the bill included a 13-month period of payments for certain reimbursements under the Medicaid program, whereas, due to an engrossing error, the House version of the bill approved a 36-month period of reimbursements under this same program. Due to the discrepancy, Public Citizen argued that the entire Act, including the filing fee increases, should be set aside.

The Clerk of the District Court (not a defendant one would ordinarily want to sue) made two key replies. First, the Clerk argued that because the enrolled version of the Act signed by then-Speaker of the House Dennis Hastert, matched the version that was approved by the Senate and the President, the Court could not make an inquiry into the matter under the “enrolled bill rule.” Under that rule, the signed, enrolled version of the bill is the conclusive statement on the action taken by the legislative bodies. Secondly, it was not clear that Public Citizen had standing to challenge the defects in the Deficit Reduction Act; because if the mismatched Medicaid provisions were excised from the law, Public Citizen would still be obliged to pay the higher filing fees for its next pro-consumer lawsuit.

In an interesting analysis, the panel upheld the lower court's dismissal of the suit. Moreover, the Court concluded that because of the importance of the question under “enrolled bill rule,” and its role in avoiding clashes between the branches of government, it would address (and ground its decision upon) the merits of that “threshold question” before it decided whether Public Citizen had standing to make the challenge.

The Court’s “chicken and the egg” analysis, complete with its scramble of Washington power-players, is accessible here.