Wednesday, March 11, 2015
The litigation over Alabama’s ban on same-sex marriage has taken many twists and turns in these early months of 2015, but the main action has been in two arenas: the Alabama Supreme Court and U.S. District Judge Callie Granade’s courtroom in the Southern District of Alabama. Of course, everyone will be watching the U.S. Supreme Court as well, where Obergefell v. Hodges will be argued next month. And it was the Supreme Court’s February order refusing to stay Judge Granade’s initial injunction that began the latest round of activity. Here’s where things stand:
The Alabama Supreme Court said its piece last week, granting a writ of mandamus ordering all Alabama probate judges to stop granting marriage licenses. The merits of that ruling are certainly open to debate—both on the key constitutional issue and the standing/jurisdiction issue—but there are a few things to keep in mind going forward. First, the mandamus action was brought by two groups opposing same-sex marriage (acting as “relators” for the State of Alabama) against the Alabama probate judges. No individuals or couples who might wish to challenge Alabama’s same-sex marriage ban were parties to that proceeding, so as a matter of preclusion the ruling by the Alabama Supreme Court does not prevent them from seeking relief in federal court.
Second, the court ordered Alabama probate judges not to issue new same-sex marriage licenses (and it seems to have had that effect), but it ignored the relators request to order Alabama probate judges “not to recognize any marriage licenses issued to same sex couples.” In doing so, the court avoided one potential direct conflict with the federal judiciary, insofar as Judge Granade had previously ordered Mobile County probate judge Don Davis to issue marriage licenses to four same-sex couples in the Strawser case. Indeed, the Alabama Supreme Court’s order asked Davis to “advise” it “as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.” His deadline was last Thursday (3/5), but he’s asked for more time to respond. [Update: Today the Alabama Supreme Court posted on its website an order confirming that Judge Davis was also subject to its mandamus ruling, but only after determining for itself (whether correctly or not) that Judge Granade’s injunction did not extend beyond those four licenses.]
Tuesday, March 3, 2015
Alabama Supreme Court Issues Writ of Mandamus, Enjoins Probate Judges from Issuing Marriage Licenses to Same-Sex Couples
This evening the Alabama Supreme Court granted the petition for a writ of mandamus that had been filed earlier this month by two groups opposing same-sex marriage, purporting to be “relators” for the State of Alabama. Here is the 134-page per curiam opinion, which concludes with an order enjoining Alabama probate judges from issuing marriage licenses to same-sex couples.
Here is the full text of the order:
The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator's petition for the writ of mandamus and showing cause, if any, why said probate judge should not be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion. As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
The last sentence, of course, refers to the federal injunction issued by Judge Callie Granade against Mobile County probate judge Don Davis last month.
Monday, March 2, 2015
What’s the half-life for internet-breaking social media sensations these days? It seems to get shorter and shorter, so I figured I should address #TheDress sooner rather than later. Is it White & Gold, or Blue & Black? For all the snark, memes, and celebrity tweets the dress has inspired, a crucial piece of historical context has been overlooked.
Ninety years ago, there was a kerfuffle in Bowling Green, Kentucky that bears striking similarities to the one that now threatens the marital harmony of Kim & Kanye. Back then, the dispute was between Black & White taxis and Brown & Yellow taxis. A federal lawsuit was filed that made its way all the way to the U.S. Supreme Court, where it prompted a strong dissent from Justice Holmes. Holmes attacked the majority for reading the 1842 decision in Swift v. Tyson to allow the federal court to disregard Kentucky law on the enforceability of a contract giving Brown & Yellow the exclusive ability to solicit customers at the Bowling Green train station.
To Holmes, the majority improperly accepted the “fallacy” that parties in federal court “are entitled to an independent judgment on matters of general law.” The Swift opinion itself—Holmes contended—was written by Justice Story “under the tacit domination” of this fallacy. Holmes explained:
Saturday, February 28, 2015
I wanted to post a quick blurb about my testimony yesterday before the Subcommittee on the Constitution and Civil Justice of the House Judiciary Committee in the hearing on The State of Class Actions Ten Years After the Class Action Fairness Act.
Here is the Prepared Statement I submitted 48 hours in advance of the hearing.
Not surprisingly given Republicans' control of the House, of the four witnesses testifying at the hearing, I was the only one offered by the Democrats. The others were representing the US Chamber, DRI-the Voice of the Defense Bar, and Skadden Arps.
Continuing the proud tradition of "tort reformers" in spinning corporations' huge legal victories as tragic defeats, one would have never known that Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and American Express v. Italian Colors (among many other corporate victories in the Supreme Court, the Advisory Committee, and state legislatures) had ever happened. Instead, listening to the Republican-sponsored witnesses and members of the Committee and Subcommittee, it seemed instead that democracy itself, and even the world economy, were threatened by legions of liberal federal judges granting class certifications in cases in which no class members had been injured. (Yes, the new urban myth of corporate interests is the so-called "no injury" class.)
As a former litigator, it was agony sitting there and not being able to object ("Mischaracterizes the evidence!" "Assumes facts not in evidence!" "Irrelevant!") to some of the things coming out of people's mouths.
It was also depressing to calculate how much I would have earned at the going hourly rate of an attorney with my background and experience in an urban market IF ANYONE HAD BEEN PAYING ME -- which of course, no one was. (My dear law school, St. Thomas, reimbursed my measly travel expenses.)
Somehow, I doubt that the other three witnesses were appearing pro bono.
But someone has to stand up for rights of injured, cheated, and discriminated-against Americans and the plaintiffs' lawyers who represent them. I am honored to have tried my best to do so.
Tuesday, February 24, 2015
A new lawsuit was filed in federal court today by Cari Searcy, the plaintiff whose earlier case led to the initial ruling by Judge Callie Granade declaring Alabama’s same-sex marriage ban unconstitutional. Searcy and Kimberly McKeand were legally married in California, but Searcy’s petition to adopt McKeand’s biological son was denied because of Alabama’s prohibition on recognizing same-sex marriages.
The complaint filed today alleges that Mobile probate judge Don Davis—who is already subject to an injunction issued by Judge Granade in the Strawser case—has still refused to grant Searcy an “unqualified adoption.” Instead the order granting custody to Searcy (Exhibit C to the complaint) states that it is “qualified in nature, and the Court will not issue a final adoption order until a final ruling is issued in the United States Supreme Court on the Marriage Act cases before it.” Searcy seeks an injunction ordering Davis to grant the adoption sought and to strike the “qualified” order. According to the docket sheet, this new case—Searcy v. Davis—has been assigned to Judge Granade as well.
Meanwhile, the Alabama Supreme Court is still considering the Emergency Petition for a Writ of Mandamus that was filed earlier this month by two groups opposing same-sex marriage, ostensibly as “relators” for the State of Alabama. The petition seeks an order compelling probate judges in Alabama not to issue marriage licenses to same-sex couples or to recognize any marriage licenses issued to same-sex couples. Last week, Judge Granade had denied requests—both by the Strawser plaintiffs and by the Jefferson County probate judge who had sought to intervene in the federal litigation—to compel Alabama Attorney General Luther Strange to appear in the Alabama Supreme Court mandamus proceeding and cause its dismissal. So the ball is now squarely in the Alabama Supreme Court’s court. Briefing was complete as of last Friday (2/20), with a number of Alabama probate judges filing responses opposing the mandamus petition (e.g., this response by the probate judges in Jefferson County and Madison County).
Tuesday, February 17, 2015
Lots of filing activity today in Strawser, one of the federal cases pending before Judge Granade on the constitutionality of Alabama’s same-sex marriage ban. As we covered earlier, the Alabama Supreme Court recently ordered briefing on an Emergency Petition for a Writ of Mandamus filed by two groups opposing same-sex marriage, ostensibly as “relators” for the State of Alabama. This prompted the Jefferson County probate judge (who had been granting licenses to same-sex couples) to seek to intervene in the federal litigation.
Kent Faulk has this report on today’s filings, but here’s a summary:
- Jefferson County Probate Judge Alan King moved for a preliminary injunction against Alabama Attorney General Luther Strange, asking Judge Granade to “enter an appropriate order directing the Alabama Attorney General to immediately appear in and dismiss the Emergency Petition for Writ of Mandamus on behalf of the State of Alabama currently pending before the Alabama Supreme Court”
- The Strawser plaintiffs filed an Emergency Motion for Enforcement of Injunction (the injunction that Judge Granade issued in January against Attorney General Strange in the Searcy case), asking Judge Granade “to direct the Attorney General to cease acquiescing in the [Alabama Supreme Court mandamus action] and to cause dismissal of the Emergency Petition for Writ of Mandamus forthwith.”
- Attorney General Strange responded with an opposition to the plaintiffs’ emergency motion for enforcement, and an opposition to the Jefferson County judge’s motion to intervene.
You can find copies of all the important filings, rulings, and other documents here.
Over the weekend, Jefferson County Probate Judge Alan King—who was one of the first to begin granting marriage licenses to same-sex couples last week—filed an Emergency Motion to Intervene in the Strawser case pending before Judge Granade in federal court. Kent Faulk as a report here.
The motion was prompted by the Emergency Petition for a Writ of Mandamus that two groups opposing same-sex marriage filed in the Alabama Supreme Court. Those groups (the Alabama Policy Institute and Alabama Citizens Action Program) filed that petition as “relators” for the State of Alabama, and they seek to order probate judges in Alabama not to issue marriage licenses to same-sex couples or to recognize any marriage licenses issued to same-sex couples. The petition names as respondents several Alabama probate judges—including King—and names as Doe respondents every probate judge in Alabama. Late last Friday, over the dissent of two Justices, the Alabama Supreme Court set a briefing schedule requiring a response to the mandamus petition. One of the issues for which the Alabama Supreme Court ordered briefing was “any issue relating to standing or otherwise relating to this Court’s subject-matter jurisdiction.” The respondents’ briefing is due this Wednesday (2/18), and the reply briefing is due on Friday (2/20).
In his motion to intervene in the federal Strawser case, King contends that the two groups who filed the mandamus petition are “acting in concert with and on behalf of the State of Alabama” and in doing so are violating the injunctions issued by Judge Granade. King’s motion also states:
“Judge King faces an imminent risk of being subjected to a state court Order that will put him in the position of having to choose either to disregard the United States Constitution, which he is sworn to uphold, thereby subjecting him to liability and perhaps personal liability for damages and attorney fees, or to disregard a state court Order thereby subjecting him to contempt proceedings, sanctions, and/or possible impeachment under Alabama law.”
Sunday, February 15, 2015
Last week we noted that an “Emergency Petition for a Writ of Mandamus” had been filed in the Alabama Supreme Court seeking to order probate judges in Alabama not to issue marriage licenses to same-sex couples—or to recognize any marriage licenses issued to same-sex couples. The petition was filed by the Alabama Policy Institute and Alabama Citizens Action Program, claiming to be relators for the State of Alabama itself. You can find a copy of the petition here (as an attachment to Mobile probate judge Don Davis’s filing in the Strawser case).
Late last Friday—after federal judge Callie Granade had issued an injunction the day before forbidding the Mobile probate judge from denying marriage licenses to same-sex couples—the Alabama Supreme Court issued the following order regarding the mandamus petition:
“The respondents are ordered to file answers and, if they choose to do so, briefs, addressing issues raised by the petition, including , but not limited to, any issue relating to standing or otherwise relating to this Court’s subject-matter jurisdiction, and any issue relating to the showing necessary for temporary relief as requested in the petition. Such answers and briefs shall be filed by 5:00 p.m. on February 18, 2015. Thereafter, the petitioners may file their respective replies no later than 5:00 p.m. on February 20, 2015.”
Kent Faulk has this report on the order. Two Justices—Shaw & Main—dissented from the order, with Justice Shaw calling it “an unprecedented attempt to control several probate courts by means of a rare original petition seeking a writ of mandamus issued by this Court.” He also stated in his dissenting opinion that:
“In order to grant relief to the petitioners, this Court will have to conclude that a probate court is forbidden from following an Alabama federal district court's ruling on the constitutionality of the ministerial acts a probate court performs, which ruling both a federal appellate court and the Supreme Court of the United States have refused to stay pending appeal. In my view, the petition does not provide an adequate foundation for reaching such a conclusion.”
Neither the order nor the dissenting opinions expressed an opinion regarding the constitutionality of Alabama’s prohibition on same-sex marriage. According to this report by Kelsey Stein, Chief Justice Moore in a recent interview “declined to comment further on Granade’s decision because there is a case filed before the Alabama Supreme Court regarding the same issues.”
Thursday, February 12, 2015
Following today's hearing, federal judge Callie Granade issued a preliminary injunction against Mobile County Probate Judge Don Davis. Here's the operative text:
It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage. This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.
Reports are that today's hearing in Strawser has concluded with no ruling from Judge Granade.
One interesting update to the Strawser docket is a filing by Mobile County Probate Judge Don Davis entitled, Notice to this Court of Presently Conflicting and Potentially Conflicting Authority Based on Recent Filings. Included as attachments to this notice are two documents that I hadn't seen before.
One is the “In Rem Action” that Davis filed with the Alabama Supreme Court seeking clarification regarding Chief Justice Roy Moore's Sunday order that probate judges should not issue marriage licenses to same-sex couples. It starts on p.14 of the pdf file. The Alabama Supreme Court dismissed this petition yesterday, concluding that it was “in substance a request for an advisory opinion” that the Court “is not authorized to address.”
The second is an “Emergency Petition for a Writ of Mandamus” that was apparently filed yesterday in the Alabama Supreme Court. It starts on p.44 of the pdf file. The petition was filed by the Alabama Policy Institute and Alabama Citizens Action Program, ostensibly as relators for the State of Alabama, and it seeks a writ of mandamus directing each probate judge in Alabama “not to issue marriage licenses to same-sex couples and not to recognize any marriage licenses issued to same-sex couples.”
Wednesday, February 11, 2015
As we covered earlier, federal judge Callie Granade will hold a hearing Thursday afternoon in the Strawser case to determine whether to issue a preliminary injunction ordering Mobile County Probate Judge Don Davis to begin issuing marriage licenses to same-sex couples. Even if Judge Granade issues such an injunction, it’s not clear what effect that would have on probate judges in other counties who are still refusing to do so.
This could make it especially significant that there is another case pending before Judge Granade—the Hedgepeth case—that names as a defendant not only the Mobile probate judge, but also Alabama Chief Justice Roy Moore and Governor Bentley. Hedgepeth was filed on Monday, and on Tuesday Judge Granade issued an order denying the Hedgepeth plaintiffs’ request for a temporary restraining order. She also wrote:
There are numerous defendants named in this action, but at this time, only counsel on behalf of Attorney General Luther Strange have appeared in this matter. There is no proof of service on any other party. The court will not consider a preliminary injunction in this matter [Hedgepeth] until all of the defendants have been notified. However, because Plaintiffs’ claims in this case are almost identical to another case [Strawser] currently set for a preliminary injunction hearing in this court and the result of that hearing may impact Plaintiffs in this case, the court will allow counsel for Plaintiffs to participate in that hearing.
According to the Hedgepeth docket, Affidavits of Service on both Roy Moore and Governor Bentley have now been filed. We’ll find out tomorrow whether Judge Granade will issue any orders as to defendants other than the Mobile probate judge.
And speaking of Chief Justice Moore, the Alabama Supreme Court ruled Wednesday afternoon on the Mobile probate judge’s petition seeking clarification regarding Moore’s order that Alabama probate judges must continue to enforce Alabama’s prohibition on same-sex marriage. The Alabama Supreme Court dismissed the petition without ruling on the merits, finding that it was “in substance a request for an advisory opinion” that the Court “is not authorized to address.” Moore recused himself, but there are several concurring opinions (also available here).
As always, stay tuned. You can find copies of important rulings and documents here.
Tuesday, February 10, 2015
Events continue to unfold in the wake of the U.S. Supreme Court’s order yesterday refusing to stay federal judge Callie V.S. Granade’s January ruling that Alabama’s same-sex marriage ban is unconstitutional. As of Tuesday, the number of Alabama counties where marriage licenses are being issued to same-sex couples has increased, but many are still refusing. See here and here for county-by-county information.
On Thursday, Judge Granade will hold a hearing in the Strawser v. Strange case to decide whether to issue an injunction against Mobile County Probate Judge Don Davis requiring him to begin issuing marriage licenses to same-sex couples. Today Judge Granade granted a motion to add Davis as a defendant (and several other couples as additional plaintiffs) in the Strawser case.
On another track, Davis has filed with the Alabama Supreme Court a request for clarification regarding Chief Justice Roy Moore’s order that Alabama probate judges must continue to enforce Alabama’s prohibition on same-sex marriage. No reports yet on when or how Moore will respond to this request (but he had lots to say in this interview on Bloomberg’s With All Due Respect).
You can find copies relevant rulings and documents here.
As we’ve been covering, there has been significant activity here in Alabama in the wake of the U.S. Supreme Court’s refusal to stay a federal judge’s January ruling that Alabama’s prohibition on same-sex marriage is unconstitutional. This post is simply to provide a repository for some of the important filings, decisions, and other documents. The links below will open the actual documents themselves, not simply links to other websites (which can sometimes succumb to “link rot”). I plan to update this page with new documents as the litigation proceeds.
- Download Searcy v. Strange Jan 23 DCT Order
- Download Strawser v. Strange Jan 26 DCT Order
- Download Searcy v. Strange Jan 28 DCT Order Clarifying Judgment
- Download Feb 3 Chief Justice Moore Memo
- Download Feb 8 Chief Justice Moore Order
- Download Feb 9 SCOTUS Order
- Download Feb 9 Statement of Alabama Attorney General
- Download Feb 9 Statement of Governor Bentley
- Download Feb 9 Statement of Mobile County Probate Judge
- Download Feb 9 Hedgepeth Complaint (SDAL)
- Download Feb 9 Searcy Motion for Contempt
- Download Feb 9 Searcy Order Denying Contempt Motion
- Download Feb 9 Strawser Motion to Amend Complaint & for Preliminary Injunction
- Download Feb 10 Strawser Order Granting Amendment & Setting Feb 12 Hearing
- Download Feb 10 Hedgepeth Order
- Download Feb 11 Emergency Petition for Writ of Mandamus
- Download Feb 11 Alabama SCT Order & Opinions
- Download Feb 12 Strawser Notice of Conflicting Authority
- Download Feb 12 Strawser Order Granting Injunction
- Download Feb 13 Alabama SCT Order & Opinions re Mandamus Petition
- Download Feb 15 Strawser Motion to Intervene
- Download Feb 17 Strawser - King Motion for Preliminary Injunction
- Download Feb 17 Strawser - Motion for Enforcement
- Download Feb 17 Strawser - Strange Opposition to Motion for Enforcement
- Download Feb 17 Strawser - Strange Opposition to Motion to Intervene
- Download Feb 17 Strawser - Reply re Motion to Intervene
- Download Feb 18 Strawser - Reply re Motion for Enforcement
- Download Feb 18 Response (King & Ragland) to Mandamus Petition
- Download Feb 20 Strawser Order Denying Motion for Enforcement
- Download Feb 20 Strawser Order Denying Motion to Intervene
- Download Feb 24 Searcy v. Davis Complaint
- Download Feb 27 Searcy v. Davis Motion to Dismiss
- Download March 3 Alabama Supreme Court Mandamus Opinion
- Download March 5 Strawser - Davis Motion to Stay
- Download March 6 Strawser Class Certification Motion
- Download March 6 Strawser Proposed Second Amended Complaint
- Download March 9 Strawser - Strange Opposition to Class Certification
- Download March 10 Alabama Supreme Court Order re Judge Davis
- Download March 13 Strawser - Davis Supplement to Motion to Stay
- Download March 16 Strawser Order Denying Davis Motion to Stay
- Download May 21 Strawser Class Certification Order
- Download May 21 Strawser Order Granting Injunction
- Download June 2 Relators Motion for Clarification and Reaffirmation
- Download June 26 SCOTUS Obergefell Decision
- Download June 29 Alabama Supreme Court Order re Obergefell
- Download June 29 Strawser Motion for Permanent Injunction
- Download July 1 Strawser Order
- Download July 6 Relators Alabama Supreme Court Brief re Obergefell
- Download Oct 20 Strawser 11th Circuit Affirmance
- Download Oct 20 Strawser 11th Circuit Order re Certification of Defendant Class
- Download Jan 6 2016 Chief Justice Moore Administrative Order
- Download Jan 6 2016 Strawser Notice of Supplemental Authority
Monday, February 9, 2015
Last month, Judge Callie V.S. Granade of the U.S. District Court for the Southern District of Alabama issued an injunction forbidding Alabama Attorney General Luther Strange from enforcing Alabama’s prohibition on same-sex marriage. She stayed the ruling until today in order to give the state time to appeal it. And this morning, the U.S. Supreme Court denied Strange’s application for a stay. Here is the Supreme Court’s order, including a dissent by Justice Thomas joined by Justice Scalia.
Alabama Chief Justice Roy Moore, however, has been in the news arguing that Alabama probate judges are not bound by Judge Granade’s order. On Tuesday, February 3, he issued a memorandum to Alabama’s probate judges. And on Sunday, February 8, he issued an administrative order that concludes:
“Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.”
Alabama Attorney General Strange issued a statement today responding to the U.S. Supreme Court’s order refusing his stay application. Among other things, he states:
“To clarify my authority in this matter, the Alabama Attorney General’s Office does not issue marriage licenses, perform marriage ceremonies, or issue adoption certificates. The Chief Justice has explained in a public memorandum that probate judges do not report to me.”
And Alabama Governor Robert Bentley issued a statement today that he “will not take any action against Probate Judges, which would only serve to further complicate this issue” and will “allow the issue of same sex marriage to be worked out through the proper legal channels.”
As of this morning, same-sex marriages have begun in some counties in Alabama, but not in others. More litigation is almost certain, but here are some of the important rulings and documents so far:
- Download Searcy v. Strange Jan 23 DCT Order
- Download Strawser v. Strange Jan 26 DCT Order
- Download Searcy v. Strange Jan 28 DCT Order Clarifying Judgment
- Download Feb 3 Chief Justice Moore Memo
- Download Feb 8 Chief Justice Moore Order
- Download Feb 9 SCOTUS Order
- Download Feb 9 Statement of Alabama Attorney General
- Download Feb 9 Statement of Governor Bentley
[Updated to include the statement by Governor Bentley.]
Wednesday, February 4, 2015
We covered earlier the Supreme Court’s grant of certiorari in Chen v. Mayor and City Council of Baltimore (No. 13-10400), which promised to resolve a conflict in the circuits over extensions of time to serve process under Rule 4(m). The petitioner was proceeding pro se, and on January 9 the Court dismissed the case with this order:
Petitioner has not filed a brief on the merits within 45 days of the order granting the writ of certiorari, as required by Rule 25.1. Petitioner has neither requested an extension of time nor responded to correspondence directed to the mailing address provided under Rule 34.1(f). Additional efforts to contact petitioner have been unsuccessful. The writ of certiorari is accordingly dismissed.
Mr. Clement’s eight-page submission said Mr. Chen left his New York residence last fall to make what was intended to be a short business trip to California. But while there, Mr. Chen suffered a “slip-and-fall injury” that postponed his return for more than two months.
The court filing said Mr. Chen arrived back in New York on Jan. 22 and was “surprised and dismayed” to learn the Supreme Court had accepted, and subsequently dismissed, his case.
Saturday, January 31, 2015
Jill Lepore's article "The Cobweb: Can the Internet Be archived?" in last week's The New Yorker discussed the ephemeral nature of websites and the consequent impermanence of footnote references to URLs. "Link rot" is when you click on a URL and receive the unwelcome message “Page Not Found.” "Content drift" is "more pernicious" because the original reference has been overwritten, erased, or moved. The problem is widespread:
According to a 2014 study conducted at Harvard Law School, “more than 70% of the URLs within the Harvard Law Review and other journals, and 50% of the URLs within United States Supreme Court opinions, do not link to the originally cited information.”
Tuesday, December 30, 2014
If you’ll be in Washington, DC for the AALS meeting this coming weekend, Alliance for Justice will be showing their new documentary, Lost in the Fine Print: Examining the Impact of Forced Arbitration. It’ll be from 8:30-9:30pm on Saturday, January 3. More details and a list of speakers here.
Friday, August 22, 2014
In response to yesterday's posting regarding the NCBE's release of Sample Civil Procedure Test Questions for the MBE, Professor Kevin Clermont in dialogue with others points out that the answer to Sample Question 9 is "probably wrong."
Question 9 is:
9. A motorcyclist was involved in a collision with a truck. The motorcyclist sued the truck driver in state court for damage to the motorcycle. The jury returned a verdict for the truck driver, and the court entered judgment. The motorcyclist then sued the company that employed the driver and owned the truck in federal court for personal-injury damages, and the company moved to dismiss based on the state-court judgment.
If the court grants the company’s motion, what is the likely explanation?
(A) Claim preclusion (res judicata) bars the motorcyclist’s action against the company.
(B) Issue preclusion (collateral estoppel) establishes the company’s lack of negligence.
(C) The motorcyclist violated the doctrine of election of
(D) The state-court judgment is the law of the case.
The NCBE's Answer Key states that "A" is the correct answer. If you, like me, thought that B was the correct answer, you're not alone. Here is Professor Clermont's email:
I think you could argue for Answer 1 (CP) or Answer 2 (IP), but in no way is Answer 1 right and Answer 2 wrong. I would have answered Answer 2.
I can’t say that Answer 1 is wrong, however. And the examiners do make the point that one shouldn’t reach IP if CP is available.
Nonetheless, the argument for CP is not theirs, resting on claim and privity. The claim against employer is a different claim from the one against employee, and the E’er and E’ee are not in privity.
The argument for CP is nonmutual CP. See W&M 4464.1. If you sue the indemnitor first and then the indemnitee, the latter can use CP. This would be the way to go if the plaintiff lost the first suit by failure to prosecute, so that no issues were litigated and determined. But here there is no need to push the frontiers of the law (where nonmutual CP resides). Every court I have seen goes the standard nonmutual IP route if it is available.
. . . A court would go [with] Answer 2. But I think an academic could construct an argument for Answer 1.
He concludes that Question 9 is not, therefore, an ideal bar question.
Thanks to Professor Clermont for sharing his thoughts on this.
Thursday, August 21, 2014
The National Conference of Bar Examiners has released ten Civil Procedure Sample Multistate Bar Examination questions.
As we reported earlier, Civil Procedure will be included for the first time on the MBE administration in February 2015.
Wednesday, July 23, 2014
By now most folks have seen yesterday’s conflicting rulings over whether the Affordable Care Act authorizes subsidies for individuals who purchase insurance on a federal exchange (as opposed to exchanges run by the states). The D.C. Circuit found that such subsidies were not statutorily authorized (the Halbig case). And an hour later, the Fourth Circuit found that the subsidies were statutorily authorized (the King case).
The merits of these decisions, as a practical matter and in terms of statutory interpretation, have received tremendous attention. But Article III standing was also an issue in both Halbig and King. Who, after all, suffers the constitutionally required “injury in fact” by virtue of receiving a subsidy? The answer: People who would be subject to the individual mandate if they are entitled to the subsidy but would not be subject to the individual mandate (on income grounds) without the subsidy. Here’s how the Halbig majority explained it with respect to one of the plaintiffs in that case, David Klemencic:
Klemencic resides in West Virginia, a state that did not establish its own Exchange, and expects to earn approximately $20,000 this year. He avers that he does not wish to purchase health insurance and that, but for federal credits, he would be exempt from the individual mandate because the unsubsidized cost of coverage would exceed eight percent of his income. The availability of credits on West Virginia’s federal Exchange therefore confronts Klemencic with a choice he’d rather avoid: purchase health insurance at a subsidized cost of less than $21 per year or pay a somewhat greater tax penalty.
The D.C. Circuit found that this was sufficient for purposes of Article III standing, and the Fourth Circuit reached the same conclusion. From the Halbig majority opinion (footnote omitted):
The government characterizes Klemencic’s injury as purely ideological and hence neither concrete nor particularized. But, although Klemencic admits to being at least partly motivated by opposition to “government handouts,” he has established that, by making subsidies available in West Virginia, the IRS Rule will have quantifiable economic consequences particular to him. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (explaining that a “threatened injury” that is “certainly impending” may “constitute injury in fact” (emphasis and internal quotation marks omitted)). Those consequences may be small, but even an “‘identifiable trifle’” of harm may establish standing. Chevron Natural Gas v. FERC, 199 F. App’x 2, 4 (D.C. Cir. 2006) (quoting United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973)); see Bob Jones Univ. v. United States, 461 U.S. 574, 581-82 (1983) (noting that Bob Jones University sued for a tax refund of $21.00). Klemencic thus satisfies the requirement of establishing an injury in fact, and because that injury is traceable to the IRS Rule and redressable through a judicial decision invalidating the rule, we find that he has standing to challenge the rule.
And from the King opinion:
We agree that this represents a concrete economic injury that is directly traceable to the IRS Rule. The IRS Rule forces the plaintiffs to purchase a product they otherwise would not, at an expense to them, or to pay the tax penalty for failing to comply with the individual mandate, also subjecting them to some financial cost. Although it is counterintuitive, the tax credits, working in tandem with the Act’s individual mandate, impose a financial burden on the plaintiffs.
The defendants’ argument against standing is premised on the claim that the plaintiffs want to purchase “catastrophic” insurance coverage, which in some cases is more expensive than subsidized comprehensive coverage required by the Act. The defendants thus claim that the plaintiffs have acknowledged they would actually expend more money on a separate policy even if they were eligible for the credits. Regardless of the viability of this argument, it rests on an incorrect premise. The defendants misread the plaintiffs’ complaint, which, while mentioning the possibility that several of the plaintiffs wish to purchase catastrophic coverage, also clearly alleges that each plaintiff does not want to buy comprehensive, ACA-compliant coverage and is harmed by having to do so or pay a penalty. The harm in this case is having to choose between ACA-compliant coverage and the penalty, both of which represent a financial cost to the plaintiffs. That harm is actual or imminent, and is directly traceable to the IRS Rule.