Saturday, January 19, 2013
Zimbabwe President Robert Mugabe and Prime Minister Morgan Tsvangirai this week agreed on a final draft constitution that will go to referendum soon.
Among the provisions: The Attorney General's office will be divided into two new offices--an Attorney General that will sit in the cabinet and will advice the government, and a National Prosecuting Authority that will enforce the law. (It's not clear, but this may mean that the prosecuting authority enjoys greater independence.)
The final draft constitution also tinkers with provincial governments and federalism by replacing the office of the Governor with a Head of Provincial Council, elected from among a slate provided by the the party with majority seats in that particular province, and by stating in the preamble that devolution does not imply divisionism or power or authority to secede.
The two-year effort to come up with the draft, led by the Constitution Parliamentary Committee, or COPAC, moved in fits and starts. There may still be some details to work out before the draft is ready for referendum. The COPAC web-site is here, but was down as of this post.
Wednesday, January 16, 2013
A three-juge panel of the Third Circuit ruled in PG Publishing Co. v. Aichele that a newspaper had no First Amendment right to access polling places. The lengthy and careful opinion affirms a lower court ruling and creates a split between the Third and Sixth Circuits on the proper framework for analysis of this kind of claim, dealing with the right of access to the polling place: apply the experience-and-logic test from right-to-access jurisprudence (as the Third Circuit would have it); or apply strict scrutiny, apparently based on free speech forum analysis (as the Sixth Circuit would have it)?
The case arose out of attempts by PG's reporters to gain access to polling places in Allegheny and Beaver Counties, Pennsylvania, in order to report on that state's implementation of its voter ID law in the last election. But state law bans all but election officers, clerks, machine inspectors, overseers, watchers, voters, those giving assistance to voters, and police officers from the polling place during elections. After PG reporters were denied access in those two counties, PG sued, arguing that the ban violated its free speech and equal protection rights. (Equal protection, because it claimed that other counties allowed access to reporters from other papers, and that Allegheny and Beaver counties previously allowed access to PG reporters.)
The Third Circuit rejected the claims. The court ruled that free speech analysis didn't even apply (because there was no speech). (The court nevertheless made clear that a polling place is a non-public forum.) Instead, the court looked to right-to-access, or "right to gather news," jurisprudence--a right, like free speech, that the media enjoy only on par with the public generally. Thus the court applied the Richmond Newspapers (or the "experience and logic") test, "balanc[ing] the interests of the People in observing and monitoring the functions of their government against the government's interest and/or long-standing historical practice of keeping certain information from public scrutiny. If a right of access exists, any restraint on that right is then evaluated under strict scrutiny." Op. at 25. (The court reviewed its own opinions applying the experience-and-logic test to any traditionally open government proceeding, not just judicial proceedings, and concluded that it applies to polling places.)
Applying the test, the court first reviewed the history of voting (the "experience" prong) and wrote that "the historical record is insufficient to establish a presumption of openness in the context of the voting process itself." Op. at 38. Next, on the "logic" prong, the court compared the benefits of openness (preventing election fraud, preventing voter intimidation, and especially here checking and reporting on the implementation of voter ID) to the dangers (overcrowded polling places, revealing private information of voters) and ruled that "the 'logic' prong of this inquiry disfavors finding a constitutionally protected right of access to the voting process." Op. at 43. The net result: "both prongs of the "experience and logic" test militate against finding a right of access in this case." Id.
In applying the experience-and-logic test, the court rejected the approach of the Sixth Circuit in Beacon Journal Publishing Co., Inc. v. Blackwell, 389 F.3d 683 (6th Cir. 2004). The Sixth Circuit in Beacon Journal applied strict scrutiny, not experience-and-logic balancing, to a similar claim and overturned Ohio's restriction on access. The Third Circuit said that Beacon Journal erroneously applied speech principles--and public forum principles, at that--and thus deviated from the clear approach of the Supreme Court in cases like this. It thus declined to follow Beacon Journal.
As to equal protection, the court rejected PG's three theories--a class-of-one theory, a selective enforcement theory, and an inconsistent application theory--all because PG failed to show any intention discrimination against its reporters, or that the state treated PG's reporters any differently than reporters from any other paper.
Tuesday, January 15, 2013
The First Circuit ruled today in ACLU of Massachusetts v. Sebelius that the ACLUM's Establishment Clause challenge to a government contract with the United States Conference of Catholic Bishops was moot after the contract expired and after the USCCB failed in its bid to win a new contract. The ruling reverses an earlier district court ruling for the ACLUM on both mootness and the merits.
The case arose out of an HHS contract with the USCCB to provide services to human trafficking victims in the United States under the Trafficking Victims Protection Act. USCCB won the contract, even with its statement that it "could not provide or refer for abortion services or contraceptive materials" for trafficking victims under the contract. The ACLUM lodged a taxpayer suit for declaratory and injunctive relief, arguing that the contract violated the Establishment Clause.
The district court ruled for the ACLUM on the merits. It said that HHS violated the Establishment Clause either by endorsing or appearing to endorse USCCB's religiously based views, or by impermissibly delegating authority to USCCB to impose those views on others. As to standing, it said that the case fell under the "voluntary cessation" exception to the mootness doctrine.
The First Circuit reversed. It ruled that the contract expired, leaving no case or controversy, and that it didn't satisfy requirements either for "voluntary cessation" or capable-of-repetition-but-evading review. Key to the court's holding was that the ACLUM asked only for injunctive relief, and that HHS denied a new contract to the USCCB.
The ruling ends the case and means that we won't get a final merits decision on the Establishment Clause claim, except in the highly unlikely even that the case goes to the full First Circuit or the Supreme Court.
"Throughout her career, Professor Rivera has worked to defend the legal rights of all New Yorkers and make our state a fairer, more just place to live," Governor Cuomo said. "As a Judge on the Court of Appeals, Professor Rivera's legal expertise and passion for social justice will serve all New Yorkers well, and I am proud to send her nomination to the Senate today."
Readers of the ConLawProf will recall our 2008 review of Rivera's article, An Equal Protection Standard For National Origin Subclassifications: The Context That Matters, 82 Wash. Law Review 897 (2007), examining classifications that rely on terms such as "Hispanic" and "Latino" and observing that such terms actually embrace a host of national origin classifications such as Puerto Rican, Dominican, Chilean, and Portuguese, even as she contends that this is not a reason to abandon equal protection analysis, but to delve deeper.
Rivera was also a participant in a public conversation "Translating Equality" with poet Kimiko Hahn and an author of the The Law Professors’ Report on U.S. Supreme Court Nominee Sonia Sotomayor: On the Merits from the Hispanic Bar Association.
Congratulations Jenny Rivera!
Monday, January 14, 2013
The Supreme Court on Friday agreed to hear a case asking whether Congress had authority to require a sex offender who already served out his sentence to later register when he moved within a single state. The case comes three years on the heels of United States v. Comstock, another case involving congressional authority over federal criminals after their sentences have run, and one suggesting expansive congressional authority. (Comstock held that Congress had authority under the Necessary and Proper Clause to designate federal prisoners as "sexually dangerous" and to detain them even beyond their original sentence.) It also comes just one year after the Court's sharply divided and controversial ruling in NFIB v. Sebelius, the ACA/Obamacare challenge defining a limit on congressional authority and holding that Congress lacked authority under the Commerce Clause to require individuals to purchase health insurance. (NFIB also held that Congress had authority under its taxing power to require individuals to purchase health insurance.) This case, United States v. Kebodeaux, thus gives the Roberts Court yet another important opportunity to define congressional authority and to read that authority as relatively broad (as in Comstock) or to find an important limit (as in NFIB--even if a different limit than the Court found in that case).
Kebodeaux involves a challenge to the federal Sex Offender Registration and Notification Act, or SORNA. SORNA, enacted in July 2006, requires sex offenders to register in the jurisdiction where they live. It requires states to adopt specified federal standards for registration as a condition of receipt of federal funds.
Kebodeaux, a convicted sex offender who served out his sentence and was released from prison "unconditionally" (the Fifth Circuit's word), was convicted of violating SORNA by failing to register when he moved from El Paso to San Antonio. Kebodeaux challenged his conviction on appeal, arguing that Congress lacked authority to penalize his failure to register in a purely intrastate move, because he had served his full sentence and was released by the time Congress enacted the registration requirement in SORNA.
The en banc Fifth Circuit agreed. It ruled that Congress had no authority over Kebodeaux when he made an intrastate move after he served out his full sentence. In short, the court said that the period of time between Kebodeaux's release and Congress's enactment of the registration requirement in SORNA broke the chain linking congressional authority and Kebodeaux, and Kebodeaux did not re-establish that chain (by way of the Commerce Clause) by crossing state lines. The court distinguished Comstock on exactly that basis: in Comstock, the federal government still had physical control over federal prisoners designated "sexually dangerous," even if they were literally on their way out of the federal prison, and thus had authority to regulate them by ordering their continued detention; here, in contrast, the federal government had no control over Kebodeaux.
Kebodeaux's facts go beyond those in Comstock, however, because this case is not merely about whether Congress can regulate the activity of someone still in federal custody past the expiry of his sentence. Importantly, it raises the further question whether Congress can regulate his activity solely because he was once convicted of a federal crime.
Op. at 6.
The court also worries that this authority would know no bounds and would intrude into areas of state regulation. And it worries that there is no authority, "from more than two hundred years of precedent, for the proposition that it can reassert jurisdiction over someone it had long ago unconditionally released from custody just because he once committed a federal crime." Op. at 9.
If these worries sound familiar, it's because similar worries drove the opponents of the ACA/Obamacare, and ultimately even the Court, in ruling that Congress exceeded its Commerce Clause authority in enacting the universal coverage provision, or the so-called individual mandate, in NFIB v. Sebelius. Many of us didn't see this coming in NFIB. A similar limit on congressional authority may be creeping up on us now.
On the other hand, the panel decision and sharp dissents in the Fifth Circuit en banc ruling argued that Comstock supported congressional authority to apply SORNA's registration requirements to Kebodeaux. This case could well follow Comstock and (again) highlight expansive congressional authority over those once in federal control.
Either way, Comstock, the sleeper of OT2009, will play a key role in the outcome. And the case will give us one more important datapoint to plot the trajectory of congressional authority under the Roberts Court.
Sonia Sotomayor's memoir, My Beloved World, is now out in the world.
Writing about the book in WaPo, Dahlia Lithwick states "It is nearly impossible to read “My Beloved World” without comparing it with the only other deeply personal autobiography by a sitting Supreme Court justice, Clarence Thomas’s 2007 memoir, “My Grandfather’s Son.” Lithwick's comparison demonstrates a wide gap between the two Justices' self-presentations.
Discussing the book for NPR, Court correspondent Nina Totenberg echoed the Thomas' comparison, saying:
Justice Clarence Thomas was the last member of the court to write a book that topped the list of national book sales, but while his vividly written autobiography sizzles with rage and resentment, Sotomayor's hums with hope and exhilaration.
And in the Boston Globe review, Jax Wexler also makes reference to Clarence Thomas:
Readers seeking insight into Sotomayor’s judicial philosophy or her positions on hot-button issues will be largely, though not entirely, disappointed. With the constitutionality of racial preferences on the court’s docket again this term, it is refreshing to hear the views of a justice who benefitted from affirmative action and who is not Clarence Thomas. In her memoir, Sotomayor eloquently defends preferences for creating “the conditions whereby students from disadvantaged backgrounds could be brought to the starting line of a race many were unaware was even being run.”
Yet these first reviews - - - and surely more will follow - - - also stress the literary quality of Sotomayor's prose as much as its empathetic message and remarkable content.
This looks like it will be an excellent read.