November 2, 2012
Daily Read: Cassandra Robertson on the Constitutional Right of Appeal
Professor Cassandra Robertson (pictured left) argues that we might be forgiven for thinking that there is a constitutional right to appeal, the practice is so ubiquitous and well-established in procedural rules. But in her article, The Right to Appeal, forthcoming in the North Carolina Law Review, and available in draft on ssrn, Robertson reminds us that "appellate review is not constitutionally guaranteed; in some jurisdictions, the losing litigant may be forced to go without any review of the trial court’s verdict at all," illustrating her conclusion with a civil and a criminal case, both from West Virginia.
It is time for the Supreme Court to explicitly recognize a constitutional right to appeal. Over the last century, both the federal and state judicial systems have increasingly relied on appellate remedies to protect essential rights. In spite of the modern importance of such remedies, however, the Supreme Court has repeatedly declined to recognize a due-process right to appeal in either civil or criminal cases. Instead, it has repeated nineteenth-century dicta denying the right of appeal, and it has declined petitions for certiorari in both civil and criminal cases seeking to persuade the Court to reconsider that position.
Even if the cases in which there is no access to direct appeal are "few in number," she argues that constitutional due process should protect the "unusual or rare case in which justice is denied."
Robertson's argument skillfully combines doctrinal, practical, and constitutional considerations. The "expressive power of constitutional recognition," she writes, would be especially helpful for marginalized groups and outlier cases (for example, in juvenile cases).
For law profs who teach both constitutional law and procedure courses, this is definitely a must-read.
November 1, 2012
Common Cause Challenges Indiana Judicial Elections
The Wall Street Journal reports that Common Cause sued the Indiana Secretary of State over judicial elections in Marion County, arguing that the process deprives voters of a meaning vote in violation of the First Amendment.
Here's the problem, from Paragraph 1 of the complaint:
[E]ach of the major political parties--the Democratic and Republican parties--nominates, through primary elections, candidates to fill precisely half of the seats to be filled. In 2012 and in recent history, no candidate for Marion Superior Court other than those nominated by the major political parties has qualified for the ballot at a general election. The general election is therefore of no significance whatsoever because the ballot only contains the names of judges who will ultimately be elected; rather, the only meaningful votes cast for Marion Superior Court are cast in the primary elections for the major political parties. Thus, a person who does not vote in a primary election is never afforded an opportunity to cast a meaningful vote for any judgeship on the Marion Superior Court. And even a person who votes in one of the primary elections is never afforded an opportunity to cast a meaningful vote for half of the judgeships on the Marion Superior Court.
Under Indiana law, a party gets to nominate candidates for half the number of seats available in the general election. In theory, this would allow several political parties to nominate candidates for half the seats, thus giving voters a real choice in the general election. But "in 2012 and in recent history," only the two major political parties nominated candidates. With just two parties each nominating only half the number of candidates, the general election gives voters no real choice. Common Cause says that this violates the First Amendment.
Florida's Ballot Measure: Legislative Supremacy?
Ballot Measure 5 before Florida voters on November 6 would, if approved, alter Florida's constitution to provide more power to the legislature at the expense to the judiciary and exceutive.
Perhaps not suprisingly, the measure is sponsored by the Florida legislature.
The full text clarifies some of the details, but the summary is not necessarily enlightening:
Proposing a revision of Article V of the State Constitution relating to the judiciary. The State Constitution authorizes the Supreme Court to adopt rules for the practice and procedure in all courts. The constitution further provides that a rule of court may be repealed by a general law enacted by a two-thirds vote of the membership of each house of the Legislature. This proposed constitutional revision eliminates the requirement that a general law repealing a court rule pass by a two-thirds vote of each house, thereby providing that the Legislature may repeal a rule of court by a general law approved by a majority vote of each house of the Legislature that expresses the policy behind the repeal. The court could readopt the rule in conformity with the public policy expressed by the Legislature, but if the Legislature determines that a rule has been readopted and repeals the readopted rule, this proposed revision prohibits the court from further readopting the repealed rule without the Legislature's prior approval. Under current law, rules of the judicial nominating commissions and the Judicial Qualifications Commission may be repealed by general law enacted by a majority vote of the membership of each house of the Legislature. Under this proposed revision, a vote to repeal those rules is changed to repeal by general law enacted by a majority vote of the legislators present. Under current law, the Governor appoints a justice of the Supreme Court from a list of nominees provided by a judicial nominating commission, and appointments by the Governor are not subject to confirmation. This revision requires Senate confirmation of a justice of the Supreme Court before the appointee can take office. If the Senate votes not to confirm the appointment, the judicial nominating commission must reconvene and may not renominate any person whose prior appointment to fill the same vacancy was not confirmed by the Senate. For the purpose of confirmation, the Senate may meet at any time. If the Senate fails to vote on the appointment of a justice within 90 days, the justice will be deemed confirmed and will take office. The Judicial Qualifications Commission is an independent commission created by the State Constitution to investigate and prosecute before the Florida Supreme Court alleged misconduct by a justice or judge. Currently under the constitution, commission proceedings are confidential until formal charges are filed by the investigative panel of the commission. Once formal charges are filed, the formal charges and all further proceedings of the commission are public. Currently, the constitution authorizes the House of Representatives to impeach a justice or judge. Further, the Speaker of the House of Representatives may request, and the Judicial Qualifications Commission must make available, all information in the commission's possession for use in deciding whether to impeach a justice or judge. This proposed revision requires the commission to make all of its files available to the Speaker of the House of Representatives but provides that such files would remain confidential during any investigation by the House of Representatives and until such information is used in the pursuit of an impeachment of a justice or judge. This revision also removes the power of the Governor to request files of the Judicial Qualifications Commission to conform to a prior constitutional change. This revision also makes technical and clarifying additions and deletions relating to the selection of chief judges of a circuit and relating to the Judicial Qualifications Commission, and makes other nonsubstantive conforming and technical changes in the judicial article of the constitution.
The measure is seen by some as coupled with political efforts to vote against the "merit retention" of the three Florida Supreme Court justices- - - Fred Lewis, Barbara Pariente (pictured) and Peggy Quince - - - arguably because "the Florida Supreme Court removed from the ballot a nonbinding amendment allowing Floridians to refuse to buy mandatory health insurance."
Another ballot initiative to watch on election day.
Daily Read: Understanding Voter Fraud Prevention Efforts
While much has been written on voter fraud, Jane Mayer's article, The Voter-Fraud Myth, appearing in the New Yorker is one of the most in-depth and well-researched journalistic pieces.
She addresses voter identification proposals, such as those we've recently discussed in Texas, Pennsylvania, Minnesota, and Indiana, situating them in their political contexts and providing differing perspectives.
With legions of citizen watchdogs on the lookout for fraud, voters confused about the documents necessary to vote, and the country almost evenly divided politically, von Spakovsky is predicting that November 6th could be even more chaotic than the 2000 elections. He will play a direct role in Virginia, a swing state, where he is the vice-chairman of the electoral board of Fairfax County. Joining us at the conference table at the Heritage Foundation, John Fund, von Spakovsky’s co-author, told me, “If it’s close this time, I think we’re going to have three or four Floridas.” Von Spakovsky shook his head and said, “If we’re lucky only three or four.” If there are states where the number of provisional ballots cast exceeds the margin of victory, he predicts, “there will probably be horrendous fights, and litigation between the lawyers that will make the fights over hanging chads look minor by comparison.” Pursing his lips, he added, “I hope it doesn’t happen.” But, if it does, no one will be more ready for the fight.
October 31, 2012
Daily Read: Iceland and Popular Constitutionalism
Touted as a "crowd-sourced" constitutional revision by many, including the NYT (international edition), the national referendum on Iceland's draft constitution was completed last week, with less than 50% turnout and all queries answered affirmatively, according to the Iceland Review.
Two pieces of recent scholarship provide necessary perspective to these developments in Icelandic constitutionalism.
In his brief essay, Grassroots Constitutional Politics in Iceland, available on ssrn, Paul Blokker reminds us that the "Icelandic Constitution has since its adoption in 1944 been understood as a transitory document by many, even if this status has never translated into wholesale revision or substitution of the document."
In a more substantial article, From Collapse to Constitution: The Case of Iceland, available on ssrn, Professor Thorvaldur Gylfason also begins with the 2008 financial collapse as the catalyst for constitutional revision, but he also discusses individual provisions of the constitution in a manner that connects the financial regime with the human rights regimes, including freedom of speech, press access, and environmental protections. Gylfason also asks the broader question:
Does financial regulation belong in constitutions? Or is it enough to confine such regulation to laws? – which, to date, is near-universal practice.
This is a fair question, especially in a country that has recently gone through one of the worst financial crashes on record, with grave consequences for many households and firms at home and elsewhere.
Gylfason also has some intriguing thoughts about the participation of legal education in the process of constitutionalism as well as the importance of Iceland's experience for other constitutional democracies. Definitely worth a read for anyone engaged in constitutional theory, even if one has not been following the developments in Iceland.
October 30, 2012
Divided Ninth Circuit Panel Rules IAC at Sentencing for Death Row Inmate
A split three-judge panel of the Ninth Circuit ruled in Stankewitz v. Wong that a death row inmate's attorney failed to provide effective assistance of counsel at the penalty phase of his trial, in violation of his Sixth Amendment right to counsel, because his attorney failed to present certain mitigating evidence. The court ordered the state of California to either vacate and set aside the inmate's death sentence, unless the state initiates proceedings to retry his sentence within 90 days, or to resentence him to life without parole.
The case comes just three years after the Supreme Court reversed the Ninth Circuit in Wong v. Belmontes (2009), another IAC-at-sentencing case. That case held that Belmontes could not show that his attorney's performance at the penalty phase failed the prejudice prong of Strickland v. Washington because additional mitigating evidence would have been merely cumulative and because additional mitigating evidence would have opened the door to aggravating evidence that Belmontes was responsible for a second murder. The case says that a court in assessing an ineffective assistance of counsel claim at the penalty phase needs to examine both the pros and cons of introducing additional mitigating evidence, and that sometimes this evidence can be a two-edged sword.
The split on the panel, just three years after Belmontes, suggests that there's still some disagreement on the Ninth Circuit on how to assess an IAC claim at sentencing. Or, as Judge O'Scannlain wrote in dissent, "The Supreme Court took notice and repudiated [the majority's] reasoning in Wong v. Belmontes. Yet our circuit is already showing signs of backsliding." The case may give the Supreme Court yet another chance to clarify the standard.
Stankewitz is the longest-serving inmate on California's death row. He was convicted of killing a woman in a 1978 carjacking and sentenced to death. He argued on habeas that his attorney was ineffective at the penalty phase for failing to present mitigating evidence. The district court agreed, and the Ninth Circuit affirmed.
The majority (Judges Fisher and Bybee) wrote that Stankewitz showed prejudice for failure to introduce mitigating evidence at sentencing, because the available evidence was indeed mitigating, and any harm that might have come from it (i.e., the second edge to its sword) was merely cumulative of other aggravating evidence that the prosecution already introduced. According to the majority, the case thus looked more like Wiggins v. Smith and Williams v. Taylor (2000)--both finding IAC at sentencing based on counsel's failure to investigate and prepare--than Belmontes.
Judge O'Scannlain wrote in dissent that the majority may have distinguished Belmontes, but that the distinctions didn't show prejudice. Judge O'Scannlain argued that the court should have remanded to the district court to apply the Belmontes standard.
Daily Read: Toni Williams on Brinks & Gauri on Rights
Over at Jotwell, UK Law Prof Toni Williams (pictured) has a review entitled "Getting Rights Right," considering Daniel M. Brinks & Varun Gauri, Law's Majestic Equality? The Distributive Impact of Litigating Social and Economic Rights, World Bank Development Research Group Working Paper 5999 (March 2012), available on ssrn.
To investigate the distributive impact of socio-economic rights litigation is, of course, to engage with well-established and often-repeated findings about litigation processes and courts as tending either to favour the rich and powerful, the “haves” of the societies in which they are situated, or, more likely, to be ineffectual. Brinks and Gauri believe that such claims about the regressive impact and impotence of rights litigation over-generalise from a limited number and narrow range of courts, cases, constitutions and countries. They claim that a more systematic analysis, taking into account variation between different types of cases and characteristics of courts, shows that litigating social and economic rights may sometimes yield robustly pro-poor effects, at least in the areas of health care provision and education.
For those seeking a more global view of rights litigation than is so often present in US conversations, Williams' suggestion is an important one.
October 29, 2012
Government Faces Skeptical Court on Standing to Challenge FISA Amendments
The Supreme Court heard oral arguments today in Clapper v. Amnesty International, the case testing the plaintiffs' standing to challenge the government's vastly expanded surveillance authority under the FISA Amendments Act, or the FAA. We posted on the lower court ruling that a group of attorneys, journalists, and human rights organizations had standing to challenge the FAA here.
The plaintiffs always faced a unique standing problem in challenging the FAA: The very nature of government surveillance says that those surveilled cannot know that they've been surveilled, or harmed, especially when the real targets of the surveillance are the plaintiffs' overseas clients and contacts (and not immediately the plaintiffs themselves). As a result, the plaintiffs had to argue two kinds of harm to satisfy standing requirements: (1) that they've had to take current measures to ensure against FAA surveillance and (2) that their communications are imminently going to be surveilled (given the nature of them).
The government, on the other hand, argued that any harm is purely speculative and the result of the plaintiffs' own doing (and not the authority under the FAA), and that any harm could have occurred, anyway, but under a different surveillance authority. (This last argument says that the plaintiffs' harm isn't sufficiently traceable to the FAA, and that a judgment on the FAA wouldn't redress the plaintiffs' harm. Causation and redressibility are two other requirements for standing, in addition to harm.)
The Court seemed skeptical of the government's claims at arguments today. Justices Ginsburg, Breyer, Sotomayor, and Kagan grilled SG Verrilli on his arguments, and Justices Sotomayor and Kagan seemed especially troubled that the government's position would leave the plaintiffs without any effective way to challenge surveillance under the FAA. Chief Justice Roberts and Justice Scalia chimed in with concerns about the government's argument that it might conduct surveillance of the plaintiffs' communications under a different authority, leaving the plaintiffs unable to show causation or redressibility. (It wasn't clear that their concerns with the government's position extended beyond that particular argument, though.) And finally Justice Kennedy seemed especially troubled with the government's position on the attorney-plaintiffs: the government said that any decision by the attorney-plaintiffs not to communicate with overseas clients for fear of surveillance was caused by rules of professional responsibility, and not by the threat of FAA surveillance. (Justice Kennedy's concern is one to watch. This harm--attorney-plaintiffs curtailing communication with clients for fear of surveillance--is the most acute and well defined harm in the case. It's also one that will resonate best with this group of nine lawyers. And it's important that Justice Kennedy raised it: He may provide the key vote.)
In all, the government's argument came across as overly formalistic, especially considering the very high stakes for the plaintiffs. The Court's questions seemed to highlight that.
On the other side, there was some back-and-forth on just how certain government surveillance must be to create a sufficiently likely harm--"certainly impending," or "substantial risk." Chief Justice Roberts pushed for the former (and higher) standard, while Justice Kennedy pointed out that in those cases where we knew the government act was occurring (as here) the standard was the lower "substantial risk." Justice Alito asked whether the plaintiffs might manufacture their own standing (and thus work an end-run around a higher "certainly impending" standard) by alleging current preventative measures as the harm--just as the plaintiffs did here. As to the threat of surveillance and the plaintiffs' precautions against that threat, Chief Justice Roberts wondered whether that wasn't a harm in every case, e.g., in an ordinary criminal case when a criminal defense attorney seeks to get information from his or her client. (The attorney wouldn't use e-mail or phone; he or she would talk in person.) Finally, Justice Scalia asked whether the FISA court didn't serve as a check on Fourth Amendment violations.
If the government's argument was overly formalistic, the plaintiffs' claimed harms might have seemed too vague to some on the Court, especially if the Court adopts the higher "certainly impending" standard for the plaintiffs' claimed future harms.
Arguments today revealed what we already knew about this case: It'll be close. But on balance, the Court seemed to favor standing.
Daily Read: New Rehnquist Biography
The Partisan: The Life of William Rehnquist by John A Jenkins, published by Public Affairs Books this month is the first - - - and seemingly largely unflattering - - - biography of the former Chief Justice. Jenkins writes:
To be William Rehnquist was to consider one's self misunderstood—and with good reason. Rehnquist often appeared to be living in a private world of his own invention, and probing strangers were not welcome. . . .
Even as a young man in the 1950s, Rehnquist boldly preached an uncompromising brand of conservatism, and he espoused views—and acted on them—that were racist even by the standards of that era. Confronted later in the Senate, he took a disingenuous approach with his critics, lying his way out of trouble. Having taken his knocks in two brutal confirmation hearings, he deeply mistrusted the press, and he did his best to frustrate coverage or, failing that, to keep the stories about him one dimensional.
Reviewing the book in the LA Times, Jim Newton argues that the book does ignore some of the ways in which Rehnquist did "reconsider some views, most notably in the area of the Miranda case, which Rehnquist deplored for years but then upheld in 2000, concluding that it had become so enmeshed in American law and society that it would be improper to overrule it."
And Newton situates the biography of Rehnquist within the contemporary Court, observing that
If Rehnquist were alive and serving today, he'd be a moderate on the court, outflanked to his right by Justices Antonin Scalia, Clarence Thomas and, arguably, Samuel Alito and Chief Justice John Roberts. Even Rehnquist would have found that hard to imagine.
October 28, 2012
Fifth Circuit Upholds Ban on Gun Sales to Those Under 21 Years
A three-judge panel of the Fifth Circuit in NRA v. ATF upheld the federal ban on gun sales by federal firearms licensees to those under 21 years of age against a Second Amendment challenge. Notably, the court ruled that the ban didn't even touch activity protected by the Second Amendment (and it therefore didn't violate the Second Amendment). But, the court ruled, even if it did touch activity protected by the Second Amendment, it did not violate the Second Amendment.
This is the first federal circuit court ruling on these federal provisions and only the second federal court ruling on them. (The first, a 2008 district court ruling from the Western District of Texas, held the provisions constitutional under an intermediate scrutiny standard.) Otherwise the ruling breaks no new ground in Second Amendment jurisprudence post Heller and McDonald--it hews closely to the Second Amendment jurisprudential line set by other circuits--and it therefore may be a model and bellwether for other cases challenging these provisions.
The NRA will certainly seek en banc review, and the ultimate loser at the Fifth Circuit will undoubtedly seek cert. The case presents a good candidate for the Supreme Court to set and to apply a Second Amendment standard (on the one hand), but it's almost surely too soon, without any other circuit ruling on the provisions (on the other). At the end of the day, the Supreme Court is unlikely to take this one up, so long as any final ruling from the Fifth Circuit reflects the kind of cautious, well-within-bounds approach of this panel.
The federal provisions, 18 U.S.C. Secs. 922(b)(1) and (c)(1), together prohibit federally licensed firearms dealers from selling handguns to persons under the age of 21. The NRA sued with a couple individual named plaintiffs and argued that the restriction violated the Second Amendment.
The Fifth Circuit disagreed. The court recognized that the Supreme Court has not defined a precise constitutional test for Second Amendment challenges. But in adopting the flexible and "prevailing" two-step inquiry established by the Third, Fourth, Sixth, Seventh, Tenth, and D.C. Circuits, the court drew on language from Heller:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Op. at 10 (quoting Heller at 626-27) (emphasis added). The two-step inquiry asks: (1) Does the challenged law impinge upon a right protected by the Second Amendment? and (2) Does intermediate scrutiny or strict scrutiny apply?
As to the first question, the court carefully surveyed the history and tradition of gun sale regulations and concluded that
the conduct at issue falls outside the Second Amendment's protection. At a high level of generality, the present ban is consistent with a longstanding tradition of targeting select groups' ability to access and to use arms for the sake of public safety. More specifically, the present ban appears consistent with a longstanding tradition of age- and safety-based restrictions on the ability to access arms. In conformity with founding-era thinking, and in conformity with the views of various 19th-century legislators and courts, Congress restricted the ability of minors under 21 to purchase handguns because Congress found that they tend to be relatively immature and that denying them easy access to handguns would deter violent crime.
Op. at 26-27. Thus the court ruled that it didn't even need to get to the second question.
But just in case, it did. On the second question, the court applied intermediate scrutiny and held that curbing violent crime by those under 21 constitutes an important government objective and that the sales ban--not a blunter possession ban--adequately served that end.