Saturday, June 16, 2012

Saturday Evening Review: What's the Difference Between Equal Protection and Fair Cross-Section?

What's the difference between the Fourteenth Amendment's Equal Protection Clause and the Sixth Amendment's Fair Cross- Section protection?   

In a word: "intent." 

But in other words: "not much," at least according to most courts.

ChernoffNina W. Chernoff (pictured right) tackles this issue in Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards, available on SSRN and forthcoming in Hastings Law Journal.  She demonstrates the consistent mistake courts make by not honoring the doctrinal distinction between equal protection (requiring intent) and fair cross-section (not requiring intent) when considering impartial jury claims.  The cost of this mistake is a high one paid by criminal defendants.

Consider this: a computer error excludes every African-American from the jury pool.  If there was no human intent, then there is no equal protection violation.  But the criminal defendant would nevertheless be denied the posibility of a jury drawn from a fair-cross section of the community.  Chernoff discusses similar cases and shows how courts conflation of equal protection and fair cross-section doctrine denies defendants relief in such situations.

This article should be of special interest to ConLawProfs who teach Criminal Procedure.  But it's worth reading for anyone interested in the limits of current equal protection doctrine.  The article is further discussed as my selection for the Jotwell Equality section; it's the best article I've read on constitutional equality in the last year. 

My selection last year for the Jotwell Equality section was Julie Nice's terrific article on Christian Legal Society (CLS) v. Martinez.


June 16, 2012 in Courts and Judging, Criminal Procedure, Equal Protection, Fourteenth Amendment, Scholarship, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)

Friday, June 15, 2012

D.C. Circuit Rejects Torture Suit Against Rumsfeld

A three-judge panel of the D.C. Circuit today rejected a U.S. citizen's Bivens action against former Defense Secretary Donald Rumsfeld for developing, authorizing, and implementing policies that led to his torture while in U.S. custody in Iraq.  The panel, following an earlier similar ruling from the Fourth Circuit, Lebron v. Rumsfeld, held that special factors counseled against a Bivens remedy--special factors "pertaining to military, intelligence, and national security."

The ruling comes on the heels of the Supreme Court's rejection of the plaintiffs' cert. petition in Lebron and while a similar suit is now pending before the en banc Seventh Circuit.  (A three-judge panel of the Seventh Circuit earlier ruled that the plaintiffs in that case did have a Bivens remedy against Rumsfeld.)

The case means that U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials in the D.C. Circuit, even when the violations resulted from torture while in U.S. custody.  With two circuit rulings now on the books--this case, Joe Doe v. Rumsfeld, and Lebron--and with a Seventh Circuit ruling against the plaintiffs now all but certain, and with the Supreme Court's rejection of cert. in Lebron, it now seems all but certain that other circuits faced with the question will follow suit, and that therefore U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials anywhere.

The case also gives extraordinary authority to the executive to evade suits for detention and mistreatment--even torture--of U.S. citizens.  Congress, of course, could change this by authorizing such suits.  But don't look for that to happen anytime soon--or ever.

The D.C. Circuit ruling closely follows the Fourth Circuit's earlier ruling.  That is, the court today ruled that the "special factors" of military, intelligence, and national security foreclose a civil damage remedy for constitutional violations by U.S. citizens.  Here's the court's special factor analysis:

In his complaint, Doe challenges the development and implementation of numerous military policies and decisions.  The complaint would require a court to delve into the military's policies regarding the designation of detainees as "security internees" or "enemy combatants," as well as policies governing interrogation techniques.

Doe's allegations against Secretary Rumsfeld implicate the military chain of command and the discretion Secretary Rumsfeld and other top officials gave to [military] agents to detain and question potential enemy combatants.  The allegations raise questions regarding Secretary Rumsfeld's personal control over the treatment and release of specific detainees.  Litigation of Doe's case would require testimony from top military officials as well as forces on the ground, which would detract focus, resources, and personnel from the mission in Iraq.  And . . . allowing such an action would hinder our troops from acting decisively in our nation's interest for fear of judicial review of every detention and interrogation.

Op. at 10-11.

The court also found persuasive--another "special factor" counseling against a Bivens remedy--that Congress did not authorize such suits under the Detainee Treatment Act, or any other statute.  

Because the court ruled against Doe on Bivens, it did not rule on Rumsfeld's defense of qualified immunity.


June 15, 2012 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Executive Authority, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

British Columbia Supreme Court Holds Assisted Suicide Ban Unconstitutional

The Supreme Court of British Columbia today issued its lengthy opinion in Carter v. Canada (Attorney General), authored by Justice Lynn Smith, a former dean at the Faculty of Law of the University of British Columbia.  Smith's opinion concluded that the assisted suicide prohibition in the Canadian Criminal Code infringes sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

Section 7 - - -  " Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," and Section 15(1) - - - "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability" are often be analogized to due process and equal protection by those trained in the US constitutional system. 

However, Judge Smith made little use of US constitutional precedent and did not give much credence to the Canadian government's reliance on Washington v. Glucksberg, in which the US Supreme Court rejected a constitutional challenge to an assisted suicide ban. [¶ 1118 of Opinion].  Instead, Judge Smith extensively canvassed the state of assisted suicide laws in US states and other nations, producing a scholarly survey and discussion of the issues.  Insisting that "context is vital," Judge Smith's decision is nuanced and careful.

This care and nuance is evident in the declarations that the Criminal Code provisions unjustifiably infringe sections 15 and 7 of the Charter

to the extent that they prohibit physician-assisted suicide by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult patient who: 

(a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and

(b) is materially physically disabled or is soon to become so, has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person.

[¶ 1393].  For some, this type of decision is reminiscient of legislation, but the declarations are suspended for one year allowing Parliament time to correct the constitutional problems.  Yet defering the opinion's effective date for a year has obvious costs given the court's own discussion.  For plaintiff Gloria Taylor the plaintiffs had sought an "immediate constitutional exemption that would allow her to avail herself of a physician-assisted death at such time and subject to such terms and conditions that the Court allows or requires."  Judge Smith's opinion grants such an exemption and sets out its terms. 

The opinion garnered attention from news outlets including the Vancouver Sun and The Globe and Mail.


June 15, 2012 in Comparative Constitutionalism, Current Affairs, Disability, Due Process (Substantive), Equal Protection, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 13, 2012

Court Declines Review in Padilla's Torture Case

The Supreme Court on Monday declined to review an earlier Fourth Circuit ruling rejecting Jose Padilla's civil case against former Defense Secretary Donald Rumsfeld and others for torture.  The move leaves the Fourth Circuit ruling untouched and will almost certainly influence the outcome in a similar case now before the full Seventh Circuit.  The move also lends further legitimacy to the Fourth Circuit's approach--that separation-of-powers principles can be a "special factor" counseling against a civil damage remedy in federal court--or, in short, that the executive has something close to a trump card to shut down litigation against executive officers for torture of individuals while detained for reasons that the executive says are related to national security or terrorism.

The case, Lebron v. Rumsfeld, arose out of Jose Padilla's detention and torture.  Padilla filed a Bivens claim against Rumsfeld and others for violations of his constitutional rights.  The Fourth Circuit ruled that special factors counseled against a Bivens remedy and that Padilla had other forms of relief (i.e., habeas).  As to special factors, the court said that separation-of-powers principles counseled against a Bivens remedy--in particular, that military matters like this are the province of the political branches, and that courts lack expertise and risk upsetting the military command structure and intelligence-gathering activities.

The Fourth Circuit ruling is in tension with similar recent rulings by the Seventh Circuit and two district courts.  The Seventh Circuit case, Vance v. Rumsfeld, was vacated and is now on appeal to the full Seventh Circuit.  The Court's rejection of Lebron will almost certainly influence the outcome of Vance (as if the outcome needed any influencing) and other cases by U.S. citizens alleging constitutional violations against executive officials related to national security, terror, intelligence, and the military.

The Court's rejection also lends further legitimacy to the Fourth Circuit approach, which was an aggressively pro-government, anti-plaintiff approach.  The Fourth Circuit reasoning all but gives the executive a trump card to shut down constitutional litigation against executive officials anytime the government says that the case is related to national security, terror, intelligence, and the military.  This approach gives the executive nearly complete control over this kind of litigation, takes the courts nearly entirely out of it, and sharply curtails plaintiffs' remedies for constitutional violations while in custody for anything that the executive says is related national security, terror, intelligence, and the military.

While the Court's rejection of Padilla's cert. petition is certainly not a ruling on the merits, the rejection signals a constriction of Bivens actions--a signal that the full Seventh Circuit will surely read and apply in the Vance case.

Congress, of course, could change this by authorizing suits for individuals like Padilla (or Vance and Ertel in the Seventh Circuit) for constitutional violations against executive officials.  But don't look for that to happen anytime soon.

The next chapter in this saga will come when the full Seventh Circuit issues its ruling in Vance v. Rumsfeld.  Especially now, in light of the Court's rejection of Padilla's cert. petition, look for the court to reverse the three-judge panel and to reject Vance's Bivens claim.  The only interesting aspect of the Seventh Circuit ruling will be how closely the court follows the Fourth Circuit's reasoning.


June 13, 2012 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, Supreme Court (US), War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 12, 2012

Waiting for SCOTUS

In mid-June, the Supreme Court watching & waiting gets serious.  The Court currently has only two scheduled "Non-Argument" days on its June calendar to announce opinions, June 18 and 25, although it could add more. 

[UPDATE: On June 14, the Court added Thursday, June 21, to its calendar].

Certainly, the health care reform cases on the constitutionality of the ACA, argued over several days (March 26, March 27, and March 28)  are the most anticipated, but there are at least three other not-yet-decided opinions that are much anticipated and involve controversial constitutional issues.

Supreme Court Interior
In January, the Court heard oral arguments in  FCC v. Fox presenting the Court again with the First Amendment problems of "fleeting expletives" and "fleeting nudity" in a regulated media context, although the precise issue is more muddled than not.  Fox (represented by Carte G. Phillips) focused on the "fleeting expletive" sanction based on Cher's statement at an award ceremony and ABC (represented by Seth Waxman) focused on a nudity sanction based on an episode of NYPD Blue, argued against the FCC (represented by the Solicitor General Verrilli).  The Justices - - - sans Sotomayor who did not participate - - - did seem reluctant to honor the respondents' request to overrule  FCC v. Pacifica Foundation (1978) (the "seven dirty words" case), yet also seemed uncertain to what extent the case survived into the current proliferation of media. 

In February, the Supreme Court heard oral arguments in  another First Amendment case, United States v. Alvarez, the so-called "Stolen Valor" case.  The Ninth Circuit, in a divided opinion, held a provision of the act unconstitutional: 18 U.S.C. § 704(b), criminalizes false representations, verbal or written, that one has been "been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item."    A few weeks before oral argument, the Tenth Circuit, in a divided opinion, upheld the provision. 

In late April, the Court heard oral arguments in Arizona v. United States involving the constitutionality of several provisions of Arizona's notorious SB 1070 that the DOJ argues are pre-empted by federal law as the lower courts held.  These include requiring every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully; criminalizing the failure to carry an “alien registration document;'" criminalizing undocumented immigrants applying for employment or being employed; and authorizing warrantless arrests if based upon probable cause that a person has committed a deportable crime.  Several commentators suggested that Justice Scalia's remarks at oral argument were other than judicial.

While it is not always true that opinions rendered late in the term are the most divisive and complex, the conventional wisdom supports this perception, especially if the oral arguments were earlier in the Term.

[image of Supreme Court courtroom via]

June 12, 2012 in Cases and Case Materials, Current Affairs, Federalism, First Amendment, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, June 11, 2012

Ninth Circuit Orders Press Access to Execution

A unanimous three-judge panel of the Ninth Circuit ruled in Associated Press v. Otter that media organizations were "quite likely" to succeed on the merits of their First Amendment claim to witness all stages of Richard Leavitt's impending execution by the State of Idaho.  The lower court since granted the media organizations' motion for a preliminary injunction and thus required the state to allow the organizations to witness all stages of the execution.

The state had denied the media access, despite a 2002 ruling by the Ninth Circuit the "the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber, including those 'initial procedures' that are inextricably intertwined with the process of putting the condemned inmate to death."  California First Amendment Coalition v. Woodford, 299 F.3d 868, 877 (9th Cir. 2002).  The state argued that it had legitimate penological interests in preserving the condemned prisoner's privacy and dignity, respecting the sensibilities of the condemned prisoner's family and fellow death-row inmates, and protecting the anonymity of the members of the medical team who participate in the execution.

The court rejected these:

The State of Idaho already offends the dignity of condemned inmates and the sensibilities of their families and fellow inmates by allowing strangers to watch as they are put to death.  It strains credulity for the State to assert that these interests will be offended to a meaningfully greater degree when witnesses are permitted to watch the insertion of intravenous lines than when they are simply allowed to watch the inmates die.  The State also has not explained why these interests were not equally at stake in California, although our opinion in California First Amendment Coalition did not explicitly consider them.

Op. at 7.

As to protecting the anonymity of the executioners, the court already rejected this interest in California First Amendment Coalition, and the state here failed to show why its interest was any different or greater.  The court said that the execution team could be protected by wearing surgical garb, and any threat to their anonymity was based on pure speculation.


June 11, 2012 in Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, June 10, 2012

DC Circuit Declares Random Drug Testing of Forest Service Employees Unconstitutional

Over a dissent and reversing the district judge, a DC Circuit panel held unconstitutional the random drug testing policy applicable to all employees working at Job Corps Civilian Conservation Centers operated by the U.S. Forest Service in its opinion in National Federation of Federal Employees-IAM v. Vilsack.

550px-Forestry_Leśnictwo_(Beentree)2.svgThe majority described the random drug testing policy as “a solution in search of a problem” and thus concluded that the “designation of all Forest Service Job Corps Center employees for random drug testing does not fit within the ‘closely guarded category’ of constitutionally permissible suspicionless searches” permissible under the Fourth Amendment.

The panel reasoned that "where the government asserts 'special needs' for intruding on Fourth Amendment rights, as here, the specific context matters" and in demonstrating that the governmental interests are “important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy,” the government must provide a foundation for the "determination that the requirement of individualized suspicion is impractical in the Forest Service Job Corps Center context."

While the usual employees subject to random drug testing are those involved in high security or safety positions, the US Department of Agriculture in 1996 designated all Forest Service Job Corps staff positions for random drug testing.  There were, however, various objections and drug testing only occurred on the basis of individualized suspicion.  It was not until 2010 that the Forest Service informed the Union, during collective bargaining, "that all Job Corps Center staff would be subject to the random testing program." (emphasis in original).  Interestingly, the government argued that because the policy had first been advanced (even if not implemented) in 1996, the employees no longer had any expectation of privacy in not being subject to random drug tests.

The panel rejected this argument and also found the Secretary of Agriculture's rationales supporting special needs too speculative.  Quoting from the government's brief that the government has a “legitimate interest in deterring drug use that might affect work performance, that employees who use drugs off the job risk performance-impairing addiction, that off-duty drug users may buy [or sell] drugs at work,” the panel found these interests insufficient to justify a Fourth Amendment intrusion absent more specifics. 

The government argued that because the Job Corps Civilian Conservation Centers employees supervised students, this essentially constituted a special need.  The dissenting judge found this contention persuasive.  However, as the majority noted, in Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) - - - upholding random drug testing of student athletes in the context of a documented drug abuse issue - - -  "the Supreme Court did not imply that protection of this interest would justify random drug testing of the teachers and other staff at the schools — to the contrary, it 'caution[ed] against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts.' "

In short, without some sort of documented problem, or some particular special need such as security or safety, a random drug testing policy of federal employees does not satisfy the Fourth Amendment.

[image via]

June 10, 2012 in Fourth Amendment, Opinion Analysis | Permalink | Comments (1) | TrackBack (0)

Federal District Judge Declares Arkansas School Choice Law Unconstitutional

Federal District Judge Robert Dawson declared the Arkansas Public School Choice Act of 1989 unconstitutional on Friday in his opinion in Teague v Arkansas Board of Education.  Judge Dawson concluded that the statute's use of race violated the Fourteenth Amendment's Equal Protection Clause,  largely relying on the Supreme Court's 2007 opinion in Parents Involved in Community Schools v. Seattle School District No. 1, because while there might be a compelling government interest, the statute was not sufficiently narrowly tailored to serve that interest and therefore survive strict scrutiny.

The statutory scheme is a complex one.  Generally, students who attend public school must do so in the school district in which they reside.  This general rule has some exceptions, including the Public School Choice Act.  However, the choice created is generally subject to a race-based limitation: "No student may transfer to a non-resident district where the percentage of enrollment for the student’s race exceeds that percentage in the student’s resident district."  However, even this exception had exceptions.  Additionally, the 2011 Legislature amended the School Choice Act to specifically state that the race or ethnicity of a student shall not be used to deny a student the ability to attend a school in the student’s school district of choice if the transfer is "to a school that has been designated by the State as a school performing higher than that in which the student is currently enrolled or to which the student has been assigned."  Moreover,  the statute provided that if conflicts with the provisions of a federal desegregation court order applicable to a school district, the provisions of the federal desegregation court order shall govern.

Interestingly, Judge Dawson used both the 2011 amendment and the escape clause of federal court desegregation orders to support his conclusion that the statutory scheme was not narrowly tailored.  He reasoned that the 2011 amendment was evidence that "some of the state’s lawmakers themselves have determined that the limitation" in the statute "may not pass the strict scrutiny test."  He also stressed that the judicial desegregation order exception undermined narrowly tailored because the statutory scheme "applies state-wide without regard to whether a resident or non-resident school district has a history of de jure or de facto segregation."  Obviously, however, any limitation to school districts under judicial supervision vitiates the need for the statute.

Not surprisingly then, Judge Dawson declared the statutory provision unconstitutional.  More surprisingly, he declared the entre statute unconstitutional, finding that severability is a matter of state law.  Looking at legislative intent, he concluded that severing the provision would undermine the legislative interest, including the legislature’s express statement that inter-district transfer is permissible “provided that the transfer by this student would not adversely affect the desegregation of either district."


1958 photo of "the teenagers who integrated Central High School, Little Rock, Arkansas" with NYC Mayor Robert Wagner, by Walter Albertin. Pictured, front row, left to right: Minnijean Brown, Elizabeth Eckford, Carlotta Walls, Mayor Wagner, Thelma Mothershed, Gloria Ray; back row, left to right: Terrance Roberts, Ernest Green, Melba Pattilo, Jefferson Thomas.

Judge Dawson was attentive to the history of school segregation in Arkansas, although he sought to expand the portrait beyond the well-known events in Little Rock that resulted in Cooper v. Aaron:

Arkansas has a complicated history with regard to race relations in general, and equal opportunity education in particular. From resistance in the 1950s to minimum compliance in the 1960s, some parts of the state have fought integration even since the Brown v. Board of Education of Topeka decision. . . . Arkansas is home to both the first public school in the former Confederate States of America to implement racial desegregation (Charleston) and the high  school which drew the nation’s attention in 1957 when the state National Guard was utilized to keep black students from entering Central High School in Little Rock . . .

 The final line of Dawson's 32 page opinion illustrates the continuing legacy of this history: "The Court fully expects this case to be appealed in view of the important issues presented in this case."

[image via]

June 10, 2012 in Equal Protection, Opinion Analysis, Race, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)