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1/4 Conference Update: Jones v. Minnesota January 2, 2008

Posted by rezjudicata in SCOTUS.
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Jones v. Minnesota

Facts

In 1996, Jones was convicted of kidnapping. Because of this conviction, Minnesota law required Jones to register his current address with the Bureau of Corrections. Jones, a member of the Leech Lake Band of Ojibwe, resided on the Leech Lake Reservation. Jones initially registered his addresses but later stopped updating his address changes. All the while Jones lived on the reservation. The state charged Jones for failing to register under the Minnesota statute. Jones challenged the charges arguing that Minnesota lacked jurisdiction to enforce the registration statute on the reservation. After the trial court and court of appeals agreed with Jones, the Minnesota Supreme Court issued a badly fragmented opinion upholding the statute’s reach over the reservation.

The Minnesota Supreme Court Opinions

The controlling concurrence analyzed the problem by interpreting Public Law 280. According to these three justices, Minnesota could exercise jurisdiction if the registration statute was “criminal/prohibitory” in nature. If it were “civil/regulatory”, however, then the state would not have jurisdiction. The controlling concurrence applied a hybridized two-part test to divine the true nature of the statute. The initial step was selecting the proper “focus”: either on the broad conduct or narrow conduct at issue. After adequately framing the conduct, the next step was to ask if the state generally permits or generally prohibits that conduct.

Broadly speaking, the conduct at issue was Minnesota residents moving from place to place. The narrow conduct, however, was unregistered address changes by identified predatory offenders. Because the narrow conduct presented a “heightened public policy concern,” the plurality decided to focus on the narrow conduct. From here, the three justices easily found the conduct to be “generally prohibited,” because it was against the law. Therefore, the registration statute was a criminal/prohibitory animal and Minnesota could cast the statute over the reservation.

The Minnesota Supreme Court, however, twice previously had called the registration statute civil/regulatory. The controlling concurrence dodged this apparent paradox saying that the prior cases addressed an earlier version of the statute. Those cases, the three justices opined, discussed whether the statute was “punitive,” not whether it was criminal/prohibitory. This fine distinction made it proper to re-analyze the statute under the hybrid two-part test. Depending on the problem, Minnesota’s registration statute had twin natures.

Unwilling to walk the gossamer line between punitive and criminal/prohibitory laws, the minority concurrence struck out on its own. These two justices latched onto Cabezon‘s “exceptional circumstances” exception. Under this anomalism, states may assert jurisdiction without Pub. L 280 authorization. Finding no guidance from the Supreme Court as to what makes a circumstance exceptional, the concurrence looked to instances where the Court allowed on-reservation regulation. Combing the jurisprudential beach, the concurrence found cases of on-reservation taxation of cigarettes and liquor as well as fishing regulations. Whatever the principles of these cases, the two justices said, Minnesota’s interest in tracking predatory offenders was “exceptional.” At the very least, keeping tabs on predatory offenders is just as important as taxing liquor. Relying on Nevada v. Hicks, the concurrence found no threat to tribal sovereignty because the tribe didn’t have to do anything. Therefore, the minority concurrence also concluded that Minnesota could exercise jurisdiction in this case.

Like the minority concurrence, the dissent disagreed with the controlling concurrence’s characterization of the statute as criminal/prohibitory. But, the dissent also bristled at the minority concurrence’s exploratory analysis. The dissent noted that all but one of the cases dredged-up by the minority concurrence involved regulation of non-tribal members.

The dissent was also troubled by the controlling concurrence’s holding that the statute could be civil/regulatory for non-Indians but criminal/prohibitory for Indians. According to the dissent, the changes in the statute were too insignificant to diminish the force of the court’s prior holdings. In addition, the dissent blasted the controlling concurrence’s characterization of the “narrow conduct” at issue. By simply focusing on the conduct prohibited by the statute, the second step in the test was a mere formality.

Analysis

As a Pub. L. 280 state, Minnesota can enforce criminal/prohibitory laws on Indian reservations. Of course, not all laws fall neatly into criminal/prohibitory or civil/regulatory categories. While approving the criminal/civil dichotomy, the Supreme Court failed to provide guidance on how to make the distinction. All the Supreme Court has said is that generally prohibited conduct is subject to PL 280, while generally permitted conduct is not. The obvious trouble with this “test” is that the Court did not clarify “conduct.” If you focus on the specific conduct that engaged the judicial mechanism, the line between criminal and civil laws evaporates. This is because both civil and criminal laws tend to “prohibit” the specific conduct they cover. Thus, if the Supreme Court’s test is meaningful at all, you cannot focus on the specific conduct prohibited by the statute.

Before Jones, the Minnesota Supreme Court recognized this problem. In Stone, the Court designed a heuristic to distinguish generally prohibited conduct from generally permitted conduct. Before deciding the permitted/prohibited nature of the conduct, the Court would parse the conduct into “broad” and “narrow” categories. Though the broad conduct was easy to generalize, it became very difficult to find narrow conduct that was not the specific thing covered by the statute. The Jones appeals court, attempting to keep the test meaningful, said it could not find any difference between the broad and narrow conduct. The Minnesota Supreme Court, however, simply equated the narrow conduct with the specific statutory conduct, rendering the Stone test just as useless as the Cabazon generally prohibited/generally permitted distinction. Under the Jones court’s rationale, just about any statute could be converted into a prohibitory one.

The true failure in the Jones court’s analysis is manifested in its result. Twice before, the Minnesota Supreme Court had called the registration statute civil. But, under the easily manipulable Stone test, the Court managed to change its nature to criminal.

Likelihood of Cert

Perhaps the only reason the Supreme Court would grant cert in this case would be to clarify the criminal/civil dichotomy. A better test would be this: if application of the statute requires criminal constitutional guarantees (such as attorneys and juries and confrontation), then the statute is criminal/prohibitory; if it does not, then it is civil/regulatory. Based on not-so-recent trends in the Court, however, it is likely that the Court would clarify the dichotomy to expand state jurisdiction.

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