Jan 14, 2014

Posted in Uncategorized

Justice Ginsburg Calls Out Sotomayor for “Selectively Referring to the Trial Court Record”

In a footnote that takes up almost entire page in Daimler v. Bauman, Jusice Ginsburg singles out Justice Sotomayor for “selectively referring to the trial court record” in Perkins v.  Benguet Consol. Mining Co. (1952).

RBG notes that Sotomayor “selectively referr[ed] to the trial record” as “summarized in an opinion of the intermediate appellate court”:

Selectively referring to the trial court record in Perkins (as summa- rized in an opinion of the intermediate appellate court), JUSTICE SOTOMAYOR posits that Benguet may have had extensive operations in places other than Ohio. See post, at 11–12, n. 8 (opinion concurring in judgment) (“By the time the suit [in Perkins] was commenced, the company had resumed its considerable operations in the Philippines,” “rebuilding its properties there” and “purchasing machinery, supplies and equipment.” (internal quotation marks omitted)). See also post, at 7–8, n. 5 (many of the corporation’s “key management decisions” were made by the out-of-state purchasing agent and chief of staff).

But even more striking, RBG writes that Sotomayor “overlooks this Court’s opinion in Perkins and the point on which that opinion turned.” That a serious charge–especially when joined by 8 Justices. I imagine if one Justice was not comfortable with that language, it would’ve been stripped, or at the least toned down.

JUSTICE SOTOMAYOR’s account overlooks this Court’s opinion in Perkins and the point on which that opinion turned: All of Benguet’s activities were directed by the company’s president from within Ohio. See Perkins v. Benguet Consol. Mining Co., 342 U. S. 437, 447–448 (1952) (company’s Philippine mining operations “were completely halted during the occupation . . . by the Japanese”; and the company’s president, from his Ohio office, “supervised policies dealing with the rehabilitation of the corporation’s properties in the Philippines and . . . dispatched funds to cover purchases of machinery for such rehabilitation”).

But RBG didn’t stop there. She noted that in a previous unanimous opinion Sotomayor joined, she *agreed* with the recitation of facts in the Court’s majority opinion.

On another day, JUSTICE SOTOMAYOR joined a unanimous Court in recognizing: “To the extent that the company was conducting any business during and immediately after the Japanese occupation of the Philippines, it was doing so in Ohio . . . .” Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. ___, ___ (2011) (slip op., at 11). Given the wartime circumstances, Ohio could be considered “a surrogate for the place of incorporation or head office.” von Mehren & Trautman 1144. See also ibid. (Perkins “should be regarded as a decision on its exceptional facts, not as a significant reaffirmation of obsolescing notions of general jurisdiction” based on nothing more than a corporation’s “doing busi- ness” in a forum).

That is quite harsh to not only single her out for misstating the record and the Court’s opinion, but by implying that she is contradicting herself. RBG continues to pile it on, and says “no fair reader” of the opinion could read it the way Sotomayor did.

JUSTICE SOTOMAYOR emphasizes Perkins’ statement that Benguet’s Ohio contacts, while “continuous and systematic,” were but a “limited . . . part of its general business.” 342 U. S., at 438. Describing the company’s “wartime activities” as “necessarily limited,” id., at 448, however, this Court had in mind the diminution in operations resulting from the Japanese occupation and the ensuing shutdown of the com- pany’s Philippine mines. No fair reader of the full opinion in Perkins could conclude that the Court meant to convey anything other than that Ohio was the center of the corporation’s wartime activities. But cf. post, at 9 (“If anything, [Perkins] intimated that the defendant’s Ohio contacts were not substantial in comparison to its contacts elsewhere.”).

Again, 8 Justices had to sign off on this. This is not some Scalia or Alito snark.

Here is Justice Sotomayor’s response in footnote 7.

The majority suggests that I misinterpret language in Perkins that I do not even cite. Ante, at 11, n. 8. The majority is quite correct that it has found a sentence in Perkins that does not address whether most of the Philippine corporation’s activities took place outside of Ohio. See ante, at 11, n. 8 (noting that Perkins described the company’s “wartime activities” as “necessarily limited,” 342 U. S., at 448). That is why I did not mention it. I instead rely on a sentence in Perkins’ opening para­ graph: “The [Philippine] corporation has been carrying on in Ohio a continuous and systematic, but limited, part of its general business.” Id., at 438. That sentence obviously does convey that most of the corporation’s activities occurred in “places other than Ohio,” ante, at 11, n. 8. This is not surprising given that the company’s Ohio contacts involved a single officer working from a home office, while its non-Ohio contacts included significant mining properties and machinery operated throughout the Philippines, Philippine employees (including a chief of staff), a purchasing agent based in California, and board of directors meetings held in Washington, New York, and San Francisco. Perkins, 88 Ohio App., at 123–124, 95 N. E. 2d, at 8; see also n. 8, infra.

In a later footnote, Sotomayor retorts that the majority’s reading of Perkins is “wrong.”

The majority apparently thinks that the Philippine corporate defend­ ant in Perkins did not have meaningful operations in places other than Ohio. See ante, at 10–11, and n. 8. But one cannot get past the second sentence of Perkins before realizing that is wrong. That sentence reads:

“The corporation has been carrying on in Ohio a continuous and sys­ tematic, but limited, part of its general business.” 342 U. S., at 438. Indeed, the facts of the case set forth by the Ohio Court of Appeals show just how “limited” the company’s Ohio contacts—which included a single officer keeping files and managing affairs from his Ohio home office—were in comparison with its “general business” operations elsewhere. By the time the suit was commenced, the company had resumed its considerable mining operations in the Philippines, “‘re­ building its properties’ ” there and purchasing “ ‘machinery, supplies and equipment.’ ” 88 Ohio App., at 123–124, 95 N. E. 2d, at 8. More­ over, the company employed key managers in other forums, including a purchasing agent in San Francisco and a chief of staff in the Philip­ pines. Id., at 124, 95 N. E. 2d, at 8. The San Francisco purchasing agent negotiated the purchase of the company’s machinery and supplies “‘on the direction of the Company’s Chief of Staff in Manila,’” ibid., a fact that squarely refutes the majority’s assertion that “[a]ll of Ben­ guet’s activities were directed by the company’s president from within Ohio,” ante, at 11, n. 8. And the vast majority of the company’s board of directors meetings took place outside Ohio, in locations such as Wash­ ington, New York, and San Francisco. 88 Ohio App., at 125, 94 N. E. 2d, at 8.

In light of these facts, it is all but impossible to reconcile the result in Perkins with the proportionality test the majority announces today. Goodyear’s use of the phrase “at home” is thus better understood to require the same general jurisdiction inquiry that Perkins required: An out-of-state business must have the kind of continuous and substantial in-state presence that a parallel local company would have.

I haven’t read Perkins, so I will avoid making any comment on who gets the better point in this tiff.

This isn’t the first time another Justice has singled out Justice Sotomayor for misstating the record. In the Court’s DIG of Boyer v. Louisiana, Justice Alito, joined by Scalia and Thomas, notes that Sotomayor’s dissental gets the record wrong.

*The dissent also claims that “Louisiana conceded below that most of the delay resulted from the lack of funding for Boyer’s defense.” Post,at 8; see post, at 5, n. 3. But the dissent’s only citation is to the State’s argument in the alternative that even if the legislature’s failure to appropriate funds for the defense caused the delay, that delay should not count against the prosecution for purposes of Louisiana’s statutory speedy trial requirement. The State in no way conceded that it caused the delay in this case. Indeed, the very next paragraph of the State’s brief argued that “the defendant sought to delay the inception of his trial via his funding motion.” App. 317a.

I suspect these are not accusations that Justices make lightly, so it is significant that this is happened twice (by my count) in the last year against Justice Sotomayor.

Update: In Perry v. New Hampshire, back in 2012, Justice Ginsburg wrote another opinion for 8 members of the Court, with Justice Sotomayor dissenting. And, like today, she calls out Sotomayor for misreading precedents and “inventing” a “longstanding rule.”

The dissent, too, appears to urge that all suggestive circumstances raise due process concerns warranting a pretrial ruling. See post, at 6, 9, 14–17. Neither Perry nor the dissent, however, points to a singlecase in which we have required pretrial screening absent a policearranged identification procedure. Understandably so, for there are no such cases. Instead, the dissent surveys our decisions, heedless of thepolice arrangement that underlies every one of them, and inventing [sic should be invents] a “longstanding rule,” post, at 6, that never existed. Nor are we, as the dissent suggests, imposing a mens rea requirement, post, at 1, 7, or otherwise altering our precedent in any way. As our case law makes clear, what triggers due process concerns is police use of an unnecessarily suggestive identification procedure, whether or not they intendedthe arranged procedure to be suggestive.

Update: Later in Bauman RBG zings Sotomayor with this blade:

In other words, she favors a resolution fit for this day and case only.

I would love to learn the background of this case.

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