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Friday, August 24, 2007

Ind. Decisions - 7th Circuit decides one Indiana case today; also an EPA case out of Illinois

In Morales v. Bezy (SD Ind., Judge McKinney), a 13-page, 2-1 opinion with a dissent beginning on p. 8, Judge Posner writes the majority opinion in this appeal presenting issues concerning postconviction relief. Judge Rover's dissent begins:

The court today resolves that a man who under our circuit law is innocent of the federal crime for which he has been imprisoned, should remain in prison on the chance that the Supreme Court will disagree with our understanding of the law and deem his conduct a crime. It is the antithesis of our justice system to hold that an innocent man should be imprisoned for fear that a guilty man will go free. Schlup v. Delo, 513 U.S. 298, 325 (1995) (“Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected . . . in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’ ”). Yet that is what the court has chosen today, and I respectfully dissent.

The majority declares that the question of Morales’ innocence is in limbo because there is an intercircuit split, which the Supreme Court may resolve next year in a case in which it has granted certiorari. But the definition of actual innocence cannot hinge on the status of certiorari petitions in the Supreme Court, and an intercircuit split should not preclude an actual innocence claim on the possibility that the Supreme Court in the future may hear the issue and decide differently. Until the Supreme Court tells us otherwise, our cases should control, and under our caselaw, he has a meritorious claim of actual innocence. In addition to revealing an unsettling level of insecurity about the soundness of our own decisions, the majority’s reliance on the certiorari status of other cases poses all kinds of problems, including the real possibility that the Supreme Court will subsequently decide that certiorari was improvidently granted, or will otherwise fail to reach the merits when the claim is heard. Moreover, it is inconceivable that we would pursue the same path in a case with a circuit split but no similar case pending before the Supreme Court. In that case, the defendant faces the same circuit split, and there is still the possibility that within a year or less the Supreme Court would reject our cases. Yet, that defendant would be set free, and this one is not. The law should not tolerate such arbitrariness. That, of course, assumes that the majority would not require that defendant to wait as well. It appears that whether a defendant may proceed with his claim of actual innocence or not depends on whether we think the Supreme Court will rule on a case in the future, perhaps only the near future. In any case, it allows a defendant with a claim of actual innocence to languish in prison indefinitely awaiting a Supreme Court action that might never occur.

There is simply no support in any caselaw for interjecting such a consideration into the analysis of whether a defendant may proceed on a claim of actual innocence. Until the Supreme Court actually decides an issue, we should follow our circuit’s decisions concerning statutory interpretation, and under that law he has a valid claim of innocence.

In Sierra Club v. EPA (from the Env. Appeals Bd.), Judge Posner writes:
The federal Environmental Protection Agency (actually, Illinois’s counterpart to the EPA, exercising authority that the federal EPA had delegated to it, but we can ignore that detail) issued a permit to Prairie State Generating Company to build a 1,500- megawatt coal-fired electrical generating plant in southern Illinois, near St. Louis. Environmentalists asked the EPA’s Environmental Appeals Board to reverse the issuance of the permit, and, the Board having refused, In re Prairie State Generating Co., No. 05-05 (EAB Aug. 24, 2006), they renew the quarrel in this court. They claim that the EPA violated two provisions of the Clean Air Act. One requires as a condition of receiving a permit that a plant or other source of air pollution be designed to have the “best available control technology” for minimizing pollution emitted by the plant. 42 U.S.C. § 7475(a)(4). The other attaches the further condition that the plant’s emissions not exceed the limits imposed by the Act’s national ambient air quality standards. § 7475(a)(3). The petitioners’ first claim relates to the sulfur dioxide that will be produced as a byproduct of the production of electricity by Prairie State’s plant, the second to the ozone that it will produce. * * *

So the Board’s ruling on the BACT issue must be upheld, and we move on to the ozone issue. * * *

The petitioners argue that the EPA simply cannot be permitted to rely on the 1-hour standard because it has been superseded by the 8-hour standard. It has; but pending adoption of a compliance measure tailored to the new standard, the agency was entitled to use the measure used for the older standard as a stopgap to demonstrate that if the plant complied with that measure it would be unlikely to violate the new standard. The petitioners do not suggest an alternative except to criticize the inference the agency drew from earlier studies. The criticisms have some merit but not enough to enable us to conclude that the agency was unreasonable in concluding that the plant is unlikely to increase the ozone level. The petition for review is DENIED.

Posted by Marcia Oddi on August 24, 2007 01:51 PM
Posted to Ind. (7th Cir.) Decisions