April 6, 2012
Second Circuit Finds Disability Advocates, Inc. Lacks Standing
The Second Circuit's opinion today in Disability Advocates, Inc. v. New York Coalition for Quality Assisted Living, Inc. denies Article III standing to the nonprofit Disability Advocates, Inc (DIA) in its suit against various state agencies and the governor of New York pursuant to the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
The panel found that because DAI was a contractor to supply services, it did not meet the requirement for associational standing. Although in a footnote, the panel clarified that this was not necessarily true in all cases:
Our holding does not stand for the proposition that all organizations contracted to provide protection and advocacy within a P&A system [under the Protection and Advocacy for Individuals with Mental Illness Act] necessarily lack standing. We do not reach the question of whether some such contractors can fulfill the statutory requirements under § 10805 and meet the constitutional threshold established under Hunt [ v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)]. We hold simply that, in the circumstances presented here, DAI has not met its burden to establish constitutional standing.
We reject the argument that merely because DAI lacks standing to assert this claim on its own, it cannot fulfill its legislative responsibility to “pursue . . . legal . . . remedies to ensure the protection of individuals with mental illness.” 28 U.S.C. § 10805(a)(1)(B); see United States Br. 66. In circumstances where P&A contractors cannot bring suits “in their own right” because of constitutional standing requirements, they may provide representation to individuals with mental illness and litigate those cases in the names of those individuals. That contractors such as DAI must satisfy the minimum requirements of constitutional standing does not foreclose access to the federal courts for those organizations or the individuals whose interests they are intended to serve.
In addition to holding that DAI lacked standing, the Second Circuit held that "the intervention of the United States after the liability phase of the litigation had concluded was insufficient to cure the jurisdictional defect created by DAI’s lack of standing." The panel relied upon civil procedure rules regarding jurisdiction, even as it noted that precedent established "a district court’s discretion to treat the pleading of an intervenor as a separate action in order to adjudicate the claims raised by the intervenor even if the underlying claim was jurisdictionally deficient." The panel found that discretion was not warranted here because the United States intervened too late: "the District Court decided important questions of fact and law based entirely on the presentation of a plaintiff who lacked standing. The fact that the United States later “adopted” those findings and conclusions cannot remedy the absence of jurisdiction at trial and in pretrial proceedings."
The panel concluded with its observations about judicial economy - - - as well as its opinion on the merits, or, at least the remedy:
In reaching this conclusion, we are mindful of the possibility that this litigation will continue, inasmuch as the United States—whose standing is not disputed—has represented that, in the event of a dismissal on the basis of standing, it would re-file the action and submit the same evidence at a subsequent trial. Individual plaintiffs with standing could, of course, pursue further litigation as well, either in conjunction DAI or on their own. We are not unsympathetic to the concern that our disposition will delay the resolution of this controversy and impose substantial burdens and transaction costs on the parties, their counsel, and the courts. Should that situation arise, we are confident that the experienced and able district judge, as a consequence of his familiarity with prior proceedings, can devise ways to lessen those burdens and facilitate an appropriate, efficient resolution.
Although we are not presently required to consider the issue of remedy, we do have concerns about the scope of the proposed remedy. If this controversy continues, and if the renewed litigation reaches the remedial phase, the parties and the District Court will have another opportunity to consider an appropriate remedy.
The court's "concerns" send a clear message about the merits of the case, which have for the present been expressed as dicta and otherwise collapsed into discretionary judgements regarding standing and procedural rules.
[image: Vincent Can Gogh, Corridor in the Asylum, circa 1889 via]
April 5, 2012
CFP: Supreme Court Review
If you are doing some writing about the United States Supreme Court, here's a CFP that might interest you.
FROM THE EDITORS: The Charleston Law Review, the flagship law review of the Charleston School of Law, invites submissions for its annual Supreme Court Preview volume. This year’s Preview will feature a foreword by John Eastman, former Dean and Henry Salvatori Professor of Law and Community Service at Chapman University School of Law. The 2009 Supreme Court Preview volume was cited by Justice Clarence Thomas in his concurring opinion in FCC v. Fox Television Stations Inc., 129 S. Ct. 1800 (2009).
We welcome an article or essay addressing a case before the Court in its October 2012 Term, or in the alternative, addressing an aspect of the Court itself such as recent voting trends, case load, an analysis of a particular Justice, or any other topic related to the Supreme Court.
This year’s Supreme Court Preview is published to coincide with the opening of the 2012 October Term.
We therefore ask that work be submitted no later than August 1, 2012.
Submissions will be reviewed on a rolling basis beginning June 1, 2012.
Please direct submissions and any questions about our Supreme Court issue to Morgan Peterson, Editor in Chief, via email at vmpeterson [at] charlestonlaw.edu or via telephone at (828) 284-0378.
[image: The Justices by DonkeyHotey, via]
AG Holder Responds to Fifth Circuit Order on Judicial Review
Attorney General Eric Holder today filed his three-page, single-spaced response to the order of the Fifth Circuit (by Judge Smith) the other day asking for the administration's position on judicial review.
There are obviously no surprises in DOJ's response; it's simply a short essay on judicial review. It's not clear that the response complies with the order in two respects, however: it's not at least three pages, single-spaced, and it only mentions President's Obama's comments in passing ("The President's remarks were fully consistent with the principles described herein.").
But it doesn't matter: This was a meaningless order in the first place, and the administration could well have (and should well have) entirely ignored it. The AG's response only legitimized this meaningless order and, thus, the courts' ability to bully the administration around to no particular end. AG Holder's response sets an unfortunate separation-of-powers precedent that the administration should have resisted.
April 4, 2012
DOMA in the First Circuit (and elsewhere)
On appeal from two opinions from Federal District Judge Tauro holding Section 3 of DOMA unconstitutional, the First Circuit heard arguments today in Commonwealth of Massachusetts v. United States Department of Health and Human Services, and Gill v. Office of Personnel Management.
A partial audio recording of the argument is available here (the first 18 minutes is missing).
Arguing to reverse Judge Tauro's opinions and defending DOMA was BLAG - the Bipartisan Legal Advisory Group of the House of Representatives - who took up the case when the Obama DOJ decided that DOMA section 3 violates the equal protection component of the due process clause of the Fifth Amendment.
The equal protection arguments are central, including the level of scrutiny that should apply to the category of "sexual orientation," what government interests should be considered (the ones at the time of passage or the ones offered in the present litigation), and the possibility of animus, especially given the name of the act.
In addition to equal protection, the Tenth Amendment also figured prominently in the arguments. This has caused at least one commentator to note that Paul Clement's argument on behalf of BLAG was exactly the opposite of his argument last week that the Affordable Care Act is unconstitutional. Moreover, while DOMA and the anti-immigration initiative, SB1070, in Arizona v. US are certainly reconciliable with regard to the federalism issue, Clement's argument on behalf of Arizona before the United States Supreme Court later this month will most certainly contradict his DOMA stance.
Meanwhile, Immigration Equality has filed a complaint in the Eastern District of New York arguing that DOMA section 3 is unconstitutional on the basis of equal protection regarding both sexual orientation and sex, and should not be enforced in the immigration context.
As for the DOMA argument in the First Circuit, there is a suggestion that the case should go to the en banc court. However, for now the case is before Judges Lynch, Torruella, and Boudin, pending a panel decision.
Convening Authority Refers KSM Charges to Military Commission
The Convening Authority today referred terrorism charges against Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi to a capital military commission. Capital charges include conspiracy, attacking civilians, murder in violation of the law of war, hijacking and aircraft, and terrorism.
We last posted on the case--and separation-of-powers issues in the congressional restriction on trying in a regular Article III court--here. (Recall that the administration originally sought to try these individuals in regular Article III courts; Congress restricted the administration's ability to do that; the administration balked, but ultimately decided to try them by military commission.)
The Office of Military Commission web-site, including electronic case files, is here.
Fifth Circuit Judge Orders Administration to State Position on Judicial Review
Judge Jerry Smith (5th Cir.) yesterday ordered a DOJ attorney to deliver a letter to the court stating the position of the AG and DOJ on judicial review. The order comes in response to President Obama's statements the other day at a news conference on the ACA challenge at the Supreme Court.
This is an uncommonly silly order--serving no legitimate purpose, interfering with separation of powers, and undermining the credibility and seriousness of the federal courts (or at least the Fifth Circuit)--and the DOJ would do well to ignore it. The President's statements the other day were plainly not a challenge to the idea of judicial review; they were simply a statement of the administration's constitutional position on the ACA, already articulated by the SG at oral argument and repeatedly stated by the administration and the President himself in other contexts.
Here's a recording (thanks to Steve Bussey radio), followed by the language:
I would like to have from you by noon on Thursday . . . a letter stating what is the position of the Attorney General and the Department of Justice in regard to the recent statements by the President stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages, single-spaced, no less, and it needs to be specific.
April 3, 2012
Ninth Circuit Upholds California Ban on Affirmative Action
Section 31 of Article IX of the California Constitution - - - Prop 209 passed in 1996 - - - was upheld by a panel of the Ninth Circuit in Coalition to Defend Affirmative Action v. Brown.
The panel's opinion held that the equal protection challenge to section 31 was precluded by a previous Ninth Circuit decision, Coalition for Economic Equity v. Wilson (Wilson II), 122 F.3d 692 (9th Cir. 1997).
The plaintiffs had argued that Wilson II did not govern because it was a facial challenge of section 31, whereas the present action was an as-applied constitutional challenge, focused on higher education. The plaintiffs also argued that Prop 209 did not survive Grutter v. Bollinger (2003). Rejecting both of these contentions, the Ninth Circuit panel affirmed the district judge's conclusion that Wilson II did consider the context of higher education and that Grutter concerned the constitutionality of governmental choices regarding diversity but did not mandate those choices.
However, before reaching the equal protection claim, the panel considered - - - and rejected - - - the state defendants' argument that the Eleventh Amendment barred suit against them in federal court. The partial dissenting opinion by Judge Tashima disagreed on this point.
In a footnote, the panel opinion referenced Fisher v. Texas, stating that the Supreme Court "appears poised to reconsider whether race-based affirmative action programs are even permissible at all."
[image: University of California's ten campuses, via]
Arizona's HB 2459: Internet Decency?
Awaiting Governor Jan Brewer’s signature is Arizona HB-2549 , a bill that “updates” the previous telephone harassment statute to apply to the internet. The bill applies to obscene, lewd, profane language as well as the suggestion of any lascivious act.
The bill’s text, which would be codified as Arizona Revised Statutes §13-2916, entitled "Use of an electronic or digital device to terrify, intimidate, threaten, harass, annoy or offend; classification; definition", with the updated provisions IN ALL CAPS, provides:
A. It is unlawful for any person, with intent to terrify, intimidate,threaten, harass, annoy or offend, to use ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person. It is also unlawful to otherwise disturb by repeated anonymous ELECTRONIC OR DIGITAL COMMUNICATIONS the peace, quiet or right of privacy of any person at the place where COMMUNICATIONS were received.
B. Any offense committed by use of AN ELECTRONIC OR DIGITAL DEVICE as set forth in this section is deemed to have been committed at either the place where the COMMUNICATIONS originated or at the place where the COMMUNICATIONS were received.
C. Any person who violates this section is guilty of a class 1 misdemeanor.
D. FOR THE PURPOSES OF THIS SECTION, "ELECTRONIC OR DIGITAL DEVICE" INCLUDES ANY WIRED OR WIRELESS COMMUNICATION DEVICE AND MULTIMEDIA STORAGE DEVICE.
The First Amendment concern is that the statute is overbroad. It seems the new statute would apply to general communication on web sites, blogs, listserves and other Internet communication. Translated from the telephone to the Internet, the analogies are imperfect at best: a comments section of a blog, a youtube video, a facebook posting, or any number of Internet “communications" are simply not like a one-to-one telephone call.
Recent First Amendment cases such as US v. Stevens have declined to extend obscenity, and the Internet, unlike the telephone, is not a "regulated media."
If Governor Brewer signs the bill, a First Amendment challenge will surely follow.
[image, telephone circa 1931, via]
President Obama Comments on Health Care Arguments at Court
In case you missed it, here are President Obama's full comments on the ACA litigation in response to a reporter's question yesterday at a joint press conference, with President Calderon of Mexico and Prime Minister Harper of Canada:
With respect to health care, I'm actually--continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it's constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn't even a close call.
I think it's important--because I watched some of the commentary last week--to remind people that this is not an abstract argument. People's lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.
The law that's already in place has already given 2.5 million young people health care that wouldn't otherwise have it. There are tends of thousands of adults with preexisting conditions who have health care right now because of this law. Parents don't have to worry about their children not being able to get health care because they can't be prevented from getting health care as a consequence of a preexisting condition. That's part of this law.
Millions of senior are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.
So that's just the part that's already been implemented. That doesn't even speak to the 30 million people who stand to gain coverage once it's fully implemented in 2014.
And I think it's important, and I think the American people understand, and I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there's not only a economic element to this, and a legal element to this, but there's a human element to this. And I hope that's not forgotten in this political debate.
Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint--that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step. . . .
As I said, we are confident that this will be over--that this will be upheld. I'm confident that this will be upheld because it should be upheld. And, again, that's not just my opinion; that's the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this particular piece of legislation or my presidency.
April 3, 2012 in Cases and Case Materials, Commerce Clause, Congressional Authority, Courts and Judging, Federalism, News, Spending Clause, Supreme Court (US), Taxing Clause | Permalink | Comments (0) | TrackBack
Speaking of Campaign Finance Reform . . .
Speaking of campaign finance reform, you might check out NPR's This American Life this week, which explores the world of money and politics, with a segment looking at the impact of Citizens United and another segment with an interview with Senators John McCain and Russ Feingold. Check it out here.
FEC Limited Reporting Reg Goes Down
Judge Amy Berman Jackson (D.D.C.) on Friday ruled that the FEC exceeded its regulatory authority by requiring corporations and labor unions to report only contributions made for the purpose of furthering electioneering communications, and not all contributors.
The ruling in Van Hollen v. FEC ends the case, at least for now, in favor of Maryland Representative Chris Van Hollen (D) against the FEC. Under Judge Jackson's ruling, the FEC could not limit reporting requirements by corporations and labor unions only to those contributions made for the purpose of furthering electioneering communication. Instead, under the Bipartisan Campaign Reform Act, or BCRA, corporations and labor unions who do not segregate their funds for electioneering communication (which segregation is no longer required under Citizens United) must report all contributions of $1,000 or more, apparently including "contributions" by customers, members, or others who give money, for whatever reason, to a corporation or labor union. (Recall that Citizens United held that the First Amendment allows corporations and labor unions to use general treasury funds for electioneering communication and thus did not require segregated funds for that purpose.)
Recall that Rep. Van Hollen sued the FEC over its December 26, 2007, disclosure regulation, which reads:
If the disbursements were made by a corporation or labor organization pursuant to 11 CFR Sec. 114.15, the name and address of each person who made a donation aggregating $1,000 or more to the corporation or labor organization, aggregating since the first day of the preceding calendar year, which was made for the purpose of furthering electioneering communication.
11 CFR Sec. 104.20(c)(9). The problem, according to Rep. Van Hollen, was that the italicized limit on the disclosure requirement effectively allowed corporations to dodge disclosure requirements under the plain language of the BCRA. BCRA says:
(E) If the disbursements were paid out of a segregated bank account which consists of funds contributed . . . directly to this account for electioneering communications, the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to that account . . . .; or
(F) If the disbursements were paid out of funds not described in subparagraph (E), the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making the disbursement during the period beginning on the first day of the preceding calendar year and ending on the disclosure date.
2 USC Sec. 434(f)(2). The parties didn't dispute that BCRA defined "person" to include corporations and labor unions. Thus under (F) any corporation or labor union that used non-segregated funds for electioneering communication must report contributors who contributed $1,000 or more. Rep. Van Hollen argued that the FEC reporting reg was inconsistent insofar as it limited reporting only of those who contributed for electioneering communication purposes.
Judge Jackson agreed and ruled that the FEC exceeded its authority by limiting the reporting requirement only to those contributions made for the purpose of furthering electioneering communication. Judge Jackson ruled that the FEC regulation violated the plain language and legislative purpose of the BCRA, and she rejected arguments that broader reporting requirements would be unduly burdensome and thus violate the First Amendment under Citizens United. (She ruled that Citizens United itself answered this question by upholding BCRA reporting requirements.)
Part of the analysis turned on the definition of the word "contributor," used the BCRA. Judge Jackson said that "contributor" does not contain a purpose or intent element and therefore covers anyone who gives money for any purpose to a corporation or a labor union.
The ruling, if upheld on appeal, means that the FEC must go back to the drawing board on this regulation and that it would have to require disclosure for all contributions, for any purpose, to any corporation or labor union that uses general, unsegregated funds for electioneering communication. That would certainly promote transparency. (Maybe even too much, without further requirements for disclosure by purpose of contribution (i.e., for electioneering purposes, or other purposes). Consider trying to make sense of a list of undifferentiated contributors to any major corporation, for example, when many contributors (e.g., ordinary customers) may have no idea how or even if the corporation spends money for electioneering communication.)
It may also encourage corporations and labor unions to create a segregated fund for electioneering communication (even though they don't have to under Citizens United) in order to avoid the hassle of reporting all their contributors. (Under (E), they'd only have to report those who contributed for electioneering communication.) On the other hand, it could encourage corporations the other way, because reporting on all contributors might help them better conceal those contributors who contributed only for the purpose of electioneering communication among their many other contributors who contributed for other purposes.
Another possibility: Congress could change the BCRA--either consistent with the FEC's rejected approach or in some other way. But don't look for this to happen anytime soon, and certainly not before the FEC can file an appeal. (No word yet whether the FEC will appeal.)
April 2, 2012
Sex Offender Status, Solicitation for the Crime Against Nature, and Louisiana's Statute Held Unconstitutional
As we previously discussed, despite Lawrence v. Texas (2003), Louisiana has had a rather unique scheme in its criminalization of commercial sex. In his opinion in Doe v. Jindhal, federal district Judge Martin Feldman found the scheme violated equal protection.
Basically, the "Crime Against Nature by Solicitation" statute criminalizes solicitation of "unnatural carnal copulation for compensation;" the general prostitution statute criminalizes solicitation of "indiscriminate sexual intercourse" for compensation. Because of the broad definition of "sexual intercourse," the general prostitution statute actually includes any act punishable by the more narrow "unnatural carnal copulation" statute.
However, the punishment for two statutes is not identical, even after recent amendments. Additionally, only convictions under one of these statutes requires registration as a sex offender.
Judge Feldman summed it up:
The Court finds that the plaintiffs have demonstrated entitlement to judgment as a matter of law: First, the State has created two classifications of similarly (in fact, identical) situated individuals who were treated differently (only one class is subject to mandatory sex offender registration). Second, the classification has no rational relation to any legitimate government objective: there is no legitimating rationale in the record to justify targeting only those convicted of Crime Against Nature by Solicitation for mandatory sex offender registration. The defendants’ arguments fail, as the similar ones did under Eisenstadt [v. Baird (1972)]. The very same public health and moral purposes apply to both statutes.
Later, Judge Feldman concluded that the state defendants "fail to credibly serve up even one unique legitimating governmental interest that can rationally explain the registration requirement imposed on those convicted of Crime Against Nature by Solicitation." He added that the "Court is left with no other conclusion but that the relationship between the classification is so shallow as to render the distinction wholly arbitrary," citing City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985). Thus, "stripped of all political theater and with a concern solely to fidelity to the simple and clear" equal protection clause, the judge found Louisiana's crime against nature by solicitation statute unconstitutional.
United States Supreme Court Extends Strip Search Authority
In a much-anticipated opinion today, the United States Supreme Court in Florence v. Board of Chosen Freeholders of County of Burlington (NJ), upheld the authority of jail authorities to strip search a person accused of a minor crime.
The case involved a claim for damages by Albert Florence, an African-American man stopped for a traffic infraction who was then taken to jail because of a years-old failure to appear charge. Upon his detention at two different jails, Mr. Florence was stripped searched at each. More explanation from Florence and his attorney is in the video below:
Writing for the 5-4 majority, Kennedy's relatively brief opinion could be summed up in a single word: deference.
Two of the five justices in the majority - - - Alito and Roberts - - - wrote separate concurring opinions that stressed the limits of the Court's opinion. Alito phrased it thusly:
I join the opinion of the Court but emphasize the limits of today’s holding. The Court holds that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by correctionsofficers. To perform the searches, officers may direct the arrestees to disrobe, shower, and submit to a visual inspection. As part of the inspection, the arrestees may be required to manipulate their bodies.
Undergoing such an inspection is undoubtedly humiliating and deeply offensive to many, but there are reasonable grounds for strip searching arrestees before they are admitted to the general population of a jail.
He later added that:
It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.
Justice Breyer, dissenting and joined by Ginsburg, Sotomayor, and Kagan, provides numerous examples of problematical, humiliating, and unnecessary strip searches, noting that the majority failed to discuss specifics. Instead, Breyer writes, the "majority is left with the word of prison officials in support of its contrary proposition. And though that word is important, it cannot be sufficient."
But if the Court's single word is "deference," then of course the jail officials word is almost always sufficient.