Saturday, October 6, 2012
In its opinion yesterday in Obama for America v. Husted, the Sixth Circuit has affirmed the district judge's injunction against Ohio's new law that prevented some Ohio voters from casting in-person early ballots during the three days before the November 2012 election on the basis that the statute violates the Equal Protection Clause of the Fourteenth Amendment.
The Sixth Circuit opinion tracks the district judge's explanation of the confusing (and confused) statutory scheme that resulted in different allowances of early in-peson voting to military and overseas voters than to non-military voters. In its equal protection analysis, the Sixth Circuit panel noted that Ohio had both burdened the right to vote and had classified voters disparately. It examined Ohio's two asserted governmental interests - - - the burden on local boards of elections and the need to accommodate military voters and their families - - - and found that the State did not demonstrate they were “sufficiently weighty” interests to curtail voting. While the Sixth Circuit does not explicitly find that the interests were not being served by the means chosen, this usual prong of equal protection analysis is implicit in the analysis.
Importantly, the panel explicitly upheld the district judge's remedy:
The State argues that the district court’s remedy was overbroad because it could be read to affirmatively require the State to mandate early voting hours during the three- day period prior to the election. We do not read the district court’s order in this way. The order clearly restores the status quo ante, returning discretion to local boards of elections to allow all Ohio voters to vote during Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, 2012. Because Ohio Rev. Code § 3509.03 is unconstitutional to the extent that it prohibits non-military voters from voting during this period, the State is enjoined from preventing those voters from participating in early voting. But the State is not affirmatively required to order the boards to be open for early voting. Under the district court’s order, the boards have discretion, just as they had before the enactment of § 3509.03. The district court’s remedy was therefore appropriate.
It was on the question of remedy that Circuit Judge Helene White disagreed, suggesting that she would "remand the matter with instructions to give the Secretary and the General Assembly a short and finite period in which cure the constitutional defects."
Friday, October 5, 2012
Oral argument this week in Arkansas Game & Fish Commission v. United States revealed little certainty in the test—much less the result—in a Takings Clause claim when the government releases water from an upstream dam, temporarily flooding and damaging downstream property. Even after a barrage of probing questions and hypotheticals, the parties struggled to convey a clear test that would yield determinate results beyond this case. Still, it seemed that they both might agree that a strict formalistic test—judging a “permanent” flood a taking, but a “temporary” flood a non-taking—may not be the best choice. But as to any new test, and how it might apply in new cases, it seems, the best either party could say is: It depends.
The case arose out of a series of planned releases of water from the Clearwater Dam by the Army Corps of Engineers. These releases were deviations from the Corps’ operating plan for the Dam and were approved by a working group comprised of interested individuals and groups. The Arkansas Commission claimed that the releases caused annual temporary flooding on its property, the Dave Donaldson Black River Wildlife Management Area, 110 miles downstream from the Dam, which permanently damaged unique hardwood trees and the wildlife they support. The lower court, the United States Court of Appeals for the Federal Circuit, ruled that the releases and the resulting floods did not amount to a taking, because they only produced temporary flooding, not permanent flooding.
It may not be a big surprise that the parties and justices struggled with a clear test, given the challenges in figuring out whether the government’s temporary release of water at a remote dam and the resulting flooding on downstream property effected the kind of taking that the Takings Clause is designed to address—especially when the releases were designed to protect other public interests at and around the Dam. The problem is that a temporary flood looks a little like a nonintrusive trespass—maybe like, as Justice Breyer asked, a Department of Interior employee trampling paths on private land (on the one hand)—and a little like a physical invasion by the government that causes permanent damage (on the other). If the former, it looks less like a taking (and more like a trespass); if the latter, it looks more like a taking. Another problem: the releases 115 miles upstream from the Management Area may not have been the direct cause of its flooding, that is, there may have been other, contributing causes. And we don’t know what’s the relevant baseline for comparison: The water level in the Management Area before the Dam was constructed? The water level after the Dam was constructed, under the normal water release plan? The water level based on the deviations? Or some other baseline? Finally, temporary flooding doesn’t necessarily result in long-term damage or deprivation or property (because the water might simply recede); permanent flooding does. All these problems were on full display at the argument this week.
The lower court navigated these issues in a categorical way, saying that permanent floods are takings while temporary floods are not—an easy answer, even if perhaps overly formalist, and one that the Federal Circuit said was rooted in precedent. In this case, said the lower court, the floods were temporary—no taking.
Arkansas disagreed. It argued that the test for determining whether a government flood is a taking should look to whether the government action is direct, predictable, and substantial—a totality-of-the-circumstances approach that looks to the facts. Arkansas said that the totality pointed to a taking here, but might not in other similar situations.
The government argued that the flooding and any resulting damages were too loosely related to the Corps’ releases. After all, the releases occurred 115 miles upstream—enough distance to allow any number of contributing and intervening acts to break the causal chain. In any event, according to the government, any flooding on the Management Area was just an incidental result of the Corps’ operation of the Dam. In other words, the Corps didn’t target the releases to flood the Management Area; instead, it designed the releases to serve other public interests, with the incidental effect of flooding.
On balance, the parties and the Court seemed to move beyond the lower court’s formalistic approach into a new, more holistic test based on the circumstances. But neither party could produce a coherent, workable test that could apply to this case and beyond.
One possibility is that the Court could craft a test based on the directness of the government action, the predictability of the action, or the substantial nature of the action, or some combination of those and even other factors, and remand for application. Another possibility: the Court could write its test and apply it. In any event, there weren’t enough strong signals from the justices to predict a result, but, on balance, the Court seemed to lean toward a taking.
Being argued today in the Third Circuit is George v. TSA, a case seemingly about Arabic language flash cards as a rationale for airport detention by the TSA and Philadelphia police officers with obvious First Amendment implications.
The government has appealed from the denial of its motion to dismiss.
Plaintiff Nick George is represented by the ACLU, and the organization not only has an informative case page with documents, but an effective video:
[image of flash cards for sale at Amazon via]
Thursday, October 4, 2012
District Judge Charles C. Lovell (Montana) ruled in Lair v. Murry that Montana's low campaign contribution limits for individuals and political parties violated the First Amendment and permanently enjoined the state from enforcing those limits.
The State says that it will seek an emergency stay in the Ninth Circuit. Barring a stay, however, or a quick appeal, the ruling means that Montana's limits on individual and political party contributions are unenforceable--this election cycle, and maybe beyond.
This is the second recent significant defeat for Montana in the area of campaign finance restrictions. Recall that the Supreme Court summarily reversed a Montana Supreme Court ruling upholding the state's restrictions on corporate electioneering expenditures. (The Montana court ruled that Montana's unique history of political corruption justified the restriction, even under Citizens United. The Supreme Court disagreed.)
The restrictions at issue cap individual and political party contributions to candidates at very low levels. For example, Montana Code Section 13-37-216(1)(a) caps contributions at $500 for candidates for governor and lieutenant governor, $250 for candidates for all other state-wide offices, and $130 for candidates to all other offices.
The plaintiffs argued that these limits violated the First Amendment. Judge Lovell agreed. In a very short order, he wrote that "[t]he contribution limits prevent candidates from 'amassing the resources necessary for effective campaign advocacy.'" (Quoting Randall v. Sorrell (2006) (overturning Vermont's low limits on campaign contributions)).
Judge Lovell wrote that he'd later issue findings of fact and conclusions of law in support of his order.
The Eighth Circuit ruled in Kinder v. Geithner that a private individual and Missouri's Lieutenant Governor (acting in his personal capacity) lacked standing to challenge the universal coverage provision of the Affordable Care Act.
The Supreme Court, of course, settled the issue last summer. But that didn't stop the plaintiffs here (who filed before the Court ruled)--even if they couldn't identify the relief they sought (after the Court ruled). The Eighth Circuit side-stepped these problems, though, and ruled instead that the plaintiffs lacked standing. The ruling means that the case is dismissed.
One plaintiff, Samantha Hill, wrote in her complaint that the ACA forced her to purchase a health plan that she didn't want. In particular, Hill claimed that she wanted to buy only a high-deductible, "catastrophic" health plan, but that the ACA allowed a person to buy such a plan only if that person were under 30 years old and certified that his or her premiums amounted to more than eight percent of his or her household income.
The court ruled that Hill misread the statute. The ACA allows a person under 30 or a person whose premiums amount to more than eight percent of household income to purchase a catastrophic plan. Hill was under 30, and the Act therefore allowed her to buy a catastrophic plan. No injury.
(The court rejected Hill's several creative readings of her own complaint to get around this result. In the end, it seems, one of two things happened: somebody mis-read an "and" for an "or" in the ACA; or somebody wrote a pretty sloppy complaint.)
The court rejected LG Morris's claim, because he never said he'd be affected by the universal coverage requirement: he's already insured. No injury.
If the case weren't dismissed for lack of standing, it obviously would have been dismissed on the merits, after the Court's ruling in NFIB v. Sebelius.
Ackerman and Maduro discuss the importance - - - and possibility - - - of a EU Constitution in a short piece in The Guardian. They begin:
A spectre is haunting Europe. The memory of the 2005 national referendums rejecting the EU constitution has led political leaders to respond to the current crisis with emergency measures that don't require popular approval. But longer-term solutions demand democratic legitimation.
Perhaps not surprisingly, they suggest the South African model for a new constitutional referendum. But is the South African process transferable to Europe? The comments to the article are definitely worth a read for anyone interested in popular constitutionalism.
Wednesday, October 3, 2012
A three-judge panel of the Second Circuit extended an earlier temporary stay of district Judge Katherine B. Forrest's ruling that the government's detention authority in Section 1021 of the National Defense Authorization Act was unconstitutional.
The stay means that Judge Forrest's ruling does not go into effect unless and until the Second Circuit affirms it. But the panel ruling also put the case on an expedited briefing schedule, with the government's opening brief due on November 2. The reasons given by the panel suggest that the Second Circuit is all but certain to reverse Judge Forrest's ruling.
We previously posted on Judge Forrest's ruling, with background and analysis. Recall that Section 1021 authorizes detention of any "covered person," defined as follows:
(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
But the Section also says that it's not intended to change the scope of detention authority under the AUMF.
Plaintiffs, a group of writers, journalists, and activists, sued, arguing that the Section's language was pliable enough to include them, putting them at risk of detention. The core of their case was that Section 1021 swept more broadly than the government's prior detention authority under the AUMF. They also said it was unconstitutionally vague and violated their First Amendment rights. The government maintained that Section 1021 only codified existing detention authority. Judge Forrest agreed with the plaintiffs and issued a permanent injunction.
Soon after Judge Forrest ruled, however, an applications judge entered a temporary stay. The panel's ruling made that stay permanent, pending appeal.
The panel issued the stay for three reasons. First, it said that the government clarified that the plaintiffs "are in no danger whatsoever of ever being captured and detained by the U.S. military." Next, it said that the Section on its face does not affect existing rights of U.S. citizens or others arrested in the United States. (Compare Judge Forrest's ruling, which held that Section 1021 expanded government detention authority that existed under the AUMF.) Finally, it said that Judge Forrest's injunction "appears to go beyond [Section 1021] itself and to limit the government's authority under the [AUMF]."
The panel's curt reasons suggests that the Second Circuit is quite likely to reverse Judge Forrest's ruling on the merits.
One of the questions in the debate between Senate hopefuls Scott Brown and Elizabeth Warren:
Whether or not the Supreme Court is mentioned in tonight's debate between Presidential candidates remains to be seen. Writing in the Washington Post, Robert Barnes noted " Obama and Republican rival Mitt Romney rarely mention the justices in campaign speeches."
Tuesday, October 2, 2012
The Supreme Court heard oral arguments Monday in Kiobel v. Royal Dutch Petroleum Co., the case testing whether the Alien Tort Statute applies to a foreign corporation's human rights violations overseas. The Court ordered reargument after it first heard the case last Term, on the question whether the ATS applies to corporations. The new question, argued Monday, is whether the ATS applies at all to actions that have no direct connection to the U.S. (We previously posted on the case, along with the Torture Victim Protection Act case from last Term, Mohamad v. Palestinian Authority, here.)
The case arose out of Nigerians' claims that defendant corporations committed human rights abuses against them in Nigeria (aiding the Nigerian government). The plaintiffs sought and gained asylum in the U.S., so sued in U.S. courts, under the ATS.
Chief Justice Roberts and Justices Scalia, Kennedy, and Alito all expressed skepticism that the ATS should apply to overseas abuses by non-U.S. corporations. Chief Justice Roberts and Justice Alito both asked whether U.K. or Dutch courts might be a better forum for the case, given that the defendants are U.K. and Dutch companies (with some connection to those jurisdictions). Justices Scalia and Kennedy both worried early in the arguments that the plaintiffs' position could mean that U.S. corporations could face suits anywhere in the world, under another country's assertion of universal jurisdiction--thus, for example, allowing a foreign court to determine whether a U.S. corporation violated international law in the U.S. The Justices also worried about the extraterritorial application of U.S. law--and whether the ATS wouldn't improperly insert U.S. law into other jurisdictions in violation of the presumtion against extraterritorial application.
Paul Hoffman, counsel for the plaintiffs had an answer to these concerns: the law of personal jurisdiction, forum non conveniens, and political question would act as a backstop to ATS-based universal jurisdiction in U.S. courts, when the case didn't belong there. He also seemed to concede that some kind of exhaustion requirement (in which plaintiffs would have to exhaust available foreign remedies before proceeding in U.S. courts) or a rule that U.S. courts could take jurisdiction only when foreign courts couldn't offer fair justice could be reasonable checks on jurisdiction in the U.S. courts.
Justices Ginsburg, Sotomayor, and Kagan seemed to search more for a practical, less categorical solution, by exploring defenses of personal jurisdiction and exhaustion, for example--the back-end fixes that Hoffman seemed to accept. Justice Breyer seemed most entrenched in favor of ATS jurisdiction, even at one point illustrating his view of the statute's reach by comparing Hitler's atrocities to the early acts of piracy that the ATS was designed to remedy.
There was one particular sticking point: Sosa v. Alvarez-Machain, the Court's 2004 foray into the ATS, where a Mexican sued other Mexicans for events that occured in Mexico, although there was a key U.S. connection: the DEA set the whole affair in motion. The Court in that case held that the plaintiff could not recover damages under the ATS, but it also suggested that the ATS could reach a case like Kiobel. Thus the question: Must the Court overturn Sosa in order to rule for the defendant? Kathleen Kennedy, counsel for the defendants, argued no: Sosa is distinguishable, and the Court said only that there were no sufficiently universal and specific international norms to support an ATS claim. But Justice Kagan argued yes, noting that Sosa put its stamp of approval on the reasoning in Filartiga, the pathbreaking case in which the Second Circuit applied the ATS against an alien for acts outside the U.S. (Complicating things yet further, Congress later enacted the Torture Victim Protection Act, authorizing just the kind of suit in Filartiga. The defendants argued here that the TVPA means that the Court doesn't need to address Filartiga, because "Filartiga is taken care of entirely by the proper body, which is Congress.")
The Justices also explored ways to consider the government's interest in foreign affairs--a point pressed by SG Verrilli, but only narrowly: The government's position is "that there shouldn't be a cause of action to address the extraterritorial conduct of a foreign corporation that is alleged to have aided and abetted the acts of a foreign sovereign."
In all, the case doesn't look good for the plaintiffs. Even if the Court rules that the ATS can apply to an alien acting in a foreign country--that is, even if it doesn't adopt a categorical rule barring an ATS claim in that situation--it seems likely to rule that U.S. courts should punt until the plaintiff exhausts all reasonable and effective foreign remedies first, or that the government's foreign affairs interests trump the plaintiff's claims, or both. The Court could also send the case back for a (re)consideration of personal jurisdiction. Any one of these could doom the plaintiffs' case. (It's not clear exactly how exhaustion and personal jurisdiction would play out: it doesn't seem that those issues have been seriously litigated with respect to all defendants.) Moreover, the Court could rule that the ATS doesn't apply to corporations. That, too, would doom the plaintiff's case.
On remand from the Pennsylvania Supreme Court's opinion last month, Commonwealth Judge Robert Simpson issued his Memorandum Order by today's deadline issuing a partial injunction of Pennsylvania's controversial voter photo identification law administered by PennDOT.
In short, the Judge allows election officials to request an in-person voter show photo identification, but "enjoin[s] enforcement of those provisions of Act 18 which amend the provisional ballot procedures of the Election Code and cause disenfranchisement based on failure to present photo ID for in-person voting." [emphasis added]. The Judge rejected the State's argument that such a voter be allowed only to cast a "provisional ballot."
Judge Simpson also noted that the Pennsylvania Supreme Court's
reference to “no voter disenfranchisement ... for purposes of the upcoming election,” Applewhite, ___ Pa. at ___, ___ A.3d at ___, slip op. at 7, has sparked debate between the parties. I understand the phrase to be focused on the preliminary injunction for purposes of the upcoming election. I do not understand the phrase to define the test for a facial validity challenge in the context of a permanent injunction. If that understanding is not correct, the Court’s guidance will be necessary.
With a little over a month until the election, this case may be heading back to the Pennsylvania Supreme Court for such guidance.
In its opinion in Ondrisek v. Hoffman, a panel of the Eighth Circuit held "Despite the exceptionally reprehensible nature of Alamo’s conduct, it would be unconstitutional to let the punitive damages – and their 10:1 ratio to compensatory damages – stand."
The Defendant, Bernie Hoffman, a/k/a Tony Alamo (pictured right), was the leader of Tony Alamo Christian Ministries (TACM). The Plaintiffs, Spencer Ondrisek and Seth Calagna were raised in TACM, and suffered extreme brutality until they managed to escape at age 18. As the panel opinion states:
Spencer Ondrisek and Seth Calagna were raised in TACM. They were forced to work without pay starting at the age of 8. Alamo began threatening to beat Ondrisek when he was 11. Alamo told him that if he disobeyed, he would be enlisted in the military and “shot and killed.” When he was 12, Alamo had an “enforcer” severely beat him because he made a small tunnel while hauling dirt for the church. As Ondrisek received discipline of 15 to 20 blows to his face, Alamo made his father watch. Ondrisek then received 20 to 30 strikes from a paddle that was three feet long, an inch-and-a-half thick, and three or four inches wide. He was unable to sit for several days and not allowed to attend services because the swelling on his face was too visible. Two years later Alamo had Ondrisek beaten again for horseplay. He sustained 15 to 20 hits to his mouth, beginning to bleed after the second blow. He also received 30 to 40 paddles (maybe more), causing severe bruising that did not fully heal for several weeks. He has permanent scarring from the beating. At 15, Ondrisek’s schooling stopped, and he began working on the church’s property 70 hours a week. He was forced to attend services and listen to Alamo’s recordings daily. As punishment for falling asleep as a night watchman, Alamo required him to fast two days, giving him only water. At 16 or 17, Ondrisek was beaten for a third time after being falsely accused of bullying. He was slapped 20 or more times in the face, and paddled 40 times. Ondrisek blacked out, but no one took him to a hospital. His hand was severely injured and still causes him pain.
Calagna’s youth at TACM was similar to Ondrisek’s. When he was 14, Calagna’s parents woke him at 4 a.m. to have him beaten. He was hit so hard he vomited. His face was unrecognizable afterwards; his injuries took weeks to heal. Less than a month later, he witnessed his father get beaten, causing him emotional distress. He was beaten again at 17 for talking about “Harry Potter.” He was struck until the paddle broke and then hit again with a larger board. In addition to physical abuse, both boys experienced verbal abuse. They both contemplated suicide, “unable to imagine that death would be worse.” At 18, Ondrisek and Calagna escaped TACM separately. They still have trouble sleeping, experiencing nightmares and flashbacks. Alamo is currently serving a 175-year sentence for 10 counts of transporting minors across state lines for illicit sex.
A jury awarded each plaintiff $3 million in compensatory damages and $30 million in punitive damages.
The Eighth Circuit quickly rejected Alamo's argument that his actions were protected by the First Amendment free exercise clause. The panel also rejected Alamo's appeal regarding a denied jury instruction on corporal punishment and regarding compensatory damages. However, the panel found meritorous Alamo's argument that the $30 million punitive damages award violated the Due Process Clause of the Fourteenth Amendment's prohibition of “grossly excessive” civil punishment under BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996).
The panel reduced the punitive damages to $12 million for each plaintiff, at a ratio of 4:1. The panel opinion provided an instructive chart of Eighth Circuit cases regarding due process punitive damage decisions in support of its decision.
It does seem, however, that the chart elides the gravity of the case against Alamo. As the panel admits, the compensatory damages in the various cases are generally less than a million dollars. Moreover, it does not seem as if any of the charted cases involve such prolonged acts.
Perhaps Tony Alamo's prolonged intentional torts should be considered "off the charts," at least for the "grossly excessive" analysis of punitive damages in a due process analysis.
Lee Epstein, writing in Jotwell about Linda Greenhouse's new book, The U.S. Supreme Court: A Very Short Introduction (Oxford University Press 2012), calls it "sophisticated, yet accessible." Epstein writes:
If your students—undergraduate, graduate, or law—are looking for a brief introduction to the Supreme Court, as mine often are, this is the book to recommend. . . . As for you Supreme Court junkies: don’t make the mistake of discounting it. I’ve been studying the Court for nearly thirty years and still learned new things, whether small factoids or different ways to think about an institution that, as Greenhouse rightfully notes, continues to “occup[y] a place in the public imagination.”
Monday, October 1, 2012
And although Toobin sees Citizens United as a triumph of Roberts’s partisan agenda, the facts related in “The Oath” can be read differently — to depict a rookie chief justice, nervous about moving doctrine too fast, reluctantly hustled along by an impatient conservative bloc.
[image: Roberts being sworn in by Stevens, with Jane Roberts, via]