SCOTUS Takes Another Case on Right to Counsel in Collateral Proceedings

For the second time this month, the Court has granted certiorari in a case dealing with the right to counsel in collateral proceedings.  The first case, Martinez v. Ryan (see my post here), concerns a potential constitutional right to counsel in a collateral proceeding in state court.  The new case, Martel v. Clair (No. 10-1265), deals with a potential statutory right to counsel in a federal habeas case.

Here’s what happened.  Convicted of murder and sentenced to death in state court, Clair filed a federal habeas petition.  After discovery and an evidentiary hearing, Clair complained to the district court regarding the quality of his appointed federal public defender.  It seems that Clair and his lawyer then patched up their relationship, but a couple months later Clair again wrote to the district court and asked for the appointment of substitute counsel to pursue new leads supporting an innocence claim.  The district court denied the request in a brief order and, on the same day, denied all of the claims in the underlying petition.  On appeal, the Ninth Circuit then vacated the judgment below on the ground that the district court had abused its discretion by failing to conduct further inquiry into Clair’s complaints about his public defender.  The Supreme Court granted the state’s petition for certiorari yesterday.

At one level, the Ninth Circuit’s decision seems a very modest one that hardly warrants Supreme Court review.

 

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The Right to Violent Video Games

This week, the U.S. Supreme Court struck down a California law banning the sale of violent video games to children.  In Brown v. Entertainment Merchants Association, 564 U.S. 1 (2011), the Court held that the First Amendment right to free speech protects the video games.  As I predicted last November in a blog post on the oral argument in this case, Justice Scalia did not favor upholding the law, and indeed he wrote the majority opinion, which was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  Justice Alito and Chief Justice Roberts wrote a separate opinion, concurring in the judgment, while only Justices Thomas and Breyer dissented.

So what’s to like – or at least protect – about violent video games?  The opinion is clear that video games are protected by the First Amendment.  Although the Court notes that the Free Speech Clause exists primarily “to protect discourse on public matters,” it has long been “recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.”  The Court notes that there are plenty of examples of political commentary or even propaganda to be found in fiction.  The Court goes on to state that last term’s opinion in United States v. Stevens controls.  Stevens struck down a statute that criminalized the creation, sale, or possession of specified types of depiction of animal cruelty, and Scalia summarized the holding thusly: “new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.” (564 U.S. at 3)  Here, the California legislature tried to characterize the regulation of violent video games as dealing with a type of obscenity, and the majority states that violence is different from obscenity, and therefore it is irrelevant that Ginsberg v. New York allowed the state to apply an age-adjusted standard for its restriction on the sale of obscene materials to minors.  The Court says that California tried “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”  “That,” says the Court “is unprecedented and mistaken.” (564 U.S. at 7)

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Department of Justice Files Fair Housing Act Suit Against City of New Berlin

On Thursday, the United States Department of Justice (DOJ) filed a complaint against the City of New Berlin. The complaint arises out of a series of events that led to the City’s denial of a “workforce” housing development proposal made by MSP Real Estate, Inc. (MSP).  The DOJ alleges that the City of New Berlin ultimately denied the proposal on the basis of racial discrimination, in violation of Section VIII of the Fair Housing Act.

According to the complaint (which can be viewed here), on March 10, 2010, MSP submitted a development application to construct 180 units of affordable housing in what is known as New Berlin’s “City Center.”  The proposal stated that the development would include 100 elderly units and 80 workforce housing units.  The development was intended to be financed in part by the Low-Income Housing Tax Credit program, a program that allows a developer to sell tax credits to investors in exchange for the promise that the developer will rent the apartments for below-market rates to tenants who qualify.  For this specific development, MSP was going to rent to individuals who made 40 to 60 percent of the median household income in New Berlin.  In New Berlin, the median income as of 2000 was approximately $70,000, which means the proposed development would rent to individuals who made $28,000 to $42,000 a year.

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