Circuit Splits

The Problem with Plurality Decisions

Nobody likes a tie. Watching a sporting event end in a tie ranks up there with finger nails on a chalk board and waiting in line at the post office on my list of least favorite things. There’s no finality; no winner, no loser. Do you remember how the 2002 MLB All-Star game turned out? It was not good.*

Plurality opinions, which “result when five or more Justices agree on the result in a particular case but no single rationale or opinion garners five votes,” are a lot like ties. David R. Stras & James F. Spriggs II, Explaining Plurality Decisions, 99 Geo. L.J. 515, 515 (2011) (PDF). While Supreme Court watchers may not boo and throw bottles when the high court hands down a plurality decision, a number of judges and commentators detest the practice. Chief Justice Rehnquist, for example, once referred to plurality decisions as “genuine misfortunes.” Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 569 (1981) (Rehnquist, J., dissenting).

Plurality decisions are particularly problematic because they leave lower courts puzzled over their precedential value. This, in turn, leaves the lower courts guessing on the appropriate standard to apply in future cases.

Today’s circuit split illustrates this point. Earlier this month a federal court in Louisiana noted an ongoing split in authority over every 1L’s favorite chapter in civil procedure—"minimum contacts." Graham v. Hamilton, Civil Action No. 3:11-609 (W.D. La. Mar. 15, 2012). Here’s what the court had to say:

In Asahi Metal Industry Co. v. Superior Court of California, a fractured Court addressed minimum contacts. There, Justice O'Conner, writing for four justices, determined that foreseeability that a defendant's product would end up in a forum state, without more, was insufficient to find minimum contacts. Id. at 112-13 (plurality opinion). Justice Brennan, also writing for four Justices, determined that such foreseeability would be sufficient. Id. at 116-17 (Brennan, J., concurring). The Asahi decision has resulted in a split among the circuits. As the Fifth Circuit has noted, "Some circuits follow Justice O'Connor's analysis while other circuits follow Justice Brennan's analysis." Choice Healthcare, Inc. v. Kaiser Found. Health Plan, 615 F.3d 364, 373 (5th Cir. 2010) (citations omitted). The Fifth Circuit, however, has adopted Justice Brennan's analysis. Id. In the Fifth Circuit, a defendant has minimum contacts with the forum state when a defendant "knowingly benefits from the availability of a particular state's market for its products . . . ." Luv N' Care, 438 F.3d 465, 470 (5th Cir. 2006) (citing Oswalt v. Scripto, Inc., 616 F.2d 191, 199-200 (5th Cir. 1980)); see also Jackson v. Tanfoglio Giuseppe S.R.L., 615 F.3d 579, 584 (5th Cir. 2010) ("Under this 'relatively expansive' theory, only 'mere foreseeability' that a defendant might be haled into court because it purposely availed itself of the benefits of the forum state is required. A defendant need not have 'purposely direct[ed]' its activities to the forum." (citations omitted)).

In J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780, 180 L. Ed. 2d 765 (2011), the Supreme Court again evaluated the requirements for minimum contacts. McIntyre considered a challenge to a decision of the New Jersey Supreme Court that found personal jurisdiction over a British manufacturer which sold its products in the United States through an intermediary. Id. at 2786. The plaintiffs could only demonstrate that one of the products reached the forum state, and, in the view of the Court, they did not adduce any additional evidence indicating the manufacturer should have reasonably anticipated being haled into court in New Jersey. Id. at 2792. The plurality opinion in McIntyre would have required that a defendant target a forum state before a court could find minimum contacts, which would overrule the Fifth Circuit's specific jurisdiction precedent. Id. at 2788 (plurality opinion). This opinion, however, did not command a majority of the justices and is not binding on this Court. See Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977) ("When a fragmented Court decides a case . . ., 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .' (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976))). Justice Breyer's concurrence, which is binding, ruled that the New Jersey court did not have specific jurisdiction over the foreign manufacturer under existing precedent and declined to adopt a new rule. Id. at 2792-93; see also Ainsworth v. Cargotec USA, Inc., No. 2:10-CV-236, 2011 U.S. Dist. LEXIS 109255, at *19 (S.D. Miss. 2011) ("As Justice Breyer declined to choose between the Asahi plurality opinions, McIntyre is rather limited in its applicability. It does not provide the Court with grounds to depart from the Fifth Circuit precedents." (citations omitted)).²

² Some district courts in the Fifth Circuit have concluded that McIntyre overrules the Fifth Circuit's prior minimum contacts precedent. See, e.g., Keranos, LLC v. Analog Devices, Inc., No. 2:10-CV-2072011, 2011 Dist. LEXIS 102618, at *30 (E.D. Tex. 2011) (indicating that after McIntyre defendants must follow "'a course of conduct directed at the society or economy existing within the jurisdiction of a given sovereign'" before a court finds minimum contacts (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958))). Other district courts, however, have concluded that pre-McIntyre Fifth Circuit precedent continues to apply. See, e.g., Ainsworth, 2011 Dist. LEXIS 109255, at *11 (" . . . McIntyre has little to no precedential value."). The Fifth Circuit has not addressed this issue.

Id. 

 In an excellent law review on this issue, law professor Angela Laughlin presents the following table outlining the positions taken by other courts:

Angela M. Laughlin, This Ain’t the Texas Two Step Folks: Disharmony, Confusion, and the Unfair Nature of Personal Jurisdiction Analysis in the Fifth Circuit, 37 Cap. U.L. Rev. 681, 727-28 Appendix A (2009) (PDF).

*All-Star Game Called when teams run out of pitchers, SportsIllustrated.CNN.com (July 09, 2002 11:13 PM) (last updated July 10, 2002 9:57 PM). And for those of you who are more visually inclined, here is a video of the crowd's reaction to commissioner Selig's decision to end the game in a 7-7 tie after both teams ran out of players after the eleventh inning:

Woodley v. Bradshaw: Miranda Waiver

“You have the right to remain silent . . . .” Odds are, most Americans can finish this sentence. As Chief Justice Rehnquist noted in Dickerson v. United States, “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” 530 U.S. 428, 443 (2000). As proof of the Miranda Warning’s rightful place in pop culture (right up there next to Jack McCoy) Broadcasting & Cable once proclaimed, “Next to the pledge of allegiance, the Miranda rights may be the most familiar common litany of the baby-boomer generation, thanks to TV.”

While administering the Miranda Warning may be easy, determining whether a suspect in custody voluntarily waived his or her rights before talking to police has proven much more challenging for courts. The law on waiver provides that individuals may waive their Miranda rights and confess to a particular crime if, based on the “totality of the circumstances,” their waiver is voluntary, knowing, and intelligent.

As the Sixth Circuit recently pointed out in Woodley v. Bradshaw:

[b]eyond those general requirements, the Supreme Court has not further detailed what constitutes a knowing and intelligent waiver. We note that a circuit split has developed on whether the holding of Connelly applies to the knowing and intelligent inquiry as well as to the voluntariness one. Some circuits require evidence of police abuse—such as disregarding signs that a defendant is incapable of making a rational waiver in light of his age, experience, and background—as a necessary predicate to finding that a waiver was unknowing and unintelligent, and some analyze knowing and intelligent waiver simply by looking to whether the defendant had the maturity and competence to make a knowing waiver of his rights, regardless of what police knew or should have known. Compare Rice v. Cooper, 148 F.3d 747, 750-51 (7th Cir. 1998) (finding defendant made a knowing and intelligent waiver because there was no evidence of police abuse) with United States v. Bradshaw, 935 F.2d 295, 298-300 (D.C. Cir. 1991) ("We read Connelly, therefore, as holding only that police coercion is a necessary prerequisite to a determination that a waiver was involuntary and not as bearing on the separate question whether the waiver was knowing and intelligent."). This Court is of the former opinion. Garner v. Mitchell, 557 F.3d 257 (6th Cir. 2009) (en banc).

No. 08-3712 (6th Cir. Dec. 20, 2011) (unpublished).