Wednesday, July 23, 2014

Court Vacates Injunction Against Execution

The Supreme Court yesterday vacated the Ninth Circuit ruling over the weekend that ordered the delay of a scheduled execution until the condemned prisoner received details from the state about the method of execution. 

Recall that the condemned prisoner, Joseph Rudolph Wood III, argued that the state's failure to provide him information violated his First Amendment right to receive information about the method of execution.  The Ninth Circuit agreed--or at least agreed that he had a likelihood of success on the merits, or that he raised a "serious question" on the merits--and granted a preliminary injunction.

The Supreme Court's order vacates that ruling.  It means that the execution can go forward without the information.

The order was short and unsigned, with no real legal analysis:

The application to vacate the judgment of the United States Court of Appeals for the Ninth Circuit granting a conditional preliminary injunction, presented to Justice Kennedy and by him referred to the Court, is granted.  The district judge did not abuse his discretion in denying Wood's motion for a preliminary injunction.  The judgment of the United States Court of Appeals for the Ninth Circuit reversing the district court and granting a conditional preliminary injunction is vacated.

July 23, 2014 in Cases and Case Materials, Courts and Judging, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 22, 2014

Appeals Courts Issue Opposing Rulings on Obamacare Exchange Tax Credits

Two federal appeals courts today issued dueling rulings on the legality of an IRS rule that offers tax credits to purchasers of health insurance on a federally operated exchange who meet certain income guidelines (100 to 400 percent of the federal poverty level).  A sharply divided D.C. Circuit panel ruled in Halbig v. Burwell that the IRS exceeded its authority under the Affordable Care Act in offering these credits, and ordered the IRS rule vacated.  In contrast, a unanimous panel of the Fourth Circuit ruled in King v. Burwell that the IRS did not exceed its authority.

The split makes it all the more certain (if ever there were ever any doubt) that this issue is heading to the Supreme Court for yet another judicial showdown between Obamacare opponents and the administration.  If the high court upholds the D.C. Circuit ruling, that could mark the end of Obamacare.  That's because health insurance for those in states with a federally operated exchange (and with incomes between 100 and 400 percent of the poverty line) could be cost prohibitive without tax credits (that's the whole purpose of tax credits, to make insurance affordable); and if as a result those individuals don't purchase insurance, that significant portion of the population would fall outside the broader insurance pool, undermining the key structural assumption of Obamacare, that everyone's covered. 

Remember: We only have federally operated exchanges because many states declined to establish their own exchanges (often for political reasons--to register dissent or lack of cooperation with the ACA in general).  All indications are that Congress passed, and the president signed, the ACA on the assumption that states would establish their own exchanges, and that the federal government wouldn't have to. That turned out to be wrong.  That, in combination with some less-than-perfect legislative language, led to the D.C. court's ruling.

The crux of the case involves the administration's authority to offer tax credits to purchasers on federally operated exchanges, and not just state operated exchanges.  Opponents of the credit argue that the plain language of the ACA allows credits only for purchasers on state operated exchanges.  The administration says that a broader, contextual reading of the ACA, along with an understanding of congressional intent, allows credits for purchasers on federally operated exchanges, as well.

We posted more details on the D.C. case (in the lower court) here.

The ACA authorizes the tax credit to subsidize the purchase of insurance on an "Exchange established by the State under section 1131 of the [ACA]."  But other sections of the Act treat an "Exchange" as only a state-created exchange.  And yet a different portion requires the federal government to establish an operate an "Exchange" if a state declines to do so.  (Other portions of the Act are relevant, too, but these are the key portions.)

In short, the D.C. Circuit said that the ACA's language was plain and unambiguous, and that it authorized tax credits only for state-established exchanges. It also said that the scant legislative history on this point did not change that result.

The Fourth Circuit, and the dissent in the D.C. Circuit, said that when read together these portions of the ACA could mean that the federal government stands in the shoes of a state when the federal government establishes an exchange, and that the federally established exchanges are therefore also "Exchange[s] established by the State" for the purpose of the Act.  They also said that the legislative purpose of the ACA supports this reading.  Because of the ambiguous language, the IRS could interpret it in any way that's reasonable.  And its interpretation was reasonable.

July 22, 2014 in Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1) | TrackBack (0)

Friday, July 18, 2014

Tenth Circuit on the Oklahoma Same-Sex Marriage Ban

What does the Tenth Circuit Court of Appeals panel decide in its 106 page divided opinions in Bishop v. Smith?  It's complicated.  

But essentially the Tenth Circuit affirms the district judge's opinion finding the Oklahoma ban on same-sex marriage unconstitutional and extends to Oklahoma its own ruling in Kitchen v. Herbert (by this same panel) from a few weeks ago finding Utah's same-sex marriage prohibition unconstitutional.

Screen Shot 2014-07-18 at 2.04.37 PMThe complications are caused in part by the procedural posture of the case.   For the majority opinion, authored Judge Carlos Lucero, and joined by Judge Jerome Holmes (as was Herbert v. Kitchen),  the major issue was the standing of the plaintiffs, specifically on the "redressability" prong of standing.  Recall that Oklahoma has both a constitutional amendment and a statute limiting marriage to "a man and a woman" and that the Oklahoma constitutional amendment not only prohibits same-sex marriage but prohibits its recognition even if valid in another state.

The plaintiffs, in a lawsuit filed in 2004 soon after the state constitutional amendment was adopted, challenged only the state constitutional amendment but not the statute. 

Affirming the district judge, the Tenth Circuit held plaintiffs nevertheless had standing because "the statutory prohibitions are subsumed in the challenged constitutional provision, an injunction against the latter’s enforcement will redress the claimed injury."  However, again affirming the district judge, the plaintiffs did not have standing to challenge the "recognition" portion of the constitutional amendment because the defendant - - - the clerk of court - - - could not redress the non-recognition injury. 

This problem as to the non-recognition of marriage claim is further complicated by the fact that the Tenth Circuit, in considering a dismissal of the Governor and Attorney General as defendants who could redress the injury stated - - - or seemed to state?  - - - that the Clerk of the Court was the correct defendant.  Thus, under a "law of the case" argument, the courts should be bound by that determination.  The Tenth Circuit panel decided it was not bound, in part because of the "new evidence" of an affidavit by the Court Clerk describing her duties.  It also rejected a nonseverability of the recognition and nonrecognition portions of the provision, finding that because it had not been made earlier it was waived. 

As to the merits, the majority held that it was governed by its ruling in Kitchen v. Herbert, although facts and arguments differed "in some respects," the "core holdings are not affected by those differences."  The panel majority did discuss two additional arguments: a Baker v. Nelson argument that lower courts were not free to consider doctrinal developments and the addition of a government interest that "children have an interest in being raised by their biological parents."

Judge Holmes concurred separately to discuss why "animus" was not an appropriate analysis.  Judge Holmes notes that the district judge "wisely" did not rely on animus, and that most of the other decisions invalidating same-sex marriage laws have "exercised the same forebearance."  But, he noted, several other district judges have relied on animus, citing Baskin v. Bogan, Henry v. Himes, DeLeon v. Perry, and Obergefell v. Wymyslo - - - interestingly none of which are in the Tenth Circuit - - - and he used the concurrence to endeavor "to clarify the relationship between animus doctrine and same-sex marriage laws and to explain why the district court made the correct decision in declining to rely upon the animus doctrine."

In his relatively brief partially dissenting opinion,  Judge Paul Kelly contended that there was no standing to challenge the constitutional amendment absent a challenge to the statute and would not reach the merits.  However, he also disagreed on the merits, as he did in the panel's decision in Kitchen v. Herbert.  For Judge Kelly, as he phrases it here:

Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. Absent a fundamental right, traditional rational basis equal protection principles should apply, and apparently as a majority of this panel believes,  the Plaintiffs cannot prevail on that basis. Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.

This will be the heart of the matter when - - - rather than if - - - these cases reach the United States Supreme Court.  For now, however, the Tenth Circuit stayed its "mandate pending the disposition of any subsequently-filed petition for writ of certiorari."

July 18, 2014 in Courts and Judging, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Sexual Orientation, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2014

O'Connor Releases Judicial Selection Plan

Justice Sandra Day O'Connor recently released The O'Connor Judicial Selection Plan, a set of recommendations for selecting and retaining state judges, developed in conjunction with the Institute for the Advancement of the American Legal System, or IAALS, at the University of Denver.  Here's O'Connor:

 

The plan has four parts: the creation of judicial nominating commissions; gubernatorial appointments; judicial performance evaluations; and retention elections.

The plan responds to "persistent efforts in some states to politicize the bench and the role of our judges."  It's designed as "a step toward developing systems that prioritize the qualifications and impartiality of judges, while still building in tools for accountability through an informed election process."

July 17, 2014 in Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 16, 2014

California Federal Judge Declares Death Penalty Violates Eighth Amendment

In his opinion today in Jones v. Chappell, federal judge Cormac Carney vacated the death sentence of Ernest Dewayne Jones as violating the Eighth Amendment’s prohibition against cruel and unusual punishment.  

Jones was sentenced to death in 1995 and has been on "death row" in California State Prison at San Quentin since then.  For Judge Carney, this is precisely the problem.  As Carney writes:

Since 1978, when the current death penalty system was adopted by California voters, over 900 people have been sentenced to death for their crimes. Of them, only 13 have been executed. For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution. Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.

[emphasis in original]. 

Thus, it is not the arbitrariness in the imposition of the death sentence that is unconstitutional, but the arbitrariness in the execution of the death sentence that renders it unconstitutional.  

Judge Carney's analysis centered on his finding that of the more than 700 persons presently on California's "death row,"

their selection for execution will not depend on whether their crime was one of passion or of premeditation, on whether they killed one person or ten, or on any other proxy for the relative penological value that will be achieved by executing that inmate over any other.  Nor will it even depend on the perhaps neutral criterion of executing inmates in the order in which they arrived on Death Row. Rather, it will depend upon a factor largely outside an inmate’s control, and wholly divorced from the penological purposes the State sought to achieve by sentencing him to death in the first instance: how quickly the inmate proceeds through the State’s dysfunctional post-conviction review process.

Judge Carney then discussed Jones' situation as an example.

To be sure, however, Judge Carney did not view Jones' situation as unique.  Indeed, the opinion contains an 18 page color-coded appendix listing the status of more than 500 persons sentenced to death in California between 1978 -1997.   Here's a bit of it, with the entry for Ernest Jones:

Screen Shot 2014-07-16 at 9.49.23 PM

Thus, Judge Carney's careful reasoning applies to every person sentenced to death in California, even those sentenced more recently.  California's Attorney General and Governor now have some serious litigation choices to make.

July 16, 2014 in Courts and Judging, Criminal Procedure, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 15, 2014

On Remand, Fifth Circuit Panel Reconsiders UT's Affirmative Action Plan from Fisher v. University of Texas

By a divided opinion in Fisher v. University of Texas at Austin, a panel of the Fifth Circuit has held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.

Recall that more than a year ago, the United States Supreme Court reversed the Fifth Circuit's finding in favor of the University (affirming the district judge).  The Court remanded the case for a  "further judicial determination that the admissions process meets strict scrutiny in its implementation."  The  opinion,  authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal"  of diversity and the University should receive no judicial deference on that point.

 Today's Fifth Circuit panel decision, authored by Judge Patrick Higginbotham, and joined by Judge Carolyn Dinen King, first decided that it would consider the case.   The panel rejected the standing arguments, including the fact that Abigail Fisher graduated from another university in 2012, because the "actions of the Supreme Court do not allow our reconsideration" of the standing issue.  In other words, the Court knew about the standing issues when it remanded the case in June 2013.  The panel also carefully considered the Court's remand language: "The judgment of the Court of Appeals is vacated, and the case remanded for further proceedings consistent with this opinion.”  Fisher argued that the Court required the Fifth Circuit to perform the reconsideration, while the University of Texas argued that the matter should be remanded to the district judge.  On this issue, the Fifth Circuit sided with Fisher, holding that because "there are no new issues of fact that need be resolved, nor is there any identified need for additional discovery; that the record is sufficiently developed; and that the found error is common to both this Court and the district court," a remand to the district judge  "would likely result in duplication of effort."

The panel majority's opinion then discussed in detail the University of Texas at Austin's admissions policies and efforts.  It noted:

“Narrow tailoring does not require exhaustion of every race neutral alternative,” but rather “serious, good faith consideration of workable race- neutral alternatives that will achieve the diversity the university seeks.”  Put simply, this record shows that UT Austin implemented every race-neutral effort that its detractors now insist must be exhausted prior to adopting a race- conscious admissions program—in addition to an automatic admissions plan not required under Grutter that admits over 80% of the student body with no facial use of race at all.

Nevertheless, the panel recognized that this "automatic admissions plan" - - - the Top Ten Percent plan - - - achieves diversity because of the segregation of Texas' high schools.  Under the "holistic view" of Grutter for the remaining 20%, absent a consideration of race, the selection would not be racially diverse.

appendix
appendix 2 in the opinion

Concluding its 40 page opinion, the panel wrote:

In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race, this because the Plan produces sufficient numbers of minorities for critical mass. This contention views minorities as a group, abjuring the focus upon individuals— each person’s unique potential. Race is relevant to minority and non-minority, notably when candidates have flourished as a minority in their school— whether they are white or black. Grutter reaffirmed that “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race still matters.” We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter. The need for such skill sets to complement the draws from majority-white and majority-minority schools flows directly from an understanding of what the Court has made plain diversity is not. To conclude otherwise is to narrow its focus to a tally of skin colors produced in defiance of Justice Kennedy’s opinion for the Court which eschewed the narrow metric of numbers and turned the focus upon individuals. This powerful charge does not deny the relevance of race. We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school—not a proffer of societal discrimination in justification for use of race, but a search for students with a range of skills, experiences, and performances—one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from whence they came.

....  the backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass. We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court. To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command—due only a courtesy salute in passing.

Dissenting, Judge Emilio Garza essentially contended that the majority was giving deference to the University.  He noted that it is not impossible  "for a public university to define its diversity ends adequately for a court to verify narrow tailoring with the requisite exacting scrutiny," even with the use of "critical mass."  But he somewhat confusing stressed that

What matters now, after Fisher, is that a state actor’s diversity goals must be sufficiently clear and definite such that a reviewing court can assess, without deference, whether its particular use of racial classifications is necessary and narrowly tailored to those goals.

Yet what will matter now is whether this panel will have the last say.  The Fifth Circuit could grant en banc review or the United States Supreme Court will grant certiorari and take yet another look at affirmative action.  

 

July 15, 2014 in Affirmative Action, Courts and Judging, Equal Protection, Federalism, Fourteenth Amendment, Opinion Analysis, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, July 14, 2014

Stone on the Constitutionality of Religious Tests for Public Office

Geoff Stone (Chicago) writes over at Huffington Post that religious tests for public office, which are still around in eight state constitutions, may well be upheld by the Roberts Court, should they ever be tested.

Arkansas, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas all have these provisions, though they go unenforced.  That's because the Court struck these tests in 1961 in Torcaso v. Watkins.  But Stone says if the issue were to return to this Court, testing one of the eight state constitutional provisions, the five conservative justices may well reverse Torcaso and uphold the religious test.

But why would they disagree with Torcaso?  After all, the reasoning of that unanimous decision seems clearly correct.  But the five conservative justices on the Court today clearly do not share the general constitutional understandings of the Court in 1961.  This is so across a range of issues, but perhaps most conspicuously in the realm of religion.  Indeed, the Court's five conservative justices have consistently taken positions that come out quite aggressively in support of the interests of religion.

Stone cites Hobby Lobby and Town of Greece as just two recent decisions supporting this conclusion.  Stone also argues that these five justices have already demonstrated their willingness to overturn well settled precedent.  See Citizens United; Heller; Gonzales v. Carhart.

July 14, 2014 in Courts and Judging, Establishment Clause, Free Exercise Clause, News, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

Hobby Lobby Aftermath: Does "Person" in RFRA Include a Guantanamo Bay Detainee?

In an emergency motion for a Temporary Restraining Order filed today in Hassan v. Obama in the District Court for the District of Columbia, the petitioner relies on Monday's controversial decision by the United States Supreme Court in Burwell v. Hobby Lobby.

Petitioner, Imad Abdullah Hassan, a detainee at Guantánamo Bay, invokes the Religious Freedom Restoration Act (RFRA) to prevent the federal government from depriving him of " the right to participate in communal prayers during the Islamic holy month of Ramadan," a tenet of his religious faith. 

Hobby-lobby-top
599px-Camp_x-ray_detainees

 

As the motion outlines, the DC Circuit had previously held in Rasul v. Myers, 563 F.3d 527, 532-33 (D.C. Cir. 2009), that the Guantánamo Bay detainees are not protected “person[s]” within the meaning of the RFRA.  The court in Rasul "bypassed the dictionary definition of “person” and instead looked to prior case law prescribing the scope of the word “person” for purposes of the Fourth and Fifth Amendments— which did not, in the Rasul court’s view, apply to nonresident aliens." 

However, the motion argues this is a "dead letter" after the Court's decision in Hobby Lobby which "eviscerates the reasoning in Rasul and makes clear that Petitioner, as a flesh-and-blood human being, is among the 'person[s]' protected by the RFRA."  Indeed, the court in Rasul held that in RFRA Congress merely "intended to incorporate the standard governing free exercise claims that prevailed before the Supreme Court's 1990 decision in Employment Division v. Smith," and that such claims did not include resident noncitizens.  But in Hobby Lobby, the Justice Alito's opinion for the Court explicitly states:

the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their rights before Smith?

[Opinion at 33].

Thus, the motion argues that

a nonresident alien Guantánamo Bay detainee, who inarguably has constitutional rights in what is de facto sovereign U.S. territory, see Boumediene v. Bush, 553 U.S. 723 (2008), must also enjoy the protections extended by the RFRA.

****

Hobby Lobby leads inexorably to the conclusion that the nonresident alien detainees at Guantánamo Bay are “person[s]” protected by the RFRA. The Dictionary Act definition of “person” includes “individuals.” 1 U.S.C. § 1. The Dictionary Act does not confine “individuals” to U.S. citizens, just as it does not confine “corporations” to U.S. corporations; nor does it confine “individuals” to U.S. residents. The Guantánamo Bay detainees, as flesh-and- blood human beings, are surely “individuals,” and thus they are no less “person[s]” than are the for-profit corporations in Hobby Lobby or the resident noncitizens whom Hobby Lobby gives as an example of persons to whom the RFRA must apply. The fact that the detainees are at Guantánamo Bay changes nothing, for Hobby Lobby makes clear that a “person” whose religious free exercise is burdened under color of law need not be a U.S. citizen or resident in order to enjoy the RFRA’s protections.

The application of Hobby Lobby to "persons" who are detainees at Guantánamo Bay might be an unforeseen consequence of the decision, but the motion makes a convincing argument that it is a logical one grounded in the Court's holding and language.

 

July 3, 2014 in Courts and Judging, Current Affairs, First Amendment, Free Exercise Clause, Recent Cases, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

New York's Highest Court Finds Cyberbullying Law Violates First Amendment

In its opinion in People v. Marquan M, the New York Court of Appeals (NY's highest court), found that Albany Local Law 11 (2010)  criminalizing cyberbullying was unconstitutional under the First Amendment. 

The local law for Albany County criminalized cyberbullying against any "minor or person" (with "person" interestingly defined as including corporations) with cyberbullying defined as:

any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.

450px-Bully_Free_ZoneThe majority opinion, authored by Judge Victoria Graffeo for four additional judges over a two-judge dissent, found that the law was overbroad under the First Amendment: "the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult." 

The defendant and his actions here - - - a 15 year old who used Facebook to anonymously post "photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information," with "vulgar and offensive" "descriptive captions" - - -  were within the "cyberbullying" that the Local Law intended to proscribe.  But even Albany County agreed that the local law was overbroad.  However, the County argued that the severability clause of the local law should be employed to excise the word "person" so that the only covered victims were minors.  But the court found that even that would not "cure all of the law's constitutional ills."   The dissenters would have engaged in saving constructions.

In ruling that a local law intended to criminalize as a misdemeanor cyberbullying did not survive the First Amendment because it was overbroad, New York's highest court left open the possibility that a prohibition of cyberbullying could be more narrowly crafted to survive First Amendment review:  "the First Amendment does not give defendant the right to engage in these activities." 

However, the court's opinion offers little guidance about how such a law or policy should be drafted.  New York's Dignity for All Students Act  as amended in 2012 places the responsibility for developing "policies and procedures intended to create a school environment that is free from harassment, bullying and discrimination" on school boards.  While Albany's law was a general criminal statute, school boards will undoubtedly be considering Marquan M. as they review their current "cyberbullying" prohibitions in light of the First Amendment.  They may also be recalling the Third Circuit's unhelpful intervention in a pair of "My Space" cases in which principals were arguably "bullied. 

And undoubtedly, those interested in cyberbullying in and out of schools will be watching the "true threats on Facebook case," Elonis v. United States, to be heard by the United States Supreme Court next Term.

 [image via]

July 3, 2014 in Courts and Judging, First Amendment, Interpretation, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 1, 2014

Federal District Judge Declares Kentucky's Same-Sex Marriage Ban Unconstitutional

In his opinion today in Love v. Beshear, Judge John Heyburn held that the Kentucky provisions prohibiting same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment, but stayed the issuance of an injunction pending a resolution by the Sixth Circuit.

Recall that in February, Judge Heyburn ruled in Bourke v. Beshear that Kentucky's statutory and state constitutional provisions defining marriage as limited to one man and one woman violate the Fourteenth Amendment's Equal Protection Clause when applied to same-sex spouses married in another state.

Today's opinion considers those same constitutional and statutory provisions - - - KY. CONST. § 233A; KY. REV. STAT. ANN. §§ 402.005, .020(1)(d) (West 2014) - - - but in the context of a right to marry under Kentucky law.  And, not surprisingly, today's opinion reaches similar conclusions to the earlier case of Bourke v. Beshear.

Animated-Flag-Kentucky
Judge Heyburn quickly concludes that Baker v. Nelson, 409 U.S. 810 (1972), in which the Supreme Court dismissed “for want of a substantial federal question” a challenge to a Minnesota Supreme Court ruling concluding that a same-sex couple did not have the right to marry under the federal Due Process or Equal Protection Clauses, is not precedential.  It "is difficult to take seriously the argument that Baker bars Plaintiffs’ challenge," given that the rule for the precedential value of a summary disposition includes the exception "unless doctrinal developments indicate that the Court would rule differently now."  As Judge Heyburn states: "Since 1972, a virtual tidal wave of pertinent doctrinal developments has swept across the constitutional landscape."

In considering these doctrinal developments and the applicable standard of scrutiny under Equal Protection doctrine, Judge Heyburn first considers the right at stake.  He analyzes whether the right to marry is a fundamental right, but concludes that this precise question is one that "neither the Supreme Court nor the Sixth Circuit has answered."  Heyburn declines to engage in "overreaching" on this issue, because the fundamental rights analysis is unnecessary given the analysis regarding sexual orientation classifications.

Judge Heyburn's conclusion on the level of scrutiny to be applied is intermediate scrutiny.  Note that this is a departure from his earlier decision in Bourke to apply rational basis.  Here, his conclusion - - - admittedly not supported by specific Supreme Court or Sixth Circuit precedent - -  is that "homosexual persons constitute a quasi-suspect class based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi- suspect.” He reaches this conclusion by applying four factors:  historical discrimination;  the ability to contribute to society;  immutable defining characteristics; and  political powerlessness.  Thus, the opinion would ordinarily then apply the  intermediate scrutiny standard as articulated by the court: "“substantially related to an important governmental objective."

But Judge Heyburn takes a different path, similar to the one he took in Bourke v. Beshear:

Ultimately, Kentucky’s laws banning same-sex marriage cannot withstand constitutional review regardless of the standard. The Court will demonstrate this by analyzing Plaintiffs’ challenge under rational basis review.

In discussing Kentucky's profferred interests, Judge Heyburn writes that the state's "arguments are not those of serious people."  Moreover, he concludes that the means chosen are not rationally related:

Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have.

Judge Heyburn's last section of the opinion addresses Kentuckians, but in a much more restrained manner than his earlier opinion in Bourke.  In Love v. Beshear, Judge Heyburn notes

Since this Court’s Bourke opinion [in February 2014], the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry.

Heyburn cites the Tenth Circuit's opinion in Kitchen v. Herbert, as well as the district court opinions in Baskin v. Bogan (Indiana); Wolf v. Walker (Wisconsin);   Whitewood v. Wolf (Pennsylvania); Geiger v. Kitzhaber (Oregon); Latta v. Otter  (Idaho); De Leon v. Perry (Texas);  DeBoer v. Snyder (Michigan); and  Bostic v. Rainey  (Virgina).

He adds that with "this opinion, this Court joins their company."

It remains to be seen, however, whether the Sixth Circuit will also join this increasingly large assembly.

July 1, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Monday, June 30, 2014

Divided Supreme Court Recognizes Right of Closely Held Corporations Hobby Lobby and Conestoga Wood Specialties under RFRA to Avoid "Contraceptive Mandate"

On this last day of the 2013-2014 Term, the Court delivered its long-awaited opinion in "Hobby Lobby" - - now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell - - - on the question of whether corporations (or their owner/shareholders) be able to interpose a religious objection under RFRA (the Religious Freedom Restoration Act)  to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage?  Here's our primer on the issues for more detail.  Recall that the Tenth Circuit en banc in Hobby Lobby ruled for the corporation, while the Third Circuit panel in Conestoga Woods ruled for the government, and several other courts entered the fray with disparate results. 

The oral arguments  in March were contentious and so too are the opinions in this 5-4 decision. 

Birth_Control_Review_1919bThe majority opinion, authored by Justice Alito, holds that closely-held corporations such as Hobby Lobby and Conestoga Wood Specialties are "persons" within the meaning of RFRA and thus are entitled to raise a claim.  The Court looks at Congressional intent in RFRA, its own precedent allowing RFRA claims by nonprofit corporations, and policy issues about the difficulty of determining the "beliefs" of a corporation, and held that closely held corporation that make a profit are "persons" within RFRA.

The Court then held that the challenged HHS regulations ("the contraceptive mandate") did substantially burden the business owners religious beliefs because they believe if they comply with the mandate they will be "facilitating abortions" and if they do not comply, they will face substantial fines. The Court rejected the argument that the link between the insurance coverage paid by an employer and an employee being reimbursed by the insurance company for obtaining contraception was too attenuated.

Given this finding, under RFRA, the Court applies "strict scrutiny," but interestingly assumes that the government satisfies the "compelling government interest" prong.  However, the Court finds that the HHS mandate is not the "least restrictive means" to accomplish its goal: the system already in place for accommodating the religious beliefs of nonprofit entities granted exemptions under the regulations and statute.

 Justice Kennedy writes a brief concurring opinion.  As we discussed,  Kennedy was focused on as the "Justice to watch" and he stresses that the existence of government accommodation already in existence.

 The "principal dissent" (as the Court's opinion often characterizes it) is by Justice Ginsburg,  joined by Sotomayor in full, and by Breyer and Kagan (except to a section regarding the construction of RFRA as applying to corporate persons).  The dissent begins by labeling the majority's decision as one of "startling breadth" that allows corporations to "opt out" of  "any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."  Justice Ginsburg argues there is a slippery slope in the majority's least restrictive means analysis, despite the majority's attempt to cabin it:

And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.”  I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths.

Ultimately, the Court hedges on its proposal to align for- profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.”  Counsel for Hobby Lobby was similarly noncommittal.

[citations and footnotes omitted].

Whether or not the Court's opinion is narrow or broad might depend more on one's political outlook and one's view of the Court as "chipping away" or as "careful crafting."

However, recall that RFRA - - - the Religious Freedom Restoration Act - - - is a statute passed by Congress that changed the standard of review the Court had announced be accorded religious claims; many now believe that Congress will be called upon to change RFRA, including perhaps the definition of "person" to exclude for-profit corporations, or to repeal RFRA in its entirety.

[image via]

June 30, 2014 in Abortion, Congressional Authority, Courts and Judging, Executive Authority, Family, First Amendment, Gender, Medical Decisions, Opinion Analysis, Religion, Reproductive Rights, Sexuality, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Friday, June 27, 2014

Seventh Circuit Grants Stay of Indiana Same-Sex Marriage Order

In an order this evening, a Seventh Circuit panel - - - Judges Posner, Williams, and Hamilton - - -has granted the emergency motion for stay pending appeal and issued a stay in Baskin v. Bogan. 

As we discussed on Wednesday, United States District Judge Richard Young in Baskin v. Bogan permanently enjoined Indiana officials from enforcing its requirement that marriage requires a female and a male, and its ban on the recognition of same sex marriages legally valid in other states.

June 27, 2014 in Courts and Judging, Current Affairs, Family, Fourteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Third Circuit on Statute of Limitations in Establishment Clause Challenges

Here's the problem:

In August 2008, a municipality erected a sign "Bible Baptist Church Welcomes You!," with a directional arrow and “1 BLOCK” written on it, and depicting a gold cross and a white Bible, on a right of way bordering a property owner's property.  The property owner engaged in a bit of her own speech, on her own property, posting a sign of her own directly in front of the church sign which read "This Church Sign Violates My Rights As A Taxpayer & Property Owner. Residential Neighborhoods Are Not Zoned For Advertisement Signs!”  The municipality threatened the property owner with sanctions for her sign, which she removed.  The propery owner filed a complaint pursuant to 42 USC §1983 in federal court in November 2012 alleging constitutional violations by the municipality based on the church sign, which remains standing, and her own offending sign, which she had removed.  The state statute of limitations for tort claims is two years.

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Downtown Shickshinny, Pennsylvania via

The Third Circuit's opinion in Tearpock-Martini v. Borough of Shickshinny addressed exactly this problem.  The complaint alleged that the "church sign" violated the Establishment Clause, while the threats to prosecute plaintiff for erecting her own sign violated both the Equal Protection Clause and the First Amendment.   Generally, because §1983 does not have a statute of limitations,  state law provides the applicable time limitations.  The district judge dismissed the complaint based on the statute of limitations because the actions occurred more than two years prior to the filing of the complaint.  Reversing on the Establishment Clause claim only, the Third Circuit found that the state statute of limitations did not bar the claim.

The plaintiff's attorney argued that the two year statute of limitations for the church sign should be viewed as a "continuing violation."  As the court noted, this is more often part of a statute of limitations inquiry in an employment discrimination case: "where only in retrospect will a plaintiff recognize that seemingly unconnected incidents were, in fact, part and parcel of a larger discriminatory pattern."  But here, the court accepted the municipality's argument that the continuing violation doctrine does not apply because the sign "is merely an effect" of the action  - - - erecting the sign - - -that was within the statute of limitations.

But the Third Circuit found that the state's two year statute of limitations was inapplicable because although §1983 does not have a statute of limitations and state law provides the pertinent time limitations, this is true only "if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia, 471 U.S. 261 (1985).  The Court found that Establishment Clause rights are very important and that while other constitutional rights are also important

what further distinguishes Tearpock-Martini’s claim, and Establishment Clause claims in general, is that the traditional rationales justifying a limitations period—“to protect defendants against stale or unduly delayed claims,” “facilitat[e] the administration of claims,” and “promot[e] judicial efficiency,” [citation omitted] —simply have no persuasive force in this context. Tearpock-Martini’s challenge is to a still- existing monument that communicates anew an allegedly unconstitutional endorsement of religion by the government each time it is viewed. Strict application of the statutory limitations period both serves no salutary purpose and threatens to immunize indefinitely the presence of an allegedly unconstitutional display.

Moreover, the Third Circuit noted that it could not find any precedent for finding an Establishment Clause challenge time-barred in a passive monument case, and indeed the cases were the opposite, citing, most persuasively, Van Orden v. Perry, 545 U.S. 677 (2005) (display of Ten Commandments challenged 40 years after installation).

 The Third Circuit's conclusion seems exactly right: how can there be a statute of limitations on an Establishment Clause violation of a passive monument?  However, in this case, because this particular plaintiff knew about the sign, and even objected to it, one could have expected her to act more quickly.  Yet the very notion of an Establishment Clause violation caused by a still existing monument or even sign is that it is a continuing one.

June 27, 2014 in Courts and Judging, Establishment Clause, First Amendment, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, June 26, 2014

United States Supreme Court Declares Massachusetts' Buffer Zone Unconstitutional in McCullen v. Coakley

A unanimous Court, albeit in separate opinions, found the Massachusetts statute imposing a 35 foot buffer zone around places where abortions are performed violates the First Amendment in its opinion in McCullen v. Coakley,  reversing the First Circuit.

Writing for the Court, Chief Justice Roberts - - - who, unusually, did not ask any questions during the oral argument - - -found that the statute was not subject to strict scrutiny because it was content and viewpoint neutral, despite arguments to the contrary.  However, the Court found that the statute failed the so-called "time, place, and manner" test articulated in  Ward v. Rock Against Racism, 491 U. S. 781 (1989).   The Court's opinion - - - joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan - - - concluded that the statute burdened more speech than necessary and was not sufficiently closely tailored.  In large part, this was based on the statute's exceptional coverage of public streets and sidewalks.  It was also based on the specific petitioners in the case, who are not "protesters," but people who "attempt to engage women approaching the clinics in what they call 'sidewalk coun­seling,' which involves offering information about alternatives to abortion and help pursuing those options." Further, the Court articulated other less restrictive means available to Massachusetts, including targeted injunctions, and found that the record did not support the need for Massachusetts' sweeping approach.  As the Court concluded:

Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a tradi­ tional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.

Justice Scalia's concurring opinion, joined by Justices Kennedy and Thomas, criticizes the Court's opinion as one

that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny. The Court reaches out to decide that question unnecessarily—or at least unnecessarily insofar as legal analysis is concerned.

Justice Alito, wrote separately but briefly to express his belief that the statute discriminates on the basis of viewpoint.

The takeaway is this: In a unanimous opinion, the Court ruled that Massachusetts went too far in seeking to protect the reproductive rights of women seeking abortions and infringed the First Amendment rights of those who seek to counsel them to change their minds.  The Court's opinion approves more narrow methods governments might use to protect the reproductive rights of women entering clincs.  But four Justices seem inclined to find a violation of the First Amendment in even more narrow government attempts.

June 26, 2014 in Abortion, Courts and Judging, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 25, 2014

Federal District Judge Invalidates Indiana Laws Banning Same-Sex Marriage

In his decision today in Baskin v. Bogan, United States District Judge Richard Young permanently enjoined Indiana officials from enforcing its requirement that marriage requires a female and a male, and its ban on the recognition of same sex marriages legally valid in other states, Indiana Code Section 31-11-1-1 (subsections a & b).

621px-Flag_map_of_Indiana.svgAfter resolving problems of the proper defendant and quickly disposing of the argument that Baker v. Nelson's summary finding by the Supreme Court in 1972 has meaningful precedential value, Judge Young's opinion proceeds along three separate tracks.

First, Judge Young finds that marriage is a fundamental right and therefore the statutory ban on same-sex marriage should be subject to strict scrutiny.  Judge Young concluded that the scope of the fundamental right is not limited, quoting Judge Black's opinion in Henry v. Himes that the United States Supreme Court has not limited this fundamental right in its pertinent cases; the Court  "consistently describes a general ‘fundamental right to marry’ rather than ‘the right to interracial marriage,’ ‘the right to inmate marriage,’ or ‘the right of people owing child support to marry.’"  Applying strict scrutiny, Judge Young articulates the state's proffered interest "in conferring the special benefit of civil marriage to only one man and one woman is justified by its interest in encouraging the couple to stay together for the sake of any unintended children that their sexual union may create," but declines to asess it and assumes that it is "sufficiently important interest."  However, Judge Young finds that the state has not demonstrated that the statute is “closely tailored” to that interest, but instead is  "both over- and under-inclusive."

Second, Judge Young analyzes the statute on the basis of equal protection, rejecting the argument that the statute makes a gender classification and concluding that it makes a sexual orientation classification.  While Judge Young contends that while it might be time to "reconsider" whether sexual orientation classifications should be analyzed under rational basis scrutiny, the "court will leave that decision to the Seventh Circuit, where this case will surely be headed."  Applying rational basis scrutiny, however, Judge Young concludes that there is no rational relationship to the interests proffered by the state.

Third, Judge Young independently analyzes subsection b of the statute, applying to recognition.  The judge notes that the "parties agree that out-of-state, same-sex marriages are treated differently than out-of-state, opposite-sex marriages," and thus "the question is whether that difference violates the Equal Protection Clause."  Again, applying rational basis scrutiny, Judge Young concludes:

Defendants proffer that the state refuses to recognize same-sex marriages because it conflicts with the State’s philosophy of marriage – that is that marriage is to ameliorate the consequences of unintended children. Recognizing the valid same-sex marriages performed in other states, however, has no link whatsoever to whether opposite-sex couples have children or stay together for those children. Thus, there is no rational basis to refuse recognition and void out-of-state, same-sex marriages.

Judge Young's opinion is economical (at 36 pages), well-structured, and well-supported with relevant citations.  Judge Young did not issue a stay of his opinion.  One assumes that such a decision may be sought from the Seventh Circuit.

UPDATE HERE

June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Full Faith and Credit Clause, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tenth Circuit Holds Utah's Same-Sex Marriage Ban Unconstitutional in a Divided Decision

In a divided decision, the Tenth Circuit opinion in Kitchen v. Herbert held that the

Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that [Utah's state constitution's] Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.

Affirming the district court's decision as well as its analysis, the Tenth Circuit panel majority, authored by Judge Carlos Lucero, and joined by Judge Jerome Holmes, applied strict scrutiny because it found that the "right to marry is a fundamental liberty."

In applying strict scrutiny, the panel majority assumed that three of the four interests advanced by the government - - - (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction” - - - were compelling.  However, the court found that the means chosen - - - the prohibition of same-sex marriage - - - did not sufficiently serve these interests.  Instead, each of the

justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.

The court noted that Justice Scalia, dissenting in Windsor, and numerous district judges, reached a similiar conclusion.  The majority observed that the lack of narrow tailoring is "often revealed" by underinclusiveness, finding it important that Utah did not ban nonprocreative marriages. 

The court's analysis of each of the three rationales is substantial and erudite, firmly rooted in precedent and well-reasoned.

As to the fourth and final interest asserted by the government - - -“accommodating religious freedom and reducing the potential for civic strife,” - - - the court reasoned that "the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights" and emphasized that its "decision relates solely to civil marriage." 

Dissenting from the more than 60 page majority opinion, Judge Paul Kelly wrote more than 40 pages in disagreement (although he did agree with the majority on the standing issue, making the opinion concurring in part).   Not surprisingly, he disagreed with the level of scrutiny to be applied; he concluded that there was no fundamental right at issue and would have applied rational basis scrutiny.  Also not surprisingly, he would have concluded that Utah's ban on same-sex marriage satisfied this most easily satisfied level of scrutiny given the state's interests in (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.

More surprisingly, Judge Kelly found that the Supreme Court's per curiam dismissal in 1972 of Baker v. Nelson, for "want of a substantial federal question" controlling ; it  "should foreclose the Plaintiffs’ claims, at least in this court," notwithstanding the Court's decision invalidating the federal Defense of Marriage Act's ban on recognition of same-sex marriage last term in Windsor.

 If - -  and most probably when - - - the United States Supreme Court does consider the issue of state laws banning same-sex marriage, Baker v. Nelson will be irrelevant and the Court will directly grapple with issues if fundamental constitutional rights and levels of scrutiny under the Fourteenth Amendment's due process and equal protection doctrines. 

Given that the Tenth Circuit stayed its decision pending the disposition of any subsequently filed petition for certiorari it may be that both sides seek review from the United States Supreme Court,

June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Monday, June 23, 2014

Will on Presidential Overreach

George Will weighed in again today on presidential overreach in Stopping a Lawless President, joining the increasing (and partisan) drumbeat against President Obama's efforts to work around congressional non-action and obstruction.  In the piece, Will takes aim at President Obama's "perpetrat[ion] [of] more than 40 suspensions of the law."  (Emphasis in original.)  Among these: Deferred Action for Childhood Arrivals and the delayed implementation of the ACA's employer mandate.  "Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different."

Will also explores a problem for those who'd like to stop presidential overreach in court: they don't have standing.  That's because President Obama's actions have generally helped people, not harmed them, leaving only certain taxpayers and frustrated legislators to complain.  As Will points out, David Rivkin and Elizabeth Price Foley floated a theory earlier this year in Politico that would allow legislators to sue.  And the House recently passed Rep. Gowdy's cleverly named ENFORCE the Law Act of 2014 ("Executive Needs to Faithfully Observe and Respect Congressional Enactments"), authorizing House or Senate lawsuits against the president to require enforcement of the law.  That bill will surely die in the Senate.  But Rivkin and Foley's arguments for standing don't depend on legislation.

Still, Rivkin and Foley's arguments run up against language from Justice Scalia's dissent in U.S. v. Windsor (joined by Chief Justice Roberts and Justice Thomas), quoted in the dissenting views in the House report on the ENFORCE the Law Act:

Heretofore in our national history, the President's failure to "take Care that the Laws be faithfully executed," could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure.  Justice Alito would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws.  This system would lay to rest Tocqueville's priase of our judicial system as one which "intimately binds the case made for the law with the case made for one man," one in which legislation is "no longer exposed to the daily aggression of the parties," and in which "the political question that the judge must resolve is linked to the interest of private litigants."

That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress's liking. . . .

If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit--from refusing to confirm Presidential appointees to the elimination of funding.

June 23, 2014 in Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, June 19, 2014

Ninth Circuit Declares LA's Prohibition of Vehicle as "Living Quarters" Unconstitutional

In its opinion in Desertain v. City of Los Angeles, the Ninth Circuit held that a provision of the Los Angeles municipal code prohibiting using automobiles as living quarters was unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment.

Section 85.02 of the municipal code, entitled "Use of streets and public parking lots for habitation" provides:

No person shall use a vehicle parked or standing upon any City street, or upon any parking lot owned by the City of Los Angeles and under the control of the City of Los Angeles or under control of the Los Angeles County Department of Beaches and Harbors, as living quarters either overnight, day-by-day, or otherwise.

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image via

In finding the provision unconstitutionally vague, the court's opinion authored by Judge Harry Pregerson considered whether it gave adequate notice of the acts prohibited as required by City of Chicago v. Morales, 527 U.S. 41 (1999), and focused on the four plaintiffs and their arrests:

Plaintiffs are left guessing as to what behavior would subject them to citation and arrest by an officer. Is it impermissible to eat food in a vehicle? Is it illegal to keep a sleeping bag? Canned food? Books? What about speaking on a cell phone? Or staying in the car to get out of the rain? These are all actions Plaintiffs were taking when arrested for violation of the ordinance, all of which are otherwise perfectly legal. And despite Plaintiffs’ repeated attempts to comply with Section 85.02, there appears to be nothing they can do to avoid violating the statute short of discarding all of their possessions or their vehicles, or leaving Los Angeles entirely. All in all, this broad and cryptic statute criminalizes innocent behavior, making it impossible for citizens to know how to keep their conduct within the pale.

As the court noted, the ordinance was "amorphous" enough to include "any vacationer who drives through Los Angeles in an RV."

However, the seeming reality that vacationers in RVs were not arrested led the court to its second reason for concluding the ordinance was unconstitutionally vague.  The court found that the ordinance "promotes arbitrary enforcement that targets the homeless," as is inconsistent with Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).  The ordinance is "broad enough to cover any driver in Los Angeles who eats food or transports personal belongings in his or her vehicle," yet "it appears to be applied only to the homeless."  While the city might certainly have relied upon a limiting construction, its memo attempting to do so was "disfavored" by the law enforcement head of the homelessness task force and police officers did not follow it. 

In the first pages of the opinion, the court discussed four of the individual plaintiffs in detail.  In its final paragraph, the court summarized their plight and its rationale:

For many homeless persons, their automobile may be their last major possession — the means by which they can look for work and seek social services. The City of Los Angeles has many options at its disposal to alleviate the plight and suffering of its homeless citizens. Selectively preventing the homeless and the poor from using their vehicles for activities many other citizens also conduct in their cars should not be one of those options.

June 19, 2014 in Courts and Judging, Due Process (Substantive), Food and Drink, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Unanimous Supreme Court in Lane v. Franks: First Amendment Protects Public Employee's Subpoenaed Testimony

 

In an unanimous opinion authored by Justice Sonia Sotomayor, with an exceedingly brief concurring opinion by Justice Thomas, joined by Scalia and Alito, the Court held in Lane v. Franks that the First Amendment "protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities."  However the Court held that the defendant sued in his personal capacity had qualified immunity because such a holding was not "beyond debate."

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Forain, Scène de tribunal, circa 1910 via


Recall from our previous discussions of the case including the certiorari grant, the law professors amicus brief, and  oral argument that the underlying facts are extremely sympathetic to Edward Lane, the public employee who uncovered gross corruption of an elected state legislator and was later subpoenaed to testify in the federal criminal prosecution.  Indeed, even the Attorney General for the state contended at oral argument that the Eleventh Circuit was incorrect to conclude that the employee's speech was not within the strictures of the Court's most recent public employee First Amendment case, Garcetti v. Ceballos

On the issue of qualified immunity, however, the Court affirmed the Eleventh Circuit, finding that although the Eleventh Circuit was clearly wrong on the merits, the First Amendment right was not sufficiently "clearly established" at the time Lane was terminated by the college president.

My longer analysis of today's opinion is at SCOTUSBlog here.

June 19, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 17, 2014

Supreme Court Denies Certiorari in Elmbrook School District: The "Graduation in a Church" Case

Over a dissent from Justice Scalia, joined by Thomas, the United States Supreme Court decided not to review the closely watched Elmbrook School District v. Doe.  The case was relisted by the Court at least ten times before the petition for certiorari was finally denied.

Recall as we discussed almost two years ago,  the Seventh Circuit en banc found a First Amendment Establishment Clause violation when two high schools held their graduation ceremonies in a church.  Justice Scalia's dissent contended that because the Seventh Circuit's opinion is now "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway  - - - this Term's controversial 5-4 decision upholding town council's prayer - - - "the Court ought, at a minimum, to grant certiorari, vacate the judgment, and remand for reconsideration (GVR)."

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image via

Yet Scalia's dissent might be most noteworthy for its casual evisceration of the Establishment Clause:

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

My own aversion cannot be imposed by law because of the First Amendment. See Ward v. Rock Against Racism, 491 U. S. 781, 790 (1989); Erznoznik v. Jacksonville, 422 U. S. 205, 210–211 (1975). Certain of this Court’s cases, however, have allowed the aversion to religious displays to be enforced directly through the First Amendment, at least in public facilities and with respect to public ceremonies—this despite the fact that the First Amendment explicitly favors religion and is, so to speak, agnostic about music.

(emphasis in original).

However, with the denial of certiorari in Elmbrook School District, the line between adult activities such as legislative meetings and "school" activities such as graduations persists in Establishment Clause doctrine.

 

June 17, 2014 in Courts and Judging, Establishment Clause, First Amendment, History, Religion, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)