Friday, September 2, 2011

South African Constitutional Court: Justice Mogoeng's Nomination and Opposition

[UPDATE: JSC supported Mogoeng; incisive analysis of interview from Pierre deVos here.]


On Saturday, the South African Judicial Service Commission (JSC) will interview Mogoeng Mogoeng, President Zuma's choice for Chief Justice of the Constitutional Court.

ZAConCourt While the President has broad discretion under the South African Constitution as we've previously discussed, the choice of Mogoeng has provoked a groundswell of opposition. 

For example, the important and well-respected organization Section 27, named after Section 27 of the South African Constitution providing for socio-economic rights, has filed a  Submission on behalf of itself and several other organizations, specifically objecting to Mogoeng's judicial judgments in the areas of sexual orientation and gender-based violence cases.  The submission requests specific queries from the JSC on the matter of sexual orientation, as well as a statement of his committment to equality on the basis of sexual orientation as explicitly stated in the South Africa Constitution.  The submission notes Mogoeng dissented in a sexual orientation case without providing reasons as constitutional practice requires. 

As for the gender violence issue, the problem is not Mogoeng's silence, but specific troubling statements that the submission outlines.  The Section 27 submission concludes:

We have no confidence in his ability either to dispense justice in accordance with the values of the Constitution or in his ability to address the complex gender questions that arise in the judiciary and in the legal profession appropriately.  The judgments to which we have referred evidence a patriarchal attitude to women.  We have no reason to believe that Justice Mogoeng will not exhibit similar patriarchy in relation to gender transformation in the judiciary, the legal profession and indeed society as a whole.

The Women's Legal Centre, writing on behalf of itself and other organizations and persons, also focuses on the matter of gender-based violence in its Submission, highlighting judgments and statements by Mogoeng, as well as mentioning the matter of sexual orientation.   

Both Submissions include a discussion of one of Mogoeng's most controversial judgments, rendered before he was a member of the Constitutional Court, eliminating a sentence of jail-time in favor of a fine for a man convicted on assault with the intent of doing grievous bodily harm to his "girlfriend."   In this previously unreported judgment also discussed by Professor Pierre deVos, the defendant had "‘tied the complainant, his girlfriend, with a wire to the rear bumper of a vehicle. He then drove that vehicle on a gravel road at a fairly high speed over a distance of about 50 metres."   Mogoeng found the sentence of two years imprisonment too harsh in part because the man "was provoked by the complainant."  In other cases, Mogoeng reduced or suspended sentences for rape because the parties knew each other. 

Cases described by the Southern African Litigation Centre, have prompted the characterization of "shocking" regarding other of Mogoeng's judgments involving sexual assault and violence against women and children.  In one, Mogoeng reduces to the miminum the sentence of a man convicted of raping a seven year old girl because her injuries were not "serious." 

Several law professors from the United States who have scholarly connections to South Africa, including myself, have signed a letter authored by Dean Penelope Andrews, herself once a candidate for the Constitutional Court, asking the JSC to seriously consider Mogoeng's role as Chief Justice on the Constitutional Court, an institution not only important to South Africa's constitutional democracy and transformation, but also internationally.  

The Saturday interview and deliberation places the Judicial Service Commission center stage, and is being "described as a test of its character and politics, and, therefore, of its value" in the South African Constitutional democracy.  There will be live radio coverage starting at 4.00 am EST available here. We also expect that Professor Pierre deVos of Constitutionally Speaking will have live blogging and a full report after the hearing.

[image: Logo of the South African Constitutional Court via]

September 2, 2011 in Comparative Constitutionalism, Current Affairs | Permalink | Comments (1) | TrackBack (0)

Thursday, September 1, 2011

Seventh Circuit: No First Amendment Right for Medicaid Home-Care Workers to Skip Union Dues

A three-judge panel of the Seventh Circuit ruled today in Harris v. Quinn that Medicaid home-care workers do not have a First Amendment right to dodge union dues under a collective bargaining agreement with the state.

The case is notable (even if the result is unsurprising) because it appears to be the first time that a federal court has applied the First Amendment line including Railway Employees' Dep't v. Hanson and Abood v. Detroit Bd. of Educ. to employees who answer to two or more bosses.  Those cases hold that pure public employees who decline to join a union may nevertheless be required to pay union dues without violating their First Amendment rights.  But those cases don't say anything about workers who may be employees of the state and another employer.

In contrast to the workers in Hanson and Abood, the Medicaid home-care workers in Harris seemed to be employees of their patient-clients (those people who relied upon their home-care services) and the state.  Here's what the panel said:

While the home-care regulations leave the actual hiring selection up to the home-care patient, the State sets the qualifications and sets the patient's choice.  And while only the patient may technically be able to fire a personal assistant, the State may effectively do so by refusing payment for services provided by personal assistants who do not meet the State's standards.  When it comes to controlling the day-to-day work of a personal assistant, the State exercises its control by approving a mandatory service plan that lays out a personal assistant's job responsibilities and work conditions and annually reviews each personal assistant's performance.  Finally, the State controls all of the economic aspects of employment . . . .

Op. at 12 (citations omitted).  Because the workers were state employees (even if they were also employees of their clients), Abood applied, and they had no First Amendment right against a requirement to pay their union dues.


September 1, 2011 in Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

White House Announces a New Way to Petition Government

The White House announced today the creation of a new electronic platform for individuals to petition the federal government called We the People.  The platform will allow individuals to submit or to sign a petition asking the federal government to take action on a range of issues.  According to the announcement:

To create and build support for a petition, visitors will simply need to create an account and gather signatures by reaching out to friends, family and coworkers.  If a petition reaches a certain threshold--the initial level will be 5,000 signatures within 30 days--it will be sent to the appropriate policy makers throughout the Administration, reviewed, and an official response will be published to and e-mailed to all signers of the petition.

Here's the video description:




September 1, 2011 in Executive Authority, First Amendment, News | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 31, 2011

D.C. Circuit: No First Amendment Protection for Speaking Truth as Public Employee

A three-judge panel of the D.C. Circuit today denied a petition for rehearing of a public employee who claimed he was fired in retaliation for exercising his First Amendment free speech rights.  The panel ruled that the employee's speech was not covered by the First Amendment, because it wasn't "pursuant to his official duties."  The ruling puts the D.C. Circuit in tension with a recent Second Circuit ruling that would protect similar speech. 

The D.C. case, Bowie v. Maddox, arose when Bowie, an employee of the D.C. Office of the Inspector General, refused to sign an affidavit drafted for him in response to a former subordinate's employment discrimination claim against the Office.  Bowie instead rewrote the affidavit in a manner critical of the Office's decision to fire the employee.  In response, Bowie was fired.  The D.C. Circuit previously ruled that Bowie's speech was pursuant to his official duties and therefore, under Garcetti v. Ceballos, not protected by the First Amendment.

But the day after Bowie filed a petition for rehearing, the Second Circuit ruled in Jackler v. Byrne that similar speech by a public employee was protected by the First Amendment.  (We previously posted on Jackler here.)  In Jackler, the employee, Jackler, filed a report documenting another officer's use of excessive force.  The chief of police and two administrative officers pressured Jackler to withdraw his report and file a false one.  Jackler refused, and he was fired.  The Second Circuit ruled that Jackler had a strong First Amendment interest in his refusal to file a dishonest report.

The D.C. Circuit panel saw it differently.  The panel said that the Second Circuit got Garcetti wrong.  It wrote that the Second Circuit erroneously ruled that Jackler's refusal was protected because it had a civilian analogue--a private citizen's right to refuse to file a false police report.  Instead, the D.C. panel ruled, Garcetti asks whether the speech was pursuant to an employee's official duties.  The panel affirmed that Bowie's speech was.

(In fact, the Second Circuit ruled first that Jackler's non-speech was on a matter of public concern (an officer's use of excessive force) and only second that Jackler's non-speech had a civilian analogue.  Jackler at 21-22.  The Second Circuit also distinguished Garcetti--which held that a deputy DA had no First Amendment interest in a memorandum he wrote as part of his official duties--because there was no pressure in that case to falsify anything.  "In the context of the demands that Jackler retract his truthful statements and make statements that were false, we conclude that his refusals to accede to those demands constituted speech activity that was significantly different from the mere filing of his initial Report."  Jackler at 23-24.)

The ruling puts the two circuits in tension on the application of Garcetti to a public employee's refusal to provide false statements in the course of their official duties.  For D.C., Garcetti means that any speech within a public employee's official duties is unprotected, even if it has a civilian analogue; for the Second Circuit, a public employee's refusal to file a false report on officers' use of excessive force is protected, because it is a matter of public concern and because it has a civilian analogue.


August 31, 2011 in Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)

Goodwin Liu to be on California Supreme Court

Goodwin Liu will be sworn in an as associate justice of the California Supreme Court on Thursday, at noon PST.

Goodwin Liu
Liu was nominated by President Obama for a judgeship on the Ninth Circuit, but was the subject of a Senate fillibuster

He has been a ConLawProf at UC-Berkeley (Boalt Hall) since 2003 and clerked for Justice Ruth Bader Ginsburg.


August 31, 2011 in Courts and Judging, News, Profiles in Con Law Teaching | Permalink | Comments (1) | TrackBack (0)

Federal Judge Enjoins Portions of Texas Abortion Statute

Federal District Judge Sam Sparks has enjoined portions of HB 15, an Act “relating to informed consent to an abortion.” H.B. 15, 82nd Leg., Reg. Sess. (Tex. 2011) in his Order in Texas Medical Providers Performing Abortion Services v. Lakey.

Judge Sparks certified both a plaintiff class of medical providers and a defendant class of state actors, then proceeded to consider the plaintiffs' constitutional objections one by one.  In his 55 page opinion, Judge Sparks had little complimentary to say about the lawyering on both sides; indeed, he leveled sharp criticisms. 

Texas Womens_Museum_exterior_sculpture Judge Sparks also made clear his disapproval of the intent behind the Act that amended Texas' already restrictive abortion laws, stating in footnote 2:  "It is ironic that many of the same people who zealously defend the state’s righteous duty to become intimately involved in a woman’s decision to get an abortion are also positively scandalized at the government’s gross overreaching in the area of health care."  Yet this footnote was in the context of his rejection of Plaintiffs' equal protection arguments, which he found meritless: "In short, if the Texas Legislature wishes to prioritize an ideological agenda over the health and safety of women, the Equal Protection Clause does not prevent it from doing so under these circumstances."

Criticizing the "litany" of vagueness challenges by Plaintiffs and agreeing with the "Defendants’ characterization that 'plaintiffs have chosen to throw everything at the wall and hope something sticks,' ” Judge Sparks nevertheless found that three provisions of the Act were unconstitutionally vague:

  • First, the phrase “the physician who is to perform the abortion,” a phrase used in section 171.012(a)(4), is unclear as it relates to both multi-physician procedures and unplanned physician substitutions.
  • Second, the conflict between sections 171.012(a)(4) and 171.0122 creates unconstitutionally impermissible uncertainty regarding what will, and what will not, subject a physician or a pregnant woman to liability.
  • Finally, section 171.0123 is unconstitutionally vague regarding the scope of a physician’s duty to provide paternity and child support information to women who choose not to get abortions.

In finding these sections unconstitutionally vague, Judge Sparks emphasized that the lack of clarity was balanced against the serious penalities, so that neither physicians nor women should have to trust Defendants’ representations about the meaning of the provisions or otherwise guess.

Most seriously, Judge Sparks found several provisions of the Act constitutionally infirm under the compelled speech doctrine of the First Amendment.  Sparks distinguished Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), on which the Defendants largely relied, by noting that

the Pennsylvania statute in Casey simply required physicians to inform pregnant women about the risks of an abortion, the potential alternatives thereto, and the availability of additional informational materials related to those alternatives. By contrast, the Act under consideration here requires physicians to provide, in addition to those legitimate disclosures, additional information such as descriptions of “the presence of cardiac activity,” and “the presence of external members and internal organs” in the fetus or embryo. The Court does not think the disclosures required by the Act are particularly relevant to any compelling government interest, but whatever relevance they may have is greatly diminished by the disclosures already required under Texas law, which are more directly pertinent to those interests.

Judge Sparks also found troubling under compelled speech doctrine Section 171.012(a)(5) that requires a pregnant woman to complete and sign a specified election form that certifies her understanding of many of the Act’s various requirements.  "The Court need not belabor the obvious by explaining why, for instance, women who are pregnant as a result of sexual assault or incest may not wish to certify that fact in writing, particularly if they are too afraid of retaliation to even report the matter to police. There is no sufficiently powerful government interest to justify compelling speech of this sort, nor is the Act sufficiently tailored to advance such an interest."  Compounding this compelled speech was the section that required the patient's certification be placed in the woman's medical records and maintained by the facility for seven years - - - making it "difficult to avoid the troubling conclusion   the Texas Legislature either wants to permanently brand women who choose to get abortions, or views these certifications as potential evidence to be used against physicians and women."

The Judge gave the severability clause of the Act effect, although he also enjoined "enforcement of any portion of the Act that conflicts with any of the above relief. This includes, but is not limited to, any penalty provision of the Act or any other statute that would impose a penalty for a person acting in compliance with this opinion." 

"The Court is bound to respect legislative intent, but not at the expense of the Constitution," Judge Sparks concluded.  Presumably, the preliminary injunction order will be appealed to the Fifth Circuit.

[image: Exterior Sculpture from The Women's Museum of Texas, via]

August 31, 2011 in Abortion, Cases and Case Materials, Due Process (Substantive), Equal Protection, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Reproductive Rights, Speech | Permalink | Comments (3) | TrackBack (0)

Tuesday, August 30, 2011

Michigan Court Rejects End-Run to Cut State Employees' Negotiated Salary Increase

A three-judge panel of the Michigan Court of Appeals, Michigan's intermediate appellate court, ruled last week that the Michigan Constitution prohibited the legislature and then-Governor Granholm from requiring that 3% of state employees' salaries go to the public employee retirement health care fund.  The ruling rebuffs the attempted legislative end-run around a state constitutional delegation of power over public employees' salaries to the state Civil Service Commission.  It also deals a blow to the legislature's attempt to balance the state's books on the back of state workers.  According to the Detroit Free Press, the governor's office is considering whether to appeal.

The case, AFSCME Council 25 v. State Employees Retirement System, arose out of the legislature and governor's attempt to roll back a negotiated 3% pay raise over three years for state workers.  Public employee unions negotiated the pay increase and got it approved by the state Civil Service Commission, an independent body, with bi-partisan members appointed by the governor. 

The Commission had plenary authority over state workers' salaries until the state constitutional convention in 1961.  At that time, Michigan voters approved a new article, Article 11, Section 5, that also gave the legislature a hand--but a small one--in setting salaries.  Under Article 11, Section 5, of the 1963 Constitution, the Commission still gets to approve salaries, but the legislature can override a Commission decision by 2/3 vote in each house within 60 days of the Commission decision.

The legislature tried to override the Commission's approval of a 3% pay increase here, but it failed.  So instead it tried an end-run around the Constitution by enacting a law, by bare majority (and not 2/3), that sent 3% of state workers' salaries to the public employee retirement fund.  The move meant that employees didn't see their negotiated pay raise; that money went instead to partially make up a deficit in the fund.

The court ruled that this end-run violated Article 11, Section 5, and state constitutional separation of powers.  The court noted that the Michigan Constitution has a separation-of-powers clause that ensures that none of the three branches interferes with the work of the others, except when specifically authorized by the Constitution.  It reads:

The powers of government are divided into three branches: legislative, executive and judicial.  No person exercising powers of one branch shall exercise powers belonging to another branch except as expressly provided in this constitution.

Article 3, Section 2.  The only express provision allowing the legislature to interfere with the work of the Commission was the 2/3 override provision in Article 11, Section 5.  Thus, the action was ultra vires--unauthorized by Article 11, Section 5, and violating separation of powers.

The ball's now in the government's court.  It can appeal to the Michigan Supreme Court (which seems likely), or it can pay back state workers the $59 million it withheld from their salaries to put into the fund.


August 30, 2011 in Cases and Case Materials, Comparative Constitutionalism, News, Separation of Powers, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

First Circuit: Police Officers Lack Qualified Immunity in Cell Phone Recording Arrest

The First Circuit has denied qualified immunity to several police officers who arrested a bystander for recording their arrest of a third person in its opinion in Glik v. Cunniffe

Simon Glik was arrested for using his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common - - - a site the court describes as "the oldest city park in the United States and the apotheosis of a public forum."  The charges against Glik, which included violation of Massachusetts's wiretap statute were "subsequently judged baseless and were dismissed." Glik then brought suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.  The ACLU is representing Glik, and produced the video below that discusses Glik's case and includes an interview with Glik.




 Affirming the district judge on this interlocutory appeal, the court applied the two prong test for qualified immunity: do the allegations show a constitutional violation; and was such constitutional violation "clearly established" at the time of the incident.  For the constitutional violation to be clearly established, the law must have been clear and the defendants must have reasonably understood their actions violated the plaintiff's rights given the facts.

On the First Amendment issue regarding Glik's right to use his cell phone to record police officers in a public place, the First Circuit held that while there need not be a case directly on point, the First Circuit did have such a case.  The court also noted that what was "particularly notable" about that case was the "brevity of the First Amendment discussion, a characteristic found in other circuit opinions that have recognized a right to film government officials or matters of public interest in public space."  For the court, this very "terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment's protections in this area."  The court summed up its conclusion thusly:

Although not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.

The court thus stated it had "no trouble concluding"  that the state of the law at the time of the alleged violation was settled and gave the defendants fair warning that their particular conduct was unconstitutional. 

As for the Fourth Amendment issue, the question was whether Glik's use of the cell phone that included an audio recorder provided probable cause to arrest Glik for violating the Massachusetts wiretap statute.  The court carefully examined state law, holding that it was clear that to violate the state statute the recording had to be surreptitious.  The complaint alleged that Glik was openly recording the officers, however the officers countered that while they might have known he was video-recording them, they would not necessarily know he was audio-recording them.  This was insufficient, the court held, to render the recording "secret."

Thus, Glik's complaint will proceed to trial in district court.  Assuming Glik can prove the facts alleged in the complaint, qualified immunity was the best defense for the officers.   Odds on a settlement?

[h/t Nate Treadwell]

August 30, 2011 in Cases and Case Materials, Criminal Procedure, First Amendment, Fourth Amendment, Opinion Analysis, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, August 29, 2011

Alabama Immigration Law HB56 Enjoined by Federal Judge


In a very brief Order issued late today, Judge Sharon Lovelace Blackburn, Chief Judge of the Norther District of Alabama, enjoined the enforcement of HB56:


Act 2011-535 [H.B. 56] is TEMPORARILY ENJOINED, and may not be executed or enforced. In entering this order the court specifically notes that it is in no way addressing the merits of the motions. The court will issue detailed Memorandum Opinions and Orders ruling on the merits of the pending Motions for Preliminary Injunction no later than September 28, 2011. This temporary injunction shall remain in effect until September 29, 2011, or until the court enters its rulings, whichever comes first.

The Order comes in the consolidated cases of Hispanic Interest Coalition of Alabama v. Bentley; Parsley v. Bentley, and United States v. Bentley.   We've previously discussed each of these three lawsuits have been brought against the controversial HB 56. 

The Hispanic Interest Coalition case began with a 118 page complaint filed early in July raises eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause;  First Amendment claims including speech, assembly, and petition clauses, the Contracts Clause, and two Sixth Amendment claims. 

Parlsey v. Bentley is the clergy complaint centering on the First Amendment Free Exercise Clause. 

United States v. Bentley marks the DOJ's entry into the controversy, raising Supremacy Clause arguments as might be expected.

The law was scheduled to go into effect September 1. 

[image: Map of Alabama, circa 1832, via]

August 29, 2011 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Interpretation, Preemption, Race, Sixth Amendment, Speech, Supremacy Clause | Permalink | Comments (2) | TrackBack (0)

Seventh Circuit Denies Qualified Immunity to Officers for Failure to Provide Medical Care

A panel of the Seventh Circuit ruled last week that Chicago Police Department lockup officers did not enjoy qualified immunity for denying medical care to an arrestee when the officers knew about the arrestee's medical condition and that she needed care. 

The case, Molina v. City of Chicago, is the latest chapter in the long-running litigation between the estate of May Molina, a prominent civil rights activist, and the City and CPD officers arising out of Molina's death while in police custody prior to her probable cause hearing. 

Eugène_Ferdinand_Victor_Delacroix_007 Molina was arrested after seventeen officers raided her home on a drug tip and recovered a number of tinfoil packets and some brown putty.  Arresting officers denied Molina permission to take along her medication for diabetes; lockup officers refused to give her medical attention when she asked for a doctor--and quite clearly needed one.  Molina died while in custody.  (There's a factual dispute about the cause of Molina's death: her estate argues that she died because she didn't have her diabetes medication, while the defendants argue that she died of a heroin overdose.  There's a related evidentiary dispute about the lower court's rejection of Molina's expert (which the Seventh Circuit reversed).  But the case came to the court on appeals of summary judgment in favor of the defendants; the court ruled that the facts viewed in the light most favorable to Molina warranted reversal.)

The court ruled that the lockup officers were aware of Molina's condition and that they denied her appropriate medical care.  But the defendants argued that they were entitled to qualified immunity, because at the time of Molina's detention the law wasn't clear what standard applied--the Eighth Amendment "deliberate indifference" standard or the Fourth Amendment "objectively unreasonable" standard. 

The court rejected that argument.  It ruled that it had long held that the Fourth Amendment protected an arrestee until the probable cause hearing.  But in any event, it didn't matter: Molina's evidence could also show that the officers violated the higher Eighth Amendment standard.

The ruling means that the case goes back to the district court on Molina's claim that she was denied medical care. 


[Image: Delacroix, The Prisoner of Chillon, Wikimedia Commons]

August 29, 2011 in Fourth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (1) | TrackBack (0)