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Editor: Mitchell H. Rubinstein
New York Law School

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Sunday, April 8, 2012

Reportedly Teacher’s aide challenges Michigan district in arbitration claiming she was suspended for refusing to provide online passwords

According to a news report in the South Bend Tribune, a teacher’s aide is in a legal battle with her school district for suspending her from her position after refusing to give the district access to her Facebook page.  It appears that the matter is headed for arbitration. 

Source: South Bend Tribune, 3/28/12, By Kelli Stopczynski (WSBT TV)

April 8, 2012 in Arbitration Law, Constitutional Law, Current Events | Permalink | Comments (0)

Sunday, March 25, 2012

Rhode Island district court holds that the high school’s display of prayer banner constitutes Establishment Clause violation

Ahlquist v. City of Cranston, ___F.Supp. 2d____ (D. R.I. Jan. 11, 2012), is an interesting case. A federal district court has ordered the immediate removal of a banner displayed on the wall of a high school auditorium on the ground that the display of the banner, which contains a Christian prayer, violates the First Amendment’s Establishment Clause. Relying on the Establishment Clause principle of neutrality in matters of religion, the court analyzed the banner under three different tests (Lemon, endorsement, and coercion) to determine whether its display passed constitutional muster.

Mitchell H. Rubinstein

 

March 25, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)

Monday, February 13, 2012

WD Mo Upholds A Dog Sniff At A School Because It Does Not Implicate 4th Amendment

Burlison v. Springfield Pub. Sch., ___F.Supp.2d___ (W.D. Mo. Jan. 25, 2012), is an interesting case. A lower court in Missouri has granted a school district’s and two school administrators’ motion for summary judgment in a suit brought by the parents of two high school students claiming that a drug sweep of the high school by local law enforcement at the behest of the school district constituted a unreasonable search and seizure. The court concluded that that the use of drug sniffing dogs does not implicate the Fourth Amendment. 

Mitchell H. Rubinstein

February 13, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)

Friday, February 10, 2012

College Student Suspended For Writing About Being Attracted To Professor

Oakland University (near Detroit) reportedly suspended a student for 3 semesters because he wrote in a class assignment that he found his instructors attractive. The course specifically permitted students to write creatively about any topic. In one entry titled "Hot for Teacher," the student tells a story about being worried because he is distracted in class by attractive professors. From the Press Release I saw, nothing vulgar was written. I do not know how many stories were written.

The student has retained a lawyer and is apparently bringing a First Amendment case to challenge his suspension. He is supported by an organization called Foundation For Individual Rights in Education, or "FIRE." You can read more about this bizzare story here.

UPDATE: February 13, 2012

It appears that some of the participants in this matter have chosen to comment. Their comments appear below.  

Mitchell H. Rubinstein

February 10, 2012 in College Professors, Colleges, Constitutional Law, Education Law | Permalink | Comments (29)

Tuesday, January 24, 2012

Colorado district’s decision to limit transgender student to use of staff restrooms sparks debate over equal educational opportunities policy

A Colorado High School transgender student, who was born male but identifies as female, was told that she can only use the staff restrooms at the school, reports the Coloradoan. The student in question, argues she should have the same rights as any student to use the bathroom of her choice.

Source: Coloradoan, 11/16/11, By Sarah Jane Kyle

Mitchell H. Rubinstein

January 24, 2012 in Constitutional Law | Permalink | Comments (0)

Monday, November 14, 2011

2d Cir Upholds Ban Of School District's Use Of Schools For Religious Purposes

2dcircseal

Bronx Household of Faith v. Board of Educ. of  the City of New York, No. 07-5291 (2d Cir. Jun. 2, 2010), is a major decision. The Second Circuit held that the New York City Board of Education’s (NYCBOE) policy prohibiting the use of school facilities for “religious worship services” does not violate the First Amendment’s Free Speech Clause. Having determined that NYCBOE had created a limited public forum, the majority concluded the policy satisfied the standard that restrictions imposed by the forum be viewpoint neutral and reasonable in light of the purpose served by the forum.

Mitchell H. Rubinstein

November 14, 2011 in Constitutional Law, Education Law, Law Review Ideas | Permalink | Comments (1)

Thursday, October 20, 2011

Third Circuit holds Delaware school board’s policy of opening meetings with a prayer violates Establishment Clause

3dCir

Doe v. Indian River Sch. Dist., ___F.3d____ (3d Cir. Aug. 5, 2011), is an interesting case. The Third Circuit held that a Delaware school board’s policy of opening meetings with a prayer violates the First Amendment’s Establishment Clause. The panel concluded that the constitutional exception established in Marsh v. Chambers, 463 U.S. 783 (1983), for legislative bodies does not apply to school boards. Instead, it determined that ”the traditional Establishment Clause principles governing prayer in public schools” relying on Lee v. Weisman, 505 U.S. 577 (1992).

Mitchell H. Rubinstein

 

October 20, 2011 in Constitutional Law, Education Law | Permalink | Comments (0)

Tuesday, June 7, 2011

Constitutionality of Georgia’s anti-nepotism law regarding eligibility to serve on local school boards is not subject to strict scrutiny by courts

11thcir

Grizzle v. Kemp, ____F.3d____(11th Cir. Mar. 8, 2010), is an interesting case. The Eleventh Circuit held that a federal district court erred in issuing a preliminary injunction barring Georgia’s Secretary of State from enforcing a provision in the state law making a person ineligible to serve on a local school board if that person “has an immediate family member sitting on [that] local board of education or serving as the local school superintendent or as a principal, assistant principal, or system administrative staff in the local school system.”  The panel found that the district court erred when it applied strict scrutiny in analyzing the statute’s constitutionality under the Fourteenth Amendment’s Equal Protection Clause and the First Amendment provision guaranteeing freedom of association.

Mitchell H. Rubinstein

 

June 7, 2011 in Constitutional Law, Education Law | Permalink | Comments (0)

Sunday, April 10, 2011

New Hampshire pledge of allegiance law is constitutional

1stcircuit

The issue of the whether the pledge of allegiance is constitutional is not going awayFreedom from Religion Foundation v. Hanover Sch. Dist., ___F.3d____ (1st Cir. Nov. 12, 2010), is the latest case. There, the 1st held that New Hampshire’s law requiring the daily recitation of the pledge of allegiance in the state’s public schools, while allowing students to opt-out of participation, does not violate the First Amendment’s Establishment or Free Exercise of Religion Clauses, or the Fourteenth Amendment’s Equal Protection or Due Process Clauses. The panel concluded that the inclusion of the phrase “under God” in the pledge did not convert the recitation of the pledge from a patriotic exercise to a religious one. It likewise rejected the free exercise claim on the ground that schools are not constitutionally obligated to shield students from mere exposure to ideas that are potentially offensive to the student’s religious beliefs. In regard to the equal protection claim, the panel concluded that the law does “not require different treatment of any class of people because of their religious beliefs.”

Mitchell H. Rubinstein

April 10, 2011 in Constitutional Law | Permalink | Comments (0)

Saturday, February 19, 2011

Hawaii Set To Recognize Civil Unions

Hawaii’s legislature joined six other states Wednesday, approving same- sex civil unions. Governor Neil Abercrombie is expected to signS.B. 232, “Relating to Civil Unions” by February 26, 2011. Five other states, plus the District of Columbia, permit same-sex marriage. Once the legislation becomes law, same-sex couples in Hawaii will be afforded the same rights, benefits and protections provided to married couples under state law.

On January 31, 2011, Illinois Governor Pat Quinn signed S.B. 1716, the “Illinois Religious Freedom Protection and Civil Union Act.” Under that new law, both heterosexual and same-sex couples will be allowed to enter into a civil union. In Washington State, two legislators introduced legislation on Valentines Day to expand the domestic partnership rights already present in the state to allow for same-sex marriage.

Mitchell H. Rubinstein

February 19, 2011 in Constitutional Law | Permalink | Comments (0)

Monday, December 6, 2010

Superior reporting employee's misconduct had either absolute immunity or qualified immunity from liability

Taylor v Brentwood UFSD, CA2, 143 F.3d 679

A Brentwood school principal, Anne Rooney, alleged that district teacher, Charles B. Taylor, used corporal punishment in violation of district policy. After investigating the allegation, the district filed disciplinary charges against Taylor. The disciplinary panel found him guilty of the charges and he was suspended without pay for one year.

Taylor then filed a Section 1983 [Civil Rights] claim, naming Rooney and other district officials as defendants. He contended that his one-year suspension from teaching constituted race discrimination in violation of the Fourteenth Amendment (equal protection). A federal district court jury agreed with Taylor’s arguments and said that Rooney was liable for over $185,000 in damages. Rooney appealed and the Second Circuit Court of Appeals in New York reversed the lower court’s decision.

The court cited with approval Rooney’s arguments that:

1. Her action [reporting the alleged use of corporal punishment] was not the proximate cause of any injury sustained by Taylor;

2. She had either absolute immunity or qualified immunity from liability because she acted pursuant to her official duty to report complaints regarding the use of corporal punishment by teachers to her superiors; and

3. Taylor, having been found guilty by the disciplinary panel, could not relitigate the issue of whether he was treated differently from similarly situated Caucasian teachers in his Section 1983 action.

The Circuit Court commented that “Taylor had a history of physical confrontations with students ...” occurring throughout the administrations of three different principals. It also took notice of the District’s “Corporal Punishment Policy” and evidence showing that Taylor had been “repeatedly reminded” of the policy over a fifteen-year period and had received several reprimands regarding the manner in which he disciplined students.

The Circuit Court ruled that Rooney could not be held liable because she was not proximately cause Taylor’s suspension. That, said the Court, action resulted following an investigation and a due process hearing in which Taylor was found guilty. It said that its decision in Jefferies v Harleston, 52 F3d 9, controlled the outcome of this case.

In Jefferies, the Circuit Court ruled that “although the actions of certain defendants were unconstitutional, liability under Section 1983 did not attach because such actions could not be considered the cause of any injury sustained by the plaintiff.”

The Court said that it believed that the independent investigations of the incidents by school officials, together with the school board’s filing charges culminating in the decision of the disciplinary hearing panel to suspend Taylor, constituted a superseding cause of Taylor’s injury, breaking the causal link between any racial animus Rooney may have had and Taylor’s suspension.

Concluding that no reasonable jury could find Rooney’s actions to be the cause of Taylor’s injury, the Court said that no new trial was necessary. Accordingly, all that was needed was for the Circuit Court to remand the case to the district court with instructions to enter judgment for Rooney.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

December 6, 2010 in Constitutional Law, Education Law, Public Sector Employment Law, Recent Developments | Permalink | Comments (0)

Tuesday, September 28, 2010

Having a residence in the jurisdiction not always the same as having a domicile in the jurisdiction

Matter of Johnson v Town of Amherst, 2010 NY Slip Op 05447, Decided on June 18, 2010, Appellate Division, Fourth Department

The Town of Amherst’s Town Code required its employees to be “domiciliaries of the Town.”

James I. Johnson’s family’s home, however, was in Elba, New York and the evidence in the action showed that he “listed the Elba address on his New York State income tax forms, that he had no intention of moving his family to [Amherst] and that he established residency in [Amherst] solely to comply with the original residency requirements of his employment.”
As a result Johnson was terminated from his position with Amherst for failing to comply with the Code’s requirement that he be a domiciliary of the Town.

Johnson sued and asked the court to annul his termination by the Town of Amherst based on its “residency requirement” that Town employees to be domiciliaries of the Town. Supreme Court sustained the Town’s decision and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division explained that "[D]omicile means living in [a] locality with intent to make it a fixed and permanent home."*

Noting that "[j]udicial review of an administrative determination following a hearing required by law is limited to whether the determination is supported by substantial evidence," the Appellate Division said that the evidence presented at the hearing established that Johnson’s family lived in a home in Elba, and that he established a residency in the Town “solely to comply with the original residency requirements of his employment.”

The court concluded that the determination that Johnson is a domiciliary of Elba rather than the Town is supported by substantial evidence and dismissed his appeal.

The Appellate Division also commented that Johnson was fully apprised of the evidence that the Town would consider in making its determination and that he was given "numerous opportunities to respond and to present his own evidence" to establish that he, in fact, was domiciled in Amherst but that he failed to come forward with such evidence.

* Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have, and maintain, only one domicile at a given time.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05447.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

September 28, 2010 in Constitutional Law, Public Sector Employment Law | Permalink | Comments (0)

Wednesday, August 4, 2010

Breaking News- Judge Overturns Calfornia's Ban Of Gay Marriages

A federal judge in the Northern District of Calif. has held that California's Proposition 8, a voter-approved amendment to the state constitution that prohibited same-sex marriage, violated the Due Process and Equal Protection Clauses of the United States Constitution. A copy of the decision can be found here

Mitchell H. Rubinstein

August 4, 2010 in Constitutional Law | Permalink | Comments (3)

Wednesday, May 19, 2010

Constitutionality of the Mandate of Individual Insurance

Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis  analyzes arguments against the mandate brought under the Fifth and Tenth Amendments and explores the sufficiency under the First Amendment of exceptions for certain religious groups. This 29 page document is a must read for anyone involved in possible litigation. The report summary provides:

As part of the Patient Protection and Affordable Care Act, P.L. 111-148, Congress enacted a
provision that requires certain individuals to have a minimum level of health insurance. Covered
individuals who fail to maintain sufficient coverage will be subject to a financial penalty
beginning in 2014. Although the federal government provides health coverage for many
individuals through federal programs such as Medicare, it had never before required individuals
to purchase health insurance. There are various constitutional considerations relevant to the
enactment of this provision. This report provides an analysis of constitutional issues raised by
compelling individuals to purchase health insurance.
This report first analyzes the authority of Congress to pass a law of this nature, as well as how a court could analyze this provision in light of a constitutional challenge based on various
provisions of the Fifth and Tenth Amendments. Finally, this report discusses whether the
exceptions to the individual responsibility requirement to purchase health insurance satisfy First
Amendment freedom of religion protections.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

May 19, 2010 in Constitutional Law, Employee Benefits Law | Permalink | Comments (0)

Sunday, April 25, 2010

Are Tax Credits To Religious Oriented Schools Unconsitutional?

A March 8, 2010 Op Ed article in the National Law Journal raises the question whether or not tax credits given to religious orientated schools for donations is an unconstitutional establishment of religion under the First Amendment. The article reports on a recent 9th Circuit decision holding that such tax credits are unconstitutional. As the article states:

The validity of tax deductions and credits for donations to educational and religious charities under the U.S. Constitution — including direct benefits to religious entities in the form of tax exemptions — has been settled for decades. But Winn v. Arizona Christian School Tuition Organization, a U.S. Court of Appeals for the 9th Circuit case, defies established precedent and casts a dark cloud over proposed and existing tax credits in states across the nation. The U.S. Supreme Court should grant certiorari and overturn the ruling.

The American Civil Liberties Union of Arizona challenged an Arizona program that allows taxpayers to claim a dollar-for-dollar tax credit up to $500 for contributions to nonprofit organizations that provide scholarships for children to attend better schools. The ACLU claims the credit violates the First Amendment's establishment clause because most taxpayers choose to donate to religious scholarship organizations. Fifty-five scholarship organizations have been established to date. Some organizations fund scholarships for low-income families; others fund particular teaching methods — such as Montessori education — while others serve specific geographic areas. Twenty-five scholarship organizations support particular religious schools. Taxpayers are free to choose among these many organizations — including religious and nonreligious — in making their donations, just as when they make any other charitable contribution. 

Mitchell H. Rubinstein

April 25, 2010 in Constitutional Law, Education Law, Law Review Ideas | Permalink | Comments (0)

Monday, March 15, 2010

Fifth Circuit on Leg Shackles and Due Process

Fifthcircuit Last week, the Fifth Circuit Court of Appeals reversed a drug conviction against a pro se defendant, finding the district court'violated the defendant's Due Process rights when it ordered him shackled in leg irons during the jury trial.  United States vs. Jose Enrique Banegas, No. 08-10915 (5th Cir. March 9, 2010).

Federal authorities arrested Banegas during an undercover drug investigation and charged him with drug trafficking.  Banegas represented himself pro se at trial (the court appointed a public defender as standby counsel).  The trial judge ordered Banegas be shackled during trial "the same 'as everyone in this court who has tried a case pro se that's incarcerated."  Banegas objected to wearing the leg irons during trial on grounds that the shackles were prejudicial -- the trial judge overruled the objection, commenting that she could not see the shackles and that it would be "difficult" for the jury to see them.  The jury convicted Banegas - the court sentenced him to 365 months in prison.

The United States Supreme Court's decision in Deck v. Missouri, 544 U.S. 622, 629 (2007) (Deck was a 7-2 decision; Justice Thomas's dissent is here) controlled the circuit court's analysis.  In Deck, the Court stated that "the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in exercise of its discretion, that they are justified by a state interest specific to a particular trial."  The Deck Court considered shackling to be "inherently prejudicial" and required trial courts to state the reasons for shackling a defendant outside the jury's presence prior to continuing the trial before the jury with the defendant in leg irons.

The circuit court rejected the government's argument that an objection for "prejudice" did not preserve the constitutional error - prejudice, the circuit court stated, "speaks precisely to the due process concerns that shackling raises."  The court then dismissed the reason for shackling provided by the trial court - that all incarcerated pro se defendants are shackled - as being insufficient to justify shackling this particular defendant in this particular trial.  The court noted that the particularized safety and security concerns normally required to justify shackling a defendant during trial were absent from this record.

Finally, the circuit court noted that when the district court fails to state particular reasons for placing a defendant in leg iron during a jury trial and there is a question whether or not the jury could see the irons, the government bears the burden to prove beyond a reasonable doubt that the irons could not be seen by the jury, and further, to show beyond a reasonable doubt that the shackles, if so seen, did not contribute to the guilty verdict.  With no factual support for this proposition in the record, the circuit court determined that the leg irons were visible to the jury.  The court reversed and remanded the case for a new trial.

Trial judges should pay close attention to the record when taking security measures that may affect a defendant's right to a fair trial.  The Supreme Court has noted that a decision to shackle a defendant, or a decision to take other security measure, has presumably negative effects not readily appearent in the record.  Therefore, absent sound justification, a decision to order a defendant into leg iron will receive close scrutiny on appeal.  Deck and now Banegas show that the court should make a trial-specific finding in the record regarding the need for the security measure being taken at trial.  Taking the time to reduce to written order the evidence demonstrating the security risk and the steps taken to minimize the risk along with a finding that the steps taken are the least restrictive to the defendant's fair trial right among those availble to the court will help judges make and articulate a decision with the best chance to withstand appellate scrutiny.

Craig Estlinbaum

March 15, 2010 in Constitutional Law, Criminal Law, Due Process, Interesting Cases | Permalink | Comments (0)

Thursday, March 11, 2010

Breaking News; 9th Cir. Issues Major Decision Upholding Pledge

9thcir

Newdow v. Roe, ____F.3d_____(9th Cir. March 11, 2010), is a major constitutional law case upholding the Pledge. The decision spans 193 pages and the court was divided. In a nutshell, the Pledge was upheld because it was viewed as an allegiance to our Republic, not of allegiance to the God. The entire Pledge had to be read in context and the majority refused to invalidate the Pledge simply because of its references to "under god." As the court explained:

The plaintiffs and the dissent focus solely on the words
“under God” in isolation, stripped of all context and history.
Plaintiffs and the dissent even go so far as to disregard the
plain text of the preamble to 4 U.S.C. § 4 which sets forth that
Congress had two primary purposes in including the phrase
“one nation under God” in the Pledge: (1) to underscore the
political philosophy of the Founding Fathers that God granted
certain inalienable rights to the people which the government
cannot take away; and (2) to add the note of importance
which a Pledge to our Nation ought to have and which ceremonial
references to God invoke. The Supreme Court has
instructed us to do otherwise: “Focus exclusively on the religious
component of any [governmental] activity would inevitably
lead to its invalidation under the Establishment Clause.”
Lynch, 465 U.S. at 678. Were the correct focus as the dissent
suggests, all of the above examples would have been found to
violate the Establishment Clause, for all contain religious
symbols or words. On the contrary, under Supreme Court law
we are instructed to examine the history and context in which
the phrase “one Nation under God” is used so that we may
discern Congress’ “ostensible and predominant” purpose
when it enacted the Pledge. See McCreary County v. ACLU,
545 U.S. 844, 867-68 (2005). Because California Education
Code § 52720 as implemented by the School District’s Policy
requires the recitation of the Pledge as a whole, we must
examine the Pledge as a whole, not just the two words the
Plaintiffs find offensive. In doing so, we find the Pledge is
one of allegiance to our Republic, not of allegiance to the God
or to any religion. Furthermore, Congress’ ostensible and predominant
purpose when it enacted and amended the Pledge
over time was patriotic, not religious.

I have no doubt that this case is heading to the Supreme Court. Readers will recall that the same plaintiff, Newdow litigated the Pledge before the Supreme Court, but the Court dismissed the case because he did not have standing.

Mitchell H. Rubinstein

March 11, 2010 in Constitutional Law, Education Law | Permalink | Comments (0)

Tuesday, March 9, 2010

Former school board member files suit challenging Georgia’s nepotism law

According to the Gainesville Times, former Gainesville school board member Kelvin Simmons has filed a federal lawsuit challenging a state law that barred him from seeking re-election. The plaintiffs are  challenging a law that went into effect last year barring spouses and other immediate family members of school administrators from serving on the same school system’s board of education. Plaintiff Simmons, who had served on the city school board since 1991, is married to Gainesville Middle School Assistant Principal Audrey Simmons. Plaintiff Grizzle’s wife is an assistant principal in the Bartow County school system.

The lawsuit alleges a violation of their First Amendment right to free association, or "ballot access," and  equal protection under the law. The suit alleges the law likely prevents more than 10,000 Georgia residents with relatives who are school administrators from seeking a school board post. Attorney Paul Olson, who represents Simmons and Grizzle, said the law violates "the right for someone to be a candidate and the right of the people to vote for the person of their choice."

Simmons/Grizzle legal complaint

Mitchell H. Rubinstein

March 9, 2010 in Constitutional Law, Education Law, Employment Law | Permalink | Comments (0)

Friday, February 19, 2010

Syracuse Law Review: Caperton v. A.T. Massey Coal Co. Symposium

Syracuse Law Review is publishing a Caperton v. A. T. Massey Coal Co. Symposium in its next issue. The United States Supreme Court in Caperton held that Due Process requires a judge to recuse himself from a case in which he received substantial campaign donations from one of the parties.  From the symposium abstract:

In our symposium book on Caperton, we hope to analyze many issues arising from the case. Are the appearance of bias and the public's mistrust of the legal system enough to warrant reform? Should the Supreme Court have set forth a constitutional rule grounded in due process to require recusal? What effect will the Caperton decision have on federalism?  Are there any downsides to requiring appointment of judges rather than permitting elections? All of those questions and many others are implicated by the Caperton decision, and it is our intention to delve below the surface and explore a wide range of issues that Caperton evokes.

The symposium contents include:

Dahlia Lithwick - Forward
Steven Lubet - It Takes a Court
Bruce A. Green - Fear of the Unknown: Judicial Ethics after Caperton
Elizabeth B. Wydra - The Fourteenth Amendment’s Due Process Clause and Caperton: Placing the Federalism Debate in Historical Context Ronald D. Rotunda - Judicial Disqualification in the Aftermath of Caperton v. A.T. Massey Coal Co.
Andrew L. Frey & Jeffrey A. Berger - A Solution in Search of a Problem: The Disconnect Between the Outcome in Caperton and the Circumstances of Justice Benjamin’s Election
James Sample - Caperton: Correct Today, Compelling Tomorrow

Congratulations to Syracuse Law Review on this very promising symposium edition.

Craig Estlinbaum

February 19, 2010 in Articles, Constitutional Law, Due Process, Judges, Law Review Articles, Supreme Court | Permalink | Comments (0)

Monday, February 1, 2010

Will Citizens United Kill Judicial Elections?

Tony Mauro, National Law Journal, writes today to ask whether the United States Supreme Court's recent controversial decision in Citizens United v. F.E.C. and the increased corporate money that may flow to judicial campaigns as a result will positively impact on the national movement to replace state judicial elections systems with a merit selection and retention process.

I have not digested the lengthy Citizens United decision, concurrences and dissent yet and for that reason, if none other, will not opine how the decision may affect judicial elections going forward.  Judicial selection reformers argue that allowing corporations, including possibly foreign or foreign-controlled corporations, unfettered access to the American political process through unlimited donations, may turn public support against judicial elections, where large contributions by corporation toward judicial campaigns are often disapproved. 

Mauro's article on the case's possible impact on the judicial selection reform movement is very informative, regardless your point of view on Citizen United's merits, and is recommended.

Craig Estlinbaum

February 1, 2010 in Constitutional Law, First Amendment, Judges | Permalink | Comments (0)