CA11 -- 12/2 and 12/3

In Kirwin v. Price Communications Corp., the Eleventh Circuit held that the "intracorporate conspiracy doctrine" does not bar a civil RICO conspiracy claim. That doctrine, succinctly stated, states that a corporation cannot conspire with its principals, and the principals cannot conspire with the corporation if they are acting in the scope of employment. On the precise issue presented here, the circuits are split, but the court followed Eleventh Circuit precedent analyzing a similar civil conspiracy statute for its ruling.

In Baillie Lumber Co. v. Thompson, the court certified questions to the Georgia Supreme Court because state law was unclear as to whether "a corporate entity in bankruptcy has exclusive standing to bring a state alter ego action against its principal." Specifically, the questions are: "WILL GEORGIA LAW ALLOW THE REPRESENTATIVE OF A DEBTOR CORPORATION TO BRING AN ALTER EGO CLAIM AGAINST THE CORPORATION’S FORMER PRINCIPAL?" and "IF SO, WHAT IS THE MEASURE OF RECOVERY?" I won't get deeper into it now, not only because it's beyond my ken (although Judge Birch's opinion is reasonably easy to follow), but also because I'll promise to discuss it further once we get a final answer. That, and I'm a little behind in my coverage, so I'll skip this one for now.

Now, the good stuff.

In Benning v. Georgia, the court was faced with a challenge to the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA says, among lots of other things, that state prisons that receive federal funds cannot place undue burdens on prisoners' exercise of religion. Benning sued under the law, asserting that prison officials were denying him accomodation of his religious exercise. The state defended by claiming RLUIPA is unconstitutional under the Spending Clause, the Tenth Amendment, and the Establishment Clause. In a really solid opinion by Judge Pryor, the panel affirmed's the district court's refusal to dismiss the suit, finding that RLUIPA is constitutional.

As to the Spending Clause, the court held that the conditions set by Congress on the receipt of federal funds are unambiguous and related to a legitimate and important federal interest. As for the Tenth Amendment claim, the court makes short work of it by stating that because RLUIPA is a valid spending law (one of Congress's enumerated powers), the Tenth Amendment doesn't apply. Finally, turning to the Establishment Clause, the court runs through the Lemon test and finds no problems there either. Of course, none of this addresses the merits of Benning's claim about his religious exercise and its alleged infringement at the hands of Georgia prison officials. But the Eleventh Circuit joins the majority of circuits to have addressed the matter and holds that RLUIPA is at least facially constitutional. Note that a cert. petitions raising this issue are pending with has been granted by the Supreme Court (Cutter). For my previous mentions of RLUIPA issues on my regular blog, Begging the Question, see here and here. For more on Benning, via How Appealing, see this press release from the Becket Fund and this article in the Atlanta paper (registration probably required).

Finally for today, an order in United States v. Levy denying rehearing en banc. Judge Hull wrote an opinion concurring in the denial of rehearing for herself and three other judges. Judge Tjoflat (joined by Judge Wilson) (citing Prof. Berman's Sentencing Law & Policy blog on page 33 of the pdf) and Judge Barkett wrote dissents from the denial. The issue is whether Levy could benefit from the Supreme Court's decision in Blakely v. Washington, which was issued after a panel of the court affirmed Levy's conviction and sentence. On Levy's petition for rehearing, the panel applied the circuit's general rule that issued raised for the first time on rehearing are not considered (a version of the standard rule that issues not raised in the initial brief are waived/abandoned). The dissenters, at heart, asserted that the Supreme Court's rule that its decisions should have retroactive application to cases still pending on direct appeal overrides the circuit's procedural rules, and that the court can at least apply plain error review to the claims. Plus, they say, it's really unfair. The concurring judges respond chiefly by arguing that the retroactivity cases don't require per se application of Supreme Court decisions, regardless of whether the issue was raised or not. The court denied rehearing in a similar case, United States v. Ardley, 273 F.3d 991 (11th Cir. 2001), after Apprendi, and apparently not enough minds have changed since then.

Here's my concern, which was also raised by the dissents. One reason Levy's counsel didn't raise the Apprendi issue in his appellate brief was surely the Eleventh Circuit's 2001 decision (Sanchez) holding that Apprendi doesn't apply to the guideline ranges under the statutory maximum (the claim now pending in Booker). Any appellate lawyer worth his or her salt knows that a basic function of an appeal is to winnow claims. You simply don't bring patently meritless claims -- as one would safely have considered this claim three short years after Sanchez. In response to the dissent's argument that appellate lawyers will now bring a "laundry list" of claims, all foreclosed by recent, on-point circuit precedent, the concurrers are able to cite a grand total of four cases (out of how many criminal appeals in three years?) that raised a Booker-style argument, despite Sanchez. Their argument, then, is that the parade of administrative horribles will never come. I think many appellate lawyers probably didn't even think to raise the issue, and those who did realized how detrimental raising a frivolous-appearing issue would be to their overall chances of winning. Now, however, they have to play by the "fool me once, shame on you, fool me twice, shame on me" doctrine. Appellate attorneys in the Eleventh Circuit are now on notice that nothing, no matter how fundamental, can be raised for the first time on rehearing, regardless of whether that would be the most efficient way to dispose of the case. Accordingly, they have every reason to raise as many issues as they can, without regard to the recency or clarity of circuit precedent.

This undermines stare decisis. Litigants need to know that, until the Supreme Court says otherwise, a rule like Sanchez is the law of the circuit. Having to re-consider the question anew in every appeal -- even to the limited extent of re-affirming or adhering to Sanchez -- makes it appear that the law is more unsettled than it is. With the benefit of not having to constantly restate its precedents, the court must take the burden that cases that aren't yet final are subject to retroactive application of Supreme Court decisions -- at a minimum when not doing so would work a fundamental injustice. (Note: I haven't reveiewed Levy's case enough to even hazard a guess at whether that might be the deal here.) After all, it couldn't be that many cases, and the window will be small. I guess I'm a standards-over-rules kind of guy, but the reasons for applying the rule in this case aren't compelling to me, and the ramifications of such strict application are worrisome.