Saturday, December 4, 2010
Tobacco companies Philip Morris, Brown & Williamson, R.J. Reynolds, Lorillard, and The Tobacco Institute filed a Petition for Writ of Certiorari in the Supreme Court last Thursday to appeal a $271 million judgment in a class action in Louisiana state court based on fraud. The judgment would go into a 10-year smoking cessation program designed to benefit the class of Louisiana smokers.
Petitioners argue that the class action device in their case violated due process because it "permits state courts to impose massive liablity in a class action without a truly representative trial of indivudal claims." Brief at 12. Particularly: They were denied any meaningful opportunity to cross-examine the class representatives, both of whom had "already quit smoking years before the trial." Brief at 12-13.
Petitioners appealed to the Louisiana Supreme Court, but that court declined to review the case.
Petitioners previously won a stay from Justice Scalia, acting as Circuit Justice. Justice Scalia was principally concerned about the Lousiana court's use of the aggregation device to allow plaintiffs to dodge proof of fraud in individual cases. He wrote in his Opinion in Chambers on September 24, 2010, that
[a]pplicants complain of many violations of due process . . . [b]ut one asserted error in particular (and perhaps some of the others as well) implicates constitutional constraints on the allowable alteration of normal process in class actions. This is a fraud case, and in Louisiana the tort of fraud normally requires proof that the plaintiff detrimentally relied on the defendant's misrepresentations. . . . But the Court of Appeals held that this element need not be proved insofar as the class seeks payment into a fund that will benefit individual plaintiffs, since the defendants are guilty of a "distort[ion of] the entire body of public knowledge" on which the "class as a whole" has relied. Thus, the court eliminated any need for plaintiffs to prove, and denied any opportunity for applicants to contest, that any particular plaintiff who benefits from the judgment (much less all of them) believed applicants' distortions and continued to smoke as a result.
Thursday, December 2, 2010
Perry v. Schwazenegger, in which a federal district judge found California's Proposition 8 unconstitutional, is on appeal to the Ninth Circuit, under an expedited schedule and including the issue of the standing of the proponents.
The three judge panel, pictured below, was announced by the Ninth Circuit Monday.
The proponents quickly filed a motion to disqualify Judge Reinhardt alleging:
Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the
ACLU of Southern California. As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.”
Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.
The motion relies on statutory grounds for disqualification and does not make a due process argument relying on Caperton v. Massey Coal Co.
Judge Reinhardt quickly issued an order denying the motion. The order in full provides:
Before: REINHARDT, Circuit Judge:
I have before me defendants-intervenors-appellants’ motion to disqualify myself from this appeal. I have not hesitated to recuse from cases in the past when doing so was warranted by the circumstances. See Khatib v. County of Orange, 622 F.3d 1074, 1074 (9th Cir. 2010); Mohamed v. Jeppesen Dataplan, Inc., 586 F.3d 1108, 1109 (9th Cir. 2009); Buono v. Kempthorne, 527 F.3d 758, 760 (9th Cir. 2008); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 913, 914 (9th Cir. 2003); Valeria v. Davis, 320 F.3d 1014, 1015 n.** (9th Cir. 2003); Alvarez-Machain v. United States, 284 F.3d 1039, 1039 n.1 (9th Cir. 2002); Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 711 (9th Cir. 1997).
Here, for reasons that I shall provide in a memorandum to be filed in due course, I am certain that “a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); see also Sao Paulo State of the Federated Republic of Brazil v. Am. Tobacco Co., 535 U.S. 229, 233 (2002) (per curiam). I will be able to rule impartially on this appeal, and I will do so. The motion is therefore DENIED.
The Ninth Circuit announced in a press release that the panel has "given consent for live broadcast of the proceeding, which is scheduled to air on C-SPAN. In addition, the court will distribute a live audio/video feed from the courtroom to remote viewing locations across the country, including some of the nation’s top law schools."
The Ninth Circuit has also established a special website for the case.
December 2, 2010 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, News, Sexual Orientation, Sexuality, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 1, 2010
Here’s the problem: In the District of Columbia, motorists stopped by police officers and charged with speeding more than 30 mph over the speed limit are subject to automatic arrest, as well as possible criminal prosecution, a fine of $300, and imprisonment of not more than 90 days. By contrast, when a vehicle is photographed traveling at such speeds by the District's Automated Traffic Enforcement System ("ATE"), the District mails a summons and notice of infraction to the registered owner of the vehicle, allowing the owner to request a hearing, and the maximum penalty is a civil penalty.
In a brief opinion, the United States District Judge granted the district’s motion to dismiss the complaint based upon Equal Protection guarantees as incorporated in the Fifth Amendment.
The judge reasoned that the speeders caught by a human police officer and the speeders caught by the technological system are simply not similarly situated. The District had contended - - - and the judge agreed - - - that “the two groups of speeding motorists - - - i.e., those caught by an officer and those caught by the ATE system- - - are not similarly situated because the former may be arrested without a warrant while the latter may not," because a warrantless arrest is only permitted where an officer is a witness to an offense. The judge used Fourth Amendment doctrine to support what it names this "fundamental difference."
Probably a better approach - - - but one which would most likely have reached the same conclusion - - - would have been an additional analysis relying on another "traffic" case, Railway Express Agency v. New York, the 1942 case in many constitutional law casebooks best know for articulating the lowest level of rational basis scrutiny. In Railway Express, New York City had prohibited advertising on vehicles with the exception of vehicles “engaged in the usual business or regular work of the owner.” The Court upheld the classification of non-owner advertisers and owner-advertisers although the purported government interest was traffic safety and not being distracted by advertisements.
This could be of interest to ConLawProfs looking for a relatively simple equal protection problem for a pending exam. Advantage: it tests the Fifth Amendment's "incorporation" of equal protection as articulated in Bolling v. Sharpe. Disadvantage: it might require some knowledge of the Fourth Amendment.
Tuesday, November 30, 2010
Judge Norman Moon (W.D. Va.) today dismissed Liberty University v. Geithner, a case filed by state lawmakers, a doctor, Liberty University, and individuals challenging the federal healthcare reform legislation. The plaintiffs argued that the legislation exceeds Congress's Article I authority, and that it violates the Tenth Amendment, the religion clauses, the Religious Freedom Restoration Act, equal protection, free speech and free association, Article I, Section 9's prohibition against unapportioned capitation or direct taxes, and the Guarantee Clause.
Judge Moon ruled that the state lawmakers lacked standing by virtue of their opposition to federal reform. The doctor lacked standing, because his claims that reform may interfere with his ability to provide quality care for his patients were too vague. Judge Moon ruled that other plaintiffs have standing; the case is ripe; and it's not barred by the Anti-Injunction Act.
On the merits, Judge Moon ruled that Congress acted within its authority under the Commerce Clause in enacting the individual health insurance mandate. Judge Moon wrote that
The conduct regulated by the individual coverage provision--individuals' decisions to forego purchasing health insurance coverage--is economic in nature, and so the provision is not susceptible to the shortcomings of the statutes struck down by the Court in Lopez and Morrison. Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care. The "fundamental need for health care and the necessity of paying for such services received" creates the market in health care services, of which nearly everyone is a participant." . . . Far from "inactivity," by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.
Op. at 27 (quoting Thomas More Law Ctr., another challenge to federal health care reform). Judge Moon had less trouble concluding that the employer mandate fell within Congress's Commerce Clause authority:
As defendants correctly point out, it is well-established in Supreme Court precedent that Congress has the power to regulate the terms and conditions of employment. . . .
The requirement imposed by the Act on employers to offer a minimum level of health insurance resembles the requirement imposed by the [Fair Labor Standards Act] on employers to offer a minimum wage upheld in Darby, and Plaintiffs fail to distinguish the two.
Op. at 31.
As to the Tenth Amendment, Judge Moon ruled that Congress had authority (and therefore the Tenth Amendment is no bar), Congress can regulate in the area of insurance (and therefore federal reform doesn't infringe upon an area reserved to the states, or upon state sovereignty), and state participation is voluntary (and therefore there's no commandeering of states or state officials).
As to the Establishment Clause, Judge Moon ruled that the religious exemptions to the individual mandate were permissible accommodations under Cutter v. Wilkinson. The exemptions do not differentiate based on faiths, they are based upon a secular government purpose, and they do not lead to excessive government entanglement with religion.
As to Free Exercise and the Regligious Freedom Restoration Act, Judge Moon ruled that the federal law does not require the plaintiffs to pay for abortion, in violation of their religious practices. "Indeed, the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered." Op. at 43.
Judge Moon ruled that the religious exemptions also did not violate equal protection. "Accordingly, with no reason to believe the exemptions were designed to favor or penalize a particular religious group, I proceed to analyze the exemptions under rational basis review." Op. at 46. The exemptions, toward the end of accommodating religion, clearly satisfied rational basis review.
As to speech and association, Judge Moon ruled that federal reform does not require the plaintiffs to support or associate with individuals who obtain an abortion in violation of free speech and association. "The Act does not require health plans to cover abortion, and it ensures that at least one policy offered through each health benefit exchange will not cover non-excepted abortion services." Op. at 49. Any required association is minimal. And the federal act does not require the plaintiffs to speak on, or to support, abortion.
As to taxes, Judge Moon ruled that the penalties for noncompliance are not taxes; instead they are "mere incident[s] of the regulation of commerce." Op. at 52 (quoting Head Money Cases.)
Finally, as to the Guarantee Clause, Judge Moon rejected the plaintiffs' claim that the federal act gives Congress the ability to veto private choices about health care and thus gives the federal government absolute sovereignty over the people. "The Act does no such thing; nothing prevents the people and their representatives from amending or repealing the Act through the democratic process." Op. at 53.
November 30, 2010 in Association, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, Federalism, Fifth Amendment, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Religion, Ripeness, Speech, Standing, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
The Report of the Comprehensive Review of the Issues Associated with a Repeal of "Don't Ask, Don't Tell" has just been issued by the Department of Defense.
In its 250plus pages, the report concludes that the overall effect of a repeal of the "don't ask don't tell" policy on military effectiveness is low.
The Report has a number of recommendations necessary - - - or unnecessary - - - to effectuate the repeal:
- Leadership - strong leadership, a clear message, and proactive training and education are necessary ("In our view, the starting point for this message should be a written communication
from the leaders of the Department of Defense, to include the Secretary of Defense and the
senior military leaders of each Service, that deliver their expectations in clear and forceful
- Standards of Conduct - revised regarding dating and public displays of affection
- Moral and Religious Concerns - recognition of pluralism, but not necessary to change policies to guarentee religious freedom or chaplain's regulations.
- Equal Opportunity - the Department of Defense should NOT place sexual orientation alongside race, color, religion, sex, and national origin as a class eligible for various diversity programs, tracking initiatives, and the Military Equal Opportunity program complaint resolution processes.
- Collection and Retention of Sexual Orientation Data - the Department of Defense should continue to NOT seek such data
- The Uniform Code of Military Justice - the Congressional repeal of Article 125 which criminalizes sodomy, and amend Article 120 of the UCMJ362 to include forcible sodomy and sodomy offenses against children.
- Privacy and Cohabitation - the Department of Defense should expressly prohibit berthing or billeting assignments or bathroom facilities assignments based on sexual orientation, except that commanders should retain the authority to alter berthing or billeting assignments on an individualized, case-by-case basis, in the interest of maintaining morale, good order, and discipline, and consistent with performance of mission.
- Benefits - many benefits to same-sex partners are prohibited under the Defense of Marriage Act, however for some benefits, such as housing and legal services, the Department of Defense and the Services should review the benefits in this category and assess whether they can be extended to same-sex partners
in accordance with “member-designated” benefits rather than spousal benefits.
- Duty Assignments - the Department of Defense and the Services should not, at this time, rewrite their
regulations to specifically accommodate same-sex committed relationships for purposes of duty assignments. However, gay and lesbian Service members in committed relationships— with either a civilian or a military partner—should be able to make an individualized, hardship-based request for accommodation in assignment.
- Medical - there need not be any change in policies regarding HIV
- Re-Accession - Service members previously separated on the basis of homosexual conduct to be should be considered for re-entry, assuming they qualify in all other respects.
- Release from Service Commitments - For those who object to serving with gay and lesbian servicemembers, this shall not constitute a ground for voluntary discharge.
The much anticipated Report occurs against a backdrop of federal courts finding the Don't Ask, Don't Tell policy unconsitutional.
Remedy for Unconstitutional Conditions in California Prisons?: Schwarzenegger v. Plata Oral Argument Analysis
The overcrowding in California's prison system that prevents the adequate treatment of the mental and physical health of prisoners in violation of the Eighth Amendment was the subject of today's oral argument in Schwarzenegger v. Plata.
Acting as an appellate court for a three judge court decision that ordered the California prison system to operate at "only" 137.5% of capacity, the United States Supreme Court confronted the intractability of the problem. After 20 years of litigation before numerous district judges, the three judge court was convened and ultimately ordered a remedy of 137.5% capacity. Reaching this goal could be done by transfer of prisoners, building new prisoners, or most controversially, prisoner release.
Justices Sotomayor and Alito expressed opposing considerations during the argument.
Sotomayor, addressing Carter Phillips arguing for Schwarzenegger, expressed concern for the prisoners:
JUSTICE SOTOMAYOR: So when are you going to get to that? When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?
Alito, addressing Donald Specter, arguing on behalf of the appellees, worried about the effect of a release order given rates of prisoner recidivism:
JUSTICE ALITO: The 17 percent figure goes exactly to my concern. This is going to have -- it seems likely this is going to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see. We will see, and the people of California will see. Are there more crimes or are there not?
The oral argument was especially lively, with attorneys clearly not intimidated by the Justices. For example, early in the argument, Phillips deflected Alito's question:
MR. PHILLIPS: Justice Breyer, when the receiver says that, now remember, he says at current population levels. He doesn't suggest, and his brief is very clear that it doesn't urge this Court to affirm the particular order in this case.
JUSTICE ALITO: Mr. -MR.
PHILLIPS: Can I just finish this?
JUSTICE ALITO: Yes.
MR. PHILLIPS: And the reality is that the population levels have dropped pretty significantly since August, since the trial in this particular case. And given the actions by the legislature .....
The argument continues with a question from Ginsburg, and then Sotomayor.
Later, during a colloquy with Roberts, Donald Specter seemed to suggest that Roberts be more patient:
MR. SPECTER: ........The governor himself wanted to reduce the prison population by 37,000. That was in one of his legislative enactments, and the secretary of corrections testified that those proposals were safe.
CHIEF JUSTICE ROBERTS: Did he want to do it within the 2-year period the district court ordered?
MR. SPECTER: Yes, Your Honor, he did. He submitted legislation to the legislature for that, and the legislature wouldn't -- wouldn't take it. And the governor actually said, reacting to that, after a riot at Chino which was partly -- at one of the -- Chino is a prison in California. A riot, he said, and the quote: "And the politicians in Sacramento have swept the problem under the rug."
CHIEF JUSTICE ROBERTS: Right. Right. No, my -- my question is specifically with respect to the ----
MR. SPECTER: I'll get to that.
CHIEF JUSTICE ROBERTS: With respect to the two-year plan ---
MR. SPECTER: Right.
CHIEF JUSTICE ROBERTS: -- and I would like an answer to that.
MR. SPECTER: Yes.
CHIEF JUSTICE ROBERTS: Because I look at this record; I see that the district court didn't do what with required by the Act with respect to the plan that it's ordering.
In addition to the constitutional query regarding a remedy for an Eighth Amendment violation, the issue of federalism darted to the surface on a few occasions. Arguing on behalf of California, Phillips raised federalism as perhaps a "rhetorical" point.
Later, Roberts posed the problem that states have numerous responsibilities and that this one - - - the prison problem - - - is being "transferred" from the state legislature to the federal courts:
MR. SPECTER: Well, I believe the Federal courts have an obligation to enforce the Constitution and the laws.
CHIEF JUSTICE ROBERTS: No, no. I believe that as well, Counsel.
The Court now has the opportunity to decide on whether or not to uphold the enforcement mechanism ordered by the three judge court in this lengthy and complex litigation.
Monday, November 29, 2010
The Supreme Court today agreed to hear Arizona Free Enterprise v. Bennett (consolidated with McComish v. Bennett), a case involving Arizona's public campaign funding system. Under the system, candidates who participate in the State's public campaign finance program qualify for additional public matching funds when expenditures by and on behalf of a nonparticipating opponent exceed the participating candidate's original public grant. The system thus seeks to even up expenditures between participating candidates and nonparticipating candidates who can vastly outspend them.
The Court previously issued an order reinstating the trial court's injunction against the Arizona law and staying the Ninth Circuit's mandate overturning that injunction. The law was therefore not in effect for the recent election. We posted on the case here and here.
Arizona enacted its system in response to a rash of political scandals in the state. Under the system, participating candidates get a lump sum grant for the primary campaign. If funds spent by and on behalf of the nonparticipating opponent exceed that grant, the participating candidate receives state "matching funds" equal to the combined spending of the nonparticipating opponent, plus independent expenditures against the participating candidate, minus six percent and less the amount of early contributions raised by the nonparticipating opponent during preprimary fundraising. (Why minus six percent? Because the State determined that six percent represents fundraising costs for the nonparticipating opponent.) The system works similarly in the general election.
The District Court ruled that the system violated the First Amendment, but the Ninth Circuit reversed. The Ninth Circuit ruled that the system has a hybrid effect on both contributions and expenditures, and therefore "affects fully protected speech," but that any burden it imposes "is indirect or minimal." Op. at 9161. The court ruled that the system's restriction on speech was merely theoretical (not actual), and that the plaintiffs failed to show that it resulted in any restriction on their speech. Thus the burden on speech "is most analogous to the burden of disclosure and disclaimer requirements in Buckley and Citizens United." Op. at 9166. The court thus applied intermediate scrutiny (and not strict scrutiny).
The Ninth Circuit distinguished Davis v. FEC, the Court's OT '07 case striking down the "Millionaire's Amendment." That federal law increased the cap on contributions for U.S. House candidates who were significantly outspent by self-financed opponents. The Court held that the law substantially burdened fully protected speech and therefore applied strict scrutiny. The Ninth Circuit ruled that the Millionaire's Amendment, unlike Arizona's law, applied to privately financed candidates, and thus Davis had nothing to do with a public funding system like the one here. The Ninth Circuit also noted that the Davis Court wrote that "had the law 'simply raised the contribution limits for all candidates, Davis' argument would plainly fail.'" Op. at 9160 (quoting Davis). This is exactly what Arizona tried to do.
The Ninth Circuit ruled that the Arizona system satisfied intermediate scrutiny: there is a substantial relation between the system's matching funds provision and the sufficiently important governmental interest in preventing quid pro quo corruption and the appearance of corruption. The system also encourages candidates to use the public funding system, which further promotes these interests. Participating candidates "have both reduced opportunities and reduced incentives to trade legislative favors for financial favors." Op. at 9167-68.
The case goes to a Court that has been hostile to any effort that restricts or burdens campaign expenditures, most recently in Citizens United. The difference here is that the law seeks to level up, not level down--yielding more campaign speech, not less--and it seeks to do it through a public funding system. Moreover, the plaintiffs have not been particularly persuasive in showing that the law actually burdened their speech.
A few things to watch in the case:
- The level of scrutiny that the Court applies to this hybrid law. The Ninth Circuit applied the more lenient intermediate scrutiny; the Supreme Court may apply strict scrutiny.
- The fitness analysis at either level of scrutiny. The State's case for actual quid pro quo corruption is weak; its case for the appearance of corruption is stronger. Either way, the fitness between the scheme and these interests may push the bounds of even intermediate scrutiny for the Court.
- The plaintiffs' burdened speech. How will the Court treat the plaintiffs' case that their speech is burdened? The Ninth Circuit rejected their "theoretical" claims. The Supreme Court may take these claims more seriously.
More generally, if the Court's recent cases stand for the principle that more speech is better, then this case could turn in part on whether the Court thinks the participant's increased speech from matching funds exceeds the nonparticipant's merely theoretical speech lost from self-imposed restrictions. If, instead, the Court's recent cases say that no burden on campaign speech can stand (even if the burden is mostly theoretical, and even if the burden is outweighed by countervailing increased speech on the other side), then the Arizona law will surely fail.
Ten years ago, we were still waiting for a resolution of the Presidential election as November closed. Jeffrey Toobin has a brief piece in The New Yorker accompanied by a live chat this afternoon, transcript here.
Toobin correctly notes that in the last ten years, "the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero." Yet while that may be the "verdict" of the Supreme Court, litigants and courts have not been shy about relying on the case, as the continuing controversy over the Alaska Senate race demonstrates.
[UPDATE: A discussion of some other opinions on Bush v. Gore].