Saturday, April 3, 2010

A Second Chance at Equal Access to Justice

The Supreme Court has a second opportunity this term to rule on the right to counsel for indigents in civil cases, sometimes called “Civil Gideon,” with a cert. petition filed last week by an indigent state prisoner who brought a pro se civil rights case in federal court against state officials.  The case, Wilson v. Johnson, involves the federal statute that authorizes federal courts to appoint counsel to indigent civil litigants. The case raises the question: Is a federal court’s refusal to appoint counsel to an indigent civil plaintiff immediately appealable, or must the indigent litigant wait until the final judgment in the pro se case before appealing?

The issue is critical for indigent civil litigants seeking equal access to the federal courts.


The case arises from petitioner Lee Wilson’s federal civil rights suit against state officials under 42 U.S.C. Sec. 1983 for misreading his sentencing order and wrongfully incarcerating him five months beyond the end of his sentence.  Wilson moved twice for appointment of counsel pursuant to 28 U.S.C. Sec. 1915; the district court judge in the Eastern District of Virginia denied the motions (even after the Fourth Circuit appointed appellate counsel for Wilson in his appeal of the court’s earlier dismissal of his case). Wilson sought to appeal the denial, but the Fourth Circuit ruled that it lacked appellate jurisdiction, because the denial was neither a final order nor an appealable interlocutory or collateral order. Wilson filed his cert. petition with the Supreme Court last week.

The problem for Wilson and other civil litigants under the Fourth Circuit approach is that they have to wait until the district court enters a final order in the case until they can appeal the court’s order denying the motion to appoint counsel.  In the meantime, they have likely been out-gunned by an adversary represented by counsel—and thus denied equal access to justice.  Wilson’s case provides a good example.  He had to deal with an answer to his complaint that included 14 defenses and a 17-page legal memorandum supporting a motion for summary judgment without the assistance of counsel.  He could appeal the court’s denial of appointment of counsel only after he lost his case.  (Many unrepresented indigent civil litigants wouldn’t even make it that far.  Some would be bullied into an unfavorable settlement, others would not know how to appeal, and others would simply give up.)

Circuits are split on the question of immediate appealability.  Some, like the Fourth Circuit, hold that denial of appointment of counsel is not immediately appealable.  Others hold that it is.  The Ninth Circuit holds that denial of counsel is immediately appealable in some cases, but not in others.  The issue is unique in that every circuit has ruled on it.

However a circuit has ruled, however, the issue evades Supreme Court review.  In circuits that reject immediate appealability, the pro se litigant is unlikely to know that the circuit court’s dismissal for lack of appellate jurisdiction is appealable to the Supreme Court.  In circuits that permit immediate appealability, the pro se litigant has no reason to appeal, and the opposing party is unlikely to appeal.  (The opposing party’s only injury is the interlocutory appeal on whether the indigent party is entitled to representation.)  The case is thus an excellent candidate for Supreme Court review.

The case makes an appealing candidate for Supreme Court review for another reason.  The Court earlier this term denied cert. in Rhine v. Deaton, the Texas case involving an unrepresented mother and her quest for counsel in a private custody dispute with temporary foster parents.  (We posted on that case here and here.)  That case would have required the Court to reassess its ruling in Lassiter v. Department of Social Services (holding that indigent parents do not have a categorical right to appointed counsel under procedural due process).  Wilson, on the other hand, would allow the Court to validate the fundamental right to equal access to justice in a low-impact way, without taking on its own precedent.


April 3, 2010 in Due Process (Substantive), Equal Protection, Fundamental Rights, News, Procedural Due Process, Recent Cases | Permalink | Comments (3) | TrackBack (0)

The Tenth Amendment in Transylvania

When we think of so-called "states' rights" or the Tenth Amendment, we think of the current 50 states, or perhaps if we are more historically-minded, we think of the past, including the "original" 13 colonies/states.  But what about the "other" states, the almost-states? 

Transylvania?  Texlahoma?  Deseret?  South California?  West Florida?

And even - - - Long Island?


An NPR story asserts: "It's been over half a century since Hawaii joined the United States and the 50th star was added to the flag. And — except for the occasional discussion of Puerto Rican statehood — there hasn't been much serious talk about expanding beyond 50. As for unserious talk, that has never been in short supply."

The focus is Lost States: True Stories of Texlahoma, Transylvania, and Other States That Never Made It by Michael J. Trinklein.   The just-published book is advertised to delight history buffs, but it should also provide fodder for theorists of federalism and of the Tenth Amendment. 


April 3, 2010 in Books, Federalism, History, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Friday, April 2, 2010

SALT: The Society of American Law Teachers New Blog

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SALTLAW is the new blog of SALT, Society of American Law Teachers, self-described as a "community of progressive law teachers working for justice, diversity and academic excellence."

SALT  is known for its  teaching conferences, its  activism on behalf of social justice issues including those in constitutional law, and its members, including those featured on the blog: Angela Harris (pictured left) and Rhonda Copelon (pictured right). Picture 11

The blog announcement makes clear that the "blog is not a forum for the expression of SALT’s positions, but a place where our members can publish commentary on emerging issues in law, politics, and education or where they can develop arguments about policies and problems that are persistent or seem intractable.  The SALT Board has no list of topics that should be addressed or any agenda that it has set for this blog."

Instead, the plan is a "year-long schedule of regular and guest contributors who will add voice to progressive issues" and will "include both legal and non-legal issues"  ranging from "conversations about the economic crisis to questions about U.S. torture policies to discussions about the lack of diversity in baseball management to the development of a hip-hop theory of justice."

The roster of planned bloggers is an impressive one featuring many ConLawProfs.   


April 2, 2010 in News, Profiles in Con Law Teaching, Teaching Tips, Weblogs | Permalink | Comments (0) | TrackBack (0)

Thursday, April 1, 2010

Constitutional Law Exam Possibilities

A popular pattern in constitutional law exam questions is a recently passed legislative act.  This semester The Patient Protection and Affordable Care Act, Public Law No: 111-148, available as HR 359, is sure to be a favorite.  Our analysis of some of the issues raised by the Act is here, here, and here

800px-Woman-typing-on-laptop Less predictable Congressional bills can be perused with the “browse” feature of GPO Access.  A few possibilities:  H.R. 257, ``Child Gun Safety and Gun Access Prevention Act of 2009;” H.R. 429, to permit the televising of Supreme Court proceedings;  S. 1529 to prohibit the President, Vice President, or any other executive branch official from knowingly and willfully misleading the Congress of the United States for the purpose of gaining support for the use of force by the Armed Forces of the United States; and S. 723 to prohibit the introduction or delivery for introduction into interstate commerce of novelty lighters.

For state laws, the National Conference of State Legislatures, NCSL, has several different tracking databases including Agriculture and Rural Development, Immigration, Education, Energy, Labor & Employment, and Telecommunications & IT.   The website also has a search feature which can lead to an excellent synopsis and hyperlinked chart of specific state provisions on an area of interest such as Emergency ContraceptionCriminal Records (including access), or even - - - state legislation challenging federal health care reform.  Another state law development source is The Ballot Initiative Gazette (ballotpedia), which also allows searching by state, such as Florida, as well as by issue, such as the ballot initiatives addressing health care.

We've previously discussed the constitutional law exam Professor Obama gave his students in 1996.  If Obama were a professor instead of president this semester, would he be using health care reform as the basis of the exam?  Will you?


April 1, 2010 in Current Affairs, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 31, 2010

Court Rejects Government's State Secrets Assertion in TSP Case

Judge Vaughn Walker (N.D. Cal.) today denied the government's motion for summary judgment based on its claim that the state secrets privilege prevented plaintiff al-Haramain Islamic Foundation from showing that the government's terrorist surveillance program (TSP) violated the Foreign Intelligence Surveillance Act (FISA).  (Thanks to Rebecca Beyer of the San Francisco Daily Journal for the tip.)  Judge Walker also granted the plaintiffs' motion for summary judgment and ruled the TSP program unlawful.

The case, Al-Haramain Islamic Foundation v. Obama, is the culmination of years of litigation at the district court and Ninth Circuit and incessant delay tactics and perpetual foot-dragging on the part of the government.  Among other things, the government made expansive arguments about the application of the state secrets privilege.  (I just posted my paper surveying the government's position on the state secrets privilege post 9/11 here.)  This latest ruling rejected yet two more of the government's expansive arguments on the privilege.

The plaintiffs originally filed their complaint in the case with a classified document that had been inadvertently disclosed by the Office of Foreign Assets Control as part of a production of unclassified documents related to Al-Haramain's designation as a "Specially Designated Global Terrorist" organization.  (The classified document showed that the plaintiffs were subject to surveillance.)  The government moved to dismiss the case, arguing that the very subject matter of the case was a state secret.  The Ninth Circuit rejected this expansive claim but also ruled more narrowly that the state secrets privilege protected the classified document from use in the case. 

The plaintiffs re-pleaded and included new and detailed factual claims supporting their FISA claim (but omitted the classified document, ruled protected by the state secrets privilege).  The government moved to dismiss again, this time arguing that the state secrets privilege foreclosed plaintiffs' attempt to establish their case without the classified document, and that the state secrets privilege overrides the FISA.  Both of these arguments are close cousins of the government's expansive argument that the very subject matter of the case was a state secret.

The court in its order today rejected both of these arguments.  As to foreclosure, the court ruled that nothing in the Ninth Circuit's ruling foreclosed the plaintiffs from establishing their FISA case through other evidence.  (This approach--allowing plaintiffs' suits to move forward, when possible, without privileged material--is the traditional approach to the evidentiary state secrets privilege since U.S. v. Reynolds, as I argue in my article above.)  As to override, the court held the government's position untenable: it would mean that the government could use the state secrets privilege at will to avoid FISA litigation; this was contrary to congressional intent in enacting FISA and contrary to the Ninth Circuit's interpretation of FISA in the earlier appeal.

In making these arguments, the government continued its efforts to expand the state secrets privilege into a constitutional, separation-of-powers principle (and not a mere common law privilege).  The effect of this position is exactly what Judge Walker wrote: the government could use the privilege anytime it wanted, without meaningful judicial check, to override lawsuits (like Al-Haramain's FISA suit) against it.  But the government's position, while argued in several post-9/11 cases, was accepted (so far) by only one circuit court--the Fourth Circuit in El-Masri.  The claim was rejected by a three-judge panel of the Ninth Circuit in Mohamed v. Jeppsen Dataplan, the extraordinary rendition case, but the government pressed this same expansive argument to the en banc Ninth Circuit.  No word yet on that case.


March 31, 2010 in News, Recent Cases, State Secrets | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 30, 2010

Railway Express v New York: Illustration

The pros and cons of powerpoint in the classroom are hotly debated, but for ConLawProfs who like a good illustration to enliven their classrooms with a bit a humor, the below image of a Dutch bus from copyranter  via Above The Law is worth considering.

DutchRailways Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949) is a classic case of equal protection and is excerpted in most Casebooks.  The case is best known for its low standard of rational basis review in equal protection, often called "Railway Express rational basis," or by some students the "lowest of the low" rational basis. 

The NYC Traffic Regulation at issue provided: "No person shall operate, or cause to be operated, in or upon any street an advertising vehicle; provided that nothing herein contained shall prevent the putting of business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business or regular work of the owner, and not used merely or mainly for advertising." 

The government interest was traffic safety, but the Court upheld the classification made which was not a logical one such as size or color of the advertisement, but was based on the ownership of the vehicle on which the advertisement was placed.


March 30, 2010 in Cases and Case Materials, Equal Protection, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

The Reach of Citizens United

The en banc D.C. Circuit ruled on Friday that the logic of Citizens United v. FEC, the Supreme Court's January 21 ruling striking down limits on independent campaign expenditures, also applied to independent campaign contributions. 

The case, v. FEC, involved a First Amendment challenge by an independent 527 political organization to the limits in 2 U.S.C. Sec. 441a, the Federal Election Campaign Act section that limits contributions to organizations engaged in advocacy of the election or defeat of a clearly identified candidate not in cooperation with the candidate, the candidate's political committee, the candidate's party, or the candidate's agent.

The D.C. Circuit ruled the limits unconstitutional based on the reasoning in Citizens United.

The D.C. Circuit ruling may be read as an extension of Citizens United--extending that case from expenditures to contributions--but nothing in the ruling was a particular surprise in the wake of Citizens United.  Instead, the ruling simply applied the logic of Citizens United to a related context and in the process gave a glimpse of the potentially vast reach of that case.

The D.C. Circuit started by recognizing that there is only one government interest that can support an encroachment upon First Amendment principles through regulation of contributions: preventing corruption or the appearance of corruption.  But the Supreme Court in Citizens United narrowed the definition of this interest to a financial quid pro quo--money for political favors.  (The Citizens United Court held that this definition was faithful to the Court's 1976 ruling in Buckley v. Valeo, and that subsequent cases that expanded this definition, including Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC that relied upon Austin, deviated from Buckley and were therefore overruled.)  The Court also ruled that independent expenditures--those expenditures by corporations and labor unions that are not coordinated with a candidate or the candidate's committee or party--do not raise corruption concerns (because, after all, they are independent).

The D.C. Circuit took these holdings from Citizens United on expenditures and applied them to contributions.  The D.C. Circuit ruled that it didn't matter that limits on contributions have been subject to a lower level of scrutiny than limits on expenditures, because under Citizens United, there are no government interests in regulating independent contributions:  the independence of the contributions means that there is no corruption concern.  The plaintiffs' First Amendment interests in contributions--even if less substantial than similar interests in expenditures--were sufficient to outweigh the government's non-interest in corruption.  As the D.C. Circuit wrote, "something outweighs nothing every time."

Thus is an expansion of Citizens United, but not a particularly surprising one.  The core of the problem for those opposed to unregulated independent contributions and expenditures lies in the Court's ruling in Citizens United--that independence nullifies the corruption concerns--not in the D.C. Circuit's application of that ruling. simply gives us a glimpse of just how far Citizens United might reach.


March 30, 2010 in Fundamental Rights, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, March 29, 2010

State Constitutional Law Reference Guides

Ann Lousin (John Marshall, Chicago) recently published The Illinois State Constitution: A Reference Guide, the Illinois contribution to Greenwood/Praeger's series on reference guides to state constitutions.


Lousin's book, like others in the series, is an oustanding treatise on state constitutional law, covering history, doctrine, and current issues.  Lousin, like other authors in the series, has a long and rich history with her state constitution.  (Lousin's experience stretches back to 1969, when served as a research assistant for most of the Sixth Illinois Constitutional Convention.  She has been a fixture in Illinois politics and constitutionalism since then, and she is widely regarded as the state's leading expert on the Illinois Constitution.)

The reference guides are obviously excellent sources for any state constitutional law course.  Perhaps less obviously, they provide outstanding fodder for federal constitutional law courses--as the basis for a comparative constitutional law approach, or complementary constitutional law approach.  They also make for fascinating reading in and of themselves, on issues ranging from interpretation and construction to constitution-making.  As Lousin writes in her Preface:

One of the themes of this book, especially the chapter tracing the history of the Illinois constitutions, is the difficulty in creating a state constitution for a society as diverse as Illinois. . . . Another theme of this book is the struggle of people with sincerely held views and differing backgrounds who had to compromise in order to create a charter for Illinois.


March 29, 2010 in Scholarship, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

The Administration's Divide Over Presidential Authority Post 9/11

Charlie Savage wrote a piece in today's New York Times detailing the divide in the Obama administration over presidential counterterrorism authority, including detention authority and power to order drone strikes.  Savage outlines some of the debates within the administration over whether to maintain, or to modify, the sweeping claims of presidential authority under the Bush administration.  On the one hand, Savage reports that some career Justice Department attorneys thought that scaling back the Bush administration's sweeping claims might make it harder to win detainee suits.  On the other hand, modifying these claims would help demonstrate a clear break with the Bush administration. 

Savage reports that Harold Koh, State Department Legal Adviser, and Jeh Johnson, former Air Force General Counsel and Obama campaign advisor, issued dueling secret legal memos on detention authority in detainee Belkacem Bensayah's case.  (Bensayah was arrested in Bosnia, accused of facilitating travel of individuals who wanted to join Al Qaeda, and held at Guantanamo.)  Koh argued "that there was no support in the laws of war for the United States' position in the Bensayah case"; Johnson argued "for a more flexible interpretation of who could be detained under the laws of war." 

In the end, the administration made some changes to the Bush administration's positions on detention authority, but Savage reports that their significance is disputed:

"I think the change in tone has been important and has helped internationally," said John B. Bellinger III, a top Bush era National Security Council and State Department lawyer.  "But the change in law has been largely cosmetic.  And of course there has been no change in outcome."

But at a recent American Bar Association event, Mr. Koh argued that the administration's changes--including requiring strict adherence to anti-torture rules and ensuring that all detainees are being held prusuant to recognizable legal authorities--have been meaningful.  The United States, he said, can now defend its national-security policies as fully compliant with domestic and international law under "common and universal standards, not double standards."


March 29, 2010 in News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, March 28, 2010

Justices Scalia, Breyer on Constitutional Interpretation

Justices Scalia and Breyer made their latest appearance together in their popular road-show debating constitutional interpretation at the Supreme Court Historical Society last week. 

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The one-hour program was broadcast on C-SPAN last night and is available here.


March 28, 2010 in Interpretation, News | Permalink | Comments (1) | TrackBack (0)