Saturday, October 30, 2010

Arizona SB1070, Legislative Process, and Constitutional Consequences

As so-called "copycat" legislation of Arizona's SB 1070 is being contemplated by 25 other states, some provocative reporting from NPR discusses the genesis of such laws.  In part one of the report, NPR states that it "spent the past several months analyzing hundreds of pages of campaign finance reports, lobbying documents and corporate records. What they show is a quiet, behind-the-scenes effort to help draft and pass Arizona Senate Bill 1070 by an industry that stands to benefit from it: the private prison industry."  In part two, NPR continues its reporting on American Legislative Exchange Council, ALEC,and states:

Here's how it works: ALEC is a membership organization. State legislators pay $50 a year to belong. Private corporations can join, too. The tobacco company Reynolds American Inc., Exxon Mobil Corp. and drug-maker Pfizer Inc. are among the members. They pay tens of thousands of dollars a year. Tax records show that corporations collectively pay as much as $6 million a year.

With that money, the 28 people in the ALEC offices throw three annual conferences. The companies get to sit around a table and write "model bills" with the state legislators, who then take them home to their states.

Again, NPR focuses on SB1070 and similar legislation, as the NPR image below illustrates.

Picture 2



This reporting raises several constitutional issues.  First, and perhaps most obviously, are the First Amendment issues regarding lobbying, disclosure, and campaign finance, especially from the perspective of the public's "right to know."   Second, the "government interests" prong of analysis in constitutional challenges is implicated.  Might a court reject a government's proferred statement of interest in favor of an unarticulated - - - and illegitimate - - - interest such as improving business for a private corporation?


October 30, 2010 in Campaign Finance, Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Fourteenth Amendment, Interpretation, News, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, October 28, 2010

O'Donnell, Jefferson on Separation of Church and State

Republican Senate Candidate Christine O'Donnell's 2008 primary campaign manager Jonathon Moseley this week offered a $1,000.00 reward to anyone who could find the phrase "separation of church and state" in the Constitution.  (Thanks to Carrie Beth Clark for the tip.)  The offer comes on the heels of O'Donnell's statement in her debate last week with Democrat Chris Coons that the First Amendment contains no such phrase and requires no such separation.

The phrase, of course, comes from Thomas Jefferson's January 1, 1802, letter to the Danbury Baptist Association in response to that group's address congratulating him on his election as president.  The Library of Congress, with the help of the FBI, analyzed Jefferson's handwritten draft of the letter, including Jefferson's edits, and featured the letter in a 1998 exhibit on church and state.  The LoC gives us an historical context here.  The text of Jefferson's final letter is here; the unedited text is here.


From the LoC:

Jefferson revealed that he hoped to accomplish two things by replying to the Danbury Baptists.  One was to issue a "condemnation of the alliance between church and state."  This he accomplished in the first, printed, part of the draft.  Jefferson's strictures on church-state entanglement were little more than rewarmed phrases and ideas from his Statutes Establishing Religious Freedom (1786) and from other, similar statements.  To needle his political opponents, Jefferson paraphrased a passage, that "the legitimate powers of government extent to . . . acts only" and not to opinions, from the Notes on the State of Virginia, which the Federalists had shamelessly distorted in the election of 1800 in an effort to stigmatize him as an atheist.  So politicized had church-state issues become by 1802 that Jefferson . . . considered the articulation of his views on the subject, in messages like the Danbury Baptist letter, as ways to fix his supporters' "political tenets."

Here's what Moseley had to say:

Jefferson was not in the Constitutional Convention that wrote the U.S. Constitution. . . .  Jefferson was also not a member of the first U.S. Congress that wrote the Bill of Rights, either. . . .

The law clerks over in the U.S. Supreme Court should stop reading people's letters and re-read the U.S. Constitution itself.


October 28, 2010 in Current Affairs, Establishment Clause, Free Exercise Clause, News, Religion | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 27, 2010

Sixth Circuit Holds Teacher Has No First Amendment Right in Assignments

Shelley Evans-Marshall taught English and Creative Writing in high school, to ninth, eleventh and twelfth  graders.  She assigned Herman Hesse's Siddhartha.  She assigned Ray Bradbury's Fahrenheit 451 and to explore that book’s theme of government censorship, she developed an assignment based on the American Library Association's "banned books."0764513117

0764586505 Some parents protested about the book and assignment choices, the principal disapproved, and Ms. Evans-Marshall was terminated.

In its opinion the Sixth Circuit has rejected the teacher's First Amendment challenge.  Applying Garcetti v. Ceballos, the court found that the teacher could not "overcome Garcetti":    "When government employees speak “pursuant to their official duties,” Garcetti teaches that they are “not speaking as citizens for First Amendment purposes.”

The court emphasized how Garcetti controls rather than Pickering v. Board of Education:

When Pickering sent a letter to the local newspaper criticizing the school board, he said something that any citizen has a right to say, and he did it on his own time and in his own name, not on the school’s time or in its name. Yet when Evans-Marshall taught 9th grade English, she did something she was hired (and paid) to do, something she could not have done but for the Board’s decision to hire her as a public school teacher.

Opinion at 11.   As for any "academic freedom" argument, the panel opined that such a concept is limited to universities and does not extend to high schools.  Opinion at 16.



October 27, 2010 in Books, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Mississippi Court Allows Personhood Initiative To Appear on Ballot

Mississippi Circuit Court Judge Malcolm Harrison ruled yesterday that a ballot initiative to define "person" did not violate a state constitutional provision that prohibits the use of initiatives to modify the state Bill of Rights.  ( reports here.)

The initiative, Initiative Measure 26, would amend the state constitution to define the word "person" as follows:

Section 33.  Person defined.  As used in this Article III of the state constitution, "The term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning, or the functional equivalent thereof."

The measure would add Section 33 to the Mississippi Constitution Bill of Rights (Article III of the state constitution).

But Section 273(5)(a) of the constitution prohibits the use of the initiative to amend the state Bill of Rights:

(5) The initiative process shall not be used . . . [f]or the proposal, modification or repeal of any portion of the Bill of Rights of this Constitution.

Thus plaintiffs in the case argued that the initiative was unconstitutional.  Judge Harrison disagreed.  In a remarkably short order, apparently dodging the plaintiffs' constitutional claim, he wrote (without citation):

Plaintiffs carry a heavy burden in attempting to restrict the citizenry's right to amend the Constitution.  Initiative Measure No. 26 has received more than the required amount of signatures to be placed on the ballot and the Constitution recognizes the right of citizens to amend their Constitution.  The Court finds plaintiffs have not met their burden.

The order's analysis seems surprising for a variety of reasons, not least of which this: Subsection (5)(a) is pretty clear; and the Mississippi Supreme Court and state attorney general seem to think that other, similarly clear subsections in Section 273 basically mean what they say. 

The case is likely headed to the Mississippi Supreme Court.


October 27, 2010 in Comparative Constitutionalism, Elections and Voting, News, Recent Cases, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Court Conclusions of Unconstitutionality and Government Decisions to Appeal

The Obama DOJ's footnote one in the Emergency Motion appealing the district judge's injunction of the military's "don't ask, don't tell" policy states the DOJ has a "longstanding practice of defending the constitutionality of federal statutes."   But is that really true? 

120px-Doj In an excellent column published today, Tony Mauro thinks not.  He contends that the DOJ has declined to defend the constitutionality of a federal statute "at least 13 times" since 2004.   Indeed, Mauro relates that as recently as June, the Obama DOJ decided not to appeal the D.C. Circuit's opinion in v. FEC that declared unconstitutional two provisions of the Federal Election Campaign Act of 1971 limiting contributions to political committees.   Mauro also provides some other examples that are staples of ConLaw: Buckley v. Valeo (1973) and INS v. Chadha (1983).

Additionally, the stated (if untrue) DOJ policy to defend is in contrast with recent decisions in some states not to defend a statute.  Florida, for example, recently chose not to appeal a decision that its homosexual adoption ban was unconstitutional.   In California, the Governor and the Attorney General both chose not to defend Proposition 8 in a challenge to its constitutionality, and then chose not to appeal the judge's decision.

Meanwhile, the Obama DOJ has filed its notice of appeal of the district judge's ruling that section 3 of the Defense of Marriage Act, DOMA, is unconstitutional. 


October 27, 2010 in Courts and Judging, Current Affairs, History, News, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 26, 2010

Arizona Voter Identification Law Unconstitutional as Preempted by National Voter Registration Act

A Ninth Circuit panel opinion today, with retired Justice Sandra Day O'Connor sitting by designation, has declared Arizona Proposition 200 regarding citizenship identification for voting, invalid as preempted.   Judge Sandra Ikuta begins her opinion for the majority of the panel with this description:



Proposition 200 requires prospective voters in Arizona to present documentary proof of  citizenship in order to register to vote, Ariz. Rev. Stat. §§ 16-152, 16-166, and requires registered voters to present proof of identification in order to cast a ballot at the polls, Ariz. Rev. Stat. § 16-159. This appeal raises the questions whether Proposition 200 violates the Voting Rights Act § 2, 42 U.S.C. § 1973, is unconstitutional under the Fourteenth or Twenty-fourth Amendments of the Constitution, or is void as inconsistent with the National Voter Registration Act (NVRA), 42 U.S.C. § 1973gg et seq. We hold that the NVRA supersedes Proposition 200’s voter registration procedures, and that Arizona’s documentary proof of citizenship requirement for registration is therefore invalid.


The panel considered the preemption doctrine under Election Clause preemption rather than under Supremacy Clause preemption: "Because the Elections Clause empowered Congress to enact the NVRA,"  the preemption analysis under that Clause is applicable."   The panel derived its approach from two cases 120 years apart:  Ex Parte Siebold, 100 U.S. 371 (1879) and Foster v. Love, 522 U.S. 67 (1997).

Reading Siebold and Foster together, we derive the following approach for considering whether federal enactments under the Elections Clause displace a state’s procedures for conducting federal elections. First, as suggested in Siebold, we consider the state and federal laws as if they comprise a single system of federal election procedures.  If the state law complements the congressional procedural scheme, we treat it as if it were adopted by Congress as part of that scheme. If Congress addressed the same subject as the state law, we consider whether the federal act has superseded the state act, based on a natural reading of the two laws and viewing the federal act as if it were a subsequent enactment by the same legislature.  With this approach in mind, we consider whether the NVRA and Proposition 200 operate harmoniously in a single procedural scheme for federal voter registration.

Opinion at 17643 (citations omitted).  The panel concluded that the state law did not operate "harmoniously" with the NVRA.

Dissenting, Judge Alex Kozinski was highly critical of the majority, ending his own opinion by writing, "Few panels are able to upset quite so many apple carts all at once. Count me out."  Dissenting Opinion at 17704.  Kozinski's argument is that the panel has evaded the law of the Circuit and weakened the rules surrounding the law of the case.  He argues that the panel is wrong not to take precedent seriously and wrong that the precedent it disregards was erronelously decided.


October 26, 2010 in Current Affairs, Elections and Voting, Fundamental Rights, Opinion Analysis, Preemption | Permalink | Comments (1) | TrackBack (0)

Monday, October 25, 2010

Kansas Court Extends Right to Counsel to Habeas Petition

The Kansas Court of Appeals (the state's intermediate appellate court) ruled last week in Merryfield v. Kansas that a person involuntarily confined in the Kansas Sexual Predator Treatment Program has a right to counsel under due process and equal protection in a habeas petition that is not subject to summary dismissal under state law.

Dustin Merryfield filed his habeas petition alleging that conditions of confinement were unconstitutional.  He also requested court-appointed counsel for his petition.  Under Kansas law, his petition was not subject to summary dismissal.  The Court of Appeals therefore remanded the case for a hearing and granted his request for counsel.

The court ruled that both due process and equal protection support a right to counsel.  The court wrote that while Merryfield's habeas petition did not involve an initial deprivation of liberty (which triggers a constitutional right to counsel, as in In re Gault), it also did not involve a collateral attack on a criminal conviction (which does not trigger a constitutional right to counsel, as in Pennsylvania v. Finley).  Merryfield's liberty interest was different, but sufficient:

His liberty interest is manifest, and he contends--with sufficient basis to warrant an evidentiary hearing--that the treatment provided to him is so ineffective that it could never give him the help he would need to regain his freedom.  A person like Merryfield, who has been involuntarily committed in a civil proceeding that explicitly recognizes that the detention may be for a long-term period--more than a decade so far for Merryfield--must be entitled to the assistance of counsel in the resolution of such substantial claims. . . .

Merryfield's claim that the treatment program is so poor that he will never regain his liberty is certainly among the most significant that could be brought by a person confined under the Kansas program for treatment of sexually violent offenders.

Op. at 12.

The court wrote that equal protection also compels appointment of counsel.  The court wrote that Kansas law provides court-appointed counsel for inmates who have been imprisoned after felony convictions when their habeas petitions cannot be summarily dismissed.  If Kansas law provides counsel for this class, under equal protection it must also provide counsel for the similarly situated class that includes Merryfield. 

For more on right to counsel in civil proceedings, check out the National Coalition for a Civil Right to Counsel.


October 25, 2010 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, Procedural Due Process, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Courtroom Spectator Speech: Red Clipboards and Judicial Ethics

A Minnesota judge's reaction to a court monitoring project, WATCH, has been attracting attention from the likes of the ABA Journal and WSJ Law Blog, as well as the local City Pages.  

Picture 2 The underlying incident involves members of WATCH appearing in court with "red clipboards," which the judge addressed in a rather lengthy statement read from the bench, including allegations that the red clipboards were were a “not very subtle threat to the judge," were  “arguably ex parte communications to judges about pending cases," were "strongly partisan communications of a threatening nature to judges," and the "dynamic of the phenomenon is essentially the same" as "gang members allegedly using gang signs and insignia to influence or intimidate witnesses."    This is according to the Board of Judicial Standards of Minnesota's Complaint.  The judge's Response specifically raises the question of spectator speech: "The effect of spectator conduct and the concomitant effort to influence the proceeding" remains an "open question." 

Thus, while the present controversy is in the context of a judicial ethics proceeding, it raises the important issue of speech acts by members of the public in the courtroom.


[image from WATCH website via]

October 25, 2010 in Courts and Judging, Current Affairs, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)