NICK EICHER, HOST: It’s Monday, April 25th, 2022. I’m delighted to have you with us for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. It is now time for Legal Docket. And today legal reporter Jenny Rough is here. Hello Jenny!
JENNY Rough, Legal Secretary: Hello, Mary! Yes, we come to that time of year when opinions are becoming more common, and today is an example: we have five opinions from last week. And we’re going to review the hearing from a case involving an international custody battle.
REICHARD: Let’s get down to business. The first report deals with billboards in Austin, Texas.
The Supreme Court upheld Austin’s regulation prohibiting companies from digitizing off-premises billboards. Two poster companies sued, arguing it was a restriction on freedom of expression. But a majority of six judges disagreed because the rule doesn’t affect the content or words on the sign. This is not about language; It’s all about the location. Therefore, the strictest judicial scrutiny does not apply and the ordinance passes the constitutional examination.
Rough: Next, government benefits and who is entitled to them. This is an 8-1 ruling and in it the court ruled that the benefits of Supplemental Security Income do not extend to residents of the US Territory of Puerto Rico. The U.S. Constitution’s territorial clause gives Congress broad powers to legislate to regulate U.S. territories such as Puerto Rico, Guam, and the Virgin Islands. At the hearing, Judge Elena Kagan described that authority.
KAGAN: It appears that this clause goes quite a long way toward empowering Congress to make rules about the Territories, which necessarily means or could mean distinguishing between the Territories and other parts of the United States.
Puerto Rico residents do not have to pay federal income tax, but they do not receive all tax benefits either. The court said the difference in treatment did not violate the Fifth Amendment’s equal protection clause. It’s fine as long as Congress had a reasonable basis for treating the territories differently.
REICHARD: The third opinion is unanimously in favor of a law firm that missed a tax deadline. The question was whether the underlying dispute stopped the deadline. The answer is yes, and the law firm can now challenge the IRS’ ability to seize its property under the so-called Just Levy Doctrine. During the oral hearing, Judge Stephen Breyer defined this term.
BREYER: The legal dictionary says that just tolls are an arbitrary extension of a legal deadline by a court. So they extended the legal deadline, so it’s timely.
Rough: Alright, let’s move on!
The fourth case resulted from a murder conviction. During his jury trial, authorities handcuffed the prisoner at his waist, wrists and ankles. Some judges noticed these shackles, others didn’t. At the hearing, Judge Brett Kavanaugh asked the inmate’s attorney about this effect:
KAVANAUGH: What about the fact that all of the jury testified that the manacles didn’t affect the verdict?
BAHAL: This Court has made it clear that it is unreliable to rely on a jury’s testimony as to whether the effect of shackles affects his judgment, since a jury will not always be aware of the ramifications of seeing a defendant in shackles. It kind of has an unconscious effect on the jury.
Both sides agree that these visible restrictions violated his constitutional right to due process. However, they disagree on which legal test applies to determine whether this infringement is just a harmless error. In a 6-3 ruling, the court ruled that both tests apply.
REICHARD: Finally, another case that I haven’t dealt with yet. I do my best to cover the hearing before decisions are made, but sometimes the black robes forestalled me.
Here, a family in California is demanding the return of a painting that the Nazis stole from the family’s grandmother. The painting is now in the hands of a Spanish museum. The legal question boils down to how a court should determine which jurisdiction law is applicable. The court ruled 9-0 that the court should look to California law, not federal law, for that answer.
It’s a small victory for the family, who can now pursue the case in lower courts.
Rough: Now to our hearing for today. This dispute has to do with child custody – specifically, it revolves around an issue of international child custody. Here’s the lowdown: Narkis Golan and Isacco Saada married in 2015 and had a son a year later.
Golan is an American citizen. Saada is an Italian citizen. They married in Italy and spent the first two years of their son’s life there.
REICHER: Your relationship was tumultuous. Saada physically and verbally abused Golan. That is undisputed. She ended up in the emergency room at least once. Her son witnessed the abuse at times. But according to records, he was not the target of abuse.
When the child was two, Golan took her son to the United States to attend a wedding in New York – and she stayed. She went to a domestic violence shelter.
Rough: The father reported the kidnapping. He also filed a petition with the federal district court in New York, asking the court to order his son’s repatriation to Italy.
Part of what regulates this fight is an agreement called the “Hague Convention”. This is a treaty that provides a way to return an internationally abducted child from one member country to another.
The Hague Convention contains a basic rule: international custody cases are to be settled in the country of the child’s “habitual residence”. Usually, the cue. In this case it would be Italy. The idea is that it is in the best interests of the child for the family matter to be resolved in the courts of their home country.
REICHARD: But there is an exception to the general rule. If returning the child would seriously endanger him or her, a court need not order the child’s return.
Given the father’s history of domestic violence, the court first found that returning the boy to Italy would pose a high risk of injury.
Despite this, the court ultimately awarded the father a victory. And ordered the return of the child to Italy. Here’s why: Under a Second Circuit Rule, the court had to consider whether the father or local authorities in Italy could improve the situation. Take additional measures to reduce this serious risk of damage.
Rough: The lower court ruled they could. The father could attend therapy, stay away from the mother, and the Italian authorities could ensure that the father supervised visits to his child. Since these protective measures could be taken, the court ordered the child’s return to Italy.
Golan, the mother, then appealed to the US Supreme Court.
The question here is whether this Second Circuit rule is appropriate. A court has discretion to consider whether the parent can take mitigating measures. But the court doesn’t have to take that into account. That is the mother’s argument.
REICHARD: Attorney Karen King has argued on her behalf. She reminded the judges that one purpose of the Hague Convention is a quick solution. And the Second Circuit’s mandatory rule, which requires an extra step, drags things out.
KING: The kid here is almost 6 years old. He has spent most of his life in legal limbo. Reversal offers the safe and quick deal it deserves.
Chief Justice John Roberts said the inquest would not necessarily prolong things.
Roberts: OK. But if it was something nice, you know, freshly cut and very simple, I mean, the big risk is that his house is next to a nuclear waste site and he says, well, I’m moving in two weeks, you know, here is the agreement.
But Judge Amy Coney Barrett pointed out that domestic disputes fall into a different camp.
BARRETT: It just seems to me that this is a very different case for corrective action than, say, the nuclear plant next door that the chief initially posited. That would be a very – fairly easy step, and then there wouldn’t be a serious risk, which I think with these acts of domestic violence you get to the complexities of the financial support payments and the injunctive relief or injunctive relief, whatever that may be, cases that maybe one represent a unique circumstance?
KING: Right, Judge Barrett. I think that the nature of the serious risk in a domestic violence case is extremely complicated, affecting mental health issues, psychological and very detailed family issues, and it would be very difficult to resolve this in an expedited procedure, let alone attempt this Dissolve thinking about what it’s like in a foreign country.
Rough: Richard Min argued for the father. When Judge Roberts pointed out that the Hague Convention does not expressly require what the Second Circuit requires, Min argued that it was implied.
ROBERTS: This improving conditions doctrine, rule, it has no basis in the Convention or the Statute, right, and by which I mean it’s not a concept that the Statute or the Convention refers to?
MIN: Yes, but we believe that this is inherent and implied in the text of the Convention, which means that (a) a serious risk investigation requires an analysis of the future risk of harm to the child…
Here there is a split between the Courts of Appeal: one circuit ruled one way, another ruled another. It’s called the Circuit Split and that’s exactly why it’s in the Supreme Court. One decision will not solve the family’s pain and problems. But it could provide consistency so that repatriation requests are subject to the same standard regardless of which region of the United States they are filed in.
REICHARD: And that’s this week’s Legal Docket.
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