U.S. Fourth Circuit - The FindLaw 4th Circuit Court of Appeals Opinion Summaries Blog

4th Circuit Reversed Twice in One Day; Not Their Fault

We’ve heard of moral victories, but is there a losing equivalent? Moral losses? Gracious defeat?

Unlike the Ninth Circuit, which is regularly bench-slapped by the Supreme Court, the Fourth Circuit may not feel bad about being reversed twice in one morning. Earlier this week, the Supreme Court issued decisions in Alleyne and Maracich. One was a heavily-fractured opinion about a truly ambiguous statute. In the other, the Fourth Circuit was actually correct under controlling law. The Supreme Court just changed the rules.

Because both cases involved fundamental rules essential to local practitioners of civil and criminal law, here are the updates:

Anticipation of Litigation Doesn't Include Solicitation

Need personal information? One of the greatest databases of names, addresses, and social security numbers in the country is the chain of Departments of Motor Vehicles. The vast majority of Americans have driver's licenses or identification cards, and by extension, have their sensitive information stored in the DMV computers.

It's a treasure-trove of contact information, but access is tricky. The Driver's Privacy Protection Act has only a few exceptions, one of which is "investigation in anticipation of a lawsuit."

The now-defendants, then-plaintiffs' class-action attorneys in this lawsuit were sued under the DPPA after they used the DMV database to locate 34,000 potential plaintiffs in order to solicit clients (and possibly gather additional witnesses).

The Supreme Court held, in a fractured 5-4 decision, with conservatives and liberals on both sides of the split, that the "predominant purpose" of the data usage must be for actual investigation of the merits of the claim, not for mere solicitation.

Justice Ginsburg's dissent points out the issues that are inherent to such a ruling, such as the case where a person is both a witness and a potential plaintiff. Can an attorney safely investigate the witness claims without being accused of solicitation?

Apprendi Extended to Minimum Sentences

Well Fourth, you were right. Kind of. You see, the Supreme Court was wrong when they decided Harris v. United States, and held that judges could find a mandatory minimum sentence without submitting the facts to a jury. They've owned-up to their mistake, so don't feel too bad.

Just remember, Apprendi v. New Jersey now applies to minimums and maximums, per an even more fractured 5-4 split. This time there were justices joining some parts of the opinion, but not others, another concurrence, and two dissents. Despite the plethora of voices chiming in, one thing is now clear: all elements that effect a sentencing range must be submitted to a jury in order to comport with the Sixth Amendment.

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