Friday, September 30, 2011
Canada's high court today issued a unanimous opinion in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, known as the "Insite Case." The case considers the legal status of Insite, (pictured left) North America’s first government-sanctioned safe injection facility, operating in Vancouver under local and provincal law, since 2003. It implicates the constitutionality of needle-exchange, harm reduction, and addiction services throughout Canada.
For Americans, it might be helpful to think of Gonzalez v. Raich, the 2005 medical marijuana case, but add a Canadian twist for the structures analysis and a large dose of fundamental rights. In Raich, the United States Supreme Court upheld Congressional power to criminalize all marijuana under the Commerce Clause in the Controlled Substances Act, even if such marijuana was a few plants of "home grown" authorized under California's attempt to legalize medicinal marijuana. The Court in Raich declined to extend its pattern of holding Congressional acts under the Commerce Clause unconstitutional as it did in United States v. Lopez and United States v. Morrison; and of course Raich is one of the cases most favorable to the US Government's argument that the Affordable Care Act is constitutional.
In the Insite Case, the Supreme Court of Canada also ruled in favor of national rather than provincial rights. The Canadian structure is tilted much more in favor of federal rights, with a federal criminal code and a federal family law code, so this is not surprising. It was clear that the Controlled Drugs and Substances Act, CDSA, was valid legislation, pursuant to Parliament’s criminal law power, s. 91(27), but the issue was whether, as a result of the division of powers between the federal government and the provinces, Insite was not bound by the valid criminal laws that prohibit the possession and trafficking of controlled substances. The Court considered several arguments, but ultimately concluded without much difficulty that Insite was subject to federal power and not protected by contrary provincial laws.
Yet Insite and its clients also had a Charter argument, relying upon Section 7 of the Charter of Rights in the Canadian Constitution that states that everyone “has the right to life, liberty and security of the person."
The Court rejected the government's argument that "any negative health risks drug users may suffer if Insite is unable to provide them with health services, are not caused by the CDSA’s prohibition on possession of illegal drugs, but rather are the consequence of the drug users’ decision to use illegal drugs." The Court emphasized that addiction is an illness, and that moral and policy questions are not pertinent. Nevertheless, the federal CDSA was not deemed to violate Section 7 because the law allowed the Minister of Health to grant exemptions from criminal enforcement. Yet it was precisely the Minister's failure to grant an exemption for this harm reduction program that the Court did find to be a violation of Section 7.
Paragraph 153 of the Court's opinion is a good summary:
The CDSA grants the Minister discretion in determining whether to grant exemptions. That discretion must be exercised in accordance with the Charter. This requires the Minister to consider whether denying an exemption would cause deprivations of life and security of the person that are not in accordance with the principles of fundamental justice. The factors considered in making the decision on an exemption must include evidence, if any, on the impact of such a facility on crime rates, the local conditions indicating a need for such a supervised injection site, the regulatory structure in place to support the facility, the resources available to support its maintenance, and expressions of community support or opposition.
This is a narrow ruling, but a unanimous one against the Government and one with potentially far-reaching consequences in Canada. Reports from Macleans, The Globe and Mail, CBC (print), CBC audio (including an interview with UBC ConLawProf Margot Young) provide some context useful for US readers.
Thursday, September 29, 2011
The second case the Court will hear this Term involves a critical question about access to the courts and constitutional enforcement: May a private party sue under the Supremacy Clause to force California to comply with federal Medicaid program requirements?
The case, Douglas v. Independent Living Center, arose out of California’s cuts to its Medicaid program, dubbed Medi-Cal. In 2008 and 2009, the California legislature slashed Medi-Cal funding in order to help deal with the state’s fiscal crisis. The legislature cut reimbursement rates for participating Medi-Cal providers by ten percent; it reduced future reimbursement rates by one percent from their pre-2008 levels; and it reduced the maximum contribution paid by Medi-Cal for wages and benefits for in-home supportive services. The state did not study the impact of these cuts or submit them to federal Medicaid regulators at the Centers for Medicare and Medicaid Services, or CMS, as required by federal law.
Medi-Cal providers and beneficiaries sued in five separate cases in state and federal courts under the Supremacy Clause, arguing that California’s cuts were preempted by federal Medicaid requirements. In particular, the plaintiffs argued that California’s cuts failed to satisfy the requirements of Section 30(A) of the Medicaid Act, which says that participating states must ensure that state Medicaid payments to health care providers “are consistent with efficiency, economy, and quality of care” and “sufficient to enlist enough providers so that care and services are available . . . to the general population in the geographic area.” Under Section 30(A), states also have to study the impact of any proposed rate reductions on health care services and submit them to the CMS for review.
In a series of appeals, the Ninth Circuit ruled that the plaintiffs qualified for a preliminary injunction against the state, thus halting the cuts. The state then appealed to the Supreme Court, arguing that the plaintiffs, as private parties, could not sue under the Supremacy Clause—that private parties could not enforce this structural provision of the Constitution in court without an explicit private right of action or an interference with a fundamental right.
The state argues that the plaintiffs have no private cause of action under either federal law or the Constitution. As to federal law, the state says that neither Section 30(A), nor any other federal law, explicitly gives plaintiffs a private right of action to enforce Medicaid requirements against a state. The legislative history of the Medicaid Act only underscores this. In 1997, Congress revoked the “Boren Amendment,” a portion of the Medicaid Act. That provision, according to an earlier Supreme Court ruling, gave private parties a right private of action and spawned an explosion of lawsuits challenging state Medicaid rates. The state argues that Congress’s revocation of the provision suggests that it intended to remove any right of action, not to create one. Moreover, the state contends, Section 30(A) gives plaintiffs no individual right that they might enforce by way of a civil rights action under Section 1983.
The state says that the plaintiffs also have no right of action under the Supremacy Clause. The state claims that the Supremacy Clause is not a source of rights but rather a rule of decision for parties already properly before the courts. The state contends that cases challenging Spending Clause legislation, like the Medicaid Act, which authorizes federal funds only for states that agree to and comply with federal Medicaid requirements, are particularly inappropriate. This is because state law cannot conflict with federal law under the Spending Clause: any “conflict” only means that the state is not complying with federal requirements and is therefore ineligible for continued federal program funds. Thus a “conflict” is really no conflict at all; it’s only a state choice to not participate in the program.
Finally, the state notes that the plaintiffs are already participating as amici in an administrative process that tests the Medi-Cal cuts. The state says that it appealed CMS’s initial rejection of its cuts through an established administrative process; that process is pending. The state argues that this process is the only appropriate venue for the plaintiffs’ participation in this essentially state-federal dispute.
The plaintiffs counter that the original understanding of the Supremacy Clause and the Court’s subsequent jurisprudence both suggest that they may properly bring their claim. They say that courts have consistently concluded that a plaintiff could lodge a case against a state for declaratory and equitable relief under the Supremacy Clause—that these claims do not require explicit statutory authorization. And they say that they need not point to an interference with their rights (to bring a Section 1983 case): their claim under the Supremacy Clause is a constitutional claim that must exist on its own as an incident of the Constitution’s structure and operation. The plaintiffs claim that they seek to enforce federal preemption under the Supremacy Clause, not (just) the requirements of Section 30(A).
The United States weighed-in on the side of the state. It argued that the Court could dodge the precise and knotty question by recognizing that this case is special. This is a Spending Clause case, it says, and, as described above, there simply can be no conflict between state and federal law. With no conflict, there is no preemption; and with no preemption, there is no Supremacy Clause issue.
The case comes at the complicated intersection of state politics and finance, health care, federalism, and standing—considerations and interests that pull in different directions, at a time when states face increasing fiscal challenges, when health care costs are rising, affecting coverage, and when the other health care issues are on everyone’s mind. (I need not remind readers that parties on both sides of the Eleventh Circuit ruling overturning the so-called individual mandate filed petitions for review with the Court on Wednesday.)
For example, a ruling for the state would allow states to continue to balance their budgets on the backs of Medicaid providers and recipients, often their most vulnerable populations, checked only by the administrative process at the CMS, which California has well demonstrated that a state can manipulate (through delay and foot-dragging). On the other hand, a ruling for the plaintiffs would mean that plaintiffs could tie up states in litigation any time a state wanted to cut Medicaid rates, or to make any other significant changes to their Medicaid programs. In short, the case is hard.
On a different level, the Court will also have to grapple with private party standing to bring structural claims under the Constitution. The Court ruled last Term in Bond v. U.S. that a private individual, a criminal defendant, had prudential standing to challenge a federal criminal statute as violating the Tenth Amendment, another structural provision. If Bond opened the door a little wider for structural claims by private litigants, Reynolds could break it wide open. That’s because the plaintiffs in Reynolds aren’t already properly before the courts (as Bond was); they are bringing their claim under a structural provision alone. And they are doing it in the context of a Spending Clause program.
The Court can easily dodge this bullet, though. As the U.S. government argues, there really is no conflict in this case between state and federal law that the Supremacy Clause can resolve. This truth provides the clearest path for a ruling here. Look for the Court to fall back on it, even if it frustrates private Medicaid providers’ and recipients’ quests to hold their states to federal Medicaid requirements.
The Ninth Circuit issued a per curium opinion today in Log Cabin Republicans v. United States dismissing the case as moot. This is absolutely predictable.
Despite extensive litigation which we last mentioned here, with the repeal of 10 U.S.C. § 654(b) effective September 20, 2011, the policy known as DADT, "don't ask, don't tell," regarding sexual minorities in the military was no longer law. Thus, a challenge to the statute's constitutionality is no longer a live "cae or controversy" under Article III.
The Ninth Circuit opinion, however, is no so simple. The panel considered and rejected two arguments by Log Cabin Republicans that the case should not be dismissed as moot.
First, the panel rebuffed the argument that while the injunctive relief might be moot, the declaratory relief might not be. The speculation that "a future Congress whose composition, agenda, and circumstances we cannot know—will reenact Don’t Ask, Don’t Tell," or that the same Congress that enacted the Repeal Act could change course, was mere speculation and "our speculation cannot breathe life into this case."
Second, the panel strongly repudiated the claim of “collateral consequences” from a challenged statute even when the statute is repealed. The panel resolved this issue by simply stating that any missed benefits discharged service members may have lost as a result of their separation pursuant to DADT were not legal penalties from past conduct, they did not fall within collateral consequences exception. However, the panel went farther:
Because Log Cabin has stated its intention to use the district court’s judgment [holding DADT unconstitutional] collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings—to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect. The repeal of Don’t Ask, Don’t Tell provides Log Cabin with all it sought and may have had standing to obtain.
Judge Diarmuid O'Scannlain wrote a specially concurring opinion, as lengthy as the per curium decision, devoted not to the question of mootness, but to share his thoughts about Lawrence v. Texas: "I write separately because our inability to reach the merits may leave uncertainty about the role Lawrence v. Texas, 539 U.S. 558 (2003), may have in substantive due process challenges. Although Congress spared us the need to reach the merits in this case, other such challenges will come to the courts."
Judge O'Scannlain, widely regarded as exceedingly conservative, thus wrote an essentially advisory opinion, violating the basic premise of the Article III case and controversy requirement. It seems a bit paradoxical that he wrote this in a case in which the panel dismissed the claim as moot, lest the court render an advisory opinion in contravention of the Article III case and controversy requirement.
September 29, 2011 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Mootness, Opinion Analysis, Sexual Orientation, Sexuality, Standing | Permalink | Comments (1) | TrackBack (0)
Wednesday, September 28, 2011
Three parties--two sets of plaintiffs and the U.S. government--filed petitions today asking the Supreme Court to review the Eleventh Circuit ruling last month in State of Florida v. HHS striking down aspects of the Affordable Care Act. In seeking Court review of the three-judge panel decision, the parties are bypassing en banc review and taking the case directly to the Court.
Recall that the Eleventh Circuit ruled the so-called individual mandate unconstitutional, but also ruled it severable from the rest of the ACA. In particular, the court ruled that the individual mandate exceeded congressional authority under both the Commerce Clause and the Taxing Clause; that the individual mandate was severable from the rest of the ACA; and that Medicaid expansion did not unduly coerce the states and thus exceed congressional authority under the Spending Clause. The ruling gave both sides plenty to appeal.
And the petitions for cert. filed today reflect it. Thus the National Association of Independent Business and two private individuals, all plaintiffs in the case, took on the Eleventh Circuit's ruling on severability. (Recall that the district court ruled the individual mandate non-severable, in part because the government argued that it was an essential part of the overall ACA. And becuase it ruled that Congress lacked authority to enact the individual mandate, the district court also struck down the entire ACA. The Eleventh Circuit reversed.) These petitioners also say that the Eleventh Circuit's case is a better vehicle with which to evaluate the ACA, because it involves all the issues, but none of the problems, of the cases out of the other circuits. Thus, they say that the Sixth Circuit ruling in Thomas More, upholding the individual mandate, includes a contested standing issue and failed to address severability of the individual mandate (because the parties didn't argue it); the Fourth Circuit in Liberty University ruled that the plaintiffs' case was barred by the Anti-Injunction Act, an erroneous and now "irrelevant" ruling, in their judgment.
The state plaintiffs in the case took on the Eleventh Circuit's ruling on the Tenth Amendment and federalism. They argue that the Eleventh Circuit erred in ruling that Medicaid expansion in the ACA isn't unduly coercive and that the Supreme Court should resolve whether the so-called employer mandate provisions are constitutional as applied to the states.
Finally, the government argued that Congress had authority to enact the individual mandate under the Commerce Clause and, alternatively, the Taxing Clause. It also asks the Court to address whether the Anti-Injunction Act bars the plaintiffs' suit.
The petitions today make it all the more likely that the Court will hear a challenge to the ACA this Term. And this case seems the most likely vehicle, for all the reasons argued by the NFIB: This case puts it all before the Court--Commerce Clause, Taxing Clause, severability, Tenth Amendment, federalism, and the AIA. Both sides want a ruling on the whole thing, and this is the right case.
[Image: Pieter Huys, A Surgeon Extracting the Stone of Folly, Wikimedia Commons]
September 28, 2011 in Cases and Case Materials, Commerce Clause, Congressional Authority, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis, Spending Clause, Supreme Court (US), Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
UPDATE: ELEVENTH CIRCUIT INJUNCTION PENDING APPEAL HERE.
Accompanying her opinion in United States v. Alabama issued today [discussed in part I], Judge Blackburn a while later issued a 100 plus page Memorandum opinion in Hispanic Interest Coalition of Alabama v. Bentley enjoining other portions of the controversial HB56.
Some of the Hispanic Interest Coalition of Alabama's (HICA) challenges were moot by the Judge's opinion in United States v. Alabama issued earlier today. However, Judge Blackburn found that none of the HICA plaintiffs had standing to challenge HB56 in its entirety, and that HICA did not have standing as an association. Thus for each challenge, the judge considered standing. The judge found that HICA plaintiffs did not have standing to challenge one of the more controversial sections, section 28, regarding enrollemnt of students in public schools.
The Judge did grant a preliminary injunction of three separate provisions.
First, Judge Blackburn issued a preliminary injunction of Section 8 of HB56, as preempted by federal immigration law. HB56 §8 provides:
An alien who is not lawfully present in the United States shall not be permitted to enroll in or attend any public postsecondary education institution in this state. An alien attending any public postsecondary institution in this state must either possess lawful permanent residence or an appropriate nonimmigrant visa under 8 U.S.C. § 1101, et seq. For the purposes of this section, a public postsecondary education institution officer may seek federal verification of an alien’s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c). A public postsecondary education institution officer or official shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States. Except as otherwise provided by law, an alien who is not lawfully present in the United States shall not be eligible for any postsecondary education benefit, including, but not limited to, scholarships, grants, or financial aid.
The judge found that Congressional intent was contrary and clear, and thus the state law was preempted. Only Congress, the judge stated, may "classify aliens" including for postsecondary education.
Second, the judge issued a preliminary injunction of the last sentences of Sections 10(e), 11(e), and 13(h) based on the Compulsory Process Clause of the Sixth Amendment. These sentences provide that "A court of this state shall consider only the federal government’s verification in determining whether an alien is lawfully present in the United States." The judge found that to the extent Sections 10(e), 11(e), and 13(h) of H.B. 56 are interpreted as allowing a defendant to be convicted based on a certificate of nonexistent record (CNR) without testimony from the clerk or officer preparing the report, these sections violate the Confrontation Clause, but because there is no evidence this has occurred, the Confrontation Clause argument does not merit a preliminary injunction. As to the Compulsory Process Clause challenge, however, Judge Blackburn ruled that by "limiting evidence admissible in a state-court proceeding to “only” the federal government verification of lawful presence, Sections 10(e), 11(e), and 13(h) deny every person accused of violating Sections 10, 11 or 13 of H.B. 56 the constitutionally-protected right to present a defense. By denying accused individuals the opportunity to prove lawful presence, Alabama has denied all individuals charged under these sections with their right to compulsory process."
Third, the judge issued a preliminary injunction of Sections 11 (f) and (g) based on the First Amendment. These provision provide:
(f) It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
(g) It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
The judge found that these provision were not content nuetral because they applied to a particular subject matter of expression - - - solitication of employment - - - rather than to partcular conduct, such as blocking traffic. Yet the judge also analyzed the provisions under the commercial speech doctrine Alabama advocated, finding them failing to satify that lower standard.
Like US v. Alabama, this is sure to be appealed to the Eleventh Circuit, and Judge Blackburn's opinions might not be affirmed in all respects, but its careful analysis is sure to be accorded respect.
September 28, 2011 in Congressional Authority, Criminal Procedure, Current Affairs, First Amendment, Opinion Analysis, Preemption, Standing, Supremacy Clause, Travel | Permalink | Comments (0) | TrackBack (0)
UPDATE: ELEVENTH CIRCUIT INJUNCTION PENDING APPEAL HERE.
Judge Sharon Lovelace Blackburn, Chief Judge of the Northern District of Alabama, has issued a 115 page Memorandum Opinion enjoining portions of HB 56 in United States v. Alabama. [UPDATE: Other portions of HB56 are enjoined in a separate opinion in Hispanic Interest Coalition of Alabama v. Bentley]
Days before the law was scheduled to go into effect on September 1, Judge Blackburn issued a temporary injunction which made it clear it did not address the merits.
The judge has now rendered her opinion on the various provisions that the United States claims are pre-empted. Her opinion thus allows a few of the more controversial portions of HB56 to become effective.
Here's the result of her detailed analysis, with the provisions the Judge has declared enjoined as preempted in bold:
H.B. 56 § 10, which creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and is unlawfully present in the United States.
H.B. 56 § 11(a), which makes it a misdemeanor crime for an unauthorized alien to apply for, solicit, or perform work.
H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.
H.B. 56 § 13, which makes it unlawful for a person to 1) conceal, harbor or shield an alien unlawfully present in the United States, or attempt or conspire to do so; 2) encourage an unlawful alien to come to the State of Alabama; or 3) to transport (or attempt or conspire to transport) an unlawful alien.
H.B. 56 § 16, which forbids employers from claiming as business tax deductions any wages paid to an unauthorized alien.
H.B. 56 § 17, which establishes a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized to work while hiring, or retaining, an unauthorized alien.
H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.
H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.
H.B. 56 § 28, which requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.
H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.
In her analysis, the Judge relied heavily on the Third Circuit case of Lozano, regarding the Hazelton ordinance, which has been vacated and remanded, and the Ninth Circuit case of United States v. Arizona, on the notorious SB1070, as might be expected. However, less predictable is Judge Blackburn's rejection of the Ninth Circuit's opinion in Arizona regarding "unlawful presence," (§10 of HB56). In part, Judge Blackburn factually distinguishes the Arizona and Alabama statutes. However, Blackburn also makes it clear she thinks Arizona is incorrect and extensively quotes the dissenting opinion.
Judge Blackburn found one of the most controversial sections of HB56 - - - §13, the haboring transporting provision - - - subject to injunction as pre-empted. Blackburn's analysis here, especially distinguishing §10, is worth a look:
H.B. 56 § 13 thus represents a significant departure from homogeneity, which “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Section 13 creates an Alabama-specific harboring scheme that “remove[s] any federal discretion and impermissibly places the entire operation – from arrest to incarceration – squarely in the State’s purview.” Unlike Section 10, which constrains the Alabama courts to the line of federal precedent interpreting 8 U.S.C. §§ 1304 and 1306, Section 13 imposes no obligation on Alabama courts to take guidance from federal courts and agencies in interpreting the word “harboring” as H.B. 56 § 13 is state law. For all these reasons, the court finds the United States is likely to succeed in showing that Section 13 is preempted.
[Op. at 84, citations omitted].
Given her conclusion on §13, the Judge ruled that the "Clergy Complaint" objection to the same section was moot; She also denied the Clergy motion seeking to enjoing §27 in accordance with her conclusion in US v. Alabama.
Sure to be appealed to the Eleventh Circuit, by either the United States or Alabama or both, Judge Blackburn's opinions might not be affirmed in all respects, but its careful analysis is sure to be accorded respect.
As the NYT reported yesterday, the clash between the same-sex marriage law in NY, the Marriage Equality Act, and the objections, religiously based, of public employees including town clerks, if fomenting.
As we previously discussed, while the Marriage Equality Act has a religious exemption, this does not cover town clerks who issue marriage licenses. And as we also previously discussed, the Alliance Defense Fund issued a memo to town clerks entitled "Your Right to Request An Accommodation of Your Sincerely Held Religious Beliefs Concerning Issuance of Marriage Licenses to Same- Sex Couples."
The NYT quotes the clerk in the rural community, Rose Marie Belforti, as saying "state law 'protects my right to hold both my job and my beliefs.' " While the article doesn not mention the memo, the state law claim is indeed discussed in the memo, which does not argue the First Amendment.
At issue may be the contours of "religious accommodation." According to the NYT article, the clerk's office is open only a limited number of hours, but same-sex couples desiring a marriage license needed to telephone in advance for a special appointment so that a substitute clerk could handle the matter. The Town Clerk is an elected position.
September 28, 2011 in Current Affairs, Equal Protection, Family, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, News, Religion, Sexual Orientation, Speech | Permalink | Comments (0) | TrackBack (0)
The Ninth Circuit has upheld the constitutionality of subsection(a) of the "Stolen Valor Act" in a brief opinion in United States v. Perleman. Perleman wore the Purple Heart, which he had actually been awarded by the US Air Force, but under a fraudulent claim. (Apparently Mr. Perleman shot himself in the thigh, but claimed it was a shrapnel injury from his service in Viet Nam 20 years earlier; he also collected disability benefits from the military).
The Perleman opinion is noteworthy because it distinguishes subsection(a) of 18 USC §704 from subsection(b) which the Ninth Circuit held unconstitutional last year in United States v. Alvarez. In Alvarez, the legnthy opinion of the panel highlighted that the criminal provision regulated "only words" and moreover the words targeted "words about a specific subject: military honors," and was thus a content-based regulation subject to strict scrutiny.
The court wrote:
Our decision in Alvarez under § 704(b) does not control the question whether § 704(a) is facially overbroad. The starting point for our analysis in Alvarez was the recognition that § 704(b) criminalizes pure speech. The critical part of the reasoning was that § 704(b) “makes criminal the speech itself regardless of any defining context.” We also found it important that § 704(b) lacks “a scienter requirement to limit the Act’s application.” By contrast, here, Defendant effectively argues that the First Amendment protects the fraudster’s knowingly fraudulent activity: knowingly wearing a military medal without authorization and with intent to deceive. Whereas § 704(b) criminalizes pure speech, § 704(a) criminalizes certain specified activities limited by a scienter requirement.
[citations and footnotes omitted].
The panel considered the statute under the O'Brien test for conduct-as-speech, with a summary analysis. The Court also discussed Schacht v. United States, 398 U.S. 58 (1970), in which the Supreme Court addressed a constitutional challenge to 18 U.S.C. § 702, which bars the unauthorized wearing of military uniforms, although of course in Schacht the Court did find the provision in another statute that prohibited criticizing the government while wearing a uniform unconstitutional as a viewpoint regulation.
[image of Purple Heart medal via]
Tuesday, September 27, 2011
The Seventh Circuit ruled last week in Williams v. Adams that a district court's dismissal of a plaintiff's civil rights suit is a disproportionate remedy for the plaintiff's inability (and thus failure) to pay a court-ordered sanction in the very early phases of the case. The court thus reversed the dismissal and allowed the case--now six-and-a-half years old--to finally move forward.
The lower court issued a sanction after the plaintiff's attorney failed to respond to defense counsel's draft pretrial order. Defense counsel couldn't even get a response from plaintiff's attorney a full six months after the court's deadline for filing the pretrial order. The defendant initially moved to dismiss the case and for monetary sanctions, but later withdrew the motion to dismiss. The district court sent the motion to a magistrate, who, after a pair of hearings, declared the plaintiff and his attorney jointly liable to the defendants for $9,055.14, to be paid within 30 days.
The plaintiff tried to negotiate a payment plan--$25 a month--because he couldn't afford the full amount. Defendants rejected it and, five months later, moved to dismiss the case. The district court granted the motion, saying that the failure to pay had been "contumacious," despite the plaintiff's inability to pay the full amount.
The Seventh Circuit reversed, ruling that dismissal was not a proportionate remedy for a plaintiff's failure to pay a sanction, when the plaintiff can't afford it. The court also noted that the defendants had earlier offered to settle for $10,000, money that the plaintiff could have used to pay the sanction, and that the state's attorney disciplinary commission later ordered plaintiff's attorney to pay the sanction himself.
Monday, September 26, 2011
A sharply divided 3-judge panel of the Fourth Circuit ruled last week in a pair of cases that a group of Iraqi citizens could not sue U.S. military contractors in tort for torture in Abu Ghraib prison and other locations throughout Iraq.
The court ruled in Al Shimari v. CACI Int'l and Al Quraishi v. L-3 Services, Inc. that federal interests preempted the plaintiffs' claims and dismissed the cases. But there was no preempting federal statute; instead the court relied on federal "interests" in interrogating detainees on a battlefield. Judge Niemeyer explained in an opinion joined by Judge Shedd:
[W]e too conclude that this case implicates important and uniquely federal interests. The potential liability under state law of military contractors for actions taken in connection with U.S. military operations overseas would similarly affect the availability and costs of using contract workers in conjunction with military operations. In this case, that uniquely federal interest was especially important in view of the recognized shortage of military personnel and the need for assistance in interrogating detainees at Abu Ghraib prison. Not only would potential tort liability against such contractors affect military costs and efficiencies and contractors' availability, it would also present the possibility that military commanders could be hauled into civilian courts for the purpose of evaluating and differentiating between military and contractor decisions. That effort could become extensive if contractor employees and the military worked side by side in questioning detainees under military control, as the complaint alleges in this case. Moreover, such interference with uniquely federal interests would be aggravated by the prison's location within the war zone. Finally, potential liability under state tort law would undermine the flexibility that military necessity requires in determining the methods for gathering intelligence.
. . .
In addition to the specific adverse impacts on the uniquely federal interests of interrogating detainees in foreign battlefields, a broader and perhaps more significant conflict with federal interests would arise from allowing tort law generally to apply to foreign battlefields.
Al Shimari at 8-10. In ruling the plaintiffs' claims preempted, the court followed the lead of the D.C. Circuit in Saleh v. Titan Corp., a 2009 case holding that where a civilian contractor is integrated into combat activities over which the military maintains authority, tort claims against the contractor are preempted.
Judge Neimeyer wrote separately to say that he would have dismissed the case under the political question doctrine and derivative absolute immunity, too.
Judge King wrote a lengthy dissent. Judge King said that the court lacked jurisdiction over this interlocutory appeal, a position he explains in his dissenting opinion in Al Quraishi, and that, if the court had jurisdiction, preemption didn't apply to bar the plaintiffs' claims.
In Al Quraishi, a case with similar facts, the divided panel (Judge King, dissenting) ruled that the court had jurisdiction over the contractor's interlocutory appeal of the district court's denial of its motion to dismiss.
September 26, 2011 in Cases and Case Materials, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Preemption, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
It's banned books week again.
This year one of the "top ten" books being challenged, according to the American Library Association, is Nickel and Dimed: On (Not) Getting by in America, by Barbara Ehrenreich, with the reasons given as "drugs, inaccurate, offensive language, political viewpoint, religious viewpoint."
Ehrenreich's more recent book, Bright-Sided: How the Relentless Promotion of Positive Thinking Has Undermined America, caused a bit of a stir as we discussed here, but the decade old Nickel and Dimed has recently become more controversial. The objections seem to be to Ehrenreich's unpopular view of capitalism. Ehrenreich's "update" on her book argues that things have gotten worse.
Banning Sherman Alexie's National Book Award winning novel, The Absolutely True Diary of a Part-Time Indian, on the list again this year, is understandable in the context of the history of banning books for sexual language. A bit less understandable, but still within some interpretations of the sexual, is the number one book on this year's list yet again, And Tango Makes Three, a children's book based on the true story of two penguins in the Central Park Zoo who come together to raise a chick. The problem, presumably, is that the penguins are both male.
Yet the banning of Ehrenreich's Nickel and Dimed seems exceedingly problematical under the First Amendment. While "obscenity" has a special (and devalued) position within First Amendment doctrine, first-person reporting that casts capitalism in an unfavorable light would seem to be the type of political speech that Americans most highly valued, in doctrine as well as practice.
Wisconsin has recently been the site of several recent controversies regarding labor law, including academic labor, and the University of Wisconsin Law School Conference, The Constitutionalization of Labor and Employment Law?, on October 28-29, 2011 in Madison is sure to address some of these issues.
Additionally, the conference organizers note that recent "U.S. Supreme Court cases have contained much legal discussion at the intersection of constitutional law concepts and the law of the workplace – both in the public-sector workplace where constitutional state action exists and in the private-sector workplace where it does not. Recent cases include: Garcetti v. Ceballos, Christian Legal Society v. Martinez, City of Ontario v. Quon, NASA v. Nelson, Engquist v. Oregon Dept. of Agricultural, and Ricci v. DeStefano."
The 5 panels are Equal Protection, 13th Amendment, Workplace Privacy, Freedom of Association and Freedom of Speech.
More information, including registration information is here. The "symposium fee is waived for full-time members of academia," pre-registration is required and the deadline is October 18.
September 26, 2011 in Affirmative Action, Association, Conferences, Current Affairs, Equal Protection, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Privacy, Race, Recent Cases, Scholarship, Speech, Supreme Court (US), Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)
Sunday, September 25, 2011
Unlike the protesters violating the anti-masking statute as we discussed, the mass arrests on Saturday in NYC seem to be largely for infractions devoted to blocking traffic according to the NYT. There is an unconfirmed allegation of an arrest for photographing police officers; this could be problematic in light of the First Circuit decision last month denying police officers qualified immunity in a civil suit by a man arrested for video-recording an arrest of another person on his cell phone.
There are allegations of police misconduct, including excessive force and the use of "kettling" (netting protesters) followed by pepper spray. The available media depicting the protest and the arrests make vivid viewing and seem to substantiate these allegations. This material could prompt excellent discussions for ConLawProfs (as well as CrimProProfs, and those teaching Civil Disobedience, Social Change, and Democratic Theory courses).