Legal Docket: A property dispute

MARY REICHARD, HOST: It’s Monday morning, January 9th, 2023, and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

Each year, the chief justice of the Supreme Court publishes an annual report on the state of the federal judiciary and so from that report, here are a few notes:

And, first, this one is notable, in that we often hear that the courts are overburdened.

The report points out that this past year, though, caseload year-on-year in the federal court system fell by 8 percent.

Chief Justice John Roberts also called attention to the safety and security of judges in 2022. Now, as an aside, we should note—because Roberts didn’t mention this, because maybe he didn’t have to—this was a tumultuous year for the court: the Dobbs opinion was leaked, an assassination attempt was made on Justice Brett Kavanaugh, other conservative justices were threatened and protesters came to their private homes.

Quoting from the report: “The law requires every judge to swear an oath to perform his or her work without fear or favor, but we must support judges by ensuring their safety. A judicial system cannot and should not live in fear.”

REICHARD: The Chief made note of the work of U.S. District Court Judge Esther Salas to help protect judges and their families. Her son Daniel Anderl was murdered when he answered the door at her home. The attack in July of 2020 was meant for her.

Now, just last month, Congress enacted the Daniel Anderl Judicial Security and Privacy Act. Here’s Judge Salas at a press conference after passage of that law, edited for time:

SALAS: These are dark times. But in the two years and five months, I saw members of Congress come together, I saw them come together, put their differences aside, and come together, because they knew it was the right thing to do. To protect judges and their families, to protect democracy, to protect the Constitution, they did the right thing. And in the world we live in it takes courage sometimes to do the right thing… But I'll tell you what I'm most proud of. And I know I speak for Mark when I say we are so very proud to be Daniel's parents. Thank you honey, we love you.

EICHER: Oh, that’s heartbreaking to hear, but important that we do hear it.

But let’s go ahead and jump into the two oral arguments we’ll cover today.

The first involves two neighbors, Larry Wilkins and Jane Stanton. They each own property near a national forest about 90 minutes south of Missoula, Montana. A road crosses the properties for which a previous owner had granted an easement to the federal government. The easement lets loggers and ranchers cross over their property to get into the forest and allow the neighbors to live the quiet lives they wanted.

And, to this point in the story, so far, so good...

REICHARD: ...until traffic and noise and theft arrived. That’s because somewhere along the way, the Forest Service opened the road up to the public. There’s dispute over some of the facts, but Wilkins and Stanton see that action as a violation of the terms of the easement.

So in 2018, the neighbors sued the government under a law called the Quiet Title Act.

But the government argues they filed too late. The law says you have twelve years “after the property owner knew or should have known of the claim of the United States.” Wilkins and Stanton want the chance to argue that it isn’t too late.

EICHER: The debate will be settled by how that 12 -year time limit to sue is classified. If it’s one kind of rule called claims processing, Wilkins and Stanton can offer a reason for being late and still proceed with their case. But if it’s another kind of rule called jurisdictional, they can’t.

Which one applies here depends upon what interpretive tool the court uses to decide. Listen to the Chief Justice explain:

ROBERTS: You say it's a question of statutory interpretation. Back in the bad old days where we had a statute to interpret, we looked at all sorts of stuff, you know, hearings, reports, testimony, all sorts of things, sometimes to the expense of the actual language, which these days we look at much more carefully.

REICHARD: By “much more carefully,” he means using textualism as the preferred interpretation tool. Used to be, justices would look at all sorts of things to figure out what the words on the page mean. Now, more conservative justices just stick to the text.

Much discussion revolved around whether older decisions ought to be revisited with the newer way of interpretation. Again, the Chief Justice:

ROBERTS: When we're adopting a new test, are we going back and saying we were wrong in deciding what Congress meant or -- or what?

Justice Elena Kagan questioned the lawyer for the government, Benjamin Snyder. The government here is seeking to stop litigation over the easement:

KAGAN: I mean, we don't need a new test. We have a test. We have many, many decisions that have clearly stated what we do in this situation, the situation being we've used the word "jurisdictional" in the past and what consequence does that have. And we’ve clearly stated, as you just said, that if we’ve really addressed the issues, decided the issue, then that controls. It has stare decisis effect. But if we’ve just kind of used the word without deciding the issue, then … that doesn’t have stare decisis effect…

SNYDER: Let me just sort of put on the table that even if you don't agree with me on that, we have a ratification argument that we think could lead you to the same result. But let me -- let me start with the question you're asking.

KAGAN: If you can't convince me of this first question, you're not going to convince me of the second question. (Laughter.)

I’ll end this argument with a comment by Chief Justice Roberts, referring to Congress:

ROBERTS: The people across the street are on clear notice that they’ve really got to spell it out if they want one of these time limits to be jurisdictional.

The Supreme Court’s held that most time-limitation laws are not jurisdictional—meaning the kind that can’t be waived. So I doubt the government will prevail here.

The final argument we’ll cover today is Mallory v Norfolk Southern Railway. Mallory is Robert Mallory who worked for the railway for nearly 20 years. He’s a resident of Virginia and worked either in that state or in Ohio. When Mallory developed cancer, he sued the Railway for negligence and reckless conduct. He alleges on the job exposure to toxic substances caused it.

But Mallory chose to sue in Pennsylvania, not Virginia or Ohio where he actually worked. It’s likely his lawyers did a little venue shopping; that is, looked for a state that might be more favorable to his case.

Here’s Mallory’s legal argument: The railway registered to do business in Pennsylvania. Now, the state requires a foreign corporation to register before doing any business there. And state law says that’s enough connection for Pennsylvania courts to have jurisdiction over this case.

But the railway says, hold on! That’s not consent to be sued; it’s more like duress. It’s an unfair scheme that the railway argues violates its Due Process rights under the 14th Amendment.

Justice Ketanji Brown Jackson had a pointed question for Carter Phillips, lawyer for the railway:

JACKSON: So why -- why isn't it happening in a situation in which you knowingly file the registration and it's clear from the law that when you file -- choose, when you choose to file the registration, you're thereby consenting?

PHILLIPS: Well, I mean, this Court -- I mean, that's not the normal way the Court thinks about consent or waiver of fundamental constitutional rights.

Mallory’s lawyer Ashley Keller agreed with Justice Kagan that there is a right not to be hauled into a state court if you aren’t sufficiently connected to the particular state.

Now, you’re going to hear Justice Kagan make reference to “unconstitutional conditions.” That’s important. Unconstitutional conditions prohibit the government from penalizing a company or person for exercising a constitutional right.

KAGAN: Okay. Well, then, I mean, once we have that, then it seems to me you are in unconstitutional conditions land, because here's the state saying, well, this right, we're going to demand that you give up this right to have access to our markets. So it's conditioning access to its markets on the waiver of the right, which you've just conceded not to be subject to general jurisdiction for doing business.

KELLER: Yes, that -- that is correct. I'm going to make a confession. I find this Court's unconstitutional conditions doctrine very difficult.

KAGAN: You and everybody else. (Laughter.)

Let’s hope some clarifying principle comes out of this one. Big consequences one way or another: whichever side wins, the other side may have to defend itself in far-off places. That’s not cheap. Given the tenor of the questions asked, though, I think the railway will win.

And that’s this week’s Legal Docket.

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