Turner v. Rogers A Year Later, Updates on British Habeas Case, My Thoughts on the Health Care Decision

Since I’m staying so busy (not a complaint), I find that it’s easiest if I combine topics into one post. Keeps it short & sweet for you; helps me actually put pen to paper…er fingers to keyboard.

A. How Have Courts Been Treating Turner v. Rogers?

Those who’ve been following this blog for a while know that I dedicated a number of blog posts to the case of Turner v. Rogers last year. To very briefly summarize, that case asked whether a man who was facing jail time for civil contempt had a right to appointed counsel due to his indigence. Mr. Turner was jailed as a result of his failure to pay child support. If he’d had an attorney, he could have demonstrated that he was too poor to make payments and thus avoided jail. The Supreme Court said that people in his situation don’t have a categorical right to counsel but due process does require a court to assess and consider a person’s poverty. My summary of the opinion here and my analysis here.

So far, Lexis shows 49 court decisions citing the Supreme Court’s opinion. To break things down a little, the federal circuit courts bear the brunt of the citations (35) but state courts have been citing the opinion as well (14). The Third Circuit has cited the case most frequently (13 times). In terms of why the case has been cited, certainly many of the citations are for the Sixth Amendment aspect. For example, in Petrossian v. Collins, 2012 U.S. App. LEXIS 9314 (3d Cir. May 8, 2012), the court used Turner as support for the position that the Sixth Amendment right to counsel “applies to criminal proceedings only.” Id. at 4. Nevertheless, Turner has been cited 12 times for the mootness exception. One of the issues the Supreme Court decided was whether Turner’s case was moot since he was no longer in jail. The Court said no because his case fit into one of the mootness exceptions: it was capable of repetition yet evading review.

As of today, no cases have ‘rejected’ Turner but there is a case from the state of Washington that uses Turner to find that “[the appellant] had a due process right to appointed counsel at public expense . . . .” State v. Stone, 268 P.3d 226, 235 (Wash. App. Ct. 2012). Of course, it has only been just a little over a year and it takes time for a body of lower court interpretation to develop. In other words, we may have a more robust body of cases treating / interpreting Turner after a couple more years have passed.

B. The UK Supreme Court Hears Rahmatullah

I wrote here about the big British habeas case. And I gave updates here. To very quickly summarize again: the Brits handed over a man to the US, that man has filed for a writ of habeas corpus in the UK courts. The Court of Appeals granted the writ, requiring that the Secretary of State for Foreign and Commonwealth Affairs make a reasonable attempt to get Mr. Rahmatullah back from US Custody. They did but the US declined. Rahmatullah’s attorneys argued before the Court of Appeal and now the UK Supreme Court that the British governing bodies could have done more (and were required to by the habeas writ). No decision yet but the UKSC blog has a fascinating and lengthy “live blog” of the oral arguments. I’d recommend at least skimming it.

When a decision comes down from the UK Supreme Court, I’ll be sure to write about it. Doubtless, the judgment will have something to say about the state of British habeas law and I’ll probably be hanging on every word.

C. My Thoughts On the Supreme Court Ruling in the “Obamacare” Case

I can say this in just a couple of sentences. I think that those such as Richard Epstein are correct when they point out how intellectually disingenuous it is to say that the individual mandate is a tax but not a Commerce Clause power. What I take from the ruling is that Congress can’t “create commerce” but they can tax you for the absence of commerce. How’s that any better than forcing you into commerce and penalizing you if you don’t comply? I see no difference. I see nothing to prevent Congress from imposing a tax on people who don’t eat vegetables or exercise regularly. Based on this ruling, it would seem nothing stands in the way. A rose by any other name is still a rose, folks.

-Zachary Cloud

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