Thursday, July 16, 2009
The backstory of U.S. v. Reynolds, the Supreme Court case that gave rise to the modern state secrets privilege, is well known. But you might want to check out this 14-minute segment on NPR's This American Life. Host Ira Glass interviews Barry Siegel, author of Claim of Privilege, and Judy Loether, who lost her father in the B-29 crash that formed the plaintiffs' underlying tort claims in the Reynolds litigation. This very short piece could make a nice supplement to your lessons on the state secrets privilege.
Click on the link above--the one at "14-minute segment"--click on the full episode, and move the cursor in the audio box forward in the program. This segment begins at 29:05.
Thanks to student Gina LoGalbo for the tip.
Wednesday, July 15, 2009
Tracey Rhine, a Texas mother who lost custody of her child to temporary foster parents in a private custody dispute in the Texas courts, filed a cert. petition with the U.S. Supreme Court to challenge the Texas courts' denial of appointed counsel, according to the Texas Lawyer.
The Texas Department of Protective and Regulatory Services removed Rhine's child from Rhine's custody and placed the child with a temporary foster couple. After Rhine and the Department agreed upon conditions, the Department placed the child back with Rhine. The foster couple then sought custody in the Texas courts, and Rhine moved for court-appointed counsel. The Texas courts rejected Rhine's request for appointed trial counsel and awarded custody to the foster parents. The state appellate court rejected Rhine's request for appointed appellate counsel and remanded the case to the trial court. The trial court found that Rhine was indigent, but did not qualify for court-appointed counsel, because the underlying custody case was not initiated by the state (it was initiated by the foster parents).
Texas law provides for court-appointed counsel for indigent litigants in state-initiated deprivation-of-parental-rights proceedings, but not in private custody disputes. The differential treatment raises equal protection concerns, and Rhine argued in her cert. petition that the Texas courts' denial of appointed counsel in her case violated the Fourteenth Amendment Equal Protection Clause.
Rhine's argument is not without precedent--but it's state constitutional precedent. The Illinois and North Dakota courts have ruled that state equal protection doctrine mandates appointment of counsel under similar circumstances. California courts have gone the other way under their state constitution.
Rhine's argument on equal protection grounds also sidesteps the major hurdle that plaintiffs face in seeking a civil right to counsel: the Supreme Court's 1981 case Lassiter v. Department of Social Services. In that case, the Court ruled that an indigent litigant had no categorical right to counsel under the Due Process Clause--that due process demanded a balance (the Mathews v. Eldridge balance) to determine whether an indigent litigant qualified for appointed counsel in any particular case. Oddly--and without citation to authority--the Court in Lassiter established a presumption against appointed counsel except in cases where physical liberty was at stake.
Rhine's case avoids the Lassiter hurdle by arguing equal protection, not due process. And on the right to appellate counsel, Rhine's case at least potentially avoids the Lassiter hurdle by pursuing an argument tilted toward equal protection under Douglas v. California (establishing a right to appellate counsel for criminal defendants on equal protection grounds). (I made that argument here and here.) Thus Rhine doesn't appear to be taking on Lassiter--that could have been a tough case in the current political and economic environment, and with the current composition of the Court. Instead, Rhine is moving around Lassiter with an argument that worked under at least two state constitutions.
If the Court takes the case, three issues will be important to watch: first, the Court's treatment of the Fourteenth Amendment Equal Protection Clause; second, the Court's treatment of access to justice issues (and, possibly, how it treats the fundamental right to access in Tennessee v. Lane in this different context); and finally, the Court's treatment of state constitutional rulings on parallel provisions.
For more on the civil right to counsel movement, check out the National Coalition for a Civil Right to Counsel web-site.
Tuesday, July 14, 2009
Sen. Orrin Hatch (R-UT) today questioned Supreme Court nominee Judge Sonia Sotomayor on Second Amendment application to the states. The exchange--or, rather, Hatch's statements--reveal several political and doctrinal problems for those who simultaneously favor Second Amendment incorporation, originalism, and a restrained judiciary. Under Supreme Court precedent, these values are in fundamental tension in the incorporation debates, and only the Supreme Court can provide a solution. (But, ironically, the solution for this camp may be worse than the problem.)
Here's part of the exchange:
Hatch: I understand. Let me turn to your decision in Maloney v. Cuomo. [Our post, by RR, here.] This was the first post-Heller decision about the Second Amendment to reach any federal court, or federal appeals court. I think I should be more specific. In this case, you held that the Second Amendment applies only to the federal government, not to the states, and this was after Heller. And am I right that your authority for that proposition was the Supreme Court's 1886 decision in Presser v. Illinois?
Sotomayor: That, plus some Second Circuit precedent that had held . . .
Sotomayor: . . . that it had not been--that the amendment had not . . .
Hatch: But Presser was definitely one of the . . .
Sotomayor: It was, but . . .
Hatch: . . . cases you relied on? OK. In that case--or, I should say, that case involved the Fourteenth Amendment's Privileges and Immunities Clause. Is that correct? You're aware of that?
Sotomayor: It may have. I haven't read it recently enough to remember exactly.
Hatch: You can take my word on it.
Sotomayor: OK. I'll accept . . .
Hatch: Thank you. Last year's decision in Heller involved the District of Columbia, so it did not decide the issue of whether the Second Amendment applies to the states or is incorporated, but the Court did say that its 19th century cases about applying the Bill of Rights to the states, quote, "did not engage the sort of Fourteenth Amendment inquiry required by our later cases," unquote.
Now here's my question: Am I right that those later cases to which the Court referred involved the Fourteenth Amendment's Due Process Clause rather than its Privileges and Immunities Clause?
. . .
Isn't the Presser case that you relied on in Maloney to say that the Second Amendment does not apply to the states one of those 19th century cases where they've used the Privileges and Immunities Clause, not the Fourteenth Amendment Due Process Clause, to incorporate?
. . .
Well, the reason, the reason I'm going over this is because I believe you've applied the wrong line of cases in Maloney, because you were applying cases that used the Privileges and Immunities Clause and not the cases that used the Fourteenth Amendment Due Process Clause.
. . .
Well the point that I'm really making is that the decision was based upon a 19th century case that relied on the Privileges and Immunities Clause, which is not the clause that we used to invoke the doctrine of incorporation today, and that's just an important consideration for you as you see these cases in the future.
The problem is that the values of Second Amendment incorporation, originalism, and a restrained judiciary (or at least a restrained circuit judge, one who does not make policy) run up against each other under the Court's jurisprudence. Under Hatch's 19th century cases--which, alas, are still good law--Judge Sotomayor could not have incorporated the Second Amendment by way of the Fourteenth Amendment Privileges or Immunities Clause. Everyone--including the Seventh and Ninth Circuits--seems to agree on this.
But then judicial restraint runs up against incorporation: a restrained circuit court judge should not incorporate the Second Amendment under the Due Process Clause; this is a job for only the Supreme Court. (Favoring incorporation over the value of a restrained circuit judge puts Hatch in the surprising company of the Ninth Circuit--the archetypal "activist" court--and at odds with a Seventh Circuit panel that included Judges Easterbrook and Posner.)
And originalism runs up against both Due Process incorporation and the desire for restrained circuit judges. An originalist method would point to incorporation--by way of the Privileges or Immunities Clause, not the Due Process Clause. But this would have required Judge Sotomayor to vote to ignore those 19th century cases--clearly beyond a restrained circuit judge's authority.
The best a restrained circuit judge could do is exactly what Judge Sotomayor--and Judges Easterbrook and Posner--did: punt on Second Amendment incorporation until the Supreme Court rules.
Those simultaneously committed to Second Amendment incorporation, originalism, and a restrained judiciary shouldn't fault Judge Sotomayor for her restrained decision in Maloney. Instead, they should press the Supreme Court to overturn those 19th century cases and incorporate the Second Amendment by way of the Fourteenth Amendment Privileges or Immunities Clause.
But for this crew, this solution might well be worse than the problem. A revitalized Privileges or Immunities Clause could provide strong ammunition for those who seek more and broader unenumerated (and politically controversial) rights through the courts and a greater role for the federal courts in protecting individual rights against the states.