Thursday, March 26, 2015

Fifth Circuit Rejects FMLA Claims

The Fifth Circuit dismissed most of the plaintiff's Family and Medical Leave Act case in Bryant v. Texas Dep't of Aging and Disability Services, holding that most claims were barred by state sovereign immunity and qualified immunity. But the court remanded the question whether the plaintiff's claim for monetary damages against her supervisor is barred by state sovereign immunity.

The plaintiff, Tammy Bryant, sued her employer, Texas Department of Aging and Disability Services, and her direct supervisor, Kim Littleton, for interfering with her self-care FMLA leave and for retaliating against her for taking FMLA leave. She sought reinstatement and monetary damages.

The Fifth Circuit dismissed most of Bryant's case. The court ruled that while Congress validly abrogated states' Eleventh Amendment immunity with respect to the FMLA's family-care provision, Nev. Dep't of Human Resources v. Hibbs, Congress did not validly abrogate with respect to the self-care provision. Coleman v. Court of Appeals of Maryland. As a result, the department had Eleventh Amendment immunity against Brant's self-care claims for monetary damages.

As to Bryant's claim for reinstatement, the court said that the Ex Parte Young exception (allowing plaintiffs to sue a state for prospective relief) did not apply to suits against state agencies; it only applies against state employees acting in their official capacities.

The court ruled further that Littleton enjoyed qualified immunity from Bryant's interference claims, because Bryant failed to show that Littleton violated clearly established law.

Finally, the court remanded Bryant's claim for monetary damages against Littleton. The court recognized that this "depends on the state's being the real party in interest" and left it to the lower court to work that out.

March 26, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Eleventh Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Indiana Governor Signs Controversial State RFRA Law

Governor Mike Pence of Indiana  in a "private ceremony," signed the controversial Senate Act 101, a state RFRA, into law. 

Governor_Pence_Official_Headshot
Governor Mike Pence of Indiana via

Like the federal RFRA - - - the basis for the majority opinion of the United States Supreme Court in Hobby Lobby v. Burwell finding that the so-called "contraceptive mandate" of "Obamacare" was invalid - - - the Indiana RFRA provides in section 8:

(a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability.
(b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
    (1) is in furtherance of a compelling governmental interest; and
    (2) is the least restrictive means of furthering that compelling governmental interest.

 The Indiana statute makes clear that a if a person's exercise of religion "is likely to be substantially burdened," the person may "assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding." 

For many, this signals a religious exemption from anti-discrimination laws protecting LGBTQ persons.  (Although Indiana does not include sexuality or gender identity in its discrimination laws, some localities and institutions do.)  Governor Pence alluded to this argument, even as he interestingly (and some might say misleadingly) highlighted the "government action" requirement in his signing statement:

“This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved. For more than twenty years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana."

Nevertheless some companies are already reacting to a perception that Indiana has now sanctioned LGBTQ discrimination.

March 26, 2015 in Current Affairs, Equal Protection, Free Exercise Clause, News, Religion | Permalink | Comments (2) | TrackBack (0)

Ninth Circuit to Reconsider "Good Cause" Requirement for Concealed Carry

The Ninth Circuit announced today that it would reconsider a three-judge panel's ruling striking San Diego's requirement that a person show "good cause" before obtaining a concealed carry permit. ("Good cause" means something beyond the ordinary concern for safety.)

Recall that a divided three-judge panel ruled last year in Peruta v. County of San Diego that the "good cause" requirement violated the Second Amendment. The court said that the requirement wasn't a mere regulation of the right to bear arms; instead, the requirement destroyed the core of that right. As a result, the court declined to specify a level of scrutiny and simply struck the requirement.

The ruling aligned with the Seventh Circuit, but contrasted with rulings in the Second, Third, and Fourth circuits upholding similar requirements.

Today's announcement suggests that the full Ninth Circuit may reverse the earlier panel ruling and align itself with those courts that have upheld "good cause" and similar requirements.

March 26, 2015 in Cases and Case Materials, Fundamental Rights, News, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 25, 2015

In Victory for Plaintiffs, Court Vacates, Remands Alabama Redistricting Case

The Supreme Court ruled today (5-4, with Justice Kennedy joining the four progressives in the majority) that the district court erred in its analysis of the plaintiffs' racial gerrymandering claims against the State of Alabama in the wake of the state's redistricting after the 2010 census. The ruling, a victory for the plaintiffs, sends the case back to the district court and allows the parties to introduce additional evidence to support their cases. It also gives the momentum to the plaintiffs on the merits. We previously posted on the case here.

The case now goes back to the district court for reconsideration in light of the four points below. Today's ruling also allows the plaintiffs to submit additional evidence in support of their claims, thus strengthening their district-specific discrimination claims, their claims that race was a predominate factor in drawing certain districts, and their argument that the state's use of race wasn't sufficiently tailored to comply with Section 5 of the Voting Rights Act.

Thus while today's ruling isn't an outright victory for the plaintiffs, it gives them the clear momentum on remand.

The case, Alabama Legislative Black Caucus v. Alabama, arose after Alabama redrew its legislative districts in a way that packed black voters into existing majority-minority districts. The state said it did this in order to avoid retrogression under Section 5 of the Voting Rights Act. (The state was then covered by Section 5, pre-Shelby County.) The plaintiffs challenged the move as a racial gerrymander. The three-judge district court rejected the challenge and ruled in favor of the state.

The Court (by Justice Breyer) vacated that ruling and remanded the case. Justice Breyer wrote that the district court made four legal mistakes:

1. The district court treated the plaintiffs' challenge to the redistricting as a whole, when it should have treated the challenge in specific electoral districts. The Court said that the district court concluded that because racial criteria had not predominated in redrawing some districts, racial criteria did not predominate "with respect to the State as an undifferentiated whole." This was in error. Moreover, the Court held that the plaintiffs didn't pitch their case only against the State as an undifferentiated whole (as the dissent argued); instead, the plaintiffs presented evidence to support a district-specific approach (even if they could have made this case "more clearly")--the approach that the district court should have used.

The Court ordered the district court to consider a district-specific approach on remand and allowed the plaintiffs to produce additional evidence to support their claims.

2. The district court erroneously held that the Alabama Democratic Conference lacked standing to make its claims against redistricting as a whole and as to four individual Senate districts. The district court said that the Conference lacked associational standing, because the record didn't clearly identify the districts where individual Conference members resided. The Court said this was wrong--and that the district court should have given the Conference an opportunity to show standing. The Court held that the recorded supported the fact that the Conference was state-wide, and had members in each of the state's majority-minority districts. The Court ordered the district court on remand to "reconsider the Conference's standing by permitting the Conference to file its list of members and permitting the State to respond, as appropriate."

3. The district court erred by holding in the alternative that the race was not a predominant factor in the creation of any individual district. The Court held that the district court "did not properly calculate 'predominance,'" because it concluded that the state considered race along with other race-neutral factors, so that the other factors outweighed the consideration of race. Justice Breyer explained:

In our view, however, an equal protection goal is not one factor among others to be weighed against the use of race to determine whether race "predominates." Rather, it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator's determination as to how equal population objections will be met."

In other words, the question whether race predominates compares a state's consideration of race with its consideration of race-neutral factors like compactness, contiguity, respect for political subdivisions or communities, incumbency protection, and political affiliation. But that comparison list does not include equal population. Equal population is different, because it's constitutionally required. "It is not a factor to be treated like other nonracial factors when a court determines whether race predominates over other, 'traditional' factors in the drawing of district boundaries." Instead, it's a "background rule against which redistricting takes place." And the district court was wrong to say otherwise.

Treating equal population as a background rule (and not one of the nonracial factors), the Court said that race might well have predominated in the drawing of certain districts. It remanded for reconsideration.

4. The district court wrongly concluded that even if race predominated, the gerrmandering claims failed because the redrawn districts satisfied strict scrutiny--that is, they are drawn to comply with Section 5 of the VRA. The Court said that the district court misperceived Section 5: It "does not require a covered jurisdiction to maintain a particular numerical minority" (as the district court held), but rather "requires the jurisdiction to maintain a minority's ability to elect a preferred candidate of choice."

Justice Scalia wrote the principal dissent, joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Scalia said that the plaintiffs screwed up their case by alleging a state-wide violation--a claim the law doesn't allow--and that the majority wrongly gave them a do-over.

[A]llowing appellants a second bite at the apple invites lower courts similarly to depart from the premise that our is an adversarial system whenever they deem the stakes sufficiently high. Because I do not believe that Article III empowers this Court to act as standby counsel for sympathetic litigants, I dissent.

Justice Thomas wrote a separate dissent for himself alone to say how "our jurisprudence in this area continues to be infected with error." "We have somehow arrived at a place where the parties agree that Alabama's legislative districts should be fine-tuned to achieve some 'optimal' result with respect to black voting power; the only disagreement is about what percentage of blacks should be placed in those optimized districts. This is nothing more than a fight over the 'best' racial quota.'"

 

March 25, 2015 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Court Dismisses Defamation Case on Government State Secret Assertion

Judge Edgardo Ramos (SDNY) dismissed a private defamation case this week after the government moved to intervene and asserted the state secrets privilege. Judge Ramos ruled that moving forward with the case at all (even excluding privileged evidence) would "impose an unjustifiable risk of disclosing state secrets." The ruling thus puts an end to the case, unless and until appealed. It is not a ruling on the merits, however.

The case, Restis v. American Coalition Against Nuclear Iran, involves Greek shipping magnate Victor Restis's defamation claim against the group United Against Nuclear Iran for claiming, as part of its "name and shame" campaign, that Restis was involved in the illegal exportation of Iranian oil in violation of international sanctions. Restis sued UANI, and the government intervened and moved to dismiss on state secrets grounds, filing a classified declaration by the head of the government department that has control over the matter in support. (The government asserted, and the court apparently accepted, that the government couldn't even reveal "the department that has control over the matter" without risking the disclosure of secret information.)

Judge Ramos reviewed the declaration in camera and held two ex parte, in camera meetings with the government before determining that the state secrets privilege applied. "Having carefully reviewed the classified declarations and documents submitted by the Government ex parte, and being cognizant of a district court's obligation to grant 'utmost deference' to the executive's determination of the likely import of disclosure of the information on military or diplomatic security, the Court is satisfied that there is a reasonable danger that disclosure of the facts underlying the Government's assertion would in fact jeopardize national security."

Judge Ramos went on to say that "further litigation of this action would impose an unjustifiable risk of disclosing state secrets" and dismissed the case entirely. (Under the state secrets privilege, Judge Ramos might have allowed the case to move forward without the privileged evidence. But here, he said, any further litigation would risk disclosure.)

Notably absent from the ruling was any discussion of the state secrets privilege as a separation-of-powers principle. (Treating the privilege as a separation-of-powers principle has in the past led to a much more robust privilege, as in the Fourth Circuit's ruling in El-Masri.) Instead, Judge Ramos treated the privilege as it was designed and as the government apparently asserted it--as an evidentiary privilege. Even so, the government's assertion of the privilege resulted in the dismissal of the entire case.

Judge Ramos rejected the plaintiff's arguments that the government shouldn't be able to rely only on ex parte submissions for its assertion and that the case could be litigated in an in camera trial--because the evidence was apparently too secret even to tell the lawyers. Judge Ramos wrote, "The nature of the information here requires that counsel not be granted access."

Judge Ramos gave a hat tip--but only a hat tip--to the plaintiff's interest in access to justice:

The Court recognizes that dismissal is a "harsh sanction." It is particularly so in this case because Plaintiffs not only do not get their day in court, but cannot be told why.

Still, he said that "dismissal is nonetheless appropriate," because "there is no intermediate solution that would allow this litigation to proceed while also safeguarding the secrets at issue."

March 25, 2015 in Cases and Case Materials, Courts and Judging, Executive Privilege, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, State Secrets | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 24, 2015

Sierra Club Has Standing, Defeats EPA Redesignation of Cincinnati Area

The Sixth Circuit ruled last week in Sierra Club v. EPA that the Sierra Club had standing to challenge EPA's redesignation of the Ohio and Indiana portions of the Cincinnati area from "nonattainment" to "attainment" of the area's national air quality standards for particulate matter. The court went on to rule that the EPA's redesignation violated the Clean Air Act.

The ruling is notable, because it's the first time the Sixth Circuit had a chance to address a petitioner's burden of production on standing in a direct appeal of a final agency action. The court said that the petitioner bears a burden of production similar to that required at summary judgment (and not like the lower standard required on a motion to dismiss), that is: "the petitioner has to present specific facts supporting standing through citations to the administrative record or 'affidavits or other evidence' attached to its opening brief, unless standing is self-evident." This standard aligns the Sixth Circuit with the Seventh, Eighth, Tenth, and D.C. Circuits.

Here, the Sierra Club attached to its brief a declaration by Sierra Club members who claimed that the redesignation would cause aesthetic, recreational, and physical injuries. As to causation and redressability, the court noted "that many courts have apparently found it so obvious that redesignation would lead to higher emissions that they did not even need to discuss the standing of environmental litigants." Still, the court looked to "reasonable inferences" about redesignation's impact and concluded that "[w]e find it reasonable to infer actual and imminent aesthetic and physical injuries to an identified member of the Club from redesignation of the Cincinnati area."

After concluded that the Sierra Club had standing, the court went on to rule against the EPA on the merits--that the redesignation violated the Clean Air Act.

March 24, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Wisconsin Voter ID Stands, but not for Next Month's Election

The Supreme Court on Monday declined to take up Frank v. Walker, the challenge to the Wisconsin's voter ID law. In a dizzying and complicated case, the Seventh Circuit upheld the law, so yesterday's ruling means that Wisconsin's voter ID law stays in place. (Here's our latest post, when the Supreme Court last fall halted the Seventh Circuit's stay of an earlier district court ruling against voter ID, with links to earlier posts.)

Given the timing, the state said that it won't apply voter ID to its upcoming April 7 elections. But it will apply it to all future elections, including any special elections in 2015.

March 24, 2015 in Cases and Case Materials, Elections and Voting, News | Permalink | Comments (0) | TrackBack (0)

Monday, March 23, 2015

Court Hears Oral Arguments in Texas Sons of Confederate Veterans About Specialty License Plate

The Court heard oral arguments today in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate requested by the Texas Sons of Confederate Veterans.

As we noted when certiorari was granted, the Fifth Circuit's divided opinion, reversing the district judge, found that the denial violated the First Amendment as impermissible viewpoint and content discrimination.  License plate schemes have been well-litigated: 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.

622x350The doctrinal problems involving the Sons of Confederate Veterans proposed specialty plate, bearing the Confederate flag and rejected by Texas, surfaced during the oral arguments.

First, there is the issue of whether the specialty license plate had become a traditional public forum.  Justice Kennedy seemingly tended toward this view, noting - - - twice - - - that no one goes to parks anymore and so these license plates may be a new public forum for a new era. 

Less specifically articulated was whether if there was a limited public forum in the license plates this could have any meaning at all because there were no real standards.  Justice Ginsburg quickly asked the Texas Solicitor General, defending the constitutionality of the state scheme, whether it wasn't "nebulous."  The number of specialty license plates approved and the very few disapproved was noted several times, again making it seem as if any designation was not at all clear.

The notion of government speech was raised at numerous points, echoing the opinion of Fifth Circuit Judge Jerry Smith who had dissented and  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.

Yet Justice Sotomayor suggested that this might be "hybrid speech," asking counsel for the Texas Sons of Confederate Veterans whether this might not be the "reverse" of Wooley v. Maynard (1977): why should the State be compelled to put something on its license plates that it disapproves?

That the state might be seen as endorsing problematical messages surfaced repeatedly, including this discussion with counsel for the Texas Sons of Confederate Veterans:

JUSTICE GINSBURG: Suppose ­­ suppose the message ­­ the ­­ the applicant said, we want this design, and the design is a swastika. Is that speech that ­­ does ­­ does the ­­ the ­­ whoever is in charge of it ­­ of the license plate, do they have to accept ­­- - -
***
MR. GEORGE: I don't believe the State can discriminate against the people who want to have that design ­­- - -

JUSTICE GINSBURG: So they could have the swastika.  And suppose somebody else says, I want to have "Jihad" on my license plate.  That's okay, too?

MR. GEORGE: Vegan?

JUSTICE GINSBURG: Jihad.

MR. GEORGE: Jihad. Jihad on the license plate? Can be ­­ there is obviously a court of appeal ­­ a district court from Ohio in which "Infidels" was held to be ­­ the State ­­

***

JUSTICE KENNEDY: What is your answer in this case as to Justice Ginsburg's hypothetical?  Yes or no, must the State put those symbols or messages on the plates at the request of the citizen?  Yes or no?

MR. GEORGE: Yes.

This prospect seemed worrisome.  But seemingly equally worrisome was the prospect of absolute government discretion manifested by the recurring hypothetical of a government allowing "Vote Republican" but not "Vote Democratic" on the specialty plates, a situation that is arguably consistent with Summum's interpretation of government speech.  Perhaps Sotomayor's suggested "hybrid speech" may be a compromise.  Or less likely, the Court could further clarify public forum and limited (designated) public forum doctrine.

 

March 23, 2015 in Federalism, First Amendment, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

No Absolute Immunity for Officers Who Falsified Evidence

The Ninth Circuit ruled last week that officers who falsely testified against a defendant based on shoddy investigation reports did not enjoy the traditional absolute immunity that witnesses enjoy against a civil suit. The ruling means that the defendant's case against the officers can go forward.

The case, Lisker v. City of Los Angeles, grew out of a wrongful conviction for second-degree murder based upon two police officers' false testimony that was based on shoddy investigation reports. The defendant, Lisker, who served over twenty-six years in custody, sued the officers for civil rights violations under Section 1983. The officers claimed they enjoyed absolute immunity because they were witnesses against him at trial.

But the Ninth Circuit rejected that claim. The court ruled that the officers' testimony was based upon their investigation reports, and, as such, looked more like a non-testimonial act (like "tampering with documentary or physical evidence or preventing witnesses from coming forward," which is not a basis for absolute immunity) than testimony (which is). The court also said that the policy reasons behind absolute immunity didn't apply to the investigative materials here:

Absolute witness immunity is motivated by the recognition that "[a] witness who knows that he might be forced to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence." That immunity extends to conspiracies to testify falsely for practical reasons, as a plaintiff could otherwise easily undermine the interest in witness candor by challenging the conspiracy rather than the testimony itself. But when defendants have "dual roles as witness and fabricator," extending protection from the testimony to the fabricated evidence "would transform the immunity from a shield to ensure" candor into "a sword allowing them to trample the statutory and constitutional rights of others." The detectives' ultimate testimony "does not serve to cloak these actions with absolute testimonial immunity"; if it did, they would be rewarded for "compound[ing] a constitutional wrong."

March 23, 2015 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Friday, March 20, 2015

Puerto Rico Decides Not to Contest Constitutional Challenge to Same-Sex Marriage Ban

In a brief filed today in the First Circuit in Conde-Vidal v. Armendariz, the Solicitor General of the Commonwealth of Puerto Rico essentially sided with the appellants and conceded its same-sex marriage ban is unconstitutional.

Recall that several months ago, United States District Judge for the District of Puerto Rico Juan Perez-Gimenez  dismissed the constitutional challenge to Puerto Rico's law defining marriage as "man and woman" and refusing recognition to marriages "between persons of the same sex or transexuals." In large part, Judge Perez-Gimenez relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question."

The challengers appealed to the First Circuit and the Commonwealth's brief "concedes that Baker’s rationale that federal courts lack jurisdiction to entertain these claims for lack of a substantial federal question can no longer be deemed good law." 

800px-Flag_of_Puerto_Rico_(Light_Blue).svgIndeed, the Commonwealth's brief concedes that the appellants should prevail.  The brief concludes:

It is not usual for the Executive Branch of the Commonwealth of Puerto Rico to refuse to defend the constitutionality of legally-enacted statutes. It is even less usual to adopt a somewhat different position at the appellate level than the one espoused before the lower court. But this is not a usual case and neither the law nor common sense requires us to treat it as such.

In a constitutional democracy there are some rights that have been reserved to the People directly and which no government may infringe, regardless of individual or personal views on the matter. “Our obligation [like this Court’s] is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).

Article 68 of the Civil Code of Puerto Rico excludes LGBT couples from the legal entitlements and rights attendant to civil marriage. Thus, the Commonwealth of Puerto Rico acknowledges that the statute in controversy raises substantial constitutional questions anent the constitutional guarantees of equal protection of the laws and substantive due process.

Because Puerto Rico’s marriage ban impermissibly burdens Plaintiffs ́ rights to the equal protection of the laws and the fundamental right to marry, we have decided to cease defending its constitutionality based on an independent assessment about its validity under the current state of the law. However, “i[t] is emphatically the province and duty of the judicial department to say what the law is.” Windsor, 133 S.Ct. 2675, at 2688 (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1802)), and, since the District Court entered judgment in this case, it is this particular Court’s duty to review the legal conclusions there reached so that they may be brought up to date in accordance with newer developments in this important area of constitutional law.

If History has taught us anything, it is that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 579 U.S. at 579. This case represents but another attempt from a politically disadvantaged group of our society to be included within the full scope of the legal and constitutional protections that most of us take for granted. Plaintiffs seek no preferential treatment; only equality. The Executive Branch of the Commonwealth recognizes the LGBT community’s right to equality under the law.

Defendants-Appellees request that this Honorable Court reverse the Judgment of the District Court that dismissed Plaintiffs-Appellants’ complaint for lack of a substantial federal question.

Given this concession, the First Circuit - - - which has not had occasion to rule on a challenge to a "state" same-sex marriage ban - - - is sure to find that Puerto Rico's same-sex marriage ban is unconstitutional, assuming it reaches the issue before the United States Supreme Court decides the issue in the cases presently before it. 

Recall that the First Circuit did rule that DOMA, the Congressional statute barring federal recognition of same-sex marriage, was unconstitutional in 2012, before the  United States Supreme Court held DOMA unconstitutional in United States v. Windsor, but after the United States Attorney General, Eric Holder, announced the Department of Justice would not defend the constitutionality of DOMA. 

March 20, 2015 in Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Interpretation, News, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Families of Hostages Lack Standing to Halt Government No-Ransom Policy

The Ninth Circuit ruled today in Munns v. Kerry that families of a government contractor taken hostage in Iraq lacked standing to challenge the alleged government policy prohibiting families from offering a reward or negotiating with terrorist kidnappers. The ruling dismisses the case.

The case was brought by former employees of a private firm (and their families) that contracted with the government for security services in Iraq. Former employees of the company claim, through their next of kin, that they were issued substandard military equipment and were ill-prepared for a mission (because of the negligence of their employer, sanctioned by the State Department), that as a result they were taken hostage and held for over a year, and that government policy prohibited the families from negotiating with the kidnappers. Kidnappers brutally executed the employees in 2008.

One plaintiff, Bjorlin, not taken hostage, alleges that he wishes to return to Iraq but wants to be sure that government policies will not prevent his employer from properly equipping him for security missions.

The families of the kidnapped and executed employees argued that an alleged government policy prohibiting them from seeking information on the kidnapped employees, and offering a reward, violated the First Amendment; they sought declaratory and injunctive relief against such a policy. They also argued that the government withheld money that belongs to them as survivors of their deceased contractor relatives, in violation of the Due Process and Takings Clauses; they sought monetary damages.

The Ninth Circuit ruled that the plaintiffs lacked standing for their claims for declaratory and injunctive relief. As to the families of executed employees, the court said that they didn't allege how any government policies would affect them in the future (even if they alleged that those policies affected them in the past). As to Bjorlin, the court said that the chain of events required before he would be affected by any policies was simply too attenuated.

Because the court affirmed the dismissal based on lack of standing, it didn't address the political question doctrine as an alternative basis for dismissal.

The court also rejected the plaintiffs' claims for monetary damages based on sovereign immunity.

March 20, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, March 19, 2015

Ninth Circuit Upholds Rejection of Anti-Israel Ad on Metro Bus

The Ninth Circuit this week upheld a county's decision to reject an ad critical of Israel (and U.S. support for Israel) on the side of a Metro bus against a First Amendment challenge. The ruling says that the bus side is a limited public forum, subject to a lower level of scrutiny--a holding at odds with holdings in other circuits in similar cases--and concluded that the county's rejection of the ad met that lower standard.

We posted just last week on SEPTA's (Southeastern Pennsylvania) rejection of an anti-Muslim ad--and a district judge's ruling that the rejection violated the First Amendment. Here's our post on a federal case out of New York going the same way; and here's our post on the Sixth Circuit, moving in the opposite direction.

King County, Washington, which runs Metro's bus advertising program through a contract with a private company, has a policy that prohibits ads with certain content (ads for alcohol and tobacco, adult movies, video games for mature audiences, and the like). The policy also has two catch-all "civility clauses" that prohibit material that would foreseebly result in disruption of the transportation system or incite a response that threatens public safety.

SeaMAC, a non-profit opposed to U.S. support for Israel, proposed a Metro ad that read:

ISRAELI WAR CRIMES

YOUR TAX DOLLARS AT WORK

www.Stop30Billion-Seattle.org

The county initially approved the ad. But a local television report on the ad provoked a massive hostile, even threatening, response, which overwhelmed the Metro call center and employees' e-mails and caused many customers to express safety concerns.

Soon after the story ran, but before Metro ran SeaMAC's ad, two pro-Israeli groups submitted their own ads:

PALESTINIAN WAR CRIMES

YOUR TAX DOLLARS AT WORK

And (with a picture of Hitler):

IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE,

SUPPORT THE CIVILIZED MAN

Given the hostile reaction to SeaMAC's ad, the county rejected both groups' ads under one of the civility clauses, and SeaMAC sued.

The Ninth Circuit ruled that the side of Metro buses was a limited public forum (not a public forum or designated public forum), based on the pre-screening process for ads, the county's prior implementation (it had not categorically accepted ads, and it had rejected some), and the nature of the side of a bus (the purpose of which was to raise revenue through ad sales).

The court recognized that this put it at odds with other circuits that have held that bus sides were a designated public forum (subject to strict scrutiny). But it said that those courts made a mistake:

Some of those courts, in our view, mistakenly concluded that if the government opens a forum and is willing to accept political speech, it has necessarily signaled an intent to create a designated public forum. Neither the First Amendment nor the Supreme Court's public forum precedent impose that categorical rule.

The court went on to rule that the county's decision was reasonable and viewpoint neutral, and therefore valid.

The dissent argued that the sides of Metro's buses were a designated public forum, subject to strict scrutiny, that the civility clause gave the county too much discretion, and that the county's decision (in light of the hostile reaction to SeaMAC's ad) raised heckler veto problems. The dissent would have remanded the case for determination whether the county's decision satisfied strict scrutiny.

March 19, 2015 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Amar on Court Clones

Akhil Reed Amar writes in this month's Atlantic that the high Court is now packed with Justices that have nearly identical backgrounds--elite educations, prestigious clerkships, and appellate court judgeships--and why that's a problem. Amar argues that the lack of experience in Congress or at high levels in the executive branch is a particular worry:

While a bench overloaded with ex-pols would be unfortunate, the Court would benefit from having at least one or two justices who know how Washington works at the highest levels, and who have seen up close how presidents actually think, how senators truly spend their days, how bills in fact move through Congress, and so on--in short, one or two justices whose resumes resemble those of former Secretary of State John Marshall, Hugo Black, and Robert Jackson.

March 19, 2015 in Courts and Judging, News | Permalink | Comments (1) | TrackBack (0)

Brennan Center: What Went Wrong with the FISA Court?

The Brennan Center just released What Went Wrong with the FISA Court?, a history and analysis of the FISA court, its problems, and some suggested solutions, penned by Elizabeth Goitein and Faiza Patel.

The report walks through the history of FISA to show just how the law, technology, and the FISA court itself changed to create the conditions for the bulk, or programmatic, surveillance programs that we have today. The report argues that current programmatic surveillance programs raise significant Article III and Fourth Amendment problems. In order to solve these, the report suggests the following:

  • End programmatic surveillance by prohibiting bulk surveillance under Section 215 and replacing Section 702 with a regime that would require an individualized court order for surveillance.
  • Enact additional reforms and processes, including adding an adversarial process (an advocate against the government before the FISA court) and increasing transparency.
  • Enact additional Fourth Amendment reforms, including restoring the requirement that the surveillance target is a foreign power or its agent, narrowing the definition of "foreign intelligence information," and restoring the test that requires that obtaining foreign intelligence information is the "primary purpose" of the surveillance.
  • Reform programmatic surveillance, if it must continue.

March 19, 2015 in Courts and Judging, Fourth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Welcome Race and the Law Prof Blog

An exciting new venture and promising source for race and the law scholars, teachers, and students:

Race and the Law Prof Blog

by

Professors Khaled A. Beydoun, Atiba Ellis, Brant T. Lee & Nareissa Smith

(pictured below)

Racelawblog

March 19, 2015 in Race, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 18, 2015

New Jersey Supreme Court Finds Portion of Bias Intimidation Statute Unconstitutional

The Supreme Court of New Jersey has found a section of the state's "bias intimidation" statute, NJ 2C:16-1, unconstitutional in its opinion in State v. Pomianeck.  Subsection a (3) of the statute provides that bias intimidation includes an offense committed:

under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

Justices
New Jersey Supreme Court Justices

The defendant was convicted of violating subsection 3.  He and another public employee, both white, tricked another employee, who was black, into going into a wide steel storage cage, then locked the door, made a "banana" remark and laughed, and after a few minutes opened the cage door.  The defendant was convicted of official misconduct as well as petty disorderly persons’ offenses of harassment by alarming conduct and harassment by communication, in addition to subsection (a)(3) of the bias intimidation statute.

On appeal challenging the constitutionality of subsection (a)(3) , the New Jersey appellate court found that the subsection's focus on the victim's reasonable belief - - - rather than the defendant's actual state of mind - - - was a violation of the First Amendment, relying on cases such as Virginia v. Black and R.A.V. v. St. Paul.  The appellate court therefore found the statute should be construed to include a mens rea and remanded the case.

New Jersey's highest court unanimously found that the appellate court exceeded its bounds by interpreting the statute to include a mens rea.  It then proceeded to the constitutional issues, noting that the first inquiry was "whether the line separating lawful from criminal conduct in subsection (a)(3) is so vague that a reasonable person would not have fair notice when that line is crossed," and thus would not meet the "due process demands of the Fourteenth Amendment.":

The answer raises interrelated First Amendment concerns. Nevertheless, only if subsection (a)(3) can survive due process scrutiny is it necessary to engage in a First Amendment analysis.

The New Jersey Supreme Court concluded that subsection (a)(3) could not survive due process because it hinged on the victim's reasonable belief:

Of course, a victim’s reasonable belief about whether he has been subjected to bias may well depend on the victim’s personal experiences, cultural or religious upbringing and heritage, and reaction to language that is a flashpoint to persons of his race, religion, or nationality. A tone-deaf defendant may intend no bias in the use of crude or insensitive language, and yet a victim may reasonably perceive animus. The defendant may be wholly unaware of the victim’s perspective, due to a lack of understanding of the emotional triggers to which a reasonable person of that race, religion, or nationality would react. Nothing in the history of the bias-intimidation statute suggests that the Legislature intended to criminalize conduct through the imposition of an amorphous code of civility or criminalize speech that was not intended to intimidate on the basis of bias. It bears repeating that no other bias-intimidation statute in the nation imposes criminal liability based on the victim’s reasonable perceptions.

The court thus found subsection (a)(3) unconstitutional under due process doctrine requiring adequate notice and lack of vagueness:  the defendant "was convicted not based on what he was thinking but rather on his failure to appreciate what the victim was thinking"  The court therefore did not reach the First Amendment issue.  The court emphasized that the "twin pillars of the bias- intimidation statute -- subsections (a)(1) and (a)(2) of N.J.S.A. 2C:16-1 -- still stand."

The ruling could also be relevant to a more famous New Jersey bias intimidation conviction of Dharun Ravi of the victim, his Rutgers roommate Tyler Clementi, as the NYT reports.

March 18, 2015 in Courts and Judging, Due Process (Substantive), First Amendment, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)

California Supreme Court on Citizenship and Bar Admission

In its opinion in In re Hong Yen Chang on Admission, the California Supreme Court granted posthumous admission to the bar and reversed its more than a century-old decision in In re Hong Yen Chang 84 Cal. 163 (1890). The case was brought by LawProf Gabriel "Jack" Chin and students at UC-Davis College of Law.

Although Chang had been naturalized and was a lawyer in New York, a combination of the notorious Chinese Exclusion Act, upheld by the United States Supreme Court in Chae Chan Ping v. United States (1889), which prohibited naturalization of Chinese persons and the California requirement that members of the bar be citizens, the 1890 California Supreme Court held that Chang was not a "bona fide" citizen and could thus not be a member of the bar.  In discussing the decision, the 2015 California Supreme Court stated:

Understanding the significance of our two-page decision denying Chang admission to the bar requires a candid reckoning with a sordid chapter of our state and national history.

Yet the court's opinion is not only of historic note.  In discussing the repudiation of the sordid chapter, the California Supreme Court wrote:

More than a century later, the legal and policy underpinnings of our 1890 decision have been discredited. In 1972, this court unanimously held it was “constitutionally indefensible” to forbid noncitizens to practice law, calling such a ban “the lingering vestige of a xenophobic attitude” that “should now be allowed to join those anachronistic classifications among the crumbled pedestals of history.” (Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 291.) One year later, the high court reached the same conclusion. (In re Griffiths (1973) 413 U.S. 717.) In 2013, our Legislature passed a law making undocumented immigrants eligible for admission to the State Bar. (Bus. & Prof. Code, § 6064, subd. (b).) We thereafter granted admission to an undocumented immigrant who had been brought to the United States as a child, put himself through college and law school, passed the California bar exam, and met the requirement of good moral character. (In re Garcia (2014) 58 Cal.4th 440, 466.) We said “the fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar, or prevent the individual from taking an oath promising faithfully to discharge the duty to support the Constitution and laws of the United States and California.” (Id. at p. 460.)

While California has allowed noncitizens to be attorneys as the court notes, the issue is pending in other states, including - - - perhaps paradoxically - - - New York.

Hong-yen-chang-portrait
portrait of Hong Yen Chang via UC Davis School of Law

 

March 18, 2015 in Courts and Judging, Current Affairs, International, Opinion Analysis, Profiles in Con Law Teaching, Race, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

No Attorney Fees in Long-Running Texas Redistricting Case

The Fifth Circuit denied the plaintiffs' claims for attorneys fees in the 2012 case out of San Antonio over Texas redistricting. The ruling marks a bitter end for the plaintiffs in this long-running and complicated dispute that put the plaintiffs between two district courts, two different sections of the Voting Rights Act, the Texas legislature, and the Supreme Court--and stuck them with a $360,000 bill for . . . a victory. The ruling rewards Texas's foot-dragging through the preclearance process as two cases simultaneously worked their ways through the courts.

Recall that the plaintiffs sued Texas in the Western District of Texas over the legislature's redistricting plan. The plaintiffs argued that the plan violated Section 2 of the Voting Rights Act and the Equal Protection Clause, and that it hadn't been precleared under Section 5. (The preclearance case was pending before a three-judge court in D.C.) The San Antonio court enjoined the legislature's redistricting plan because it hadn't been precleared and drew its own district maps.

The Supreme Court then stepped in and rejected the San Antonio court's maps, but gave the court another shot at drawing them. The San Antonio court redrew the maps according to the Supreme Court's new standard. Following the Supreme Court, the San Antonio court issued its new maps as "a result of preliminary determinations regarding the merits of the Section 2 and constitutional claims presented in this case, and application of the 'not insubstantial' standard for the Section 5 claims." (That "not insubstantial" standard said that the San Antonio court could only consider the Section 5 preclearance claim insofar as the plaintiffs' challenges in the D.C. court were "not insubstantial." But the merits of the Section 5 claim were reserved to the D.C. court (and not the San Antonio court).)

The D.C. court denied preclearance to the Texas legislature's maps. Texas appealed, but used the San Antonio court's plan as an interim plan for its 2012 elections.

In 2013, the Supreme Court struck the preclearance coverage formula in Shelby County and later vacated the D.C. court's judgment denying preclearance to the legislature's plan. At the same time, Governor Perry signed a bill repealing the legislature's plan and adopting the court's plan. The San Antonio district court dismissed the case (or what remained of it, the plaintiffs' Section 2 and constitutional claims).

This seems like a win for the plaintiffs. So why no attorney fees?

The Fifth Circuit held that the plaintiffs weren't "prevailing parties" under the fee-shifting statute. The court said that the plaintiffs couldn't have won their Section 5 claim at the San Antonio court, because only the D.C. court can rule on the merits of a Section 5 claim. And the Fifth Circuit said that the plaintiffs didn't win their Section 2 and constitutional claims at the San Antonio court, because the San Antonio court never evaluated them.

The Fifth Circuit suggested that the plaintiffs might have been "prevailing parties" under a "catalyst theory," by merely demonstrating that their lawsuit caused Texas to alter its conduct. But the Fifth Circuit noted that the Supreme Court rejected this approach in Buckhannon.

 

March 18, 2015 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Fourth Circuit Dismisses Challenges to Muni Election Law

The Fourth Circuit ruled in Greenville County Republican Party v. Greenville County Election Commission that various challenges to South Carolina's municipal election procedures lacked justiciability and dismissed the case.

South Carolina law required municipalities to adopt by ordinance either a partisan or nonpartisan way of nominating candidates for public office in municipal elections. If a municipality selected the partisan method, South Carolina law allowed a certified political party to select one of three procedures: a party primary, a party convention, or a petition. Nomination by party primary required an open primary. Nomination by convention required a 3/4 super-majority vote of the party membership.

The Greenville County Republican Party Executive Committee, an affiliate of the state Republican party but not itself a certified political party, challenged these procedures under the First, Fifth, and Fourteenth Amendments. The Committee sought declaratory and injunctive relief, and monetary damages for having to implement the procedures in prior elections.

As the case worked its way up and down, Greenville changed its ordinance to nominate candidates using a nonpartisan procedure.

The Fourth Circuit ruled that this mooted the Committee's claims for prospective relief. In particular, the court said that the County's decision was not capable of repetition but evading review, because the Committee didn't satisfy its burden of establishing "a reasonable expectation" that it wouldn't go back to the partisan method of nominating candidates for future elections.

As to the surviving claims, the court held that the Committee lacked standing. The court said that the Committee didn't suffer any harm from the super-majority requirement for convention-nominated candidates; instead, the state party suffered that harm--making the Committee's claim a nonjusticiable third-party claim. The court also held that the Committee couldn't satisfy the traceability prong of standing, because it was the state party, not Greenville, that elected to use the open primary system. (The state Republican Party was at one time party to the suit, but withdrew.)

The ruling ends this suit, and, in the wake of Greenville's decision to use a nonpartisan nominating process, almost certainly ends any challenges to Greenville's old partisan process.

March 18, 2015 in Association, Cases and Case Materials, Elections and Voting, Equal Protection, Fifth Amendment, First Amendment, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Monday, March 16, 2015

Daily Read: Lidsky on Gajda's The First Amendment Bubble

Over at Jotwell, First Amendment scholar Lyrissa Barnett Lidsky discusses Amy Gajda's just-published book  The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.

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Professor Lidsky provides the provocative thesis of Gajda's book: it's the fault of quasi-journalists and paparazzi that the First Amendment is losing its luster, or at least its ability to protect what might be called "real journalists."

Lidsky's last paragraph provides a terrific insight - - - as we wait for the United States Supreme Court's opinion in Williams-Yulee v. The Forida Bar - - - linking how elected state judges might feel about the press given their own experiences.

Although she never makes the point explicitly, Gajda’s book is fundamentally an exercise in legal realism. Even though the scope of constitutional rights is not supposed to vary with the winds of public opinion, The First Amendment Bubble documents that the scope of press rights has changed as judges have perceived changes in the press. As she amply and comprehensively demonstrates, trial court judges seem more hostile to the media and more favorable to privacy claimants than their appellate brethren. This hostility may reflect the fact that trial judges, especially state judges, are more likely to have been elected to their positions than their appellate brethren and are thus more likely to be alert to shifts in public opinion. Perhaps the starting point, then, for changing judicial opinions is changing public opinion. To do this, journalists must change their slipshod and sensationalist practices. Let’s hope they can.

Looks like a terrific read, especially for those who might not agree that journalists have lost their integrity any more than lawyers (or judges) may have.

 

March 16, 2015 in Books, Courts and Judging, First Amendment, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)