The Supreme Court on Tuesday continues with the “live” broadcast of the audio portion of its hearings. Two cases will be heard each day, tomorrow and Wednesday, for about one hour each. Eight Justices will be taking part. The technical complexity of the law in this week’s cases adds emphasis to the need for a simpler explanation, which requires some length.
First case, starting at 10 a.m.:
U.S. v. Briggs
(together with U.S. v. Collins)
Background: The average citizen who becomes acquainted with the military justice system immediately becomes aware of how different it is from the civilian system. Military crimes are tried by the military itself, not by a truly independent judiciary with lifetime appointment under the Constitution’s Article III. The military courts are supposed to be free of command influence, but that is not always fully assured. Individual service members on trial have fewer rights than those who are tried in regular courts.
Crimes under the military code are defined by the needs of the special community that is the military, with its emphasis on order, obedience, discipline and cohesion among those serving in units. Those qualities are deemed vital for military units that train for the day when they may face the extreme stress of combat in war, when troops need to rely unquestioningly on each other.
The two new cases combined for review by the Supreme Court illustrate well some of the differences between the military and civilian systems.
Both involve military prosecutions and convictions for rape by a service member. As government lawyers told the Court in these appeals, rape is a special problem in the military, because the crime is often not reported out of fear of retaliation, or disbelief, by one’s superiors, and as a result it may not actually be revealed until years later. For reasons like those, the military has long insisted that there be no time limit (technically, no “statute of limitations”) on when a prosecution for rape can begin.
Congress has investigated the problem of sexual assault within the ranks, and former U.S. Defense Secretary James Mattis once said it was “one of the most destructive factors in building a mission-focused military.”
In addition to those broader concerns, there is the specific concern about how military law treats the crime of rape. For decades, it has specified that conviction of that crime could lead to a death sentence. By contrast, if those accused of that crime in these cases had been tried for that crime in civilian court, the death penalty would be forbidden. For civilian courts, a 1977 Supreme Court decision in the case of Coker v. Georgia declared that execution for rape would be unconstitutional, a violation of the Eighth Amendment’s ban on “cruel and unusual punishment.”
In these military cases, while those charged with rape did not receive a death sentence, the Code of Military Justice at the time did provide that prosecution of them could occur even long after the crime had occurred. The law specifically linked the severity of the possible death sentence with the open-ended option to charge rape.
First, a review of the facts in the two new cases.
The Briggs case involves an Air Force captain, Michael J. D. Briggs, who was a fighter pilot instructor. For an incident in May 2005, involving one of the female students in his squadron, Briggs was charged nine years later for an alleged rape. The student had not reported it in 2005, but it became known later. Briggs was given a five-month prison sentence.
Briggs’ initial appeal failed. Later, in 2018, a military appeals court declared that the Supreme Court’s Coker decision against the death penalty in civilian court for rape applied in military courts, too. The tribunal declared that the death sentence was simply no longer available and thus the open-ended chance for prosecution at any time had been nullified. In place of that, it applied a default time limit of five years on prosecution that exists for other military crimes.
Later, applying that decision to Briggs’ case, the tribunal noted the 2005 date of the incident and the 2014 beginning of prosecution, and concluded that nine years was too long; the conviction was thus voided.
In the Collins case, similar factual and legal patterns occurred. Two members of the Air Force, Richard D. Collins and Humphrey Daniels III, were charged in separate instances with rape – Collins of a junior service member who was his student, Daniels of a civilian living on a military base. In both cases, the rapes were not reported at the time.
Collins was tried in military court and convicted in 2011 for the incident that had occurred in 2000. Daniels was tried and convicted in 2015, some 19 years after the 1998 incident. Collins was sentenced to three months in prison; Daniels to two years and 252 days. The military appeals court overturned both verdicts, concluding that the time limit for prosecution in each case had been five years.
The federal government appealed both cases, and asked the Supreme Court to grant both of them and decide them together. The Court agreed to do so, and consolidated the two for a single, one-hour hearing.
The question before the Court: Did the military have only five years, after an alleged rape had occurred, to begin prosecuting a service member for the incident, if the attack had been before 2006?
Significance: In taking the cases to the Supreme Court, government lawyers conceded that the practical effect of the case only implicated rape crimes that had occurred in the military between 1986 and 2006. That was the span of time between when military law first set a five-year limit on prosecuting most military crimes, and 2006 when Congress made explicit a long-standing acceptance in the military that there was no limit on prosecuting military personnel for rape – the situation now.
While the appeal said that the number of cases implicated thus would not be “exceptionally high,” the military was still receiving reports of rapes that had occurred within that time span, and needed to have the issue clarified.
The military appeals court ruling in 2018, the appeal argued, “has closed the door on prosecuting rapes that occurred before 2006 – even admitted rapes” unless the rape “was reported and charged within five years.” That, it added, “contravenes the statutory text, Congress’s evident intent to root out and punish military rape, and the military’s constitutional latitude to punish military crimes more strictly than civilian ones.”
Lawyers for the service members convicted in these cases mounted a variety of challenges, not only to the arguments the government’s appeal makes, but also to the procedural question of whether the Justices’ even have authority to review the military appeals court’s rulings at issue. Federal law, the replies contend, allows for only limited Supreme Court review of such military tribunals’ decisions.
On the key legal issues raised by the government, the service members’ answers are that the validity of the death penalty for rape within the military is not even a genuine issue in the case, that since 2012 the military’s own courts-martial manual restricts punishment for rape to life without parole (making the death penalty issue “academic”), and that the 2006 law codifying unlimited time to prosecute for rape was not written so as to apply to earlier cases.
The broadest potential issue, assuming it is at least implied in these cases, is how far the military trial courts are bound to apply to courts-martial the constitutional limitations that are made by civilian courts. But the Justices, it appears, would have to stretch the scope of these cases to decide that sweeping question.
One underlying factor in this controversy is the Court’s usual willingness to defer to military judgment on how to run the nation’s armed forces. The government’s appeal goes to considerable lengths to rely upon that willingness.
Second case, starting at about 11 a.m.:
City of Chicago v. Fulton
Background: The legal arrangements that govern how people deeply in debt can be helped to make a fresh start are as old as the Constitution itself. That document gives Congress the power to enact “uniform laws on the subject of bankruptcies throughout the United States.” That nationwide mandate has meant, of course, that Congress, not the state legislators, has been responsible for writing uniform laws on debt relief.
It has long been clear that the benefits of debt relief have extended from the biggest corporations to the average wage-earner. The biggest bankruptcy ever was the collapse of Lehman Brothers in the Great Recession of 2008, when it had assets of just over $691 billion. Even cities can file for bankruptcy and get some of the benefits; Detroit, in deeply serious financial trouble, entered bankruptcy in July 2013 and took almost 18 months to emerge.
Interpretation of the highly complex bankruptcy code often occupies the Supreme Court. This case is the latest, and the outcome will be vital to consumers – especially those who own cars, and get them impounded when the owner fails to pay parking or traffic tickets or otherwise defaults on debts to a city government.
First, some background on the key bankruptcy provisions at issue.
One clause is called the “automatic stay” provision. Once a debtor has actually filed for bankruptcy protection, outstanding debts cannot be collected by creditors while the courts take control of whatever assets and debts the bankrupt individual or company has. That allows the court (usually, a trustee) to work out an arrangement that may include some payments on the debts, or may wipe out some debts altogether.
Another is a clause that is especially important to consumers whose property – a car, for example – is repossessed and held for payment. That provision requires the holder of the property to hand it over, automatically, as soon as bankruptcy has been filed. No court order is necessary for that to happen, and there are penalties for refusal.
A third clause allows those holding such indebted property to hang onto it even after bankruptcy is filed. While doing so, the holder may try to show that it has good reason not to turn it over to the trustee, or can demand some protection for its interest in the property – perhaps periodic payments. It can keep possession until a court concludes that the debtor has a right to have the property returned and, based on that, formally orders its return. There are penalties for violating such an order.
Federal courts have now split over whether the holder of property must always turn it over automatically when the debtor goes into bankruptcy. Some appeals courts have said that turnover must happen with the filing by the debtor, while others have said that the creditor can hang onto it without doing anything to take legal control (that it, has only “passive possession”) until a turnover order is issued by a court.
Now, a brief summary of the facts.
The city of Chicago took those conflicting readings of the law by lower courts to the Supreme Court in a case involving four residents of the city who separately owe the city money for parking tickets, traffic citations, or violations of other city ordinances. Their cars were impounded by the city as collateral, and each car owner filed for bankruptcy and sought to have their cars returned. A bankruptcy court ruled in each case that the cars had to be returned to the owners, finding that the mere possession after impoundment and then the mere refusal to turn it over when the debtor files bankruptcy was an attempt to take control of the property.
Here are the debts at issue: Robbin Fulton owed $11,381.20 for 54 violations; Jason Scott Howard owed $17,110.80 for 66 violations; George Peake owed $5,393.27 for 22 violations, and Timothy Shannon owed $3,160 for 27 violations.
The federal appeals court ruled against the city, agreeing with the bankruptcy court that the “automatic stay” requirement of immediate turnover of the cars when bankruptcy was filed did apply. It declared that passive possession along with refusal of a prompt return was a form of attempted control, so it was not necessary for the bankruptcy court to issue a specific order.
The question before the Court: When must a creditor return to a bankrupt debtor – individual or company – the property that the creditor has seized to protect its own financial interests?
Significance: The case is clearly of importance to consumers, and especially to those who fall into debt and then have their cars impounded, even in situations where the car is essential to the debtor’s family or livelihood. Consumers in financial trouble seldom have bargaining power to persuade the creditor, who usually will have more assets, to return the property to its owner.
While the appeal by the city places most of its emphasis on the impact on consumers and the creditors to whom they owe money, the city’s lawyers also contended that the outcome of the case will have an impact on all secured creditors who undertake to protect their interests by impoundments or other means of taking collateral. Such secured transactions are as numerous as those involving ordinary consumer debt situations, the appeal suggested.
The city’s appeal also asserted that the ability to maintain even passive possession of the property of the debtor adds to the creditor’s bargaining power during the time that the property has not been returned to the owner, perhaps putting it in a somewhat better position to demand payments or other arrangements that protect its interests.
The city also was successful in getting the Justices to agree to sort out the conflicts among lower courts on the meaning of the bankruptcy code, by stressing how scholars and bankruptcy practitioners have been protesting the deepening split among the federal appeals courts.
The consumers counter that, given the disparity in their assets compared to those of the city, the consumers should not be forced into having to pay to file an entirely new legal proceeding in order to establish their right to have the impounded property returned to them promptly. The “automatic stay” provision, their lawyers assert, is in the law explicitly to protect creditors at the moment of their financial peril.
The consumers added an additional argument: the outcome of this case should be in their favor even if they have to show that the creditor was actually asserting control over the property, in a way that would technically satisfy the requirement of the turnover clause, by demanding increased payments from the cars’ owners while they are being held by the creditor.
No doubt the Court will put most of its focus, in this week’s hearing, on the text of the bankruptcy law’s provisions that are at the center of the case, rather than focus on the policy question of evening out the bargaining power over creditors and debtors. The current Court majority has a reputation, in consumer cases, for showing considerable sympathy toward corporate interests. That has been particularly true with decisions that limit the legal option of consumers to band together, in “class action” lawsuits, in order to enable them more effectively to sue major companies when consumer disputes arise.
Two more hearings are scheduled for Wednesday, completing this first sitting of the Court’s new term.