Washington, D.C. (PRWEB) June 19, 2012
The U.S. Supreme Court has materially altered case documents in a way that may indicate Court bias. The change could directly affect the outcome of a high-profile case involving the state of Montana and Citizens United, the Court’s controversial 2010 ruling that allows for virtually unlimited corporate spending in federal elections.
According to a report published Thursday at the Huffington Post website, a February 17 Stay Order in the case of American Tradition Partnership v. Bullock was issued upon referral by Justice Anthony Kennedy. This Order contained a significantly changed caption (the title that names the parties in the case) from the caption that the parties used in the original application and response documents filed on February 9 and 15, respectively.
Both the official Court docket and the archival SCOTUSblog confirm that the earlier documents in question named the defendants as "Attorney General of the State of Montana, and Commissioner of the Commission for Political Practices, Respondents.” The later Court Order changed the named defendants to "Bullock, Attorney General of Montana, et al."
Reporter Charlie Cray wrote that this seemingly minor name change of inserting the name “Bullock,” actually “has important implications for the Court's consideration of the case.” When Cray inquired as to how the Court appeared to unilaterally alter the documents, a Supreme Court spokesman gave conflicting and possibly erroneous responses. Further phone calls by Mr. Cray were never returned.
According to legal sources, changing a caption in any case normally requires a separate motion to the Court requesting the change by one of the parties. According to the Court docket, no such request was ever filed, nor was any formal order entered by the Court explaining under what authority the name was changed.
“This name change is absolutely not trivial, but is actually a central issue that could determine whether or not Citizens United is reversed in the Montana case,” said attorney Carl Mayer, counsel for The Eleventh Amendment Movement (TEAM), a non-partisan advocacy group that filed an amicus “friend-of-the-court” brief in the case. The TEAM brief argued, in part, that American Tradition Partnership filed documents that incorrectly name the party, and the case should be thrown out on that basis.
“The originally filed documents named an ‘arm of the state,’ the attorney general's office, which is constitutionally inadmissible under the 11th Amendment. The rule clearly says that the officer can only be a defendant in his ‘individual capacity.’ For that reason, the case should be thrown out immediately,” explained Mr. Mayer. “That means Montana would automatically win and their anti-corruption election finance laws would remain in force. Citizens United would be defeated in Montana, right here, right now.”
TEAM’s brief quotes Justice Kennedy writing in a 1997 opinion that "suit... is barred by a state's Eleventh Amendment immunity unless it... [is]…against state officers in their 'individual' capacities." (emphasis added)
Mr. Mayer said that, “re-naming Bullock by name is clearly an attempt to belatedly fit him into the case in an ‘individual capacity,’ though this still doesn’t conclusively determine his ‘individual capacity’ as separate from his official duties. But not naming Bullock by name at all, and solely naming the office of the attorney general, as was originally done, clearly disqualifies the petitioner’s case.”
In the Huffington Post article, Cray asked the rhetorical question, “did Kennedy, who authored the Court's 2/17 order staying the Montana Supreme Court's decision, understand the implications of changing the title (i.e. that it could mean the difference between the Court's accepting or rejecting the case, as TEAM's amicus brief claims) since he wrote the pertaining Court decision?”
Cray has dubbed this mysterious document alteration incident as “11th Amendment-Gate.”
Adam Furgatch, co-founder of TEAM, commented, “TEAM has been saying all along that the erroneous pleading reflected in the original caption is grounds for immediate rejection of the case, allowing Montana to win immediately. We assumed that the corporations’ attorney had changed the caption to cover up their mistake. Now it appears that the Court itself had a hand in it. The public deserves to know what did happen.”
Mr. Furgatch added, "I would think all Supreme Court reporters would be fulfilling their journalistic duty and be in there asking ‘who did what and why?’ Was there some funny business at the Court to try to cover-up an obvious error they knew to be grounds to toss the case out of federal court? We all look forward to the answers.”
Mr. Furgatch indicated that there were further unexplained caption changes, not just the one reported by Mr. Cray. “Is this really some sort of ‘11th Amendment-Gate?’ We certainly don’t know all the facts yet, and we’re not sure who did authorize the changed documents,” he said. “But if Justice Kennedy has displayed his specific knowledge and bias by doing this favor of changing the name of the case to benefit the corporate petitioners, he should recuse himself from this case.”
And finally, Mr. Furgatch appealed to Montana Attorney General Bullock who “would have until Wednesday to file a simple motion to restore the original title of the case and remove his own name, which could pierce the mystery. There’s no good reason for him not to do it, and it can only help Montana’s case.”
The Court is expected to consider the case in a June 21 Conference and announce a decision on Monday, June 25.
The 11th Amendment brief and other case background material may be found at TEAM’s website: http://www.11thAmendment.org
Referenced Huffington Post article: http://www.huffingtonpost.com/charlie-cray/montana-citizens-united_b_1595141.html?utm_hp_ref=tw
Supreme Court referenced altered documents: http://www.scotusblog.com/case-files/american-tradition-partnership-inc-v-bullock/
Case Citations from this story:
1. Citizens United v. FEC, 130 S.Ct. 876 (2010)
2. Petition for a Writ of Certiorari: American Tradition Partnership, Inc., fka Western Tradition Partnership, Inc., et al., Petitioners v. Steve Bullock, Attorney General of Montana, et al. – U.S. Supreme Court Docket # 11-1179
3. (Kennedy Opinion) Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997)
Contact: Adam Furgatch: 310-967-5854
adam (at) 11thAmendment (dot) org