Thursday, December 18, 2014

States Sue Colorado for Legalizing Pot

Nebraska and Oklahoma have filed an original suit against Colorado in the United States Supreme Court over that state's Amendment 64, which legalizes marijuana. The plaintiffs argue that Colorado's Amendment 64 is preempted by the federal Controlled Substances Act.

Here's from the complaint:

22. Colorado state and local officials who are now required by Amendment 64 to support the establishment and maintenance of a commercialized marijuana industry in Colorado are violating the CSA. The scheme enacted by Colorado for retail marijuana is contrary and obstructive to the CSA and U.S. treaty obligations. The retail marijuana laws embed state and local government actors with private actors in a state-sanctioned and state-supervised industry which is intended to, and does, cultivate, package, and distribute marijuana for commercial and private possession and use in violation of the CSA (and therefore in direct contravention of clearly stated Congressional intent). It does so without the required oversight and control by the DOJ (and DEA) that is required by the CSA--and regulations adopted pursuant to the CSA--for the manufacture, distribution, labeling, monitoring, and use of drugs and drug-infused products which are listed on lesser Schedules.

The plaintiffs claim they've been harmed by Amendment 64, because they've had to deal "with a significant influx of Colorado-sourced marijuana."

 

December 18, 2014 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (0) | TrackBack (0)

Sixth Circuit Strikes Ban on Gun Possession by Persons Formerly Committed to Mental Institution

The Sixth Circuit ruled today in Tyler v. Hillsdale County Sheriff's Department that the federal ban on gun possession by a person "who has been committed to a mental institution" violates the Second Amendment.

The ruling is the first to address this particular provision, and it's the first to strike a federal ban on a particular category of would-be gun owners. The ruling's notable, too, because it applies strict scrutiny, even as both parties agreed that intermediate scrutiny applied.

The court, using its two-step approach to Second Amendment questions, held first that the federal ban on a person "who has been committed to a mental institution," 18 U.S.C. Sec. 922(g)(4), "falls within the scope of the Second Amendment right, as historically understood." That is: while the Second Amendment historically did not protect the right to bear arms by the mentally ill, "[w]e are not aware of any other historical source that suggests that the right to possess a gun was denied to persons who had ever been committed to a mental institution, regardless of time, circumstance, or present condition." (Emphasis added.)

The court next applied strict scrutiny and held that while the government's interest was "compelling," the flat ban was not narrowly tailored to meet it. In particular, the court said that the federal government failed to fund an opt-out provision for Section 922, leaving a formerly institutionalized person without a federal opportunity to show that he or she no longer poses a danger and should no longer be covered by Section 922(g)(4). Moreover, the federal conditioned grant program--which would allow an individual to prove to his or her state the he or she is no longer dangerous and should no longer be covered by Section 922(g)(4), so long as the state participates in the federal program (about half do)--leaves a person's fundamental right to bear arms up to his or her state. That's no good. The court:

Under this scheme, whether [a person] may exercise his right to bear arms depends on whether his state of residence has chosen to accept the carrot of federal grant money and has implemented a relief program. His right thus would turn on whether his state has taken Congress's inducement to cooperate with federal authorities in order to avoid losing anti-crime funding. An individual's ability to exercise a "fundamental righ[t] necessary to our system of ordered liberty" cannot turn on such a distinction. Thus, Section 922(g)(4) lacks narrow tailoring as the law is applied to [the petitioner].

The court struck the provision even as it recognized that no other court has struck any other ban on guns for any other category of person under Section 922(g)(4). In particular, the court recognized that no court has struck a ban on guns for undocumental aliens, domestic-violence misdemeanants, persons under a certain age, persons subject to certain domestic-protection orders, and persons who are "an unlawful user of or addicted to any controlled substance." The court distinguished the committed-to-a-mental-institution category, however, because "its prohibition is permanent; it applies potentially to non-violent individuals; it applies potentially to law-abiding individuals; and it punishes potentially non-violent conduct."

The court surveyed the approaches to the Second Amendment in the other circuits--mostly some form of intermediate scrutiny--but applied strict scrutiny. This was surprising and unnecessary, given that both parties agreed that intermediate scrutiny applied, and, as the concurrence argued, the petitioner would have won under intermediate scrutiny, too.

According to the court's analysis, Congress could avoid the result simply by funding the federal opt-out program and giving previously institutionalized individuals an opportunity to show that they are no longer dangerous and should no longer be subject to the ban in Section 922(g)(4).

December 18, 2014 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Second Circuit Grants Full Court Review to Occupy Brooklyn Bridge Case

The Second Circuit has granted full court review in Garcia v. Does, a panel decision which allowed plaintiffs' complaint arising from their arrests for participating in a demonstration in support of the Occupy Wall Street movement.  The panel, affirming the district judge, denied the motion to dismiss of the defendants/appellants, holding that on the current record it could not

resolve at this early stage the ultimately factual issue of whether certain defendants implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited by New York law.

The unidentified Doe officers argued that video evidence warrants a dismissal.  The First Amendment issue of "fair warning" to revoke permission to protest is at issue in the case - - - which would seemingly require more than (incomplete) video evidence.  Yet the issue of qualified immunity is seemingly argued as overshadowing the incomplete evidence.

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Brooklyn Bridge via


Judge Debra Ann Livingston's lengthy dissent from the opinion by Judges Calabresi and Lynch argues that the panel majority "failed to afford the NYPD officers policing the “Occupy Wall Street” march the basic protection that qualified immunity promises – namely, that police officers will not be called to endure the effort and expense of discovery, trial, and possible liability for making reasonable judgments in the exercise of their duties."

Judge Livingston's views most likely attracted other judges.  Now the  "in banc" court (as the spelling is used in the Second Circuit) will hear the case, including Senior Judge Calabresi because he was on the panel.

 

December 18, 2014 in Courts and Judging, Film, First Amendment, Opinion Analysis, Recent Cases, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 17, 2014

Supreme Court Denies Stay in Arizona's DACA Driver License Injunction

The Supreme Court today denied an application for a stay from Arizona in Brewer v. Arizona Dream Act Coalition.  The Order states that Justices Scalia, Thomas, and Alito would grant the application for the stay.

Recall that the Ninth Circuit entered a preliminary injunction on behalf of the plaintiffs who challenged an Executive Order by Arizona Governor Jan Brewer prohibiting recipients of the federal program called the “Deferred Action for Childhood Arrivals” (DACA) from obtaining driver’s licenses by using Employment Authorization Documents as proof of their authorized presence in the United States.  The Ninth Circuit panel of judges held that even under a rational basis standard of equal protection review, there was no  legitimate state interest that was rationally related to defendants’ decision to treat DACA recipients disparately from other noncitizens who were permitted to use their Employment Authorization Documents as proof of their authorized presence in the United States when applying for driver’s licenses.

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The denial of a stay should not be surprising at this preliminary stage, but the litigation is sure to continue.

[image via]

December 17, 2014 in Equal Protection, Federalism, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

No Federal Cause of Action Against State Officer under FLSA

The Sixth Circuit ruled today in Michigan Corrections Organization v. Michigan Dep't of Corrections that the federal courts lacked subject matter jurisdiction over a claim by Michigan correctional officers against the Corrections Department Director under the federal Fair Labor Standards Act. The court dismissed the federal case.

While the case marks a defeat for the workers (and others who seek to enforce the FLSA against a state), the plaintiffs may be able to re-file in state court. (They brought a state claim in federal court, along with their FLSA claim, and, if there are no other bars, they may be able to revive it in a new state proceeding.)

Correction officers filed the suit, claiming that they wre denied pay for pre- and post-shift activities (like punching the clock, waiting in line for security, and the like) in violation of the FLSA. They sued the Department Director in his official capacity for denied overtime pay and declaratory relief.

The Sixth Circuit rejected the federal claims. The court ruled that the Director enjoyed Eleventh Amendment immunity against monetary damages, and that Congress did not validly abrogate Eleventh Amendment immunity through the FLSA (because Congress enacted the FLSA under its Commerce Clause authority). The court rejected the plaintiffs' contention that Congress enacted the FLSA under its Fourteenth Amendment, Section 5 authority to enforce privileges or immunities against the states (which, if so, would have allowed Congress to abrogate Eleventh Amendment immunity). The court said that the Privileges or Immunities Clause (after The Slaughter-House Cases) simply can't carry that weight--that wages are not a privilege or immunity of national citizenship.

The court went on to reject the plaintiffs' claim for declaratory relief under the FLSA, Section 1983, and Ex Parte Young. The court said that the FLSA "does not provide a basis for this declaratory judgment action." That means that the plaintiffs can't get declaratory relief from the statute itself, and, because the FLSA doesn't provide for private enforcement by way of declaratory relief, the plaintiffs can't get Section 1983 or Ex Parte Young relief, either.

December 17, 2014 in Cases and Case Materials, Commerce Clause, Congressional Authority, Eleventh Amendment, Federalism, Fourteenth Amendment, News, Opinion Analysis, Privileges or Immunities: Fourteenth Amendment , Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Robson on Teaching the Religion Clauses

Check out ConLawProfBlog's own Prof. Ruthann Robson's (CUNY) piece about her innovative and engaging approach to teaching the Religion Clauses in the Fall 2014 Law Teacher. (Robson's piece begins on page 49.) In it, Robson gives a step-by-step for a replicable, pervasive method that promises huge pedagogical payoffs--exactly the kind of thing we need more of in the Con Law world.

RobsonRobson, a leader in innovative and effective teaching who was featured in What the Best Law Teachers Do (Harvard), starts her First Amendment class by requiring students to develop and adopt a role in one of three categories: a recognized religion, a quasi-religion, and a non-religion. Robson then conducts her Religion Clause classes with her students in role, for example: "What do you think of this outcome, Student X, as a Rastafarian?"

The approach comes with distinct benefits and allows the class better to critically assess and analyze Religion Clause cases. Robson: "This role pervasiveness often illuminates the subjectivity of the Court's recitation of facts, as well as the reasoning, doctrine, theoretical perspectives, and the invocations of history."

Robson uses role pervasiveness for problems, too, assigning students to traditional legal roles (attorneys, judges, clerks, and the like) while still maintaining their assigned religion.

For example, Student Y, as a Sikh, now also takes on the role of a law clerk to a judge considering the constitutionality of the seventeen foot "Latin cross" at the National September 11 museum. Or Student Z, as a Secular Humanist, is writing an opinion as an administrative law judge in a sexual orientation discrimination case against a baker who refused to make a wedding cake for a same-sex couple.

This not only enhances students' understanding of the Religion Clauses, but it also allows Robson to explore issues of professional identity.

Check it out; give it a try; tell us how it works for you.

December 17, 2014 in Establishment Clause, Free Exercise Clause, News, Religion, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 16, 2014

District Judge Says President's Immigration Action is Unconstitutional

A federal district judge in Pennsylvania has taken it upon himself to rule President Obama's recently announced immigration action unconstitutional--in a case that apparently has nothing to do with the action. We've posted on President Obama's action, and challenges to it, here, here, and here.

The surprising and brazenly activist, stretch-of-a-ruling underscores just how political President Obama's action has become, driving a district judge to reach out in a wholly unrelated case to rule the action unconstitutional.

The ruling comes in a case involving an undocumented immigrant who pleaded guilty to re-entry into the United States by a removed alien in violation of 8 U.S.C. Sec. 1326. Judge Arthur J. Schwab (W.D. Pa.) then ordered the parties to brief whether President Obama's action has any impact on the defendant, and whether the action is constitutional. Despite the government's reply that the action wouldn't affect this defendant (because "the Executive Action is inapplicable to criminal prosecutions under 8 U.S.C. Sec. 1326(a), and . . . [it] solely relates to civil immigration enforcement status"), and the defendant's agreement with that position, Judge Schwab said that the action could protect the defendant from removal and went ahead to rule on its constitutionality.

Even if the action applied to the defendant, however, Judge Schwab didn't bother to explain why ti was relevant to this proceeding, or why he had to rule on its constitutionality, except to say this:

Specifically, this Court was concerned that the Executive Action might have an impact on this matter, including any subsequent removal or deportation, and thereby requiring the Court to ascertain whether the nature of the Executive Action is executive or legislative.

Judge Schwab went on to say why he thought the action was unconstitutional, relying not on the ordinary judicial tools for such an important task (like, say, the text of the law, serious consideration of Supreme Court precedent, prior executive practice, etc.), but instead on President Obama's public statements about the action. Judge Schwab wrote that the President can't act just because Congress won't (answering President Obama's public statements suggesting that he'd act unilaterally if Congress wouldn't) and that the President's action is policy-making, not prosecutorial discretion, because it treats a large class of people alike.

Oddly, after concluding that the action is unconstitutional, Judge Schwab goes on to consider whether it applies to this defendant. (His conclusion: maybe, maybe not. Judge Schwab says the action leaves the defendant in a "no-man's land.") Ordinarily, this question would come prior to the constitutional question--for constitutional avoidance reasons, but also because it is logically prior to the constitutional question. Still, Judge Schwab answered it second.

In a final surprising move, Judge Schwab says that President Obama's action violates the rights of the defendant, because it doesn't obviously grant deferred status to him, even as it grants deferred status to others.

Judge Schwab concluded by giving the defendant a chance to withdraw his guilty plea, go to sentencing and take one year supervised release in the United States, or go to sentencing and be turned over to ICE.

So the logic of the opinion appears to be this: The President's action is unconstitutional; but if it is constitutional, it doesn't obviously apply (or not apply) to the defendant; and therefore the defendant should have a chance to withdraw his guilty plea in order to (possibly) take advantage of the (unconstitutional) action. All this after both parties agreed that the President's action didn't really have anything to do with this case in the first place.

With all its twists and turns, it's really hard to make heads or tails of this opinion. But one thing is clear: This is not the stuff of a serious separation-of-powers ruling. If the case against President Obama's action is going anywhere, opponents are going to have to do better--much better--than this.

December 16, 2014 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Upholds LA's Condom Mandate in Adult Films

In its opinion in Vivid Entertainment v. Fielding, a panel of the Ninth Circuit affirmed the district judge's denial of a preliminary injunction to Los Angeles Measure B, passed by voter initiative in 2012.

The central issue in the case was the so-called "condom mandate" that requires performers to use condoms during "any acts of vaginal or anal sexual intercourse."  The opinion, authored by Judge Susan Gruber, and joined by Judge Alex Kozinksi and sitting by designation Judge Jack Zouhary), agreed with the district judge that the First Amendment challenge to the mandate was subject to intermediate scrutiny.  The Ninth Circuit relied in large part on the "secondary effects" doctrine, finding that

The purpose of Measure B is twofold: (1) to decrease the spread of sexually transmitted infections among performers within the adult film industry, (2) thereby stemming the transmission of sexually transmitted infections to the general population among whom the performers dwell.

SafeSexThe court rejected the argument that strict scrutiny should apply nevertheless because Measure B was a "complete ban" on the protected expression, which plaintiffs would define as "condomless sex" ("condomless sex differs from sex generally because condoms remind the audience about real-world concerns such as pregnancy and disease . . . films depicting condomless sex convey a particular message about sex in a world without those risks).   Citing Spence v. Washington (1974), the Ninth Circuit concluded that "whatever unique message Plaintiffs might intend to convey by depicting condomless sex, it is unlikely that viewers of adult films will understand that message."  Moreover, in an interesting footnote (6), the Ninth Circuit distinguished between the expression and the conduct: 

On its face, Measure B does not ban expression; it does not prohibit the depiction of condomless sex, but rather limits only the way the film is produced.

(emphasis in original).  The panel opinion also discussed - - - and rejected - - - the arguments that Measure B was not sufficiently "narrowly tailored" in the intermediate scrutiny test because there was a voluntary testing and monitoring cheme for sexually transmitted diseases and that Measure B would be "ineffective" because producers could simply move beyond county lines. 

The district judge did, however, find that certain portions of Measure B did not survive the constitutional challenge.  On appeal, the plaintiffs argued that Measure B was not subject to severance.  The Ninth Circuit panel rejected the severance argument, but helpfully included as an appendix to its opinion a "line-edited version" of Measure B.

Finally, the Ninth Circuit panel rejected the argument that the appellate court did not have Article III power to hear the appeal because the intervenors - - - including a Campaign Committee Yes on Measure B - - - lacked Article III standing.  The panel distinguished Hollingsworth v. Perry (the Prop 8 case), noting that here it was not the intervenors that sought to appeal but the plaintiffs themselves who had invoked the court's power.

[image via]

December 16, 2014 in Film, First Amendment, Fourteenth Amendment, Interpretation, Opinion Analysis, Sexuality, Standing | Permalink | Comments (0) | TrackBack (0)

Court Says Officer Can Make Stop Based on Mistake of Law

Schwinn-steven
Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled yesterday in Heien v. North Carolina that the Fourth Amendment does not prohibit an officer from making a stop based on a reasonable mistake of law. We posted an argument preview here and review here.

The ruling puts a heavy thumb on the scale in favor of law enforcement and puts the burden of vague or ambiguous laws, or an officer's reasonable misunderstanding of law, on ordinary citizens.

Chief Justice Roberts wrote for the 8-justice majority that the "reasonable suspicion" standard required for a stop allows for an officer's mistake of law, no less than it allows for an officer's mistake of fact:

The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

Chief Justice Roberts was careful to emphasize that a mistake must be objectively reasonable--a point emphasized by Justice Kagan (joined by Justice Ginsburg) in concurrence. Still, an officer's reasonable mistake of law is now enough to justify reasonable suspicion for a stop.

Justice Sotomayor filed the lone dissent. She argued that an officer's reasonable mistakes of fact are different from an officer's reasonable mistakes of law: officers are better at judging indeterminate and evolving facts on the street, but the courts are better at the law:

After all, the meaning of the law is  not probabilistic in the same way that factual determinations are. Rather, "the notion that the law is definite and knowable" sits at the foundation of our legal system. And it is courts, not officers, that are in the best position to interpret the laws.

She also argued that the majority's approach is a blow to civil liberties and police-community relations, and that it has "the perverse effect of preventing or delaying the clarification of the law."

December 16, 2014 in Cases and Case Materials, Fourth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Monday, December 15, 2014

Bill of Rights Day 2014

December 15 is Bill of Rights Day.

President Obama's proclamation this year includes this passage:

On the anniversary of the Bill of Rights, we reflect on the blessings of freedom we enjoy today, and we are reminded that our work to foster a more free, more fair, and more just society is never truly done. Guided by these sacred principles, we continue striving to make our country a place where our daughters' voices are valued just as much as our sons'; where due process of law is afforded to all people, regardless of skin color; and where the individual liberties that we cherish empower every American to pursue their dreams and achieve their own full measure of happiness.

Wondering how - - - and why - - - Bill of Rights Day began?  Or why it is not a paid holiday (like "Independence Day")?  Or which President decided not to issue a proclamation for the day?  Or why the Bill of Rights as the proposed initial amendments were not all about "rights"?  And why we do - - - like Obama - - - tend to "read in" a notion of equality although it is noticeably absent?
 
Some answers are here in my column that begins: "Forgive yourself if you haven't made any special plans for Bill of Rights Day again this year."
 
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National Archives image via

December 15, 2014 in Current Affairs, Equal Protection, History, Interpretation | Permalink | Comments (0) | TrackBack (0)

Friday, December 12, 2014

Ninth Circuit Affirms $300K in Punitives in Title VII Case with only Nominal Damages

The Ninth Circuit, sitting en banc, this week affirmed a lower court's $300,000 puntive damage verdict in a Title VII sexual harassment case in which the court awarded no compensatory damages and just $1 in nominal damages.

The ruling distinguishes BMW v. Gore, the 1996 case in which the Supreme Court ruled that excessive punitives could violate due process. Gore involved a common law tort claim with no statutory cap on punitive damages. This case, State of Arizona v. ASARCO LLC, in contrast, involved a Title VII claim with a statutory cap on both compensatories and punitives. That difference, the statutory cap, drove the result.

The case arose out of a sexual harassment complaint by an employee at ASARCO's Mission Mine complex in Sahuarita, Arizona. The plaintiff alleged that during her time at ASARCO she was subjected to sexual harassment, retaliation, intentional infliction of emotional distress, and was constructively discharged.

The jury awarded no compensatory damages, but awarded $1 in nominal damages and $868,750 in punitives. The trial court later reduced the punitives to $300,000, the statutory max for a Title VII claim. (The court also awarded attorneys' fees and costs in the amount of $350,902.75.) ASARCO appealed, arguing that the punitive damage award violated Gore.

The Ninth Circuit rejected that argument. The court said that because Title VII caps both compensatories and punitives, a punitive damage award within the statutory cap satisfies the underlying constitutional considerations that animated Gore (even if the punitives amounted to 300,000 times the damages). In particular, the statutory cap gave the defendant fair notice of the severity of a penalty for a Title VII violation (where the defendant in Gore, a tort case, had no such fair warning), the cap sets out a clear amount, and it states the degree of culpability a defendant must have had, thus reducing the chance of random or arbitrary awards. Moreover, "Gore's ratio analysis has little applicability in the Title VII context," because the statutory cap doesn't lend itself to a ratio analysis the way a common law damage award does. (Under Title VII's caps, the punitive damages can't increase proportionally to the harm, because they're capped.)

December 12, 2014 in Cases and Case Materials, Due Process (Substantive), News, Opinion Analysis, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Daily Reads: On Torture

With the publication of the more than 500 page  "Executive Summary" of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (searchable document here),  the subject of torture is dominating many public discussions.

A few items worth a look (or second look):

    In French, Justice Scalia's interview with Le Journal du matin de la RTS (videos and report) published today.  One need only be marginally fluent in French to understand the headline: "La torture pas anticonstitutionnelle", dit le doyen de la Cour suprême US.  (h/t Prof Darren Rosenblum).

    The French report will not surprise anyone familiar with Justice Scalia's discussion of torture from the 2008 "60 Minutes" interview discussed and excerpted here.

    The "ticking time bomb" discussion in Scalia's remarks is the subject of an interesting commentary by ConLawProf Rosa Brooks in Foreign Policy provocatively entitled "Tick, Tick, Bull, Shit."

    And while Justice Scalia contended that defining torture is going to be a "nice trick," LawProf David Luban's 2014 book Torture, Power, and Law offers very explicit definitions, even as it argues that these definitions can erode as torture becomes "normalized," seemingly giving credence to Scalia's point.

800px-Woodcut_illustration_of_Leaena_-_Penn_Provenance_Project
Woodcut circa 1540 via

 

December 12, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Executive Authority, Foreign Affairs, International, Interpretation, News, Scholarship, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, December 11, 2014

Judge Restricts Police Use of Tear Gas in Ferguson

U.S. District Judge Carol Jackson today ordered police to warn crowds before the police use tear gas and to provide "reasonable" time for people to disperse, according to the St. Louis Post-Dipatch. The temporary restraining order comes in a case filed Monday that alleged that police intimidated demonstrators, assaulted them with tear gas and pepper spray, arbitrarily labeled peaceful protestors as unlawful assemblies, and refused to wear name tags--all of which had a chilling effect on the plaintiffs' First Amendment rights.

Judge Jackson reportedly expressed concern that police failed to distinguish between peaceful protestors and criminals.

We previously posted on a federal court temporary injunction in another against the police move-along rule in Ferguson.

December 11, 2014 in Association, Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

First Amendment Exam Question on Ferguson Protest Prompts Controversy

Writing exam questions that engage with current controversies can themselves cause controversy.

Or that seems to be what happened at one law school when the ConLawProf sought to incorporate the Ferguson protests into a First Amendment exam hypothetical.  Reportedly, this was the question:

"Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision."

This seems like a plausible query, if a bit sparse on facts as related (depending on what students should be expected to know from what was covered in class).  The controversy sparks in part from the exam's role assignment to work for the prosecutor.  (As the report states: "But it's quite another thing to ask students to advocate for an extremist point that is shared by only the worst people in an exam setting. You don't give your students an exam where they have to defend Holocaust deniers or ISIS terrorists. It's inappropriate and not a fair measure of their understanding of law.")

However, the question's task (at least as I'm reading it) is to objectively discuss the merits.  Would such a charge contravene the First Amendment?  The issue calls for the articulation of the clear and present danger "test" as the professor's explanation of the question in the report attests.  It also would call for an application of cases, depending on which cases were covered,  such as Brandenburg v. Ohio (involving the Ku Klux Klan) and Hess v. Indiana (involving an anti-war protester). And, it seems to me that the prosecutor would have a very difficult time surmounting a First Amendment challenge to a charge, making an assignment to the prosecution side the more difficult one. 

1024px-Ferguson_Protest,_NYC_25th_Nov_2014_(15695115899)

This should not make ConLawProfs shy away from using "controversial" material on exams, but to use them with care, with as much understanding of our students as possible, having listened to the concerns they bring forward in class discussions.  Indeed, the report does suggest that the controversy is simply not this exam.  There seem to be other issues including the lack of diversity at the law school.  A lack of diversity could mean that a small number of students would be emotionally involved with the question in ways that other students would not.  The same report contains a reaction from the dean and the professor, with an accommodation that this question will be disregarded in the grading of the exam. 

Meanwhile, as has been widely reported, at least one law school is allowing some students to postpone final exams because of the controversies regarding the grand juries non-indictment in the killings of Michael Brown in Ferguson and Eric Garner in Staten Island.

[image via]

(h/t Leis Rodriguez)

December 11, 2014 in Current Affairs, First Amendment, Race, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Newsweek on Civil Gideon

Newsweek reports that two New York City council members have proposed a bill to guarantee low-income tenants a right to an attorney in eviction proceedings. The story put the bill in the larger context of the civil-right-to-counsel movement, which we've mentioned most recently here.

The story also references a recent forum hosted by the Impact Center for Public Interest Law at New York Law School (forum flyer is here), and the National Coalition for a Civil Right to Counsel.

December 11, 2014 in Conferences, Equal Protection, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 10, 2014

Montana Supremes Grant Right to Counsel in Private Adoption, Termination Cases

The Montana Supreme Court ruled in In the Matter of the Adoption of AWS and KRS that state constitutionaly equal protection guaranteed the right to counsel for an indigent mother in a private termination-of-parental rights proceeding.

The ruling means that poor parents in Montana now have a constitutional right to an appointed attorney to represent them in private cases (like adoptions) involving the termination of their parental rights.

The ruling also illustrates how state constitutional rights can be more generous than federal constitutional rights. (Under Lassiter v. Dep't of Social Services, there is no categorical constitutional right to counsel in a termination proceeding under the Fourteenth Amendment.)

The Supreme Court applied Montana state constitutional equal protection, which the court said "provides even more individual protection than the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution."

The court noted that parents subject to state-initiated termination of parental rights (as in an abuse-and-neglect proceeding) have a state statutory right to counsel, but that parents subject to private termination of parental rights (as in an adoption, as in this case) don't. Because the underlying right--the right to parent--is fundamental, the court applied strict scrutiny to the distinction.

The court said that the only reason for not providing counsel in the private termination case was money. And that's not a sufficiently important state interest under strict scrutiny. So the indigent parent in a private termination case gets an attorney, too, as a matter of state constitutional equal protection.

The court suggested that an attorney in a state-initiated termination proceeding might be constitutionally compelled, or at least the issue raises a serious constitutional question, under the Montana constitution. (Under the Fourteenth Amendment and Lassiter v. Dep't of Social Services, there is no categorical constitutional right to counsel, and the answer depends on a Mathews v. Eldridge balancing.) This means that the state legislature can't solve the equal protection problem by taking away the statutory right to counsel for parents in a state-initiated termination proceeding; instead, it has to ratchet-up the rights of parents in a private termination proceeding.

For more information on civil right to counsel, or Civil Gideon, check out the National Coalition for a Civil Right to Counsel, an outstanding organization that is the clearinghouse for the excellent work in this area.

December 10, 2014 in Cases and Case Materials, Comparative Constitutionalism, Equal Protection, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 9, 2014

Ninth Circuit Upholds Arizona Bar Reciprocity Rule

The Ninth Circuit yesterday upheld Arizona's reciprocal bar licensing rule against a host of federal constitutional claims. The ruling means that Arizona's rule stays in place.

At issue was Arizona's Rule 34(f), which permits admission to the state bar on motion for attorneys who are admitted to practice in states that permit Arizona attorneys to be admitted on a basis equivalent to Arizona's, but requires attorneys admitted to practice law in states that don't have such reciprocal admission rules to take the bar exam.

According to the National Conference of Bar Examiners and the ABA, just less than half the states and jurisdictions offer reciprocal admissions under this kind of rule.

Plaintiffs challenged the rule under the Equal Protection Clause, the Fourteenth Amendment Privileges or Immunities Clause, Article IV Privileges and Immunities, the Dormant Commerce Clause, and the First Amendment. The court rejected all of these claims.

As to equal protection, the court applied rational basis review and said that the state had legitimate interests in regulating its bar and in ensuring that its attorneys are treated equally in other states.

As to Article IV Privileges and Immunities and the Dormant Commerce Clause, the court said that the rule didn't discriminate against out-of-state attorneys--that it was a neutral rule that treated all attorneys alike--and that it advanced substantial state interests (the same as those above). The rule's neutrality also drove the result in the plaintiffs' Fourteenth Amendment privileges or immunities claim, because the right to travel isn't implicated (it can't be, if everybody is treated alike).

As to the First Amendment, the court applied the time-place-manner test and upheld the rule. The court flatly rejected the plaintiffs' right of association and right to petition claims.

December 9, 2014 in Association, Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Equal Protection, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Privileges or Immunities: Fourteenth Amendment , Speech | Permalink | Comments (0) | TrackBack (0)

Monday, December 8, 2014

How Elite Lawyers Influence the Supreme Court

Check out The Echo Chamber: A Small Group of Lawyers and its Outsized Influence at the U.S. Supreme Court, a penetrating study of the influence that an elite band of attorneys exerts on the cases the Court takes up, and how it decides them. Echo Chamber is a special report by Reuters, in three parts, penned by Joan Biskupic, Janet Roberts, and John Shiffman.

The upshot: A small group of attorneys, just 66 of them, exert a tremendous influence over the cases the Court hears, with a decidedly pro-business tilt.

According to the authors, public interest lawyers may exert an influence, too--but by not filing, so as to avoid a binding ruling against them by a conservative-leaning Court. "[P]ublic interest lawyers effectively influence the court's agenda, too. They do so by declining to draft petitions for some kinds of civil rights and consumer cases. Their rationale: They do not want the Supreme Court to revisit decades-old decisions that tend to favor the liberal agenda."

The authors examined cert. petitions, and the attorneys who filed them, over a nine-year period to identify the 66 lawyers and 31 law firms that were "most active and successful before the court."

The conclusion:

The Reuters examination of the Supreme Court's docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal--one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it.

The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber--a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.

December 8, 2014 in Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Saturday, December 6, 2014

Supreme Court to Hear First Amendment Challenge to Specialty License Plate Denial

The United States Supreme Court has granted certiorari in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate that would display the confederate flag to the Sons of Confederate Veterans.

The Fifth Circuit's divided panel opinion, authored by Judge Edward Pardo, reversed the district judge's grant of summary judgment to Texas and concluded that the denial of a specialty license plate bearing a Confederate flag symbol constituted impermissible viewpoint discrimination under the First Amendment.  The majority concluded that a "reasonable observer" of the license plate would believe it was the speech of the automobile's owner and not the government, and thus Texas cannot constitutionally allow some viewpoints to be expressed on the license plates but not others.  Dissenting, Judge Jerry Smith contended that the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) controls: there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.

Confed symbol
symbol on proposed license plate via

The constitutional status of license plates - - - whether they are specialty, vanity, or state-mandated - - - has been fertile ground for First Amendment litigation.  As we've discussed, the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.

What might be called the First Amendment doctrine of license plates, following from the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech has become more complex with the introduction of specialty and vanity license plates.  Such plates do produce revenue for states, but also provoke First Amendment concerns and expensive litigation.  In granting certorari, the Court has the opportunity to settle the matter.  Or perhaps the Court will further complicate the issue of expressive license plates on our cars.

 

December 6, 2014 in First Amendment, Fourteenth Amendment, Race, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, December 5, 2014

States Sue Feds Over President's Immigration Policy

As expected, Texas Governor-Elect Greg Abbott led 17 other states and state officials in suing the federal government over President Obama's immigration policy.

The complaint contains no surprises; everything Abbott said would be in it is there. And as expected, it reads more like a political ad (in numbered paragraphs) than a serious legal complaint.

The complaint argues that the President, through DACA and administration immigration policies, caused a humanitarian crisis by encouraging illegal immigration and then turning a blind eye to undocumented immigrants within the country. It contends that the President, having created this crisis, now makes it even worse by authorizing an even larger class of certain undocumented immigrants to stay. The plaintiffs claim that even President Obama previously said, repeatedly (with quotes), that taking the kind of action that he took would have exceeded his authority. This all appears to be just context, or even political blustering; the plaintiffs don't say why or how any of it bears on their legal claims.

The complaint discusses the OLC memo that provides legal justification for President Obama's policy, but doesn't seriously try to undermine it. The complaint says only that the OLC justifies President Obama's policy based in part "on much smaller and more targeted deferred action programs that previous Congresses approved," such as "deferred action for victims of violence and trafficking, family members of U.S. citizens killed in combat, and family members of individuals killed in the September 11 attacks."

That's true, as far as it goes. But it also woefully under-describes the OLC analysis. The complaint doesn't take issue with the other components of the OLC memo, like the statutory analysis, e.g. The plaintiffs appended the OLC memo to their complaint.

The plaintiffs argue that the President's policy violates the Take Care Clause and the APA. As to the Take Care Clause, the complaint says, "the President admitted that he 'took an action to change the law.' The Defendants could hardly contend otherwise because a deferred action program with an acceptance rate that rounds to 100% is a de facto entitlement--one that even the President and OLC previously admitted would require a change to the law." As to the APA, the complaint alleges that the President's policy made law without proper authority, and without following notice-and-comment rulemaking procedures.

December 5, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)