SUPREME COURT NOTEBOOK

Arizona citizenship proof law illegal By Jesse J. Holland Associated Press WASHINGTON (AP) -- States can't demand proof of citizenship from people registering to vote in federal elections unless they get federal or court approval to do so, the Supreme Court ruled Monday in a decision complicating efforts in Arizona and other states to bar voting by people who are in the country illegally. The justices' 7-2 ruling closes the door on states independently changing the requirements for those using the voter-registration form produced under the federal "motor voter" registration law. They would need permission from a federally created panel, the Election Assistance Commission, or a federal court ruling overturning the commission's decision, to make tougher requirements stick. Justice Antonin Scalia, who wrote the court's majority opinion, said federal law "precludes Arizona from requiring a federal form applicant to submit information beyond that required by the form itself." Voting rights advocates welcomed the ruling. "Today's decision sends a strong message that states cannot block their citizens from registering to vote by superimposing burdensome paperwork requirements on top of federal law," said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund. "The Supreme Court has affirmed that all U.S. citizens have the right to register to vote using the national postcard, regardless of the state in which they live." Under Proposition 200 approved in 2004, Arizona officials required an Arizona driver's license issued after 1996, a U.S. birth certificate, a passport or other similar document before the state would approve the federal registration application. It can no longer do that on its own authority. Less than 5 percent of people registering to vote in Arizona use the federal form, said Matt Roberts, a spokesman for Arizona Secretary of State Ken Bennett. The rest register through the state, meaning they will continue to be asked to provide proof of citizenship when signing up to vote. But because of the court ruling, people can merely choose the less onerous federal form, which asks people to swear if they are citizens or not, but does not demand proof. Arizona Attorney General Tom Horne, who argued the case before the Supreme Court, expects the state will ask the Election Assistance Commission to approve the citizenship proof on the federal form and to fight any denial in court -- the process laid out in Monday's ruling. "The U.S. Supreme Court has given us a clear path to victory for the people of Arizona, who overwhelmingly approved the state constitutional amendment that was the subject of the legal challenge," Horne said. "Since the U.S. Supreme Court has made it clear that this pathway exists, Arizona should use it. The sanctity of the ballot box is a cherished right for all Americans and it must be protected." Federal officials deadlocked on Arizona's request in 2005, and the state did not appeal. The Arizona case is the first of two major voting decisions to be made by the court this month. Justices have yet to say whether a section of the Voting Rights Act of 1965, a law that has helped millions of minorities exercise their right to vote, especially in areas of the Deep South, was still needed, despite several justices voicing deep skepticism during arguments in February. Arizona has tangled frequently with the federal government over immigration issues involving the Mexican border, health care and more. But the decision on voter registration has broader implications because other states have similar requirements, such as Alabama, Georgia, Kansas and Tennessee, and still others are contemplating such legislation. Georgia Secretary of State Brian Kemp called the decision disappointing but said he would continue working with state officials to "provide a safe, secure and legal system for voter registration." Tom Caso, a professor at Chapman University School of Law in California and supporter of the Arizona law, said the decision "opened the door" to noncitizen voting. "The court's decision ignores the clear dictates of the Constitution in favor of bureaucratic red tape," Caso said. "The notion that the court will not enforce the Constitution unless you first apply to a commission that cannot act because it has no members is mind-boggling." Currently, the Election Assistance Commission has no active commissioners. The four commissioners are supposed to be nominated by the president and confirmed by the Senate. The last two left in 2011, according to the panel's website. Kathy McKee, who led the push to get Proposition 200 on the ballot in Arizona, said the ruling makes it harder to combat voter fraud, including fraud carried out by people who don't have permission to be in the country. "To even suggest that the honor system works, really?" McKee said. "You have to prove who you are just to use your charge card now." Justices Clarence Thomas and Samuel Alito were the only two dissenters. Alito said the decision means that Arizona now has two voter registration systems, and that the success of an applicant could come simply by the system he or she chooses. "I find it very hard to believe that this is what Congress had in mind," he said. Opponents of Arizona's law saw it as an attack on vulnerable voter groups such as minorities, immigrants and the elderly. They say they've counted more than 31,000 potentially legal voters in Arizona who easily could have registered before Proposition 200 but were blocked by the state law in the 20 months after it passed. They say about 20 percent of those thwarted were Latino. Arizona officials say they should be able to pass laws to stop noncitizens from getting on their voting rolls. The Arizona voting law was part of a package that also denied some government benefits to people in the country illegally and required Arizonans to show identification before voting. Arizona can ask the federal government to include the extra documents as a state-specific requirement, Scalia said, and challenge any adverse decision by the government in court. Louisiana's request already has been granted, Scalia said. The ruling upholds one by the 9th U.S. Circuit Court of Appeals, which said the 1993 National Voter Registration Act of 1993 trumps Arizona's Proposition 200. The case is 12-71, Arizona v. Inter Tribal Council of Arizona, Inc. ---------------- Associated Press writer Jacques Billeaud contributed to this story from Phoenix. 'Pay to delay' generic drugs can be illegal By Jesse J. Holland Associated Press WASHINGTON (AP) -- Deals between pharmaceutical corporations and their generic drug competitors, which government officials say keep cheaper forms of medicine off the market, can sometimes be illegal and therefore can be challenged in court, the Supreme Court said Monday. The justices voted 5-3 to allow the government to inspect and challenge what it calls "pay-for-delay" deals or "reverse payment settlements." Drug companies wanted the court to immunize their agreements from possible antitrust attack in court. But "this court's precedents make clear that patent-related settlement agreements can sometimes violate antitrust law," said Justice Stephen Breyer, who wrote the court's opinion. Reverse payment settlements arise when generic companies file a challenge at the Food and Drug Administration to the patents that give brand-name drugs a 20-year monopoly. The generic drugmakers aim to prove the patent is flawed or otherwise invalid, so they can launch a generic version well before the patent ends. Brand-name drugmakers then usually sue the generic companies, which sets up what could be years of expensive litigation. When the two sides aren't certain who will win, they often reach a compromise deal that allows the generic company to sell its cheaper copycat drug in a few years -- but years before the drug's patent would expire. Often, that settlement comes with a sizable payment from the brand-name company to the generic drugmaker. Drugmakers say the settlements protect their interests but also benefit consumers by bringing inexpensive copycat medicines to market years earlier than they would arrive in any case generic drugmakers took to trial and lost. But federal officials counter that such deals add billions to the drug bills of American patients and taxpayers, compared with what would happen if the generic companies won the lawsuits and could begin marketing right away. "This decision makes clear that drug companies can be sued to stop anticompetitive pay-for-delay agreements,' said New York Attorney General Eric T. Schneiderman. " It will be an important weapon in the fight for affordable drug prices and quality healthcare for every citizen." But Steve Reed, a lawyer at Morgan, Lewis & Bockius LLP, said the decision could delay the entry of cheaper generics into the market. "The upshot of the decision is that, with the exception of settlements limited to compromises on the patent term itself -- with modest payments to avoid the cost of litigation -- there will be increased uncertainty about whether particular settlements will pass antitrust scrutiny," Reed said. "This may have a chilling effect on parties' willingness to settle, and thus forego guaranteed early entry by generics." Generic drugs account for about 80 percent of all American prescriptions for medicines and vaccines, but a far smaller percentage of the $325 billion spent by U.S. consumers on drugs each year. Generics saved American patients, taxpayers and the healthcare system an estimated $193 billion in 2011 alone, according to health data firm IMS Health. But government officials believe the number of potentially anticompetitive patent settlements is increasing. Pay-for-delay deals increased from 28 to 40 in just the last two fiscal years and the deals in fiscal 2012 covered 31 brand-name pharmaceuticals, Federal Trade Commission officials said. Those had combined annual U.S. sales of more than $8.3 billion. Chief Justice John Roberts, who wrote the dissent that also included Justices Antonin Scalia and Clarence Thomas, said ordinarily the high court would say that any deal that would end costly and time-consuming litigation would be thought of as a good thing. "The majority's rule will discourage settlement of patent litigation," Roberts said. "Simply put, there would be no incentive to settle if, immediately after settling, the parties would have to litigate the same issue -- the question of patent validity -- as part of a defense against an antitrust suit." In the case before the court, Brussels, Belgium-based Solvay -- now part of a new company called AbbVie Inc. -- reached a deal with generic drugmaker Watson Pharmaceuticals allowing it to launch a cheaper version of Solvay's male hormone drug AndroGel in August 2015. The patent runs until August 2020, and brought in $1.2 billion last year for AbbVie. The government said Solvay agreed to pay Watson, now called Actavis Inc., an estimated $19 million-$30 million annually. Actavis said the deal, in addition to providing a licensing agreement over Solvay's Androgel patents, compensated Actavis for using its sales force to promote AndroGel to doctors. The FTC called the deal anticompetitive and sued Actavis. The 11th U.S. Circuit Court of Appeals in Atlanta rejected the government's objections, and the FTC appealed to the Supreme Court. The Justice Department asked the court to rule that all reverse payment settlements were illegal, but Breyer said that was going too far. The deals' "complexities lead us to conclude that the FTC must prove its case," he said. Paul Bisaro, president and CEO of Actavis, said he was glad the court did not rule "settlement agreements are presumptively unlawful." "Rather, the court has established that the 'rule of reason' be applied, and left it to the lower courts to determine if the benefits of the settlement outweigh harm to consumers," Bisaro said. "We believe this decision continues to provide for a lawful and legitimate pathway for resolving patent challenge litigation in a manner that is pro-competitive and beneficial to American consumers." Justice Samuel Alito did not take part in the case. The case is Federal Trade Commission vs. Actavis, Inc., 12-416. Pre-Miranda silence can be used By Jesse J. Holland Associated Press WASHINGTON (AP) -- The Supreme Court says prosecutors can use a person's silence against them if it comes before he's told of his right to remain silent. The 5-4 ruling comes in the case of Genovevo Salinas, who was convicted of a 1992 murder. During police questioning, and before he was arrested or read his Miranda rights, Salinas answered some questions but did not answer when asked if a shotgun he had access to would match up with the murder weapon. Prosecutors in Texas used his silence on that question in convicting him of murder, saying it helped demonstrate his guilt. Salinas appealed, saying his Fifth Amendment rights to stay silent should have kept lawyers from using his silence against him in court. Texas courts disagreed, saying pre-Miranda silence is not protected by the Constitution. The high court upheld that decision. The Fifth Amendment protects Americans against forced self-incrimination, with the Supreme Court saying that prosecutors cannot comment on a defendant's refusal to testify at trial. The courts have expanded that right to answering questions in police custody, with police required to tell people under arrest they have a right to remain silent without it being used in court. Prosecutors argued that since Salinas was answering some questions -- therefore not invoking his right to silence -- and since he wasn't under arrest and wasn't compelled to speak, his silence on the incriminating question doesn't get constitutional protection. Salinas' "Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question," Justice Samuel Alito said. "It has long been settled that the privilege 'generally is not self-executing' and that a witness who desires its protection 'must claim it.'" The court decision was down its conservative/liberal split, with Alito's judgment joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia. Liberal Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented. "In my view the Fifth Amendment here prohibits the prosecution from commenting on the petitioner's silence in response to police questioning," Breyer said in the dissent. Salinas was charged in 1993 with the previous year's shooting deaths of two men in Houston. Police found shotgun shells at the crime scene, and after going to the home where Salinas lived with his parents, obtained a shotgun kept inside the house by his father. Ballistic reports showed the shells matched the shotgun, but police declined to prosecute Salinas. Police decided to charge him after one of his friends said that he had confessed, but Salinas evaded police for years. He was arrested in 2007, but his first trial ended in a mistrial. It was during his second trial that prosecutors aggressively tried to use his silence about the shotgun in closing remarks to the jury. Salinas was sentenced to 20 years in prison. The Texas Court of Appeals and the Texas Court of Criminal Appeals upheld the conviction, with the latter court saying "pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies." The case is Salinas v. Texas, 12-246. Court says driver records protected WASHINGTON (AP) -- The Supreme Court says lawyers may not obtain personal information from state driver license records to recruit clients for lawsuits. The justices voted 5-4 Monday in favor of South Carolina residents who objected to solicitations from lawyers to join a lawsuit against car dealers. Justice Anthony Kennedy said in his majority opinions that a lawyer's solicitation of clients is prohibited by a federal privacy law intended to shield motor vehicle records. The court left it to lower courts to determine whether letters sent by the lawyers were predominantly efforts to recruit clients. Among the lawyers named in the Supreme Court appeal is Richard Harpootlian, former chairman of the South Carolina Democratic party. Jury should have final say in minimums WASHINGTON (AP) -- The Supreme Court says a jury should have the final say on facts that can trigger mandatory minimum sentences in criminal trials. The high court on Monday overturned the sentencing in Allen Alleyne's case in a 5-4 judgment. He was convicted of robbery and firearm possession in Richmond, Va. The jury said Alleyne's accomplice did not brandish a weapon, but the judge said he did, raising Alleyne's minimum sentence from five to seven years on that charge. Alleyne's lawyers say the brandishing decision should have been the jury's. Instead, the judge made his determination using a lower standard of proof. The Justice Department argued that the current system has been used successfully for years. The justices sent the case back for resentencing. Justices won't hear Seattle officer appeal WASHINGTON (AP) -- The Supreme Court won't reconsider a jury's decision that an off-duty Seattle police officer who was cut off in traffic violated a man's rights by detaining him at gunpoint. The high court Monday refused to hear an appeal from officer Jonathan Chin, who was in plainclothes as he held at gunpoint three men who allegedly cut him off in traffic and ran a red light. One of the men eventually was tackled, subdued and restrained by several officers, sustaining a head abrasion that cost him $3,500 in medical bills. A jury cleared Chin of allegations that police used excessive force, but found the detention went on too long, violating civil rights. Chin argued that he had immunity but courts have ruled against him. Justices refused to hear his appeal. Published: Wed, Jun 19, 2013