Hot Docs: Supreme Court forbids attorney DMV records access for solicitation; Scalia joins liberal dissent

June 20, 2013

U.S. Supreme Court Justice Antonin Scalia speaks at a Reuters Newsmaker event in New YorkThis term’s Supreme Court rulings have certainly seen some unusual ideological divides.

On Monday, the Court announced its ruling in Alleyne v. United States, the majority opinion of which was written by Justice Thomas.  Thomas, one of the Court’s most reliable conservatives, was joined in his opinion by the four liberal justices, Sotomayor, Kagan, Breyer, and Ginsburg.

Two similar cases relating to warrantless DNA sampling by law enforcement – Missouri v. McNeely (announced this past April) and Maryland v. King (announced earlier this month) – found Justice Scalia, another one of the Court’s most conservative justices, siding with the Court’s three female justices, all of whom are considered part of the Court’s liberal wing.

In Arizona v. The Inter Tribal Council of Arizona, another ruling announced this past Monday, Justice Scalia wrote the majority opinion and was joined in full by the Court’s four liberals.

Finally, in Maracich v. Spears, yet another ruling from Monday, Scalia joined with the Court’s three female justices once again to dissent.

The exact reasons for the curious match-ups in the cases this term will be explored in a later post, but the reasons for Scalia’s joining with the liberals’ dissent in Maracich very likely have to do with his textualist judicial philosophies.

“Textualism” is a form of statutory interpretation that holds that a statute’s “ordinary meaning” should control how judges interpret it (instead of legislative intent, policy objectives, or the “interests of justice”).

In Maracich, Justice Scalia’s textualism likely conflicted with the majority’s injection of legislative intent, policy objectives, and a variety of other sources into its interpretation of the statute at issue, a subsection of 1994’s Driver’s Privacy Protection Act (DPPA).

The DPPA prohibits the disclosure of personal information without the express consent of the person whom the information is about.  The statute at issue, 18 U.S.C. § 2721(b)(4), is an exception to this general prohibition.

Section (b)(4) allows for the disclosure of a driver’s personal information without his or her consent,

[f]or use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.

That exception was used by attorneys representing plaintiffs in several class action lawsuit against numerous car dealerships, alleging that certain dealerships had collected unlawful fees from car buyers.  The attorneys used that information to locate additional potential plaintiffs for their lawsuits and send letters to them by mail to solicit them to join the lawsuits.

I get into the facts in greater detail here, but Edward Maracich, one of the individuals whose information was disclosed to the attorneys because he was one of many buyers from a particular dealership, took exception to the disclosure – most likely because Maracich also happened to be that dealership’s director of sales and marketing.

Maracich, along with several others, filed suit against the attorneys, claiming that they had violated the DPPA by obtaining, disclosing, and using personal information from motor vehicle records without the express consent of both the plaintiffs and the other potential and actual members of the attorneys’ class actions.

The district court granted the attorneys’ summary judgment motion, finding that the use of information fell within the (b)(4) litigation exception.  The appeals court affirmed.

The Supreme Court majority, however, reversed.

In their rationale, the majority found that the exception doesn’t apply because, even though the information was to be used “in connection with” a civil proceeding in a state court, the primary use of the information was for solicitation.

The majority then went on to mark a distinction between lawyers’ work “as self-employed businessmen” and “as assistants to the court in search of a just solution to disputes.”

The exception, the majority reasoned, was not meant to apply to lawyers’ solicitation of new clients (their work “as self-employed businessmen”).  Rather, the litigation exception was meant only to apply to lawyers’ work “as assistants to the court.”

Specifically, the exception applies to investigations done by lawyers “to determine whether there is a supportable theory for a complaint, a theory sufficient to avoid sanctions for filing a frivolous lawsuit, or to locate witnesses for deposition or trial testimony.”

Justice Ginsburg’s dissent, which Justice Scalia joined, labeled this explanation by the majority of the statute as a “novel interpretation” that “add[s] to the DPPA’s litigation exception a solicitation bar Congress did not place in that exception.”

This addition to the statutory language that the dissent charges the majority with creating runs counter to Scalia’s textualist philosophies, and it’s therefore easier to understand why he joined with four of the Court’s most liberal justices in Maracich.

Undoubtedly, he’s more than likely to fall on the opposite side of the ideological divide in future decisions.

Nevertheless, as the Maracich decision demonstrates, Scalia’s unique judicial views will quite probably cause him to side with his liberal colleagues again.