Wednesday, February 25, 2015
Does a community college stand in the shoes of the state for the purposes of Eleventh Amendment immunity from suit?
In its opinion in Leitner v. Westchester Community College, a panel of the Second Circuit answered in the negative.
The court found that although Westchester Community College (WCC) is part of the state university system of New York (SUNY) that is entitled to Eleventh Amendment immunity, the community college is not similarly shielded. Essentially, the question is whether the community college is more like the state or more like a local government ("community") which is not entitled to Eleventh Amendment immunity. The court's rationale focused on the factor of the risk to the state treasury, finding it important that the state only contributes a fraction of WCC's budget, is not responsible for WCC's debts, and it is Westchester County that has the power to issue bonds and levy taxes to support WCC. The court also considered the issue of state control. There are ten board members of WCC: the state Governor appointed four, while the county appointed five, with one board member elected by the student body. Further, the court considered the laws creating WCC, finding the statutory framework indicates its separation from SUNY.
The opinion seems straightforward even as it is acknowledges the curvatures of the landscape on which it is written.
First, district courts have found that other SUNY community colleges are embraced by SUNY's sovereign immunity and the Second Circuit itself has found that the City University of New York is similarly entitled to sovereign immunity (even as the City of New York is not).
Second, the court notes that other circuits examining the question whether a particular stateʹs community colleges are entitled to sovereign immunity have "unsurprisingly" reached disparate conclusions, given that the conclusions are based on state-specific inquiries into those collegesʹ fiscal and governance structures.
Thus, having concluded that WCC is not entitled to Eleventh Amendment immunity, Carol Leitner's claim for a First Amendment violation can proceed directly against the community college, in addition to the WCC officials who are also defendants.
Tuesday, February 24, 2015
Prof. Alan Morrison (GWU) offers his take on Arizona State Legislature v. Arizona Independent Redistricting Commission in this ACS Issue Brief. The case, scheduled for argument on March 2, tests whether Arizona's independent redistricting commission violates the Elections Clause and 2 U.S.C. Sec. 2a(c), and whether the state legislature has standing to bring the challenge.
The state legislature claims that the Commission (created by ballot initiative) violates the Elections Clause because it takes out of the hands of "the Legislature" the "Times, Places and Manner of holding Elections for Senators and Representatives."
Morrison argues that Arizona's commission is the state's "second effort at electoral reform," after the Court struck its public financing system in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett. He says that gerrymandering reformers "should be rooting hard that the Court rejects the position of the Arizona legislature."
We'll post our oral argument preview soon.
Monday, February 23, 2015
A New Jersey trial judge today ruled that Governor Chris Christie's cut to the state's public pension system violated the state and federal contracts clauses. Along the way, the judge also ruled that the state's contractual obligation to fund its public pension system did not violate the state constitutional Debt Limitations Clause and Appropriations Clause, and did not impermissibly infringe on the governor's line-item veto power. Oh, and she also ruled that the trial court had jurisdiction over the case, and that it didn't present a political question.
In a case that "implicate[s] the fragile balance at the heart of the legislative process . . . where political, constitutional, and judicial forces appear to collide," this ruling has a little something for everyone.
As a result of earlier litigation, the state has a statutory obligation to fund its public pension system. And the statute is written to create a contract right on the part of public employees--so that any decision not to fully fund the system immediately implicates the state and federal contract clauses. So when Governor Christie wielded his line-item veto pen to cut the state contribution out of the legislature's appropriation bill (because of unexpectedly low revenues), the plaintiffs were waiting in the wings with their contracts clause claims. And the judge agreed with them. That part of the ruling is unremarkable.
But the Governor's creative defenses--and the court's rejection of them--demand some attention. The governor argued that the statutory obligation to fund the public pension system violated the state constitutional Debt Limitations Clause (which limits state borrowing burdens) and the Appropriations Clause. Moreover, Governor Christie said that the statutory obligation intruded upon his executive power to veto legislation. The court reviewed the text, history, and cases on the relevant state constitutional provisions and concluded that they did not override the state's statutory obligation to fund its public pension system.
The ruling means that the state has to find $1.57 billion to fund the system. Governor Christie will likely appeal.
The Fifth Circuit last week granted a school district's petition for rehearing en banc in a case involving off-campus student speech. The grant means that the full Fifth Circuit will get a crack at the issue whether and how off-school student speech critical of a school employee, but not otherwise disrupting the school, is protected under the First Amendment.
The case, Bell v. Itawamba County School Board, arose when a high school student was suspended for recording and posting on his Facebook page a rap song criticizing, with vulgar and violent lyrics, two named male athletic coaches for sexually harassing female students at the school. The student, Taylor Bell, wrote the song, recorded it, and posted it off campus, at facilities unrelated to the school. While students heard the song, they shouldn't have heard it at school--no cell phones, no Facebook on campus--and it didn't cause any disruption or interference with school activities. So the majority on the three-judge panel reversed the district court and ruled for Bell:
[T]he Supreme Court's "student-speech" cases, including Tinker, do not address students' speech that occurs off campus and not at a school-approved event. The Court has not decided whether, or, if so, under what circumstances, a public school may regulate students' online, off-campus speech, and it is not necessary or appropriate for us to anticipate such a decision here. Even if Tinker were applicable to the instant case, the evidence does not support the conclusion, as required by Tinker, that Bell's Internet-posted song substantially disrupted the school's work and discipline or that school officials reasonably could have forecasted that it would do so.
Given that the Court hasn't ruled on the issue, this may be one to watch.
Thursday, February 19, 2015
Philadelphia DA Seth Williams filed suit in the Supreme Court of Pennsylvania to stop Governor Tom Wolf from implementing his death penalty moratorium and reprieve for a certain condemned prisoner. DA Williams argues that Wolf exceeded his state constitutional authority in issuing these, because the governor has no power to issue a moratorium, and because the reprieve is really only a moratorium, beyond the scope of gubernatorial power.
On January 13, 2015, former Governor Tom Corbett issues a warrant scheduling Terrance Williams's execution for March 4. (Defendant Williams was convicted of first-degree murder, robbery, and conspiracy and sentenced to death.) Then on January 20, 2015, new Governor Tom Wolf, who said during his campaign that he'd issue a moratorium on the death penalty, did so. The moratorium runs "until the [bipartisan Pennsylvania Task Force and Advisory Commission] has produced its recommendation and all concerns [with the death penalty] are addressed satisfactorily."
Pursuant to the moratorium, Wolf also issued a reprieve for Defendant Williams, again, "until I have received and reviewed the forthcoming report of the Pennsylvania Task Force and Advisory Committee on Capital Punishment, and any recommendations contained therein are satisfactorily addressed."
DA Williams then filed this emergency case in the state high court, arguing that Wolf's actions exceeded his authority and violated the Pennsylvania constitutional Take Care Clause.
Here's the state constitutional reprieve power, in Article IV, Sec. 9(a):
In all criminal cases except impeachment the Governor shall have the power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, and, in the case of a sentence of death or life imprisonment, on the unanimous recommendation in writing of the Board of Pardons, after full hearing in open session, upon due public notice.
Under this provision, Wolf's reprieve isn't subject to approval by the Board of Pardons. But DA Williams argues that it's not really a reprieve, because it's not temporary. (It ceases when the Commission issues its report and all concerns are addressed--maybe never.) Instead, DA Williams says it's a permanent moratorium, that the governor has no authority to issue a permanent moratorium, and that the actions violate the state constitutional Take Care Clause.
If DA Williams is successful, the suit could stop Wolf's moratorium, and even his reprieve, resetting Defendant Williams's execution for March 4. If he's not successful, however, this could mark the beginning of the end of the death penalty in Pennsylvania.
Tuesday, February 17, 2015
DHS Secretary Jeh Johnson announced that the government would comply with the temporary injunction issued late yesterday by Judge Andrew S. Hanen (S.D. Tex.) halting implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, program. But the government will appeal.
Here's Judge Hanen's opinion.
Judge Hanen's ruling is based on the APA, and did not address the Take Care Clause argument. The first 60 pages is dedicated to standing. We previously posted on the case here.
Friday, February 13, 2015
The D.C. Circuit ruled today that deputy federal marshals enjoyed qualified immunity from a suit for damages after they shot a 16-year-old driver who hit another marshal as he drove out of an apartment parking lot.
The case, Fenwick v. Pudimott, arose after three deputy federal marshals observed Fenwick, a 16-year-old, struggling to park a car in the lot. Fenwick exited the vehicle, entered the apartment building, and came back to his car. As he backed up, the officers instructed him to halt. Instead, he drove forward toward the parking lot exit and clipped one of the officers. The other officers fired shots and struck Fenwick with four bullets. Fenwick recovered and sued.
The D.C. Circuit held that the officers enjoyed qualified immunity from suit, because, under the second prong of Saucier v. Katz, their use of deadly force didn't violate a clearly established constitutional right. The court noted that Fenwick "posed no immediate threat to either officers or bystanders when [the officers] opened fire," but also that the officers saw pedestrians and other vehicles in the vicinity just before the shooting, and that Fenwick hit one of the officers with the car. This was enough for the court to hold that the officer's use of deadly force wasn't clearly unconstitutional.
Still, the court saw it as a very close case. Given that, and undoubtedly conscious of recent instances of police abuses around the country, the court issued this caution:
[W]e emphasize that nothing in this opinion should be read to suggest that qualified immunity will shield from liability every law enforcement officer in this circuit who fires on a fleeing motorist out of asserted concern for other officers and bystanders. Outside the context of a "dangerous high-speed car chase," deadly force, as the Supreme Court made clear in Garner, ordinarily may not be used to apprehend a fleeing suspect who poses no immediate threat to others--whether or not the suspect is behind the wheel.
Judge Karen LeCraft Henderson, who concurred, didn't see it as so close. Citing the Court's ruling last Term in Plumhoff v. Rickard (holding that officers' use of deadly force to stop a driver in a high-speed chase didn't violate the Fourth Amendment), she would have resolved the case on Saucier's first prong--that the use of deadly force didn't violate the Constitution.
There's no shortage of opinion on standing in King v. Burwell, the case testing whether the IRS had authority under the Affordable Care Act to grant tax credits to purchasers of health insurance through a federally-facilitated (not state-run) exchange. The Wall Street Journal and Mother Jones wrote about the standing problems first, but now there's coverage all around the internet.
Still, neither the government nor the Court has said anything about it.
The Court can consider the plaintiffs' standing anytime, and on its own motion. If it rules that the plaintiffs in this case lack standing, surely there will be efforts to find new plaintiffs.
But remember: The parallel case in the D.C. Circuit--which first came down the same day as King--is still in abeyance pending the outcome of King. If the Court dismisses King for lack of standing, the D.C. Circuit would likely lift its case out of abeyance and put the issue back before the Supreme Court relatively quickly (or at least quicker than ACA opponents could scrounge up new plaintiffs and start all over).
Tuesday, February 10, 2015
The Massachusetts Supreme Judicial Court ruled today that a parent in a private guardianship proceeding is entitled to counsel as a matter of due process. (The court previously ruled that a parent in a private adoption proceeding enjoyed that same right.) The case provides a categorical right to counsel under Massachusetts law, and thus stands in contrast to the case-by-case approach to a parent's federal due process right to counsel in Lassiter v. Department of Social Services.
The case, Guardianship of V.V., involved a guardianship proceeding between a minor's mother and great-grandmother. The mother was not initially represented by counsel when the lower courts awarded guardianship to the great-grandmother, although the mother obtained a lawyer later in the proceedings.
By the time the Supreme Judicial Court had a chance to rule, the case had become moot. That's because the minor was back with the mother. (The court said that the case was not moot on account of the mother obtaining a lawyer later in the proceeding. The court said the point was that the mother didn't have an attorney at the initial guardianship proceeding.) Still, the court said that the issue was capable of repetition but evading review--that it was an issue sure to come up again, and, because of the quick turn-around in guardianship cases, likely to evade appellate review.
The court held that the weighty interests and due process considerations in guardianship proceedings meant that parties to a guardianship proceeding had a categorical right to counsel. The court also noted that the state, by statute, provided counsel to parties to a guardianship proceeding where the state is a party, and that the same interests are at stake in a private guardianship proceeding.
February 10, 2015 in Cases and Case Materials, Comparative Constitutionalism, Fundamental Rights, News, Opinion Analysis, Procedural Due Process, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Newly elected Illinois Governor Bruce Rauner (R) late yesterday issued an executive order that halted enforcement of the fair share provisions in state union contracts with state employees. At the same time, he filed a preemptive federal lawsuit seeking a declaratory judgment that his EO was constitutional.
The pair of moves (especially the unusual lawsuit) can only be understood as a full frontal assault on whatever is left of public sector fair share under the First Amendment after last Term's ruling in Harris v. Quinn. (And there's not much left.) Indeed, the lawsuit seems specifically engineered only to put Abood, the 1977 case upholding public sector fair share requirements, before the Court again and to topple it once and for all.
"Fair share" fees are those fees charged to nonunion members in a union shop. They're designed to cover union expenses that benefit all employees (union or not), like collective bargaining. The Supreme Court ruled in Abood in 1977 that fair share fee requirements do not violate the First Amendment (as compelled speech and association), because they are justified in order to avoid free-riding by nonunion members (that is, nonunion members who benefit from the union's activities, but fail to pay union dues) and to promote labor peace. Without fair share fee requirements, public sector unions could be hard-pressed to gain membership or collect any fees. That's because without fair share requirements every individual employee might rationally think that he or she could duck out of union membership and fees and free-ride on the union's bargaining. If enough employees think this, the unions could disappear.
The Supreme Court in recent years has chipped away at Abood, first in Knox v. Service Employees (2012) and then in Harris v. Quinn (2013). Abood's definitely holding on by just a string, but the Court hasn't specifically overruled it.
Governor Rauner's actions seem designed to do just that. Rauner's EO, halting fair share enforcement, is based on his worry that "the collective bargaining agreements force some employees to subsidize and enable union activities that they do not support," and "Illinois state employee unions are using compelled "fair share" fees to fund inherently political activities to influence the outcome of core public sector issues."
But Illinois law permits the collection of fair share fees only for nonunion members' "proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment . . . ." 5 ILCS 315/6. It does not permit collection of fair share fees for other activities, like political advocacy. Thus, Illinois law is fully constitutional and comports with Abood. (Again, even if Abood is on its way out, it's still the law of the land.) Still, Governor Rauner's EO takes it head-on.
To punctuate the EO, Governor Rauner then filed a preemptive suit against the unions in federal court seeking declaratory relief that his EO is constitutional. This sounds like a nonjusticiable political question, or like Rauner lacks standing, or like the whole thing isn't yet ripe. (Shouldn't the unions be suing?) But Rauner has an answer for this (strange as it sounds): The EO renders null and void the fair share provisions in the state's collective bargaining agreements, thus creating a controversy between the Governor and unions.
The aggressive EO and the strangeness of the suit can only mean that Governor Rauner is taking on public sector fair share and Abood full force--that he's doing it because he wants his name on the case overturning Abood.
Monday, February 9, 2015
Supreme Court Denies Stay of Alabama Same-Sex Marriage While Alabama Supreme Court Chief Justice Continues the Argument
Over a dissenting opinion by Justice Thomas, joined by Justice Scalia, the Court denied the application for a stay in Strange v. Searcy. Recall that in January, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.
The controversial Chief Judge of the Alabama Supreme Court Roy Moore has reacted negatively to the federal court opinion, including penning a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order. That letter prompted an ethics complaint filed against Roy Moore from the Southern Poverty Law Center arguing that:
Chief Justice Roy Moore has improperly commented on pending and impending cases; demonstrated faithlessness to foundational principles of law; and taken affirmative steps to undermine public confidence in the integrity of the judiciary. For all these reasons, we respectfully request that this Judicial Inquiry Commission investigate the allegations in this complaint and recommend that Chief Justice Moore face charges in the Court of the Judiciary.
assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.
Judge Moore's argument that the state need not comply with federal decisions has prompted some commentators to make comparisons to Alabama's position during the Civil Rights Era, including a thoughtful WaPo piece by ConLawProf Ronald J. Krotoszynski Jr. at University of Alabama Law School.
The dissenting opinion from Justice Thomas (joined by Scalia) did not mention Judge Moore by name, but did include a decisive nod to some of Moore's arguments:
Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. *** It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.
Perhaps more importantly, Justice Thomas notes that the constitutionality of same-sex marriage is now before the Court, but yet
the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.
Justice Thomas is not the only one considering whether the Court's denial of a stay and thus allowing same-sex marriages to proceed in Alabama is a "signal" of the Court's leanings in DeBoer v. Snyder.
February 9, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Interpretation, News, Opinion Analysis, Recent Cases, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 3, 2015
The Supreme Court of Canada ruled last week that the Saskatchewan Public Service Essential Services Act (PSESA), which limited the ability of public sector employees who perform essential services to strike, violated the Canadian Charter of Rights and Freedoms. At the same time, the court upheld an act that increased the level of required written support, and reduced the time period for receiving support, to certify a union.
In striking the PSESA, the court held that the Canadian Charter of Rights and Freedoms, Section 2(d), free association, protects a fundamental right to strike, and that the PSESA wasn't saved by Section 1, the "reasonable limits" provision. The court wrote that the right to strike is "an indispensable component of" the right to bargain collectively, and "essential to realizing" the values of "human dignity, equality, liberty, and respect for the autonomy of the person and the enhancement of democracy." The court also noted that "international obligations also mandate protecting the right to strike . . . ."
The court said that the breach of Section 2(d) wasn't justified by Section 1, which "guarantees the rights and freedoms set out in [the Charter] subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The court wrote that the maintenance of essential public services is obviously "pressing and substantial," but that the PSESA wasn't sufficiently tailored. In particular, the court said that the PSESA allows too much given in defining "essential services" and the employees who perform them.
Two justices dissented, arguing that the political branches should have the flexibility to determine the scope of workers' ability to strike.
Monday, February 2, 2015
The D.C. Circuit on Friday affirmed an FTC order that required POM Wonderful, LLC, to support future ads with claims of health benefits with one scientific study. But at the same time, the court said that a Commission order requiring two studies went too far.
The case, POM Wonderful, LLC v. FTC, arose out of a Commission finding that POM Wonderful engaged in false, misleading, and unsubstantiated representations in its advertisements in violation of the FTC Act. In particular, the Commission found that POM Wonderful made unsubstantiated claims that regular consumption of POM products could treat, prevent, or reduce the risk of various ailments, including heart disease, prostate cancer, and erectile dysfunction.
The full Commission voted to hold POM Wonderful and associated parties liable for violating the FTC Act and order them to stop making misleading and inadequately supported health claims. The Commission's order also barred POM Wonderful from running future ads asserting that its products treat or prevent any disease unless it has at least two randomized, controlled human clinical trials demonstrating statistically significant results.
The D.C. Circuit ruled that POM Wonderful's ads weren't protected by the First Amendment (because they were false or misleading), and that the Commission therefore had authority to punish or prohibit them. The court also said that the First Amendment allowed the Commission to require one scientific study to support any future health-benefit claims:
Requiring RCT substantiation as a forward-looking remedy is perfectly commensurate with the Commission's assessment of liability for petitioners' past conduct: if past claims were deceptive in the absence of RCT substantiation, requiring RCTs for future claims is tightly tethered to the goal of preventing deception. To be sure, the liability determination concerned claims about three specific diseases whereas the remedial order encompasses claims about any disease. But that broadened scope is justified by petitioners' demonstrated propensity to make deceptive representations about the health benefits of their products, and also by the expert testimony supporting the necessity of RCTs to establish causation for disease-related claims generally. For purposes of Central Hudson scrutiny, then, the injunctive order's requirement of some RCT substantiation for disease claims directly advances, and is not more extensive than necessary to serve, the interest in preventing misleading commercial speech.
But the court rejected the order for two studies. That's because the Commission failed "adequately to justify a categorical floor of two RCTs for any and all disease claims."
The court rejected POM Wonderful's related statutory claims.
Wednesday, January 28, 2015
Ohio AG Mike DeWine this week sued the federal government for levying an assessment against the state under the ACA's Transitional Reinsurance Program. DeWine argues that the federal assessment on the state violates the text of the ACA (which, he says, doesn't authorize the government to levy this assessment on the states), the Tenth Amendment, the anti-commandeering principle, and intergovernmental tax immunity.
Under the Transitional Reinsurance Program, the federal government collects a contribution from health insurers and self-insurers (or their administrators) in order to off-set the costs of high-risk individuals in the individual health insurance market and thus to stabilize premiums in the individual market. Part of the proceeds also goes to the general fund of the Treasury. The contributions are in effect from 2014 through 2016.
AG DeWine claims that the federal government wrongfully assessed his state $5.3 million. (Ohio self-insures its employees.) He claims that the ACA didn't authorize this, and that it violates various federalism principles in the Constitution:
71. Had Congress applied this tax directly against State and local governments, which it did not, such a tax would violate the "residuary and inviolable sovereignty" that the United States Constitution leaves to the several States in our federalism system . . . .
72. Especially here, where the tax is not imposed as a "user fee" on States or local governments and where the tax is specifically designed to raise more revenue for the federal government than will be allocated to the reinsurance program (with certain amounts of the tax revenues indeed designed as monies that "may not be used for the program established under this section," 42 U.S.C. Sec 18061(b)(4)), such a direct tax against the State and its instrumentalities would breach our federal Constitution's vertical separation of powers.
73. The federal government lacks authority under the United States Constitution to levy such broad-based, revenue-generating taxes against the States and their instrumentalities.
Tuesday, January 27, 2015
In a Letter to the Governor of Alabama, Robert Bentley today, the Chief Justice of Alabama Supreme Court, Roy Moore (pictured) asked the Governor to continue to uphold the respect for different-sex marriage and reject the judicial "tyranny" of the federal district court's opinion last Friday finding the same-sex marriage ban unconstitutional. He writes grounds the sacredness of man-woman marriage in the Bible, and writes
Today the destruction of that institution is upon us by federal courts using specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses of the United States Constitution. As of this date, 44 federal courts have imposed by judicial fiat same-sex marriages in 21 states of the Union, overturning the express will of the people in those states. If we are to preserve that “reverent morality which is our source of all beneficent progress in social and political improvement," then we must act to oppose such tyranny!
He argues that United States district court opinions are not controlling authority in Alabama, citing a case, Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 744n.5 (Ala. 2009), regarding a common law negligence claim rather than a constitutional issue. He does not argue the Supremacy Clause.
Justice Moore is no stranger to controversial positions, including promoting his biblical beliefs over federal law, and gained notoriety as the "the Ten Commandments Judge." Recall that Moore was originally elected to the Alabama Supreme Court with the campaign promise to “restore the moral foundation of the law” and soon thereafter achieved notoriety for installing a 5,280-pound monument depicting the Ten Commandments in the rotunda of the Alabama State Judicial Building. See Glassroth v. Moore, 335 F.3d 1282, 1285 (11th Cir. 2003). After federal courts found that the monument violated the Establishment Clause of the First Amendment, Glassroth v. Moore, 229 F. Supp. 2d 1290, 1304 (M.D. Ala. 2002), aff’d, Glassroth v. Moore, 335 F.3d 1282, 1284 (11th Cir. 2003), Chief Justice Moore was ordered to remove the monument. See Glassroth v. Moore, No. 01-T-1268-N, 2003 LEXIS 13907 (M.D. Ala. Aug. 5, 2003). After the deadline to remove the monument passed, Chief Justice Moore was suspended, with pay, pending resolution of an ethics complaint, which charged that he failed to “observe high standards of conduct” and “respect and comply with the law.” Jeffrey Gettleman, Judge Suspended for Defying Court on Ten Commandments, N.Y. Times, August 23, 2003, at A7.
January 27, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US), Theory | Permalink | Comments (3) | TrackBack (0)
Monday, January 26, 2015
The Brennan Center's Daniel Weiner recently released Citizens United Five Years Later, the Center's latest in an outstanding series of reports on Citizens United, campaign spending, and the 2014 elections.
Weiner writes that the case's biggest impact hasn't been increased corporate spending (although corporate spending has increased). Instead, Citizens United and other cases have led to a huge increase in spending by super-wealthy mega-donors:
Perhaps most important, the singular focus on the decision's empowerment of for-profit corporations to spend in (and perhaps dominate) our elections may be misplaced. Although their influence has increased, for-profit corporations have not been the most visible beneficiaries of the Court's jurisprudence. Instead--thanks to super-PACs and a variety of other entities that can raise unlimited funds after Citizens United--the biggest money (that can be traced) has come from an elite club of wealthy mega-donors. These individuals--fewer than 200 people and their spouses--has bankrolled nearly 60 percent of all super-PAC spending since 2010.
And while spending by this wealthy club has exploded, we have seen neither the increased diversity of voices that the Citizens United majority imagined, nor a massive upsurge in total election spending. In fact, for the first time in decades, the total number of reported donors has begun to fall, as has the total contributed by small donors (giving $200 or less). In 2014, the top 100 donors to super-PACs spent almost as much as all 4.75 million small donors combined.
A sobering picture.
Weiner's "can be traced" parenthetical gets some attention in the report, too, where Weiner discusses dark money, "independent" groups, and reporting requirements (or the lack of reporting requirements)--all features of a post-Citizens United world.
Friday, January 23, 2015
In a ten page Opinion and Order late Friday in Searcy v. Strange, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.
Judge Granade found that Baker v. Nelson (1972) did not operate as a binding precedent.
She also mentioned that the Eleventh Circuit had not yet ruled on the issue and in footnote 1 acknowledged that the United States Supreme Court had granted certiorari on the issue.
She found that marriage is a fundamental right:
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” and women. Loving v. Virginia, 388 U.S. 1 (1967). Numerous cases have recognized marriage as a fundamental right, describing it as a right of liberty, Meyer v. Nebraska, 262 U.S. 390, 399, of privacy, Griswold v. Connecticut, 381 U.S. 479 (1965), and of association, M.L.B. v. S.L.J., 519 U.S. 102, 116, (1996). “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” Planned Parenthood of SE Pa. v. Casey, 505 U.S. 833, 851 (1992).
She articulated that laws that "implicate fundamental rights are subject to strict scrutiny and will survive constitutional analysis only if narrowly tailored to a compelling government interest." She considered Alabama's asserted interest of "protecting the ties between children and their biological parents and other biological kin," and concluded that the means chosen - excluding same-sex couples - was not narrowly tailored:
The Attorney General does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children. He proffers no justification for why it is that the provisions in question single out same-sex couples and prohibit them, and them alone, from marrying in order to meet that goal. Alabama does not exclude from marriage any other couples who are either unwilling or unable to biologically procreate. There is no law prohibiting infertile couples, elderly couples, or couples who do not wish to procreate from marrying. Nor does the state prohibit recognition of marriages between such couples from other states. The Attorney General fails to demonstrate any rational, much less compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote. There has been no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children, whether they are same-sex couples or opposite-sex couples. In sum, the laws in question are an irrational way of promoting biological relationships in Alabama.
Judge Granade continued: "If anything, Alabama’s prohibition of same-sex marriage detracts from its goal of promoting optimal environments for children."
Judge Granade's opinion does briefly discuss the equal protection standard for reviewing sexual orientation classifications. But given her conclusion regarding fundamental right meriting strict scrutiny, the opinion does not contain an extensive or rigorous distinction between the Equal Protection Clause and Due Process Clause analysis.
Judge Grande's Order ruled on cross motions for summary judgment, enjoined the state from enforcing the same-sex bans, and did not contain a stay.
One would assume that the attorneys for Alabama are drafting their stay petitions.
UPDATE: On Sunday, January 25, 2015, Judge Granade issued her Stay Order granting a stay until February 9, 2015. The judge found that the State did not warrant a stay under the standards, but
In its discretion, however, the court recognizes the value of allowing the Eleventh Circuit an opportunity to determine whether a stay is appropriate. Accordingly, although no indefinite stay issues today, the court will allow the Attorney General time to present his arguments to the Eleventh Circuit so that the appeals court can decide whether to dissolve or continue the stay pending appeal (assuming there will be an appeal.) The preliminary injunction will be stayed for 14 days.
Thursday, January 22, 2015
The Ninth Circuit ruled in Shinault v. Hawks that a state has to provide pre-deprivation notice and hearing before it freezes funds in an inmate's trust account to recover the cost of his incarceration. But at the same time, the court said that this rule wasn't "clearly established" at the time, so the defendants enjoyed qualified immunity. The court also rejected the inmate's Eighth Amendment claim.
The upshot is that prison authorities took more than $60,000 of an inmate's money--money from a settlement for a medical liability claim--in violation of procedural due process. But according to the Ninth Circuit, the inmate has no recourse against the officers.
Lester Shinault received a $107,417.48 settlement from a medical claim against a drug manufacturer who products (prescribed while Shinault was not in custody) caused him to develop diabetes. Shinault's attorney deposited the money in his inmate trust account.
Prison authorities then ordered Shinault to pay $65,353.94 to cover the cost of his incarceration. On the same day that Shinault requested a hearing, authorities transferred this amount from his trust account into a "reserved miscellaneous" sub-account in Shinault's name, but which Shinault could not access. An ALJ ruled against Shinault (in a hearing where Shinault didn't have an attorney and struggled mightily to represent himself), and about a year later authorities withdrew $61,352.39.
Shinault sued, arguing that the withdraw violated procedural due process and the Eighth Amendment. The district court granted summary judgment against him.
The Ninth Circuit held that authorities violated procedural due process under the Mathews v. Eldridge balancing test, because they failed to provide a pre-deprivation hearing prior to freezing the funds. But it also held that the violation wasn't "clearly established" at the time (because it couldn't find precedent directly on point, and because it said that procedural due process questions were fact specific, that is, not determined until a particular case is litigated), so the officials enjoyed qualified immunity.
In other words, the court said it wasn't "clearly established" that authorities had to provide a pre-deprivation hearing before freezing over $60,000.00 that Shinault obtained from a settlement with a drug company whose products caused him to develop diabetes. Because this wasn't "clearly established," the defendants enjoyed immunity, and Shinault has no claim against them for return of his money.
The court also held that authorities did not violate Shinault's Eighth Amendment rights, because "no authority supports the notion that freezing or withdrawing funds from an inmate account constitutes deliberate denial of care under the Eighth Amendment."
Wednesday, January 21, 2015
The Supreme Court heard oral arguments today in Rodriguez v. United States, the case testing whether an officer can prolong a traffic stop to conduct a dog sniff, even if the officer lacks suspicion for the sniff.
After arguments--and maybe even before--it's clear that the problem is line drawing. On balance, that maybe more of a problem for the government than for Rodriguez.
Rodriguez, represented by Shannon O'Connor, argued for a bright line rule: when the purpose of the stop is over, any after-occuring dog sniff requires new individualized suspicion or probable cause, even if the Court has held that an officer may conduct a dog sniff during the stop. The government, on the other hand, represented by Ginger Anders, argued for a de minimis extension--that the Fourth Amendment permits a reasonable de minimis extension of a traffic stop to conduct a dog sniff.
But when is the purpose of a stop over? And how to define a de minimis extension? Those problems dominated the arguments today.
O'Connor had trouble defending her bright-line rule, and even seemed to shift once or twice. She argued that an officer cannot detain a driver beyond the point when the purpose of the stop ends, even if it ends in a mere warning. But O'Connor received significant push-back from Justices Kennedy, Scalia, and Alito, all of whom presented hypotheticals designed to show that that bright line wasn't always so bright. Moreover, it wasn't clear that O'Connor's bright line really mattered. For example, Justice Scalia pointed out that an officer can investigate all kinds of things during a traffic stop--whether a driver's license is valid, whether the car is stolen, etc., even a dog sniff--and wondered why then the officer couldn't also conduct a dog sniff after the purpose of the stop ended.
Justice Kennedy seemed to push O'Connor toward an even sharper bright line, that the purpose of the traffic stop ends at the issuing of a ticket. O'Connor at one time seemed to adopt it, but that only got her in more trouble. That's because the issuing-a-ticket position has obvious problems: traffic stops don't always end with tickets, or, as Justice Alito pointed out, any clever officer would simply delay handing over the ticket until after a dog sniff. Justice Scalia pounced, Chief Justice Roberts weighed in ("What if the officer says I need to think about this for a while?"), and even Justice Ginsburg expressed reservations with the issuing-a-ticket line.
So O'Connor backed off and reverted to her earlier position that the stop ends when the purpose of the stop ends. But that position fared no better.
But if the Court had problems with O'Connor's lines, it had maybe even more problems with the government's lines. The government argued that the Fourth Amendment permits a de minimis extension beyond the purpose of the stop. But defining "de minimis" proved difficult. It wasn't clear whether this position had the support of even Chief Justice Roberts and Justice Scalia (although it may have had the support of Justice Alito). Chief Justice Roberts pointed out that a dog sniff will probably last longer than the stop itself--is that a de minimis extension? Justice Breyer pointed out that Anders's de minimis rule isn't easily enforceable--what do you tell the police to do? Justice Kagan argued that a dog sniff outside the bounds of the stop is something like an officer taking a cigarette break--unreasonable.
Part of the problem for the government is how the case came to the Court: the lower court said that a de minimis extension was reasonable. That holding assumes that there's a point at which the purpose of the stop ends, and a de minimis extension afterward. If so, and if the courts can define that point, then any extension really is beyond the purpose of the stop. And a Fourth Amendment violation for a de minimis period is still a Fourth Amendment violation. (And what's de minimis, anyway? That's hard to say, and, for dog sniffs, may run longer than the stop itself--as Chief Justice Roberts pointed out.) This problem seemed to trouble enough Justices, including Chief Justice Roberts, that the Court may well go with Rodriguez.
Tuesday, January 20, 2015
The Supreme Court will hear oral arguments tomorrow in Rodriguez v. United States, the case testing whether an officer can extend a traffic stop for a canine sniff, without additional individualized suspicion to justify the sniff. Here's my argument preview from the ABA's Preview of United States Supreme Court Cases, with permission:
Just after midnight on March 27, 2012, Dennys Rodriguez and his passenger Scott Pollman were driving west from Omaha, Nebraska, to Norfolk, Nebraska, on Nebraska State Highway 275. Shortly into their trip, Officer Struble, who was patrolling the highway, observed the car’s passenger-side tires pass briefly over the line separating the highway from the shoulder. Officer Struble pulled the car over.
Officer Struble approached the vehicle and obtained Rodrigeuz’s license, registration, and proof of insurance. Officer Struble asked Rodriguez why he had driven onto the shoulder. Rodriguez said he swerved to avoid a pothole. Rodriguez seemed agitated when Officer Struble informed him that driving on the shoulder was a traffic violation. Officer Struble also observed Pollman in the passenger seat and noticed that Pollman seemed nervous.
Officer Struble asked Rodriguez to step out of the vehicle. Rodriguez complied. Officer Struble then asked Rodriguez to accompany him to his patrol car so that he could complete some paperwork. Rodriguez asked if he had to go to Officer Struble’s patrol car; Officer Struble said “no”; and Rodriguez said that he would rather sit in his own car. Officer Struble later testified that “in his experience” declining to sit in his patrol car was a “subconscious behavior that people concealing contraband will exhibit.”
Officer Struble returned to his patrol car (without Rodriguez) and called in a request for a records check on Rodriguez.
Officer Struble then returned to Rodriguez’s vehicle, this time to talk to Pollman. Officer Struble asked Pollman for his identification; he also asked Pollman about their trip. Pollman told Office Struble that he and Rodriguez drove from Norfolk to Omaha to look into buying an older-model Ford Mustang. They decided against buying the car, however. Officer Struble asked Pollman if he saw a picture of the car before making the trip; Pollman said that he had not.
Officer Struble returned to his patrol car. Office Struble was suspicious that Rodriguez and Pollman would drive to Omaha to look into purchasing a car without seeing a picture of it first. He was also suspicious that Rodriguez and Pollman would drive the long distance from Norfolk to Omaha late on a Tuesday night. Office Struble had a drug-detection dog in his car, and, based on his suspicions, he decided that he would “walk [his] dog around the vehicle regardless of whether [Rodriguez] gave [him] permission or not.” But he wanted a second officer to act as a back-up, because there were two persons involved in the stop. Officer Struble requested a records check on Pollman and began writing a warning ticket for Rodriguez for driving on the shoulder.
Officer Struble returned to Rodriguez’s vehicle (for the third time). He returned the documents to Rodriguez and Pollman and issued a written warning ticket to Rodriguez. Officer Struble gave the ticket to Rodriguez at about 12:25 a.m. At this point, Officer Struble had taken “care of all the business” of the traffic stop and had “got[ten] all the reason for the stop out of the way.”
Nevertheless, Officer Struble did not let Rodriguez go. Instead, he asked Rodriguez if Rodriguez had an issue with Officer Struble walking his dog around the car. Rodriguez replied that he did have an issue with that. Officer Struble then directed Rodriguez to turn off the engine, exit the vehicle, and stand in front of the vehicle until a second officer arrived.
Officer Struble’s back-up officer arrived at about 12:33 a.m. About seven or eight minutes after Officer Struble issued the warning ticket to Rodriguez, Officer Struble walked his dog around Rodriguez’s vehicle. The dog alerted, the officers searched the vehicle, and the officers found a bag of methamphetamine.
Rodriguez was charged with possession with intent to distribute 50 grams or more of methamphetamine in violation of federal law. He moved to suppress the evidence seized from his vehicle, arguing that Officer Struble violated his Fourth Amendment rights by detaining him for a dog sniff without reasonable suspicion of criminal activity. The district court denied Rodriguez’s motion, and the United States Court of Appeals for the Eighth Circuit affirmed. This appeal followed.
Under the Fourth Amendment, an officer can make a brief investigative stop, like a traffic stop, based on particularized and objective “reasonable suspicion” of illegal activity. For example, an officer can stop a vehicle after observing a driver violate a traffic law. But the stop must be related in scope to the officer’s justification for it. This means that the officer may detain the driver only for the period required to complete the tasks related to the original justification for the stop, for example, to run a records check, to interview a driver, to write a ticket, or even to conduct a dog sniff. The stop satisfies the Fourth Amendment if it is reasonable, that is, if it is reasonably related to the justification for the stop.
But state and federal courts split over what should happen after an officer completes the tasks directly related to the original stop. Some courts say that detention beyond this point constitutes a separate seizure, requiring independent and separate justification. Others, like the Eighth Circuit in this case, say that detention beyond this point is an extension of the original stop, so long as the nature and duration of the overall stop is reasonable, because the additional detention constitutes only a de minimis intrusion on the detainee’s personal liberty.
The parties wrangle over which approach is correct. They agree that an officer may conduct a dog sniff of the outside of a vehicle during an otherwise lawful traffic stop. The Supreme Court held as much in Illinois v. Caballes, 543 U.S. 405 (2005). But they disagree about whether a dog sniff can prolong a stop, even for a short period of time. Central to this dispute is the standard the Court should use to judge the prolonged stop—independent individualized suspicion of a different illegal activity (as Rodriguez would have it), or the overall reasonableness of the stop (as the government argues).
Rodriguez argues that the Fourth Amendment permits an officer to make a traffic stop based, as here, on probable cause of illegal activity. But he claims that the stop must be reasonably related to the circumstances that justified the stop in the first place and no longer than necessary to effectuate that purpose. Rodriguez says that an officer can use a drug dog to conduct a sniff if the sniff does not delay completion of the tasks related to the traffic violation. But he contends that an officer cannot expand the boundaries of a traffic stop in order to conduct a sniff. Rodriguez says that once the officer has completed all the tasks required during a lawful traffic stop, the driver is free to go, unless the officer has reasonable suspicion of additional criminal activity.
Rodriguez claims that these principles establish a bright-line rule—that a traffic stop ends when an officer completes the tasks related to the traffic violation, and that any detention beyond that point, no matter how brief, is unreasonable (and thus violates the Fourth Amendment) unless the additional detention is independently justified by individualized suspicion. He says that this rule would provide guidance to officers in the field and protect innocent drivers from suspicionless intrusions while at the same time giving officers plenty of time to conduct valid dog sniffs during a lawful detention.
Rodriguez argues that the Eighth Circuit’s reasons for its de minimis exception to these rules are flawed. He claims that the Eighth Circuit wrongly assumed that the line marking the end of a traffic stop is “artificial,” and that under a legitimate reasonableness standard the Fourth Amendment would allow a dog sniff that could have occurred within the scope of the traffic stop to occur shortly after the stop. Rodriguez says that the line is a constitutional one, and not “artificial,” and that any other approach would allow the officers to determine the end of a traffic stop for Fourth Amendment purposes. Rodriguez also claims that the Eighth Circuit was wrong to say that a dog sniff is similar to ordering a driver out of a car during a stop—a valid de minimis intrusion under Pennsylvania v. Mimms. 434 U.S. 106 (1977). Rodriguez claims that ordering a driver out of a car during a stop justified by probable cause (as in Mimms) is far different than conducting a dog sniff after a stop based on no cause at all. He also says that a dog sniff is far more intrusive than an order to get out of a car. Finally, Rodriguez claims that the Eighth Circuit wrongly concluded that an officer may conduct a suspicionless search using a dog sniff, because a dog sniff is not a “search” under the Fourth Amendment. Rodriguez says that the dog sniff in his case violated the Fourth Amendment, because it required his continued detention even after the justification for the stop expired (and not for any reasons having to do with the dog sniff as such).
Rodriguez argues that under his bright-line rule, the Court should reverse the Eighth Circuit’s decision. He says that Officer Struble had no objectively reasonable basis for detaining him after completing the tasks related to the justification for the initial stop. He claims that any additional facts that Officer Struble considered suspicious (and that might independently justify continued detention) are “consistent with innocent travel and easily explained by the circumstances of the stop.” Rodriguez contends that because Officer Struble had no independent justification for his continued detention after he completed the tasks related to the justification for the initial stop, the dog sniff violated the Fourth Amendment.
The government argues that Officer Struble’s dog sniff was a reasonable incident to the traffic stop, even if it briefly prolonged the stop, because the overall duration of the stop was objectively reasonable. The government says that under the Fourth Amendment an officer can conduct a number of inquiries before resolving a traffic violation, just so long as the stop does not run an unreasonably long time. For example, the government claims that an officer can conduct inquiries related to the traffic stop, like verifying the validity of a driver’s license and registration or conducting a background check. The government claims that an officer can also conduct inquiries into unrelated criminal activities, even without reasonable suspicion, like asking passengers about matters unrelated to the traffic stop or conducting a dog sniff. Again, the government says that the test for these inquiries, and their effects on the duration of the stop, is the overall reasonableness of the stop.
The government argues that the sequence of an officer’s permissible tasks during a stop should not matter. In particular, the government contends that an officer’s issuing a traffic ticket before a dog sniff does not alone render that dog sniff unconstitutional. Instead, the government claims that the Court should apply a test of overall reasonableness and look to the total duration of the stop (compared to the duration of stops under similar circumstances), the proportion of the stop dedicated to the dog sniff, and the officer’s diligence throughout.
The government contends that Rodriguez’s argument for a bright-line rule has several problems. For one, the government says that a bright-line rule prohibiting a dog sniff after an officer issues a ticket would not reduce delays in the stop; it would only force an officer to re-sequence his or her tasks related to the stop (by conducting the dog sniff before issuing a ticket). The government claims that this would unduly constrain officers’ discretion to conduct inquiries in the order warranted by the particular stop. For another, the government contends that a bright-line rule, in treating the motorist like a newly pulled-over motorist after the officer issues a ticket, ignores the fact that the officer previously detained the motorist on probable cause that he or she committed a traffic violation. The government says that its test, overall reasonableness, does not have these problems. The government claims that lower courts have applied this test without difficulties to dog sniffs conducted both before and after an officer issues a ticket.
Applying its overall reasonableness test, the government argues that the dog sniff in this case did not unreasonably prolong Rodriguez’s traffic stop. The government claims that the overall duration (about 29 minutes) was within the range of other similar traffic stops. It says that the seven- or eight-minute delay to conduct the dog sniff was not an unreasonably large portion of the stop. Moreover, the government contends that the delay was warranted by Officer Struble’s need for backup. And the government says that Officer Struble acted diligently throughout the stop.
Finally, the government argues that Rodriguez’s detention to conduct a dog sniff was independently justified by Officer Struble’s reasonable suspicion of other unlawful activity.
This case will resolve a split in the federal and state courts over whether the Fourth Amendment allows a de minimis detention beyond an officer’s original traffic stop. (Indeed, as Rodriguez points out in his cert. petition, the split reached this very case: Rodriguez’s case would have turned out differently if it had been tried in Nebraska state court instead of in a Nebraska federal court.)
On the one hand, the case goes to the duration of a traffic stop, and an officer’s ability to conduct additional investigations (like a dog sniff) after he or she completed the tasks directly related to the original stop. Rodriguez’s bright-line rule could potentially shorten stops and restrict an officer’s ability to conduct these investigations; the government’s overall reasonableness approach could lengthen stops (at least incrementally, as here) and give an officer more flexibility in conducting additional investigations.
But on the other hand, the case may not significantly affect either the duration of a stop or an officer’s ability to conduct a dog sniff in most cases. That’s because, as the government argues, even a ruling for Rodriguez might only force officers to re-sequence their activities during a traffic stop, for example, to conduct a dog sniff before the officer issues a ticket.