February 4, 2012
Seventh Circuit Rejects Bar Applicant's Effort to Dodge Rooker-Feldman
The Seventh Circuit ruled last week in Brown v. Bowman that a bar applicant's claim in federal district court for constitutional violations in his bar application and appeal process was barred by the Rooker-Feldman doctrine. (The Rooker-Feldman doctrine prevents lower federal courts from hearing cases by losers in state court cases that ended before the federal district court case started. "The reason, quite simply, is that no matter how erroneous or unconstitutional the state court judgment may be, only the Supreme Court of the United States has jurisdiction to review it." Op. at 9.) The court said that the applicant's efforts to side-step the doctrine by pleading only constitutional violations, and not seeking a reversal of his ultimate rejection by state courts, failed, because the federal court would still have to review a state court decision.
The applicant, Brown, filed in federal district court after he was rejected by the Indiana Board of Law Examiners, and after his appeals through the Indiana courts and the U.S. Supreme Court all failed. (The Indiana high court wrote an order stating that the BLE decision should stand; the U.S. Supreme Court denied cert.) Brown alleged that a psychologist and a psychiatrist who evaluated him as part of his application drew conclusions that violated his speech, religion, and assembly rights under the First Amendment (among others). The district court dismissed Brown's complaint under the Rooker-Feldman doctrine and ruled that individual defendants were entitled to qualified immunity.
The Seventh Circuit affirmed under the Rooker-Feldman doctrine. The court ruled that Brown's effort to dodge the doctrine, by pleading only his constitutional claims in federal court and not by seeking to overturn the state courts' ultimate ruling, was insufficient:
Here, appellant's artful pleading cannot get him around Rooker-Feldman when the gravaman of his complaint requires the district court to review the state judicial proceeding. . . . Though Brown focuses much of his appeal on the allegedly religiously biased JLAP evaluations and the conduct of JLAC members, these actions are intimately connected with the Indiana Supreme Court's adjudication. . . . Because Brown's claims of religious bias require a federal district court to review the judicial process followed by the Indiana Supreme Court in deciding the merits of Brown's bar admission application, Brown's claims are "inextricably intertwined" and fall squarely under Rooker-Feldman's jurisdictional bar.
Op. at 12-13.
February 2, 2012
Ninth Circuit Sets Pleading Standard for Civil Rights Claims Against Municipalities
A three-judge panel of the Ninth Circuit ruled this week in AE v. Tulare that a civil rights plaintiff suing a municipality under Monell v. Department of Social Services has to allege some concrete facts to satisfy the pleading standard under Ashcroft v. Iqbal. The ruling reiterates that the pleading rule in a Monell case in the Ninth Circuit now requires some concrete factual allegations--more than the pre-Iqbal rule in that Circuit.
Before Iqbal, the Ninth Circuit didn't require much detail at the pleading phase in a municipal liability case--no more than a bare allegation that goernment officials' conduct conformed to some unidentified government policy or custom. But the government argued here that that should change under Starr v. Baca, the Ninth Circuit's ruling last year in which the court wrestled with the "perplexing" holdings in Swierkiewicz v. Sorema N.A., Dura Pharmaceuticals, Inc. v. Broudo, Bell Atlantic Corp. v. Twombley, Erickson v. Pardus, and Iqbal and set these pleading principles for civil rights claims:
whatever the difference between these cases, we can at least state the following two principles common to all of them. First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.
AE, at 792 (quoting Starr). The court in AE said that this standard applies to AE's municipal liability claims and remanded the case to allow AE to amend the complaint to try to meet it.
Ninth Circuit: The Prop 8 Trial Videotapes Remain Sealed
The Ninth Circuit today issued its opinion in Perry v. Brown holding that the Proposition 8 trial videotapes will not be released. The panel - - - Judges Reinhardt, Hawkins, and NR Smith - - - reversed the decision of Northern District of California Chief Judge Ware that the videotapes should be released.
Judge Reinhardt's opinion for the unanimous panel made clear that the decision was not focused on the policy questions regarding broadcast of trials or the First Amendment right of press access or publication. Instead, the opinion highlighted the unique and narrow question: whether "the district court abused its discretion by ordering the unsealing of the recording of the trial notwithstanding the trial judge’s commitment to the parties that the recording would not be publicly broadcast."
The panel assumed without deciding that the "trial recording is subject to the common-law presumption of public access," but found that there was a "sufficiently compelling reason to override any such presumption here."
In short, the panel found that the sufficiently compelling reason was Judge Walker Vaughn's repeated assurances to the litigants that the trial recordings would not be published:
the district court [Judge Ware] failed to appreciate the nature of the statements that the trial judge [Judge Walker] had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so. The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments. . . . the interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release.
The Ninth Circuit opinion is not a constitutional one, but certainly seeks to respect the integrity of Article III courts. But it means that afficiandos of the Prop 8 trial will have to be content with the voluminous transcript that remains available, or with the re-enactment of the trial produced by actors, or with Walker's extensive opinion itself.
CFP: Social Justice Feminism
For scholars working on constitutional issues relating to social justice and gender, a terrific-looking conference, Social Justice Feminism, will be held at University of Cincinnati College of Law on October 26-27, 2012.
The deadline is April 1, 2012; submissions of abstracts for individual papers, as well as complete panels, are invited.
More info here.
[pictured: from the Race, Gender and Social Justice at U Cincinnati College of Law, via]
February 1, 2012
ACLU Sues for Material Authorizing Targeted Killings
The ACLU filed suit on Wednesday against the U.S. government in the Southern District of New York seeking the release of records related to the targeted killings of U.S. citizens overseas. Recall that the New York Times and two reporters filed a similar suit in December 2011.
The ACLU lawsuit comes after the Departments of Justice and Defense and the CIA rejected or indefinitely delayed their responses to the group's FOIA request for the records. The complaint alleges,
The press began reporting in early 2010 that Anwar al-Awlaki, a U.S. citizen born in New Mexico, had been placed on CIA and JSOC "kill lists" that authorized his targeted killing. In the fall of 2011, the media reported on the existence of a legal memorandum drafted by the OLC ("OLC memo") that provided a legal analysis to support al-Awlaki's killing.
The lawsuit comes on the heels of President Obama's YouTube interview in which he acknowledges and defends drone strikes. Here's Al Jazeera's report on the interview:
Challenge to Constitutionality of DOMA by Military Member
Tracey Cooper-Harris (pictured right), a member of the US Army for twelve years, has filed a complaint against the US for veterans benefits for her same-sex partner, arguing that DOMA and the VA definition of "spouse" violates the Fifth Amendment's equal protection component. Cooper-Harris is represented by the Southern Poverty Law Center, the organization that also litigated the landmark case Frontiero v. Richardson involving a woman's right for military benefits for her husband.
This lawsuit joins the other constitutional challenges to DOMA including one filed by the Service Members Legal Defense Network, as well two companion decisions by federal district judge Tauro declaring DOMA unconstitutional, the Obama DOJ's decision not to defend it, and legislative efforts at repeal.
(h/t Jen Hogg)
Ruth Bader Ginsburg Speaks About Constitutionalism on Egyptian Television
Justice Ginsburg discusses the formation of the US Constitution, mentioning "Remember the Ladies," slavery, Native Americans, immigrants, and the death penalty, as well as other matters of constitutionalism, in an interview on Al Hayat TV in Egypt.
(h/t Barbara Burke)
Arrest of Documentary Filmmaker in House of Representatives
As the NYT reports, the filmmaker Josh Fox whose documentary “Gasland” raised questions about "fracking," was escorted from a House of Representatives subcommittee hearing today and given a misdemeanor citation.
Although Fox shouted this "is a public hearing!” and “I’m being denied my First Amendment rights,” the subcommittee members had voted to exclude Fox and his camera crew for lacking proper media credentials.
A video of the hearing, sans any arrests, is available here.
For ConLawProfs teaching First Amendment this semester, this could be the basis for an interesting in-class discussion or problem.
First Circuit Rejects NOM's Challenges to Disclosure Laws Redux
In what the First Circuit calls the "second chapter" of challenges to the constitutionality of Maine's registration and disclosure laws regarding election-related advocacy, the court in National Organization for Marriage [NOM] v. McKee, essentially reaffirms its opinion last August in a case by the same name (and now to be known as NOM I). The cases stem from the hard-fought same-sex marriage ballot initiative in Maine in 2009. NOM II involves both NOM and American Principles in Action [APIA], although the court expressed doubt regarding APIA's standing as to some of the claims, and the principle arguments revolve around NOM.
The unanimous panel decision, authored by Judge Kermit Lipez, focuses on the "only substantively distinct issue" raised by this appeal as contrasted to NOM I: the constitutionality of the definition of "contribution" in the "ballot question committee" [BQC] provision, Me. Rev. Stat. tit. 21-A, §1056-B. The court concludes that the BQC provision, like the PAC provision at issue in NOM I survives the constitutional challenge.
The court quickly disposed of the First Amendment claims, on the basis of NOM I, but paid more attention to the assertion that the term "contribution" was unconstitutionally vague as a matter of due process, and that any reliance on subjective beliefs of a contributor were likewise void for vagueness. At issue were email communications such as:
"You can fight back! Can you help defend marriage in Maine and across the country, by donating $5, $10, or even, if God has given you the means, $100 or $500?"
The panel found that Maine can constitutionally require parties to determine whether or not a "reasonable listener would understand their advocacy as an invitation to contribute to a specific ballot question campaign"- - - such as that in Maine - - - based upon the specific earmarking words of the solicitor, in this case NOM.
The court engaged in such reasoning after specifically faulting the appellants' attorneys for poor lawyering in terms of the as-applied challenges:
Appellants, however, do not address in their brief the vagueness problem with respect to donations received following any specific communication they distributed or proposed. Rather, they assert in conclusory language that subsections B and C of section 1056-B "are unconstitutionally vague as applied to most of Plaintiffs' speech." They make glancing reference to the content of the emails, noting that "some of NOM's solicitations mentioned Maine," and query whether, as a result of those mentions, donors' knowledge of the Maine ballot measure would be enough to make their donations covered "contributions" and NOM a BQC. They do not explain why they were unable, or would be unable, to link particular contributions received to their advocacy efforts on the Maine referendum, focusing their arguments instead on the language of the statute generally.
Thus, appellants are not only unable to bring a facial vagueness challenge to section 1056-B, but their failure to develop their as-applied challenges also would allow us to reject those claims summarily if we were so inclined. [citations omitted]. Given the importance of the issues raised, however, and the resources expended by all parties in this extensive litigation, we choose to explain why their vagueness contentions would in any event be substantially, if not entirely, unavailing. [citations omitted].
As the panel succinctly stated, it saw "no constitutional problem with expecting entities like appellants to make pragmatic, objective judgments about the nature of the contributions they receive where their own conduct and communications are the primary elements in the determination."
While NOM's attorney has reportedly vowed to take the case to the United States Supreme Court, there seems to be little here that would merit a grant of a writ of certiorari.
However, with the same-sex marriage issuepossibly again on the ballot in Maine in 2012, there may certainly be more litigation.
February 1, 2012 in Campaign Finance, Due Process (Substantive), Elections and Voting, First Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Speech, Standing | Permalink | Comments (0) | TrackBack
CFP: Class and "the American Dream"
From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream will be held at University of Wisconsin, Madison, and seeks to "bring together scholars, economists, activists, policymakers, and others to critically examine both the relationships between and the complexities of class and inequality."
More info here.
January 29, 2012
D.C. Court Rejects Due Process Claim in Immigration Case
Judge Ellen Segal Huvelle (D.D.C.) on Friday rejected a U.S. citizen's claim that the Secretary of the Department of Homeland Security, the Secretary of State, and the Consul General at the U.S. Consulate in Sydney violated her Fifth Amendment due process rights by rejecting her husband's application for a visa.
Plaintiff Shaghayegh Mostofi, a naturalized U.S. citizen, married Iranian citizen Shahriar Aghakhani and sought U.S. citizenship for Aghakhani based on the marriage. The Consulate in Sydney rejected Shaghayegh's application, stating only that the "case is being refused under Section 212(a)(3) of the Immigration and Nationality Act." That section allows exclusion of a visa applicant from the United States for any of six security-related grounds. The Consulate did not reveal the precise ground for exclusion.
Mostofi sued, arguing that the exclusion violated her fundamental right to marry.
Judge Huvelle wrote that a consular officer's decision to deny a visa is generally not subject to judicial review, because such decisions are within the exclusive purview of the political branches. But this "consular nonreviewability" doctrine gives when a plaintiff asserts that the decision infringes on constitutional rights--at least in the D.C. Circuit, and the First, Second, and Ninth Circuits--based on Kliendienst v. Mandel (1972).
The problem here is that there was no violation of the right to marry--and thus no allegation of a constitutional violation. Judge Huvelle wrote that "this Circuit, unlike the Ninth Circuit, does not recognize consular decisions affecting only the 'physical conditions' of marriage as implicating any constitutionally protected interest." Op. at 7.
January 29, 2012 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack
Jon Stewart on FCC v. Fox and Hosana-Tabor
Need a bit of humor? The latest episode of The Daily Show had some provocative comedy related to constitutional law developments earlier this month.
On the FCC v. Fox oral arguments, Stewart made somewhat implicit comparisons between sex and violence.
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|
|A Love Supreme - Profanity & Nudity on TV|
And on the Court's decision in Hosana-Tabor, he made some very explicit comparisons between Lutheran synod law and Moslem Shari'a law.
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|
|A Love Supreme - Religious Freedom vs. Americans with Disabilities Act|
Stolen Valor in the Tenth Circuit
The United States Supreme Court is set to decide the constitutionality of The Stolen Valor Act, having granted certiorari in United States v. Alvarez with oral arguments scheduled for February. The Ninth Circuit, in a divided opinion, held the Act unconstitutional.
The Tenth Circuit, also in a divided opinion in US v. Strandlof, has just held the Act constitutional. For those who might wonder why the Tenth Circuit entered the fray, the majority panel opinion states that although the government suggested a stay, it is the practice of the Tenth Circuit to "decide cases that are ripe even while parallel cases are under review by the Supreme Court." Opinion n. 3.
The Stolen Valor Act, 18 USC §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." The penalty is enhanced if the statements relate to the Congressional Medal of Honor, the Purple Heart, and other specified awards.
The majority opinion, authored by Judge Timothy Tymkovich, applies a "breathing space" standard it derives from defamation cases: The First Amendment "does not foreclose laws criminalizing knowing falsehoods, so long as the laws allow 'breathing space' for core protected speech—as the Supreme Court calls it, 'speech that matters.' "
The dissenting opinion, authored by Judge Jerome Holmes, argues that the "breathing space" standard is not properly derived from precedent and that it "turns customary First Amendment analysis on its head, by obliging the speaker in the context of a content-based speech restriction, as here, to justify after the fact why his or her speech should not be regulated; and (2) despite the majority’s contrary assertions, its breathing space analysis, in operation, is the kind of balancing test that the Supreme Court has condemned and is at odds with First Amendment values."
The dissenting opinion also critiques the majority's limiting constructions of the Stolen Valor Act:
- that there is an implied scienter requirement, although the statute does not actually require the false utterance to be made knowingly (the dissent accepts this construction);
- that there is an implicit intent-to-deceive requirement (the dissent rejects this construction);
- that there is an implicit exclusion of any "satirical, rhetorical, theatrical, literary, ironic, or hyperbolic statements" (the dissent also rejects this limiting construction).
Based on these limiting constructions, the majority compares The Stolen Valor Act to other regulations of false statements - - - many of which are civil - - - and uses a categorical approach to interpret "falsehoods" as unprotected speech. On this basis, the defendant should have to prove that the criminalization of the falsehood does not leave sufficient "breathing space" for valued speech.
While the dissent criticizes the majority's limiting constructions, importantly Judge Holmes argues that even if these are accepted, the Stolen Valor Act remains a content regulation subject to strict scrutiny. Assuming the government's interests - - - preventing dilution of military honors and protecting the public from deception - - - are compelling, the dissent argues that criminal sanctions are not sufficiently narrowly tailored. Judge Holmes argues that "more speech" - - - such as additional databases regarding military honors - - - is an acceptable cure.
Moreover, perhaps the most important aspect of Stevens and Brown for this case is what the Court did not say. Indeed, with Stevens and Brown, the Supreme Court did not (at least for now) purport to create a unified theory of the First Amendment that would preempt all prior approaches and substitute a new doctrine. While perhaps the Court did just this (and if it did, it can tell us in Alvarez), we are quite confident the Court, if it sought such a bold result, would have expressly overruled prior doctrines. Instead, what the Court did was put in place a framework for assessing “novel restrictions” and “new categories of unprotected speech,” Brown, 131 S. Ct. at 2734 (emphasis added). But in neither Stevens nor Brown did the Court indicate an intention to disturb or reverse longstanding free speech jurisprudence for unprotected categories it has already addressed in other ways.
The Court's opinion in Alvarez will most likely be definitive, but most likely not in the manner of announcing a new bold approach for all First Amendment cases. Instead, the Court must consider whether criminalizing speech, even false speech, about certain content (no matter the intent or the context), survives a First Amendment challenge.
Moreover, no matter the outcome in Alvarez, Congress plays a role. Interestingly, just as Congress enacted a revised "crush porn" statute after the Court in Stevens declared its previous attempt unconstitutional, the Stolen Valor Act of 2011 would limit criminalization to "misrepresentations of military honor made knowingly and 'with intent to obtain anything of value' that is of more than 'de minimis' worth." Dissenting opinion at 60, citing Stolen Valor Act of 2011, H.R. 1775, 112th Cong. § 2(a) (2011), available at http://heck.house.gov/sites/heck.house.gov/files/StolenValorBill.pdf.
[image: The Purple Heart Stamp issued by the Post Office in 2007 via]