Tuesday, January 20, 2015

Victory for Right to Counsel in Federal Habeas, Death Penalty Cases

The Supreme Court today ruled that a prisoner sentenced to death had a right to assistance of substitute counsel in his federal habeas proceeding, when his original attorneys missed the AEDPA habeas filing deadline and couldn't themselves argue for equitable tolling.

The ruling, Christeson v. Roper, issued per curiam, and without briefing or oral argument, marks a victory for the right to counsel in federal habeas cases.

Christeson was sentenced to death. The federal district court appointed counsel pursuant to 18 U.S.C. Sec. 3599(a)(2) (providing for appointment of counsel for state death row inmates). But Christeson's attorneys let lapse the 1-year filing deadline for federal habeas claims under AEDPA. Those attorneys then weren't in a position to argue for equitable tolling of the 1-year deadline, because they'd have to argue (against their own interests) that they dropped the ball. But they also failed to cooperate with new attorneys who sought appointment on the case (and who could make the equitable tolling argument). The district court declined to substitute counsel, and the Eighth Circuit affirmed.

The Supreme Court reversed. The Court said that the standard for substitute counsel for a Section 3599 appointed attorney under Martel v. Clair was a broad one, the "interests of justice," which included several factors. The Court said that one of those factors in this case was the original attorneys' conflict of interest in arguing for equitable tolling. The Court said that the lower courts applied the right "interests of justice" standard, but failed to account for the conflict of interest as a factor.

While not every case in which a counseled habeas petitioner has missed AEDPA's statute of limitations will necessarily involve a conflict of interest, [the original attorneys'] contentions here were directly and concededly contrary to their client's interest, and manifestly served their own professional and reputational interests.

Clair makes clear that a conflict of this sort is grounds for substitution.

Justices Alito and Thomas dissented. They argued that the Court shouldn't have decided the case without argument, and that the case involved only "an error, albeit a serious one, on the part of the [original] attorneys."

The ruling only means that Christeson will now have substitute attorneys to argue equitable tolling; it says nothing about the merits of the equitable tolling claim itself, let alone the underlying habeas petition. Still, it represents a victory for the right to counsel for federal habeas petitioners.

 

January 20, 2015 in Cases and Case Materials, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Monday, January 19, 2015

Robson on Judicial Candidate Solicitation Restrictions

ConLawProfBlog's own Prof. Ruthann Robson (CUNY) recently published her thoughtful, creative, and compelling piece on Williams-Yulee, the case testing Florida's ban on campaign contributions by judicial candidates, on the Supreme Court's calendar on Tuesday. Robson's Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar is part of Vanderbilt Law Review's Rountable on the case.

Robson takes a refreshing look at the issue of judicial candidate campaign contributions through the eyes of a public interest attorney. Indeed, she starts the piece with a personal testimonial about being solicited herself--and the awkward position that put her in. (Tellingly, her position wasn't so awkward for other, non-public interest attorneys. They simply contributed.)

She argues that public interest lawyers have a special interest in this issue, and in this case. That's because

as public interest attorneys, we are less likely to be able to contribute to judicial campaigns, but may feel more likely to comply with a solicitation because we know our clients are already at a disadvantage. Additionally, our opposing clients and counsel are often those who are precisely in the position of being solicited and of answering those solicitations with substantial contributions.

She makes her case by persuasively arguing for a "second look" at four earlier decisions--newer and older, all touching on judicial integrity--that in different ways illustrate why a ruling for Williams-Yulee (overturning Florida's ban) "would have a disproportionately negative impact on the public interest bar." Those cases are Republican Party of Minnesota v. White (striking RobsonMinnesota's rule that prohibited judicial candidates from announcing their views on disputed issues); Caperton v. A.T. Massey Coal Co. (holding that the failure of a state high court judge to recuse himself from a case involving a major donor violated due process); Shelley v. Kraemer (holding that the judiciary is subject to the same constitutional constraints that the other branches are); and In Re Hawkins (Fl. Sup. Ct.) (upholding a sanction of removal from the bench after a judge sold her book to attorneys with cases before her).

Robson's "second look" cases together illustrate why an impartial judiciary, and the appearance of an impartial judiciary, are so important--to the public, to be sure, but especially to public interest attorneys and their clients. They also show how a ruling for Williams-Yulee (a former public defender herself) could so adversely affect the public interest bar.

Robson's piece brings a voice to this case--the voice of the underrepresented and their attorneys--that's all-too-often lost in sterile arguments about free speech. And she shows why the Court should pay attention to that voice.

[Public interest attorneys] should not have to worry whether [judges] think we "support" them, or whether our adversaries "support" them. We should not have to curry favor through financial contributions directly requested by a person who is hearing our client's causes. To do our work, we must continue to have faith that our judges, whether elected or whether appointed to the United States Supreme Court, are not mere politicians.

An excellent piece that adds to the debate. Check it out.

January 19, 2015 in Campaign Finance, Cases and Case Materials, Elections and Voting, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, January 16, 2015

Government Settles Al-Kidd Case

The ACLU and the federal government settled Al-Kidd v. United States, the case challenging the government's post-9/11 practice, pursuant to the Material Witness Statute, of imprisoning Muslim men as material witnesses without any basis for holding them.

The case was on remand from the United States Supreme Court. The Court ruled in 2011 that then-defendant John Ashcroft was entitled to qualified immunity against Al-Kidd's Fourth Amendment claim. (All eight participating justices agreed that Ashcroft did not violate a "clearly established" Fourth Amendment right at the time of Al-Kidd's arrest and detention. Justice Kagan was recused.) However, four of the eight justices agreed that there were serious questions about the statutory claim, that is, "whether the Government's use of the Material Witness Statute in [Al-Kidd's] case was lawful." The Court remanded the case to the district court for further proceedings as to the remaining defendants.

The district court granted summary judgment to Al-Kidd on most claims; a defendant (an FBI agent) filed an interlocutory appeal with the Ninth Circuit; and the Ninth Circuit heard oral arguments in May 2014. The parties settled this week.

The government issued a statement: "The government acknowledges that your arrest and detention as a witness was a difficult experience for you and regrets any hardship or disruption to your life that may have resulted from your arrest and detention." It also agreed to pay Al-Kidd $385,000.00.

January 16, 2015 in Cases and Case Materials, Courts and Judging, Fourth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 13, 2015

Does the Natural Gas Act Preempt State Antitrust Claims?

The Supreme Court heard oral arguments yesterday in Oneok v. Learjet, the case testing whether the federal Natural Gas Act preempts state antitrust claims arising from a conspiracy among natural gas companies to inflate retail natural gas prices.

The dispute arose when natural gas companies reported false natural gas sales prices to industry publications used to set gas prices in retail and wholesale contracts, artificially inflating those prices, and resulting in the Energy Crisis in 2000 to 2002. Retail gas purchasers brought state antitrust cases in several states. The gas companies moved to dismiss, arguing that the Natural Gas Act preempted those claims.

Indeed, the Gas Act grants FERC authority to regulate wholesale sales of natural gas (called "jurisdictional" sales) and any practice that "directly affect[s] jurisdictional rates." So the question in the case is this: Does that authority reach, and preempt state-law claims based upon, the gas companies' false reporting of gas prices to industry publications, thus affecting retail and wholesale gas prices?

The arguments didn't reveal any significant new points (that weren't briefed), and revealed only a little about the Court's likely direction in the case.

The parties agreed that the Gas Act field-preempts state-law claims for some field, but the predictably disagreed about the scope of that field. Oneok, represented by Neal Katyal, argued that the field includes practices like false reporting of gas prices that affect retail sales, because the false reporting also affected wholesale sales (or jurisdictional sales, within FERC's bailiwick). Learjet, represented by Jeffrey Fisher, argued that the Act doesn't sweep that far, and that FERC's authority does not field-preempt the state-law claims here.

Oneok also argued that the Gas Act could conflict-preempt state-law claims (an issue, it said, that would have to be decided on remand), because state-law claims could conflict with the Act and the nationwide uniformity in reporting that FERC encourages. Learjet said that the state-law antitrust claims were congruent with a federal antitrust claim (that everyone says was available to Learjet and the other plaintiffs), so there's no conflict between the state-law claims and federal law.

Questions from the bench revealed little. The progressives on the bench were by far the most active, pressing Katyal the hardest (and seemingly least persuaded by his points), but also probing Fisher (especially Justice Breyer). Conservatives were largely silent, except that Justice Scalia seemed inclined to accept Katyal's point about how price reporting affects wholesale rates (and therefore preempts state-law claims as to retail rates), and Chief Justice Roberts seemed skeptical of Fisher's argument that a ruling for the gas companies would allow them to manipulate and transform any non-jurisdictional practice into one that "directly affect[s] jurisdictional rates."

Justice Kennedy seemed to straddle, and maybe hinted at a result. He asked Katyal whether the Gas Act would preempt a state-law claim that was "exactly the same as the Sherman Act." Katyal responded:

And I think that is complementary authority, which, Justice Kennedy, your opinion in Arizona v. United States decried. Once we're in the field, once Congress has said to a federal agency, as it is here, FERC is regulating the very practice that they are seeking to regulate three different ways, then you can't tolerate states in the area. Why? Because states will have all sort --

Justice Kennedy then asked if Katyal had a back-up conflict-preemption argument, in case his field-preemption point didn't pan out. Katyal: Yes, but for remand.

The outcome will obviously be important to the parties and anyone else worried about accountability for the Energy Crisis in 2000-2002, but probably won't be too important to anyone else. That's because Congress increased FERC's authority in 2005--prompting the government to argue against cert. in the first place.

January 13, 2015 in Cases and Case Materials, Congressional Authority, Federalism, News, Oral Argument Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Friday, January 9, 2015

Nebraska Supremes Uphold Keystone Law

The Nebraska Supreme Court today upheld the state law delegating authority to the governor to approve the Keystone pipeline and to use eminent domain to access land along the pipeline route. The ruling does not affect fight in Washington, however, where today the House passed a bill to approve the pipeline, and where President Obama promised to veto it.

The Nebraska case arose out of a Nebraska law that delegated to the governor the power to approve the pipeline. (The former governor did so.) Taxpayers sued, arguing that the law violated the state constitution.

Four (of seven) judges agreed. They said that the law violated a state constitutional provision that reserves to the Public Service Commission this kind of decision. That provision says,

There shall be a Public Service Commission . . . . The powers and duties of such commission shall include the regulation of rates, service and general control of common carriers as the Legislature may provide by law. But, in the absence of specific legislation, the commission shall exercise the powers and perform the duties enumerated in this provision.

The four judges wrote that "we have held that the PSC has 'independent legislative, judicial, and executive or administrative powers' over common carriers, which powers are plenary and self-executing." Moreover, "specific legislation" means "specific restrictions," not "general legislation to divest the PSC of its jurisdiction and transfer its powers to another governmental entity besides the legislature." Thus the legislative delegation over Keystone to the governor improperly intruded upon the power of the PSC under the state constitution.

But under another state constitutional provision, four judges aren't enough to rule a law unconstitutional. The state constitution requires a super-majority of five (of seven) judges to rule a law unconstitutional. So even though a majority held the delegation unconstitutional, it's not. That means the law stays in place, the delegation is good, and the governor's action approving Keystone is untouched.

Before ruling on the merits, the court also ruled on taxpayer standing. The same four judges that argued that the delegation was unconstitutional also held that taxpayers had standing. (The other three argued that there was no standing, and that the standing decision also required a super-majority.) The court invoked its "great public concern" exception to the general rule against taxpayer standing. Under that exception, the court can take up a taxpayer case when it involves an issue of "the Legislature's obedience to the fundamental distribution of power in this state": "when a taxpayer claims that the Legislature enacted a Law that undermines the fundamental limitations on government powers under the Nebraska Constitution, this court has full power and the responsibility to address the public rights raised by a challenge to that act." The "great public concern" exception gives the Nebraska courts more leeway in taking up taxpayer cases than the Supreme Court's standing rules under Article III.

 

January 9, 2015 in Cases and Case Materials, Comparative Constitutionalism, News, Separation of Powers, Standing, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, January 8, 2015

California Ban on Foie Gras Runs Afoul of Federal Law

Judge Stephen V. Wilson (C.D. Calif.) ruled that California's ban on foie gras is preempted by the federal Poultry Products Inspection Act and permanently enjoined the state from enforcing the ban.

Judge Wilson ruled that the PPIA expressly preempts California's ban. The PPIA preempts states from imposing

[m]arketing, labeling, packaging, or ingredient requirements (or storage or handling requirements . . . [that] unduly interfere with the free flow of poultry products in commerce) in addition to, or different than, those made under [the PPIA] with respect to articles prepared at any official establishment in accordance with the requirements of this chapter[.]

Judge Wilson held that California's ban regulates only the final sale of products containing certain KurzschnabelgansRLtypes of foie gras products (foie gras from force-fed birds), and not the earlier method of manufacturing foie gras (which might have escaped preemption). He also held that it didn't matter whether foie gras from force-fed birds was a different product than foie gras from non-force-fed birds, because the PPIA covers both. "Thus, Plaintiffs' [force-fed] foie gras products may comply with all federal requirements but still violate [the California ban] because their products contain a particular constitute--force-fed bird's liver. Accordingly [the California ban] imposes an ingredient requirement in addition to or different than the federal laws and regulations."

January 8, 2015 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (0) | TrackBack (0)

West Virginia District Judge's Extensive "Gag" and Sealing Order in Blankenship Trial

Judge Irene Berger of the Southern District of West Virginia issued a Memorandum Opinion and Order clarifying and amending  but essentially reaffirming her extensive "gag" order in United States v. Blankenship, the criminal prosecution (which some say is unprecedented) of CEO Don Blankenship (pictured below) of Massey Energy for his alleged responsibility for the the Upper Big Branch Mine Disaster.  Recall Blankenship as the outsized contributor to the campaign of Brent Benjamin  for the West Virginia Supreme Court of Appeals; as a Justice Benjamin ruled in a case  involving Massey Coal.  The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal held that the failure of Benjamin to recuse himself violated due process.  The case is the subject of the book The Price of Justice.

Don_Blankenship_Image
Don Blankenship via

To say that Blankenship is controversial - - - given the Upper Big Branch Mine disaster and Caperton with its underlying facts  - - - is probably an understatement. And Judge Berger has a difficult task attempting to protect Blankenship's rights to an impartial jury and fair trial.  But do Judge Berger's orders go too far? 

The objections to Berger's original orders were filed as a motion to intervene by the Wall Street Journal, the Associated Press, Charleston Gazette, National Public Radio, Inc., and the Friends of West Virginia Public Broadcasting, Inc..  Judge Berger allowed the intervention for the limited purpose of challenging the previous orders and found that the press organizations had constitutional standing.

Judge Berger's analysis centered on the classic First Amendment/Sixth Amendment conflict cases of Sheppard v. Maxwell (1966) and Nebraska Press Association v. Stuart (1976).  From these cases, Judge Berger noted she has

the discretion and, more importantly, the duty to take specific, reasonable steps to guard against prejudice at the outset where it has knowledge, given prior publicity, that continued publicity, regarding the facts underlying the indictment, is likely to taint prospective jurors. Courts do not exist or operate in a vacuum. In the Southern District of West Virginia, we live in coal country. Many of our families depend on coal mining for their livelihood. Many families and communities within the Southern District of this state were impacted by the deaths of the miners in the Upper Big Branch mine explosion referenced in the indictment. Interest in this case is, understandably, heightened by that loss of life. In short, the environment matters.

Judge Berger stressed that the court's order "is not directed toward the press."  Instead, it limits the "parties" from communicating with press (and "only limits the subject matter") and keeps documents filed in the court case sealed.

Yet three questions remain about the orders.

First, the breadth of the "gag" order was challenged.  In addition to the parties, attorneys, and court personnel it includes

potential witnesses, including actual and alleged victims, investigators, family members of actual and alleged victims as well as of the Defendant.

In a footnote, Judge Berger explained the inclusion of "family members":

the order applies only to those who may appear during some stage of the proceedings as parties or as witnesses. Even if not direct witnesses to the alleged offenses, victims and their family members may be witnesses at sentencing or potential beneficiaries of restitution, should the case reach that posture. As such, they are “trial participants.”

Later, she states that allowing " a potential trial participant to speak through his or her family member would eviscerate the protective measures, and is further evidence of the need for the inclusive order."

Yet "family" here could potentially be quite broad, especially in the context of rural West Virginia.

Second, Judge Berger relied on the fact that the docket was available, although not the underlying documents being referenced.  Nevertheless, the new  (Amended) Order released many documents, based on a principle that

any documents that do not contain information or argument related to the facts and substance of the underlying case do not fall within the purview of the [original] order, and should be publicly accessible.

Yet the standard does seem murky, and of course the press will have a difficult time objecting to the non-release of pleadings or other documents.

Third and last, Judge Berger's rejection of change of venue (as well as voir dire) as lesser restrictions of the First Amendment rights of the press (and public) as "not feasible options at this time" is interesting.  Berger outlines the preference for an accused to be tried in the district in which the crime is alleged to have been committed.  She writes that transfer of venue "takes place after pretrial publicity has tainted the jury pool such that a jury cannot be seated within the district." Thus, she essentially elevates the "right" to be tried in the alleged-crime's district over both the First and Sixth Amendment rights.

Judge Berger has crafted a delicate balance which will most likely need continuing calibration.  Her task to prevent a "Roman holiday" for the media (as the Court said in Sheppard) is not only operative during the pre-trial publicity stage but will undoubtedly be pronounced during the trial itself. 

Memorial_full_pano
Memorial to the miners killed in the Upper Big Branch Mine via

January 8, 2015 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), Family, First Amendment, Opinion Analysis, Sixth Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

District Judge Enjoins Arizona's Identity Theft Law

Judge David G. Campbell (D. Ariz.) ruled that federal immigration law likely preempts Arizona's sweeping identity theft laws and temporarily enjoined the Arizona laws. The ruling means that Arizona is prohibited from enforcing its identity theft laws, which criminalize using fictitious personal information to get a job, pending the outcome of the suit. Arizona can appeal.

Arizona's identity theft laws do the usual things you'd expect an identity theft law to do, plus they outlaw using real or fictitious personal information to get a job. Arizona uses the laws to convict unauthorized immigrants who seek employment using false information. Some of these immigrants sued and sought a preliminary injunction against the law, arguing that it is preempted by federal immigration law and that it violates the Equal Protection Clause.

Judge Campbell agreed as to preemption and issued the injunction. Judge Campbell rejected Arizona's claim that the identity theft law wasn't an immigration law, and therefore couldn't be preempted. He wrote, "Considering the text, purpose, and effect of the identity theft laws, the Court finds that they are aimed at imposing criminal penalties on unauthorized aliens who seek or engage in unauthorized employment in the State of Arizona." He then concluded that the plaintiffs would likely succeed on the merits of their claim that the Arizona law was field preempted by federal law that criminalizes this same kind of behavior:

These provisions evince an intent to occupy the field of regulating fraud against the federal employment verification system. Congress has imposed every kind of penalty that can arise from an unauthorized alien's use of false documents to secure employment--criminal, civil, and immigration--and has expressly limited States' use of federal employment verification documents. The Court concludes that Congress has occupied the field of unauthorized-alien fraud in obtaining employment.

Judge Campbell also ruled that "[t]he overlapping penalties created by the Arizona identity theft statutes, which "layer additional penalties atop federal law," likely result in conflict preemption.

In the same ruling, Judge Campbell denied the state's motion to dismiss the plaintiffs' equal protection claim.

January 6, 2015 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (2) | TrackBack (0)

Monday, January 5, 2015

Ferguson Grand Juror Brings First Amendment Claim Against Prosecutor

The actions - - - or inaction - - - of the grand jury that did not indict police officer Darren Wilson for the death of Michael Brown has prompted much controversy, including protests.  At the heart of this controversy is not only the actual facts of the incident, but the conduct of the grand jury by the prosecutor, Robert McCulloch.  McCulloch took the unusual step of providing a detailed statement about the grand jury proceedings to the press and of filing a motion in court for public disclosure of materials considered by the grand jury.

Both of those documents - - - McCulloch's statement to the press and his memorandum in support of the motion for disclosure - - - are appendices in a complaint  filed today in the Eastern District of Missouri, by the ACLU of MissouriGrand Juror Doe v. Robert McCulloch. 

800px-Silence_-_draw_of_Pavel_-StonE-_Dimov
Drawing "Silence" via

Grand Juror Doe, who served on the grand jury, argues that the Missouri statutes prohibiting grand jurors from discussing the proceedings are an infringement of the First Amendment as applied in this situation.  A copy of these statutes, Mo. Stat. §540.080 (Oath of Jurors); Mo. Stat. §540.320 (Grand juror not to disclose evidence-penalty); and Mo. Stat. §540.310 (Cannot be compelled to disclose vote), were given to the grand jurors at "the conclusion of their service," according to paragraph 28 of the complaint.   But because the prosecutor has released evidence and made statements, as well as because of the legislative resolution to submit for voter referendum a repeal of the Missouri state constitutional provision providing for grand juries, Doe argues that s/he is being chilled from expressing opinions about matters of public concern and engaging in political speech.

The factual allegations in the complaint do provide a window on the content and viewpoint of Doe's expression.  Doe alleges that the conduct of the grand jury investigation of Darren Wilson "differed markedly" from other cases presented to the grand jury, and even more provocatively, that McCulloch's statement to the press and release of records do not comport with Doe's own opinions of the process.

This request for a permanent injunction against enforcing any of the challenged Missouri statutes against Doe should s/he speak about the grand jury proceedings against Wilson is supported by basic First Amendment considerations and basic notions of fairness.  The root problem here is not grand jury secrecy, but the lifting of that veil of secrecy for one party and perspective only.  As Justice Scalia stated in the context of vindicating First Amendment rights in RAV v. City of St.  Paul, this would be akin to "authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules."

 

January 5, 2015 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Race, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, December 22, 2014

President Obama Signs NDAA, with Reservation

President Obama on Friday signed the FY 2015 National Defense Authorization Act, and, as in prior years, issued a constitutional signing statement on provisions restricting the use of funds to move any detainee out of Guantanamo Bay.

President Obama's signing statement this year is a little different than in prior years: it includes an array of policy objections to Congress's forced maintenance of the detention facility. The constitutional objection is a little more dressed up than in prior years, but the core constitutional objection remains the same:

The executive branch must have the flexibility, with regard to those detainees who remain, to determine when and where to prosecute them, based on the facts and circumstances of each case and our national security interests, and when and where to transfer them consistent with our national security and our humane treatment policy. Under certain circumstances, the provisions concerning detainee transfers in both bills [the NDAA and the Consolidation and Further Continuing Appropriations Act, 2015] would violate constitutional separation of powers principles. In the event that the restrictions on the transfer of detainees operate in a manner that violates constitutional separation of powers principles, my Administration will implement them in a manner that avoids the constitutional conflict.

That means that the administration claims the right to ignore the restrictions when they violate separate of powers.

It's not clear that the changed language of the signing statement this year signals any greater likelihood that the administration will actually ignore the restrictions and move a detainee off the base in violation of the provisions. But President Obama's other actions (on immigration, on Cuba) might suggest that the administration is more willing to do this.

The Supreme Court hasn't ruled on the legal status of a signing statement like this. And even though a signing statement is involved in the Zivotofsky passport case this Term, the Court's not likely to say anything about it.

December 22, 2014 in Cases and Case Materials, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, December 18, 2014

States Sue Colorado for Legalizing Pot

Nebraska and Oklahoma have filed an original suit against Colorado in the United States Supreme Court over that state's Amendment 64, which legalizes marijuana. The plaintiffs argue that Colorado's Amendment 64 is preempted by the federal Controlled Substances Act.

Here's from the complaint:

22. Colorado state and local officials who are now required by Amendment 64 to support the establishment and maintenance of a commercialized marijuana industry in Colorado are violating the CSA. The scheme enacted by Colorado for retail marijuana is contrary and obstructive to the CSA and U.S. treaty obligations. The retail marijuana laws embed state and local government actors with private actors in a state-sanctioned and state-supervised industry which is intended to, and does, cultivate, package, and distribute marijuana for commercial and private possession and use in violation of the CSA (and therefore in direct contravention of clearly stated Congressional intent). It does so without the required oversight and control by the DOJ (and DEA) that is required by the CSA--and regulations adopted pursuant to the CSA--for the manufacture, distribution, labeling, monitoring, and use of drugs and drug-infused products which are listed on lesser Schedules.

The plaintiffs claim they've been harmed by Amendment 64, because they've had to deal "with a significant influx of Colorado-sourced marijuana."

 

December 18, 2014 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (0) | TrackBack (0)

Sixth Circuit Strikes Ban on Gun Possession by Persons Formerly Committed to Mental Institution

The Sixth Circuit ruled today in Tyler v. Hillsdale County Sheriff's Department that the federal ban on gun possession by a person "who has been committed to a mental institution" violates the Second Amendment.

The ruling is the first to address this particular provision, and it's the first to strike a federal ban on a particular category of would-be gun owners. The ruling's notable, too, because it applies strict scrutiny, even as both parties agreed that intermediate scrutiny applied.

The court, using its two-step approach to Second Amendment questions, held first that the federal ban on a person "who has been committed to a mental institution," 18 U.S.C. Sec. 922(g)(4), "falls within the scope of the Second Amendment right, as historically understood." That is: while the Second Amendment historically did not protect the right to bear arms by the mentally ill, "[w]e are not aware of any other historical source that suggests that the right to possess a gun was denied to persons who had ever been committed to a mental institution, regardless of time, circumstance, or present condition." (Emphasis added.)

The court next applied strict scrutiny and held that while the government's interest was "compelling," the flat ban was not narrowly tailored to meet it. In particular, the court said that the federal government failed to fund an opt-out provision for Section 922, leaving a formerly institutionalized person without a federal opportunity to show that he or she no longer poses a danger and should no longer be covered by Section 922(g)(4). Moreover, the federal conditioned grant program--which would allow an individual to prove to his or her state the he or she is no longer dangerous and should no longer be covered by Section 922(g)(4), so long as the state participates in the federal program (about half do)--leaves a person's fundamental right to bear arms up to his or her state. That's no good. The court:

Under this scheme, whether [a person] may exercise his right to bear arms depends on whether his state of residence has chosen to accept the carrot of federal grant money and has implemented a relief program. His right thus would turn on whether his state has taken Congress's inducement to cooperate with federal authorities in order to avoid losing anti-crime funding. An individual's ability to exercise a "fundamental righ[t] necessary to our system of ordered liberty" cannot turn on such a distinction. Thus, Section 922(g)(4) lacks narrow tailoring as the law is applied to [the petitioner].

The court struck the provision even as it recognized that no other court has struck any other ban on guns for any other category of person under Section 922(g)(4). In particular, the court recognized that no court has struck a ban on guns for undocumental aliens, domestic-violence misdemeanants, persons under a certain age, persons subject to certain domestic-protection orders, and persons who are "an unlawful user of or addicted to any controlled substance." The court distinguished the committed-to-a-mental-institution category, however, because "its prohibition is permanent; it applies potentially to non-violent individuals; it applies potentially to law-abiding individuals; and it punishes potentially non-violent conduct."

The court surveyed the approaches to the Second Amendment in the other circuits--mostly some form of intermediate scrutiny--but applied strict scrutiny. This was surprising and unnecessary, given that both parties agreed that intermediate scrutiny applied, and, as the concurrence argued, the petitioner would have won under intermediate scrutiny, too.

According to the court's analysis, Congress could avoid the result simply by funding the federal opt-out program and giving previously institutionalized individuals an opportunity to show that they are no longer dangerous and should no longer be subject to the ban in Section 922(g)(4).

December 18, 2014 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 17, 2014

No Federal Cause of Action Against State Officer under FLSA

The Sixth Circuit ruled today in Michigan Corrections Organization v. Michigan Dep't of Corrections that the federal courts lacked subject matter jurisdiction over a claim by Michigan correctional officers against the Corrections Department Director under the federal Fair Labor Standards Act. The court dismissed the federal case.

While the case marks a defeat for the workers (and others who seek to enforce the FLSA against a state), the plaintiffs may be able to re-file in state court. (They brought a state claim in federal court, along with their FLSA claim, and, if there are no other bars, they may be able to revive it in a new state proceeding.)

Correction officers filed the suit, claiming that they wre denied pay for pre- and post-shift activities (like punching the clock, waiting in line for security, and the like) in violation of the FLSA. They sued the Department Director in his official capacity for denied overtime pay and declaratory relief.

The Sixth Circuit rejected the federal claims. The court ruled that the Director enjoyed Eleventh Amendment immunity against monetary damages, and that Congress did not validly abrogate Eleventh Amendment immunity through the FLSA (because Congress enacted the FLSA under its Commerce Clause authority). The court rejected the plaintiffs' contention that Congress enacted the FLSA under its Fourteenth Amendment, Section 5 authority to enforce privileges or immunities against the states (which, if so, would have allowed Congress to abrogate Eleventh Amendment immunity). The court said that the Privileges or Immunities Clause (after The Slaughter-House Cases) simply can't carry that weight--that wages are not a privilege or immunity of national citizenship.

The court went on to reject the plaintiffs' claim for declaratory relief under the FLSA, Section 1983, and Ex Parte Young. The court said that the FLSA "does not provide a basis for this declaratory judgment action." That means that the plaintiffs can't get declaratory relief from the statute itself, and, because the FLSA doesn't provide for private enforcement by way of declaratory relief, the plaintiffs can't get Section 1983 or Ex Parte Young relief, either.

December 17, 2014 in Cases and Case Materials, Commerce Clause, Congressional Authority, Eleventh Amendment, Federalism, Fourteenth Amendment, News, Opinion Analysis, Privileges or Immunities: Fourteenth Amendment , Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 16, 2014

District Judge Says President's Immigration Action is Unconstitutional

A federal district judge in Pennsylvania has taken it upon himself to rule President Obama's recently announced immigration action unconstitutional--in a case that apparently has nothing to do with the action. We've posted on President Obama's action, and challenges to it, here, here, and here.

The surprising and brazenly activist, stretch-of-a-ruling underscores just how political President Obama's action has become, driving a district judge to reach out in a wholly unrelated case to rule the action unconstitutional.

The ruling comes in a case involving an undocumented immigrant who pleaded guilty to re-entry into the United States by a removed alien in violation of 8 U.S.C. Sec. 1326. Judge Arthur J. Schwab (W.D. Pa.) then ordered the parties to brief whether President Obama's action has any impact on the defendant, and whether the action is constitutional. Despite the government's reply that the action wouldn't affect this defendant (because "the Executive Action is inapplicable to criminal prosecutions under 8 U.S.C. Sec. 1326(a), and . . . [it] solely relates to civil immigration enforcement status"), and the defendant's agreement with that position, Judge Schwab said that the action could protect the defendant from removal and went ahead to rule on its constitutionality.

Even if the action applied to the defendant, however, Judge Schwab didn't bother to explain why ti was relevant to this proceeding, or why he had to rule on its constitutionality, except to say this:

Specifically, this Court was concerned that the Executive Action might have an impact on this matter, including any subsequent removal or deportation, and thereby requiring the Court to ascertain whether the nature of the Executive Action is executive or legislative.

Judge Schwab went on to say why he thought the action was unconstitutional, relying not on the ordinary judicial tools for such an important task (like, say, the text of the law, serious consideration of Supreme Court precedent, prior executive practice, etc.), but instead on President Obama's public statements about the action. Judge Schwab wrote that the President can't act just because Congress won't (answering President Obama's public statements suggesting that he'd act unilaterally if Congress wouldn't) and that the President's action is policy-making, not prosecutorial discretion, because it treats a large class of people alike.

Oddly, after concluding that the action is unconstitutional, Judge Schwab goes on to consider whether it applies to this defendant. (His conclusion: maybe, maybe not. Judge Schwab says the action leaves the defendant in a "no-man's land.") Ordinarily, this question would come prior to the constitutional question--for constitutional avoidance reasons, but also because it is logically prior to the constitutional question. Still, Judge Schwab answered it second.

In a final surprising move, Judge Schwab says that President Obama's action violates the rights of the defendant, because it doesn't obviously grant deferred status to him, even as it grants deferred status to others.

Judge Schwab concluded by giving the defendant a chance to withdraw his guilty plea, go to sentencing and take one year supervised release in the United States, or go to sentencing and be turned over to ICE.

So the logic of the opinion appears to be this: The President's action is unconstitutional; but if it is constitutional, it doesn't obviously apply (or not apply) to the defendant; and therefore the defendant should have a chance to withdraw his guilty plea in order to (possibly) take advantage of the (unconstitutional) action. All this after both parties agreed that the President's action didn't really have anything to do with this case in the first place.

With all its twists and turns, it's really hard to make heads or tails of this opinion. But one thing is clear: This is not the stuff of a serious separation-of-powers ruling. If the case against President Obama's action is going anywhere, opponents are going to have to do better--much better--than this.

December 16, 2014 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Court Says Officer Can Make Stop Based on Mistake of Law

Schwinn-steven
Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled yesterday in Heien v. North Carolina that the Fourth Amendment does not prohibit an officer from making a stop based on a reasonable mistake of law. We posted an argument preview here and review here.

The ruling puts a heavy thumb on the scale in favor of law enforcement and puts the burden of vague or ambiguous laws, or an officer's reasonable misunderstanding of law, on ordinary citizens.

Chief Justice Roberts wrote for the 8-justice majority that the "reasonable suspicion" standard required for a stop allows for an officer's mistake of law, no less than it allows for an officer's mistake of fact:

The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

Chief Justice Roberts was careful to emphasize that a mistake must be objectively reasonable--a point emphasized by Justice Kagan (joined by Justice Ginsburg) in concurrence. Still, an officer's reasonable mistake of law is now enough to justify reasonable suspicion for a stop.

Justice Sotomayor filed the lone dissent. She argued that an officer's reasonable mistakes of fact are different from an officer's reasonable mistakes of law: officers are better at judging indeterminate and evolving facts on the street, but the courts are better at the law:

After all, the meaning of the law is  not probabilistic in the same way that factual determinations are. Rather, "the notion that the law is definite and knowable" sits at the foundation of our legal system. And it is courts, not officers, that are in the best position to interpret the laws.

She also argued that the majority's approach is a blow to civil liberties and police-community relations, and that it has "the perverse effect of preventing or delaying the clarification of the law."

December 16, 2014 in Cases and Case Materials, Fourth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Friday, December 12, 2014

Ninth Circuit Affirms $300K in Punitives in Title VII Case with only Nominal Damages

The Ninth Circuit, sitting en banc, this week affirmed a lower court's $300,000 puntive damage verdict in a Title VII sexual harassment case in which the court awarded no compensatory damages and just $1 in nominal damages.

The ruling distinguishes BMW v. Gore, the 1996 case in which the Supreme Court ruled that excessive punitives could violate due process. Gore involved a common law tort claim with no statutory cap on punitive damages. This case, State of Arizona v. ASARCO LLC, in contrast, involved a Title VII claim with a statutory cap on both compensatories and punitives. That difference, the statutory cap, drove the result.

The case arose out of a sexual harassment complaint by an employee at ASARCO's Mission Mine complex in Sahuarita, Arizona. The plaintiff alleged that during her time at ASARCO she was subjected to sexual harassment, retaliation, intentional infliction of emotional distress, and was constructively discharged.

The jury awarded no compensatory damages, but awarded $1 in nominal damages and $868,750 in punitives. The trial court later reduced the punitives to $300,000, the statutory max for a Title VII claim. (The court also awarded attorneys' fees and costs in the amount of $350,902.75.) ASARCO appealed, arguing that the punitive damage award violated Gore.

The Ninth Circuit rejected that argument. The court said that because Title VII caps both compensatories and punitives, a punitive damage award within the statutory cap satisfies the underlying constitutional considerations that animated Gore (even if the punitives amounted to 300,000 times the damages). In particular, the statutory cap gave the defendant fair notice of the severity of a penalty for a Title VII violation (where the defendant in Gore, a tort case, had no such fair warning), the cap sets out a clear amount, and it states the degree of culpability a defendant must have had, thus reducing the chance of random or arbitrary awards. Moreover, "Gore's ratio analysis has little applicability in the Title VII context," because the statutory cap doesn't lend itself to a ratio analysis the way a common law damage award does. (Under Title VII's caps, the punitive damages can't increase proportionally to the harm, because they're capped.)

December 12, 2014 in Cases and Case Materials, Due Process (Substantive), News, Opinion Analysis, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Thursday, December 11, 2014

Judge Restricts Police Use of Tear Gas in Ferguson

U.S. District Judge Carol Jackson today ordered police to warn crowds before the police use tear gas and to provide "reasonable" time for people to disperse, according to the St. Louis Post-Dipatch. The temporary restraining order comes in a case filed Monday that alleged that police intimidated demonstrators, assaulted them with tear gas and pepper spray, arbitrarily labeled peaceful protestors as unlawful assemblies, and refused to wear name tags--all of which had a chilling effect on the plaintiffs' First Amendment rights.

Judge Jackson reportedly expressed concern that police failed to distinguish between peaceful protestors and criminals.

We previously posted on a federal court temporary injunction in another against the police move-along rule in Ferguson.

December 11, 2014 in Association, Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 10, 2014

Montana Supremes Grant Right to Counsel in Private Adoption, Termination Cases

The Montana Supreme Court ruled in In the Matter of the Adoption of AWS and KRS that state constitutionaly equal protection guaranteed the right to counsel for an indigent mother in a private termination-of-parental rights proceeding.

The ruling means that poor parents in Montana now have a constitutional right to an appointed attorney to represent them in private cases (like adoptions) involving the termination of their parental rights.

The ruling also illustrates how state constitutional rights can be more generous than federal constitutional rights. (Under Lassiter v. Dep't of Social Services, there is no categorical constitutional right to counsel in a termination proceeding under the Fourteenth Amendment.)

The Supreme Court applied Montana state constitutional equal protection, which the court said "provides even more individual protection than the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution."

The court noted that parents subject to state-initiated termination of parental rights (as in an abuse-and-neglect proceeding) have a state statutory right to counsel, but that parents subject to private termination of parental rights (as in an adoption, as in this case) don't. Because the underlying right--the right to parent--is fundamental, the court applied strict scrutiny to the distinction.

The court said that the only reason for not providing counsel in the private termination case was money. And that's not a sufficiently important state interest under strict scrutiny. So the indigent parent in a private termination case gets an attorney, too, as a matter of state constitutional equal protection.

The court suggested that an attorney in a state-initiated termination proceeding might be constitutionally compelled, or at least the issue raises a serious constitutional question, under the Montana constitution. (Under the Fourteenth Amendment and Lassiter v. Dep't of Social Services, there is no categorical constitutional right to counsel, and the answer depends on a Mathews v. Eldridge balancing.) This means that the state legislature can't solve the equal protection problem by taking away the statutory right to counsel for parents in a state-initiated termination proceeding; instead, it has to ratchet-up the rights of parents in a private termination proceeding.

For more information on civil right to counsel, or Civil Gideon, check out the National Coalition for a Civil Right to Counsel, an outstanding organization that is the clearinghouse for the excellent work in this area.

December 10, 2014 in Cases and Case Materials, Comparative Constitutionalism, Equal Protection, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 9, 2014

Ninth Circuit Upholds Arizona Bar Reciprocity Rule

The Ninth Circuit yesterday upheld Arizona's reciprocal bar licensing rule against a host of federal constitutional claims. The ruling means that Arizona's rule stays in place.

At issue was Arizona's Rule 34(f), which permits admission to the state bar on motion for attorneys who are admitted to practice in states that permit Arizona attorneys to be admitted on a basis equivalent to Arizona's, but requires attorneys admitted to practice law in states that don't have such reciprocal admission rules to take the bar exam.

According to the National Conference of Bar Examiners and the ABA, just less than half the states and jurisdictions offer reciprocal admissions under this kind of rule.

Plaintiffs challenged the rule under the Equal Protection Clause, the Fourteenth Amendment Privileges or Immunities Clause, Article IV Privileges and Immunities, the Dormant Commerce Clause, and the First Amendment. The court rejected all of these claims.

As to equal protection, the court applied rational basis review and said that the state had legitimate interests in regulating its bar and in ensuring that its attorneys are treated equally in other states.

As to Article IV Privileges and Immunities and the Dormant Commerce Clause, the court said that the rule didn't discriminate against out-of-state attorneys--that it was a neutral rule that treated all attorneys alike--and that it advanced substantial state interests (the same as those above). The rule's neutrality also drove the result in the plaintiffs' Fourteenth Amendment privileges or immunities claim, because the right to travel isn't implicated (it can't be, if everybody is treated alike).

As to the First Amendment, the court applied the time-place-manner test and upheld the rule. The court flatly rejected the plaintiffs' right of association and right to petition claims.

December 9, 2014 in Association, Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Equal Protection, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Privileges or Immunities: Fourteenth Amendment , Speech | Permalink | Comments (0) | TrackBack (0)

Friday, December 5, 2014

States Sue Feds Over President's Immigration Policy

As expected, Texas Governor-Elect Greg Abbott led 17 other states and state officials in suing the federal government over President Obama's immigration policy.

The complaint contains no surprises; everything Abbott said would be in it is there. And as expected, it reads more like a political ad (in numbered paragraphs) than a serious legal complaint.

The complaint argues that the President, through DACA and administration immigration policies, caused a humanitarian crisis by encouraging illegal immigration and then turning a blind eye to undocumented immigrants within the country. It contends that the President, having created this crisis, now makes it even worse by authorizing an even larger class of certain undocumented immigrants to stay. The plaintiffs claim that even President Obama previously said, repeatedly (with quotes), that taking the kind of action that he took would have exceeded his authority. This all appears to be just context, or even political blustering; the plaintiffs don't say why or how any of it bears on their legal claims.

The complaint discusses the OLC memo that provides legal justification for President Obama's policy, but doesn't seriously try to undermine it. The complaint says only that the OLC justifies President Obama's policy based in part "on much smaller and more targeted deferred action programs that previous Congresses approved," such as "deferred action for victims of violence and trafficking, family members of U.S. citizens killed in combat, and family members of individuals killed in the September 11 attacks."

That's true, as far as it goes. But it also woefully under-describes the OLC analysis. The complaint doesn't take issue with the other components of the OLC memo, like the statutory analysis, e.g. The plaintiffs appended the OLC memo to their complaint.

The plaintiffs argue that the President's policy violates the Take Care Clause and the APA. As to the Take Care Clause, the complaint says, "the President admitted that he 'took an action to change the law.' The Defendants could hardly contend otherwise because a deferred action program with an acceptance rate that rounds to 100% is a de facto entitlement--one that even the President and OLC previously admitted would require a change to the law." As to the APA, the complaint alleges that the President's policy made law without proper authority, and without following notice-and-comment rulemaking procedures.

December 5, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)