Wednesday, August 24, 2016

Sixth Circuit's Mixed Ruling on First Amendment Challenges to Kentucky's Ethics Code for Judicial Elections

In its opinion in Winter v. Wolnitzek authored by Judge Jeffrey Sutton for the unanimous Sixth Circuit panel, the court considered eight provisions of the Kentucky Code of Judicial Conduct against facial and as-applied First Amendment challenges after first concluding that there was a sufficient case or controversy under Article III.

The court applies strict scrutiny to the State's efforts to regulate the campaign speech of judicial candidates under the United States Supreme Court's decision last year in Williams-Yulee v. The Florida Bar.  In Williams-Yulee, the no direct solicitation of contributions prohibition survived and a few of the provisions in Winter likewise survive.  The Kentucky Supreme Court, pursuant to a certification proceeding, rendered its interpretation on three of the canons.

In succinct fashion - - - the analysis of the eight provisions is less than ten manuscript pages - - - the court determined the constitutional status of the varying prohibitions as follows:

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  • The campaigning clause, which prohibits a candidate for judicial office from campaigning as a member of a political organization was ruled unconstitutional as vague and overbroad.  Although the Kentucky Supreme Court had clarified this provision to mean that the candidate cannot portray themselves, either directly or by implication, as "the official nominee" of the party.  The court held there was too much slippage here, so that the use of a definitive article ("the Republican candidate") was not necessarily an endorsement as official nominee, especially when combined with other terms ("the moderate Republican candidate.")
  • The speeches clause, which prohibited judicial candidates from making speeches for or against a political party, was unconstitutional as not narrowly tailored.  The court noted that this does not prohibit a tweet for or against a political party, and distinguished a prohibition of judicial candidates from making speeches on behalf of a political organization (as the Ninth Circuit upheld).
  • The contributions clause, which prohibits judicial candidates from making financial contributions to a political organization or candidate was upheld.  Not withstanding the court's recognition that "money is speech" under Buckley v. Valeo.  The court held that this clause "narrowly serves the Commonwealth’s compelling interest in preventing the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics." On this, the Sixth Circuit reversed the district judge.
  • The endorsements clause, which prohibits judicial candidates from publicly endorsing or opposing candidates for public office was likewise constitutional.  Again, the court stressed the quid pro quo nature of endorsements.
  • The "acting as a leader" clause, which prohibits a judge from acting as a leader or holding any office in a political organization was constitutional on its face as well as-applied to the request to host a political event that is a fundraiser.  The fundraiser, the court reasoned, brings the judge's impartiality into question.
  • The false statements clause, prohibiting judicial candidates from making false statements with knowledge or reckless disregard of the truth is perhaps the most interesting result.  The court distinguishes another Sixth Circuit case - - - Susan B. Anthony List v. Driehaus - - - which was not only not limited to material statements (as it was by the Kentucky Supreme Court's certification opinion), but also makes the Williams-Yulee distinction between political and judicial candidates.  However, the court found that as-applied to a judicial candidate's statement to be "re-elected" when in fact she occupied the judicial position because of appointment rather than election, the provision was unconstitutional.  The ban there "outstrips" the government interest and did not provide sufficient "breathing space."
  • The commits clause, prohibiting judicial candidates from making pledges or promises, was remanded.  This was not a provision that was certified to the Kentucky state supreme court and the Sixth Circuit panel implied that it should be.  The problem is determining whether an "issue-based" commitment is inconsistent with the impartial performance of judicial duties, with the Sixth Circuit panel stating that if "Kentucky interprets “impartiality” to mean solely “impartiality as to parties,” the clause may well advance a compelling interest and do so narrowly."

The court ends its opinion, as it began, by acknowledging the "cross-currents" of First Amendment challenges to judicial, rather than political, campaigns.  The court navigated surely and perhaps overly-speedily through the multiple issues landing with mixed results.  It does seem that the court will be visiting this terrain again.

August 24, 2016 in Campaign Finance, Courts and Judging, First Amendment, Fourteenth Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Ninth Circuit Upholds Upholds California Ban on Sexual Orientation Conversion Therapy Against Religion Clauses Challenge

In a sequel to the Ninth Circuit's 2013 decision in Pickup v. Brown upholding California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit upheld the same law against a facial challenge based upon the First Amendment's Religion Clauses in its relatively brief opinion in  Welch v. Brown.

The panel in Welsh - - - the same panel as in Pickup - - - held that the SB 1172 violated neither the Establishment Clause nor the Free Exercise Clause.  The panel rejected the challengers' interpretation of the law as applying to members of the clergy because the law specifically exempts religious clergy "as long as they do not hold themselves out as operating pursuant" to any therapist licenses. 

The panel also rejected the contention that the law has the primary effect of inhibiting religion. That some minors who seek sexual orientation conversion may have religious motivations does not rise to the level of an inhibition of religion, especially given that the law was not targeted at religious motivated conduct.  The panel noted that the law's legislative findings focused on "social stigmatization" and "family rejection" rather than religiosity.  The panel likewise rejected the Free Exercise Clause claim that the law was not neutral as to religion based on the same rationales and cited the Third Circuit's similar conclusion regarding New Jersey's prohibition of sexual conversion therapy in King v. Christie.

The court also reiterated its rejection of any "privacy" claim based on its previous analysis in Pickup.

So far, challenges to state prohibitions of sexual conversion therapy for minors have had little success.

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 [image via]

 

August 24, 2016 in Courts and Judging, Disability, Due Process (Substantive), Establishment Clause, Family, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation | Permalink | Comments (0)

Thursday, August 18, 2016

District Judge Rules RFRA Exemption in Transgender Title VII Case

In his opinion and order in EEOC v. R.G. & G.R. Harris Funeral Homes, United States District Judge Sean Cox of the Eastern District of Michigan, the judge held that the funeral home is "entitled to a RFRA exemption from Title VII and the body of sex-stereotyping case law that has developed under it."

The funeral home, a for-profit closely-held corporation, relied upon the United States Supreme Court's closely-divided and controversial decision in Burwell v. Hobby Lobby (2014) which allowed a religious exemption under RFRA (the Religious Freedom Restoration Act) to a federal requirement in the Affordable Care Act (ACA or Obamacare) that employers provide health insurance to employees that includes contraceptive coverage. 

800px-Snow_White_Coffin_CarriedRather than contraception, the issue in Harris Funeral Homes is the funeral home's sex-specific dress code and its termination of Stephens, an employee transitioning from male to female for failure to wear the mandated male-specific clothing.  The primary shareholder of the funeral home, Thomas Rost, stated his beliefs that the Bible teaches "that a person's sex is an immutable God-given gift" and "that is wrong for a biological male to deny his sex by dressing as a woman."  More importantly for his RFRA claim, Rost stated that he himself “would be violating God’s commands” if he were to permit one of the Funeral Home’s biologically-male-born funeral directors to wear the skirt-suit uniform for female directors while at work, because Rost “would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.”

Recall that under RFRA, a threshold question is whether the person's religious belief are sincerely held.  Hobby Lobby having determined that a company's major shareholder's belief is the relevant one, the EEOC conceded that the "Funeral Home's religious beliefs are sincerely held."  The next question is whether the neutral law of general applicability - - - here, Title VII - - - is a substantial burden on the person's religious beliefs.  The district judge found that allowing an employee to wear a skirt would impose a substantial burden on the ability of Rost to conduct his business in accordance with his sincerely held religious beliefs and that the economic consequences of back pay would be "severe."  The burden then shifts in RFRA to the government to satisfy strict scrutiny as well as a least restrictive means requirement.  Recall that the stated purpose of Congress in passing RFRA was to "restore the compelling interest test as set forth in Sherbert v. Verner" (1964),  which Congress believed the Court had departed from in Employment Division v. Smith (1990), although Congress also added the "least restrictive means" language.

And in his Harris Funeral Homes decision, Judge Cox ultimately relied on the least restrictive means requirement. However, first Judge Cox treated the traditional strict scrutiny questions.  Judge Cox assumed "without deciding" that the EEOC had a compelling governmental interest, although Judge Cox expressed doubts whether this was true.  Indeed, Judge Cox interpreted the passage in Hobby Lobby stating that the decision provided "no such shield" to equal employment laws (and thus refuting a claim made by the dissent) as essentially dicta:

This Court does not read that paragraph as indicating that a RFRA defense can never prevail as a defense to Title VII or that Title VII is exempt from the focused analysis set forth by the majority. If that were the case, the majority would presumably have said so. It did not.

Moreover, Judge Cox relied on Hobby Lobby to contend that a general interest in ending employment discrimination is not sufficient, it must be focused on the particular person burdened: "even if the Government can show that the law is in furtherance of a generalized or broad compelling interest, it must still demonstrate the compelling interest is satisfied through application of the law to the Funeral Home under the facts of this case." (italics in original).  Although Judge Cox wrote that he "fails to see how the EEOC has met its requisite 'to the person'-focused showing," he nevertheless stated he would assume it was met.

As to the least restrictive means, Judge Cox's solution is a gender-neutral dress code:

Yet the EEOC has not challenged the Funeral Home’s sex-specific dress code, that requires female employees to wear a skirt-suit and requires male employees to wear a suit with pants and a neck tie, in this action. If the EEOC were truly interested in eliminating gender stereotypes as to clothing in the workplace, it presumably would have attempted to do so.

Rather than challenge the sex-specific dress code, the EEOC takes the position that Stephens has the right, under Title VII, to “dress as a woman” or wear “female clothing” while working at the Funeral Home. That is, the EEOC wants Stephens to be permitted to dress in a stereotypical feminine manner (wearing a skirt-suit), in order to express Stephens’s gender identity.

If the EEOC truly has a compelling governmental interest in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral Home, couldn’t the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here? Both women and men wear professional-looking pants and pants-suits in the workplace in this country, and do so across virtually all professions.

[footnotes omitted].

Of course, the courts have not ruled favorably on challenges to sex-specific dress and grooming codes in the employment context. 

Interestingly, Judge Cox also rejected the EEOC's gender discrimination claim based on the funeral home company's clothing allowance policy: there is a monetary clothing allowance to male employees but not female employees.  Judge Cox found that this issue was not properly brought by the EEOC. 

The EEOC is sure to appeal.  If individual employers can claim exemptions to Title VII under RFRA, it could have widespread consequences.

Although it is also possible that a new Congress could amend RFRA.

 [image via]

August 18, 2016 in Congressional Authority, Courts and Judging, First Amendment, Opinion Analysis, Religion | Permalink | Comments (0)

Monday, August 15, 2016

Texas Attorney General Opinion: Prayer to Start Court Is Constitutional

Controversial Texas Attorney General Ken Paxton has issued an opinion today that the First Amendment's Establishment Clause is not violated if court were opened with a prayer.  He stated:

A court would likely conclude that a Justice of the Peace's practice of opening daily court proceedings with a prayer by a volunteer chaplain as you describe is sufficiently similar to the facts in Galloway such that the practice does not violate the Establishment Clause.

Galloway is the United States Supreme Court's sharply divided 2014 opinion in Town of Greece v. Galloway which involved a town board meeting. Justice Kennedy's opinion for the Court in Galloway repeated referred to the issue as whether the "legislative prayer" approved by the Court in Marsh v. Chambers (1983) as part of a historical practice extended to a local legislature, despite the fact that some non-legislative functions occurred at the town board.  In the dissent for four Justices, Justice Kagan essentially argued that a prayer at the beginning of a trial was clearly unconstitutional.  Indeed, in his separate concurring opinion, Justice Alito seemingly agreed:

I am troubled by the message that some readers may take from the principal dissent’s rhetoric and its highly imaginative hypotheticals. For example, the principal dissent conjures up the image of a litigant awaiting trial who is asked by the presiding judge to rise for a Christian prayer, of an official at a polling place who conveys the expectation that citizens wishing to vote make the sign of the cross before casting their ballots, and of an immigrant seeking naturalization who is asked to bow her head and recite a Christian prayer. Although I do not suggest that the implication is intentional, I am concerned that at least some readers will take these hypotheticals as a warning that this is where today’s decision leads—to a country in which religious minorities are denied the equal benefits of citizenship.

Nothing could be further from the truth. All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray.

At least for Attorney General Ken Paxton,  Justice Kagan's hypothetical was not as "highly imaginative" as Justice Alito averred.  Paxton's opinion recognizes that the only United States Circuit court opinion to directly consider the issue, North Carolina Civil Liberties Union Legal Found. v. Constangy (4th Cir. 1991), found opening court with prayers unconstitutional, but Paxton opines "other courts deciding the issue may disagree with Constangy that prayer in judicial settings lacks historical foundation."  Thus, Paxton states that "a Justice of the Peace's practice of opening daily court proceedings with a prayer by a volunteer chaplain," would  not violate the Establishment Clause.

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[image: Henry VIII at prayer with Black Book of the Garter via ]

 

August 15, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, Interpretation, Religion, Supreme Court (US) | Permalink | Comments (0)

Wednesday, August 3, 2016

United States Supreme Court Stays Fourth Circuit Order in Transgender Bathroom Case

The Court today issued a stay in G.G. v. Glouster County School Board, the case from the Fourth Circuit concluding that Title IX's ban on sex discrimination,  20 U.S.C. § 1681(a), requires schools to provide transgender students access to restrooms congruent with their gender identity.  As we discussed,while the constitutional issues are not "front and center," the case implicates both the constitutional power of Executive branch agencies, federalism, and Equal Protection.

The stay opinion divides the Court, with Justices Ginsburg, Sotomayor, and Kagan dissenting without opinion. 

Justice Breyer - - - the crucial vote for the majority - - - writes separately to concur stating that he votes to grant the stay "as a courtesy" joining the four other Justices to "preserve the status quo (as of the time the Court of Appeals made its decision)," meaning presumably, before the Fourth Circuit rendered its decision.

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[Caricature image of Justice Breyer by Donkey Hotey via]

August 3, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Gender, Separation of Powers, Supreme Court (US) | Permalink | Comments (1)

Saturday, July 16, 2016

No Dice for Native American Casino Challenger

The D.C. Circuit yesterday upheld a lower court's dismissal of David Patchak's long-running attempt to stop the Match-E-Be-Nash-She-Wish Band's casino in Wayland Township, Michigan, based on a federal law that stripped the courts of jurisdiction over the case.

The ruling ends this dispute in favor of the Band and its casino, with little or no chance of further appeals.

The case started when David Patchak sued the Interior Department for putting certain land in Wayland Township in trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians to build a casino. Patchak, a neighboring property owner, argued that Interior lacked authority under the Indian Reorganization Act and sought damages for economic, environmental, and aesthetic harms.

The case went to the Supreme Court on justiciability grounds, and the Court ruled in 2012 that Patchak had prudential standing.

After that ruling came down, Congress enacted a stand-alone law that affirmed that Interior had authority to put the land in trust and divested the courts of jurisdiction over Patchak's case. The act, in relevant part, read:

NO CLAIMS -- Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.

The district court then dismissed Patchak's case, and yesterday the D.C. Circuit affirmed.

The court first rejected Patchak's claim that the jurisdiction-stripping provision violated the separation of powers. The court looked to the familiar distinction (recently sharpened by the Court's ruling in Bank Markazi) between a congressional act that applies a new legal standard in pending civil cases (which is OK) and an act that "prescribes a rule of decision" in those cases (which is not). The court said that this act falls squarely in the former class, even though Congress set the legal standard in a separate, stand-alone statute (and not the statute at issue in the case, the IRA).

The court next rejected Patchak's various individual-rights claims. The court said that the Act did not violate Patchak's First Amendment right to access the courts, because that right isn't absolute, and it yields to Congress's power to set the jurisdiction of the lower federal courts. The court said that the Act also did not violate Patchak's due process rights (because the legislative process provided Patchak any process that he might have been due) and the Bill of Attainder Clause (because the Act wasn't punishment).

Given the Supreme Court's powerful reaffirmation of congressional authority of federal court jurisdiction in Bank Markazi, the D.C. Circuit's ruling almost certainly ends Patchak's challenge.

July 16, 2016 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, July 14, 2016

Daily Read: When Justices Scalia and Kennedy Referenced Donald Trump

Justice Ginsburg's comments about presidential candidate Donald Trump have caused controversy and invited comparisons with the late Justice Scalia's remarks and relationship with a sitting Vice President and his refusal to recuse himself from a case involving the VP which Scalia himself described as "heroic" in an interview. (Amy Howe for SCOTUSBlog has a great round-up of commentary on the controversy; Howard Bashman also has a good list).

But interestingly, Justice Scalia - - - as well as Justice Kennedy - - - broached the possibility of a Donald Trump presidential candidacy more than 25 years ago, in the 1989 oral arguments in Austin v. Michigan Chamber of Commerce.  The Court in Austin upheld the constitutionality of a Michigan statute that prohibited corporations, excluding media corporations, from using general treasury funds for independent expenditures in connection with state candidate elections, rejecting both First Amendment and Equal Protection claims, and recognizing a government interest in preventing corruption or the appearance of corruption in the political arena from large corporate treasuries.  Both Scalia and Kennedy dissented.  Twenty years later, the Court, 5-4, with Kennedy authoring the opinion and Scalia joining, overruled Austin in the controversial 2010 Citizens United v. FEC

Near the beginning of the Austin oral arguments, Justice Scalia uses Donald Trump, alluding to the wealth that would allow him to self-finance a campaign, as a comparison to corporate financing:

General Caruso, why is there a greater risk to the political process from an independent political expenditure by a family corporation, closely held corporation, eight family members, and they want to spend the corporation's money for a particular candidate whom they think will favor their business.

That... that is prohibited by this.

But if Donald Trump wants to come in and spend as much money as he likes, that is perfectly all right.

Why wouldn't it make much more sense, if you are worried about the problem, to establish an amount of money as the criterion?

A few moments later, Kennedy follows:

All right.

Then it... it seems to me that Justice Scalia's question indicates that you have to give a specific reason why a corporation of that type presents more [of] a danger than Donald Trump, and I didn't really hear the answer to that question.

Louis J. Caruso:  Well, the thing of it is--

Anthony M. Kennedy:  And it has to be answered in the terms of a compelling interest that is narrowly tailored.

 Did Justice Kennedy actually call Donald Trump a "danger" in 1989?

 

h/t Navid Khazanei

July 14, 2016 in Campaign Finance, Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, News, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Monday, July 11, 2016

Ninth Circuit Upholds L.A.'s Mobile Billboard Ordinances Against First Amendment Challenge

In its opinion in Lone Star Security and Video v. City of Los Angeles, the Ninth Circuit upheld L.A.'s mobile billboard ordinances against a First Amendment challenge distinguishing the United States Supreme Court's 2015 Reed v. Town of Gilbert

Recall that in Reed, Justice Kagan separately concurred in the unanimous decision to warn that strict scrutiny was not always appropriate and that "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive."  Here, it seems that the Ninth Circuit panel has taken that advice, applying the relaxed standard of time, place, and manner doctrine rather than content-discrimination meriting strict scrutiny.

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Image via
[It seems that this van would not violate the L.A. ordinances]

The L.A. ordinances are directed at "advertising signs" on vehicles or attached to vehicles.  Signs on vehicles - - - painted or permanently affixed - - - are allowed as long as they do not extend beyond the vehicle or make the vehicle unsafe.  Signs that attached to non-motorized vehicles, such as those on standalone trailers, are prohibited from parking on city streets.

Judge Mary Murguia, writing for the unanimous panel, concluded that the ordinances applicability to "advertising" did not render the ordinances content-based.  The opinion relied on a state case that construed advertising as displaying any message to the public rather than the content of that message and upheld an ordinance as applied to a nonprofit organization protesting animal cruelty.  Moreover,

The Supreme Court’s recent decision in Reed does not alter our conclusion. Unlike Reed, the mobile billboard ordinances do not single out a specific subject matter for differential treatment, nor is any kind of mobile billboard exempted from regulation based on its content. There has been no suggestion that the ordinances apply differently to Lone Star Security’s political endorsements than to its commercial promotional campaigns, for example. Rather, an officer seeking to enforce the non-motorized billboard ordinances must decide only whether an offending vehicle constitutes a prohibited “advertising display” because its primary purpose is to display messages, as opposed to transporting passengers or carrying cargo. . . . In the case of the motorized billboard ordinance, an enforcing officer would simply need to distinguish between signs that are permanent or non-permanent, and larger or smaller than the vehicles to which the signs are affixed to determine whether the vehicle violates the ordinance.

[ellipses added; citations omitted].  Once having determined the correct standard was not strict scrutiny, the panel easily found that the ordinances survived review.

The parties do not dispute that the cities’ stated interests in traffic control, public safety, and aesthetics are sufficiently weighty to justify content-neutral, time, place, or manner restrictions on speech, nor could they.

As for the "narrow tailoring" required, the panel found that none of the ordinances were broader than necessary.  Additionally, the panel found that there were ample alternative channels for communication, including advertising. 

Appellants are free to disseminate their messages through myriad other channels, such as stationary billboards, bus benches, flyers, newspapers, or handbills. Appellants may also paint signs on vehicles and attach decals or bumper stickers. Although mobile billboards are a unique mode of communication, nothing in the record suggests that Appellants’ overall “ability to communicate effectively is threatened.”

The last quotation is from the United States Supreme Court's City of Los Angeles v. Taxpayers for Vincent (1984), on which Judge Murguia heavily relied.  However, for Judge John Owens, Taxpayers for Vincent has its own flaws. In a brief concurrence, Judge Owens suggested that the United States Supreme Court should take a "second look" at Taxpayers for Vincent.

This case is about ugly signs on vehicles, and no doubt I would not want these vehicles and their signs parked in front of my house. But under the ordinances at issue, a car with equally ugly decals—including a decal of a vehicle with an ugly sign—would not “go to jail,” but instead treat my curb like the upper left corner of a Monopoly board.

If “aesthetics” are to play a part in speech restriction, then such aesthetics should apply equally, decal or sign. Yet under Taxpayers for Vincent, the Court rejected the very point that I now make. See 466 U.S. 810–12 (rejecting the Ninth Circuit’s holding that “a prohibition against the use of unattractive signs cannot be justified on esthetic grounds if it fails to apply to all equally unattractive signs wherever they might be located”). I think our court was right then, and the Supreme Court should reconsider this portion of Taxpayers for Vincent. As it currently stands, politicians can use Taxpayers for Vincent and its beholderish “aesthetics” to covertly ensure homogeneous thinking and political discourse. That is a dimension we should avoid. See The Twilight Zone: Eye of the Beholder (CBS television broadcast Nov. 11, 1960).

Judge Owens was not part of the Ninth Circuit panel that the Court reversed, although the third member of this Ninth Circuit panel - - - Judge Stephen Reinhardt - - - was.  Judge Reinhardt, born in 1931, may also have seen the original episode of The Twilight Zone to which Judge Owens, born more than a decade after its original airing, refers.

 

 

 

 

July 11, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, Opinion Analysis, Recent Cases, Speech, Supreme Court (US) | Permalink | Comments (0)

Friday, July 1, 2016

Federal Judge Issues Preliminary Injunction Against Mississippi Law Seeking to Protect LGBT Discrimination

In a 60 page opinion in Barber v. Bryant, United States District Judge Carlton Reeves (pictured below) found Mississippi HB 1523, set to become effective July 1, constitutionally problematical under both the Establishment Clause and the Equal Protection Clause, and thus preliminary enjoined its enforcement.

The bill, Protecting Freedom of Conscience from Government Discrimination Act," sought to insulate the specific "sincerely held religious beliefs or moral convictions" that:
(a)  Marriage is or should be recognized as the union of one man and one woman;
(b)  Sexual relations are properly reserved to such a marriage; and
(c)  Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.

Judge Reeves characterized HB 1523 as a predictable overreaction to the Court's same-sex marriage opinion in Obergefell v. Hodges a year ago.  In discussing the debates around the HB 152 and its texts, Judge Reeves also noted that the challenges to HB 1523 were also predictable, providing his rationale for consolidating the four cases.

Judge Reeves then considered standing of the various plaintiffs as well as Eleventh Amendment immunity, followed by the established preliminary injunction standards which have at their heart the "substantial likelihood of success on the merits."

On the Equal Protection claim, Judge Reeves relied on Romer v. Evans, and found that the legislative history established animus in intent:

The title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell. The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions. LGBT Mississippians, in turn, were “put in a solitary class with respect to transactions and relations in both the private and governmental spheres” to symbolize their second-class status.

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Judge Carlton Reeves via

Judge Reeves also found that the law would have a discriminatory effect.  Judge Reeves applied the lowest level of scrutiny, but found that even "under this generous standard, HB 1523 fails." He agreed  with the State's contention that HB 1523 furthers its “legitimate governmental interest in protecting religious beliefs and expression and preventing citizens from being forced to act against those beliefs by their government" is a "legitimate governmental interest."  But concluded that the interest is "not one with any rational relationship to HB 1523."  Indeed, the court declared that "deprivation of equal protection of the laws is HB 1523’s very essence."

On the Establishment Clause claim, Judge Reeves rehearsed the history of the Clause before focusing on two conclusions: HB 1523 "establishes an official preference for certain religious beliefs over others" and "its broad religious exemption comes at the expense of other citizens."For this latter point, Judge Reeves interestingly relied on and distinguished the recent controversial Burwell v. Hobby Lobby construing RFRA to confer a religious conscience accommodation to closely-held corporations:

The difference is that the Hobby Lobby Court found that the religious accommodation in question would have “precisely zero” effect on women seeking contraceptive coverage, and emphasized that corporations do not “have free rein to take steps that impose disadvantages on others.” The critical lesson is that religious accommodations must be considered in the context of their impact on others.

Unlike Hobby Lobby, HB 1523 disadvantages recusing employees’ coworkers and results in LGBT citizens being personally and immediately confronted with a denial of service.

[citations omitted].

 Judge Reeves opinion is careful and well-reasoned, but is nevertheless sure to be appealed by Mississippi officials unless they alter their litigation posture.

 

July 1, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0)

Thursday, June 9, 2016

Supreme Court Finds Due Process Violated When Prosecutor-Turned-Judge Did Not Recuse

In its highly anticipated opinion in Williams v. Pennsylvania, the United States Supreme Court found that the failure of Chief Justice of the Pennsylvania Supreme Court Ronald Castille to recuse himself in the death penalty review of Williams' postconviction appeal constituted a violation of the Due Process Clause.

Recall that Chief Justice Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013.  Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row." One of those people on death row is Terrance Williams, convicted at age 18 and whose story has attracted much interest. Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief.  Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty.  Williams' post-conviction claim, moreover, is based on prosecutorial misconduct. 

Writing for the five Justice majority, Justice Kennedy relied on the Court's previous decision in Caperton v. A.T. Massey Coal. Co. in 2009 - - - which Kennedy also authored - - - to articulate the applicable "objective standard" of recusal when the "likelihood of bias on the part of the judge 'is too high to be constitutionally tolerable.'" While Kennedy noted that the "due process precedents do not set forth a specific test governing recusal when, as here, a judge had prior involvement in a case as a prosecutor," the Court articulated a clear rule:

The Court now holds that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.

This rule, the Court reasoned, is based upon the due process guarantee that “no man can be a judge in his own case,” which would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision."

Justice Kennedy's relatively brief opinion for the Court specifically rejected each of Pennsylvania's arguments. 

As to the passage of time between the prosecutorial and judicial events, the Court reasoned that

A prosecutor may bear responsibility for any number of critical decisions, including what charges to bring, whether to extend a plea bargain, and which witnesses to call. Even if decades intervene before the former prosecutor revisits the matter as a jurist, the case may implicate the effects and continuing force of his or her original decision. In these circumstances, there remains a serious risk that a judge would be influenced by an improper, if inadvertent, motive to validate and preserve the result obtained through the adversary process. The involvement of multiple actors and the passage of time do not relieve the former prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences that his or her own earlier, critical decision may have set in motion.

As to the argument that Castille's authorization to seek the death penalty against Williams was insignificant in a large office, the Court specifically found that "characterization cannot be credited." First, the Court stated that it would not assume that the District Attorney treated so major a decision as whether or not to pursue the death penalty as a "perfunctory task requiring little time, judgment, or reflection."  Second, the Court noted that "Chief Justice Castille's own comments while running for judicial office" refute any claim that he believed he did not play a major role in seeking death sentences.  And third, the Court noted that claim and finding that the trial prosecutor had engaged in multiple and intentional Brady violations, it would be difficult for "a judge in his position" not to view this as a "criticism of his former office, and, to some extent, of his own leadership and supervision as district attorney."

As to the argument that Castille did not cast the "deciding vote" - - - unlike the situation in Caperton - - - and so any error was harmless, the Court stressed the role of the court as a unit:

A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias de- means the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. An insistence on the appearance of neutrality is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself. When the objective risk of actual bias on the part of a judge rises to an unconstitutional level, the failure to recuse cannot be deemed harmless.

Chief Justice Roberts, joined by Justice Alito, and Justice Thomas writing separately, dissented - - - not surprising given that they have also dissented in Caperton.  Roberts's opinion draws the line between due process and judicial ethics: just because it was an ethics violation, does not mean it is a due process violation.  Roberts states that it is "up to state authorities" to determine whether recusal is required. 

In sum, this extension of Caperton to judicial decisions by former prosecutors and the Court's articulation of a clear rule should result in a new regime of uniform recusal mandated by the Due Process Clause.

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 [image NYPL digital collection, "A Murder Trial in the Court of General Sessions, circa 1901, via]

June 9, 2016 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0)

Wednesday, June 8, 2016

Second Circuit Holds No First Amendment Claim for Prisoner's Journalistic Publication

Daniel McGowan was incarcerated in the federal Bureau of Prisons (BOP), but had been transferred to the Brooklyn House Residential Reentry Center (“RRC”) near the end of his sentence with work passes and other privileges.  McGowan is well known as an environmental activist and featured prominently in the 2011 documentary, If a Tree Falls: A Story of the Earth Liberation Front. 

While at RCC in April 2013, McGowan published an article on Huffington Post entitled "Court Documents Prove I was Sent to Communication Management Units (CMU) for my Political Speech."  This article caused the RCC manager to essentially revoke the RRC status and remand McGowan back to the Bureau of Prisons - - - in solitary confinement -  - - for an infraction of a regulation that provided “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline.”

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Daniel McGowan via

But this "byline regulation" had been declared unconstitutional by a federal district court, Jordan v. Pugh, 504 F. Supp. 2d 1109, 1124 (D. Colo. 2007).  Soon thereafter, the BOP had instructed staff not to enforce it.  In 2010, the BOP issued an interim regulation rescinding the byline regulation; in 2012 it issued the final rule.

McGowan's lawyers soon figured out the byline regulation under which he had been charged was no longer in force and McGowan was returned to the RRC.

McGowan sued the RCC personnel for a violation of the First Amendment, but the Second Circuit, affirming the district judge, rejected the claim in its opinion in McGowan v. United States, concluding that the BOP was insulated by qualified immunity.  Qualified immunity protects the government from liability for violation of a constitutional right unless that right was "clearly established" at the time of the violation.  Here, despite the conclusion of a district judge six years prior that the byline regulation was unconstitutional and the rescission of the byline regulation by the BOP, the Second Circuit held that the right the byline regulation infringed was not clearly established:

We conclude that, at the time the alleged violation occurred, our case law did not clearly establish that McGowan had a First Amendment right to publish his article. The Supreme Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987)). This test is “particularly deferential to the informed discretion of corrections officials” where “accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. at 90. For example, the Supreme Court has upheld “proscriptions of media interviews with individual inmates, prohibitions on the activities of a prisoners’ labor union, and restrictions on inmate‐to‐inmate written correspondence.” Shaw v. Murphy, 532 U.S. 223, 229 (2001) (citations omitted).

In short, the " only authority that McGowan has identified that involved expression similar to that at issue in this case is a district court opinion, which, of course, is not binding."

The court also rejected claims sounding in tort regarding the BOP's failure to follow its own regulations.

Thus, McGowan has no remedy for the BOP enforcing a rescinded and it seems unconstitutional regulation that caused his removal from a work program to solitary confinement.

June 8, 2016 in Courts and Judging, Criminal Procedure, First Amendment, Opinion Analysis, Speech, Web/Tech | Permalink | Comments (0)

Monday, June 6, 2016

Federal Civil Rights Ruling Keeps Claim Alive

The Supreme Court ruled today in Simmons v. Himmelreich that a federal prison can maintain his Bivens claim against individual prison officials for Eighth Amendment violations, even though the district court threw out his earlier Federal Tort Claims Act case for the same incident under the FTCA's "discretionary function" exception.

The ruling is a win for Himmelreich and similarly situated federal civil rights plaintiffs. It means that the FTCA doesn't foreclose this kind of claim, and that Himmelreich will have his day in federal court, after all.

The unanimous ruling turned on a very plain, and very simple, reading of the FTCA exceptions provision. In short, the exceptions provision says that the FTCA judgment bar (which ordinarily would have foreclosed Himmelreich's suit against the individual officers, because the district court threw his FTCA claim out) doesn't apply to claims claims dismissed under the exceptions. And because the district court threw his first case out under the exceptions clause, the judgment bar didn't foreclose his subsequent Bivens claim.

Here's my post on the case at SCOTUSblog, with permission:

Prisoner-rights litigation can often raise some tricky issues. Navigating them can mean the difference between keeping a claim alive in federal court, and losing it – and thus the difference between enforcing federal civil rights, and not.

One of these tricky issues was on full display in Simmons v. Himmelreich. But despite the potentially complicated questions in the case, a unanimous Supreme Court held today that one of the rules for prisoner-rights suits simply means exactly what it says: A prisoner can bring a constitutional tort claim against individual prison officials even after a court dismissed his earlier Federal Tort Claims Act suit because the officials acted in a “discretionary” capacity.

The ruling, penned by Justice Sonia Sotomayor, is a decisive win for prisoner-rights advocates. It means that Walter Himmelreich and other, similarly situated civil rights litigants retain a critical tool – the constitutional tort claim against individual officers – in enforcing civil rights and deterring their abuses. More generally, it means that there is now one less tricky issue in prisoner-rights litigation, and it is just a little bit easier, at least in the narrow circumstances of this case, to retain a claim and enforce federal civil rights.

The case involved Himmelreich’s suit against federal prison officials for violations of his Eighth Amendment rights. Himmelreich was serving time for producing child pornography when prison officials transferred another prisoner from special housing into the general population. The transferred prisoner had previously threatened to “smash a pedophile” if given the chance, so it was hardly a surprise when the transferred prisoner severely beat Himmelreich.

Himmelreich sued the government under the Federal Tort Claims Act, which waives sovereign immunity for tort claims against the federal government for the acts of its employees. It also gives federal district courts exclusive jurisdiction over those claims, subject to certain procedural requirements in Chapter 171 (which becomes relevant below, in Himmelreich’s second suit). But the FTCA also contains a list of exceptions, in particular, a “discretionary function” exception that exempts “[a]ny claim based upon . . . the exercise or performance . . . [of] a discretionary function” from the FTCA. This means that someone (like Himmelreich) who has been injured has no FTCA claim against the government for injuries that result from a discretionary act of a government employee. The district court thus dismissed Himmelreich’s FTCA claim under this exception, ruling that the prison officials’ decision as to where to house inmates was a discretionary function. The parties did not challenge this ruling.

While Himmelreich’s FTCA case was still pending, he filed a second suit against the individual prison officials for violating his Eighth Amendment rights. After the district court dismissed Himmelreich’s first suit, the officials then moved to dismiss this second suit under yet a different part of the FTCA. In particular, the officials argued that the FTCA’s “judgment bar” foreclosed this second case. The judgment bar, in Section 2676, says that once a plaintiff receives a judgment in an FTCA suit, he generally cannot bring another suit against an individual employee based on the same incident. It reads:

The judgment in any action [under the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.

In other words, the government argued that the district court’s dismissal of Himmelreich’s FTCA case amounted to a “judgment,” and that the FTCA judgment bar therefore foreclosed Himmelreich’s second case against the individual officers.

This is where things get a little complicated. Himmelreich countered that the judgment bar did not apply to cases dismissed under the FTCA exceptions provision (the same one that the district court used to dismiss Himmelreich’s first case). That’s because the exceptions provision says that “[t]he provisions of this chapter” shall not apply to claims dismissed under the exceptions (including the discretionary function exception). “The provisions of this chapter,” in turn, refer to Chapter 171, the list of procedural requirements (mentioned above). And Chapter 171, in turn, includes the judgment bar. The upshot is that a case dismissed on the judgment bar (like Himmelreich’s first case) does not foreclose a case against individual officers arising out of the same incident (like Himmelreich’s second case).

The Supreme Court agreed. In a statutory analysis that required all of two paragraphs, the Court said that Himmelreich’s plain reading of the FTCA was correct, and that the FTCA created no bar to his second case against the individual officers. The Court noted that result made sense:

If the District Court in this case had issued a judgment dismissing Himmelreich’s first suit because the prison employees were not negligent, because Himmelreich was not harmed, or because Himmelreich simply failed to prove his claim, it would make little sense to give Himmelreich a second bite at the money-damages apple . . . .

Where an FTCA claim is dismissed because it falls within one of the “Exceptions,” by contrast, the judgment bar provision makes much less sense. The dismissal of a claim in the “Exceptions” section signals merely that the United States cannot be held liable for a particular claim; it has no logical bearing on whether an employee can be held liable instead.

The Court also roundly rejected the government’s non-textual arguments. It said that United States v. Smith, in which the Court held that another provision of Chapter 171 (the exclusive remedies provision) foreclosed a suit against an individual employee, did not control. That’s because Smith didn’t even discuss the “shall not apply” language in the exceptions provision. Moreover, the exclusive-remedies provision in Smith (unlike the judgment bar) was specifically designed to apply to the exceptions in the FTCA. The Court also said that it didn’t need to address the government’s parade of horribles that would result if every provision of Chapter 171 “shall not apply” to the FTCA’s exceptions. “If the Government is right about the other provisions of Chapter 171, the Court may hold so in the appropriate case.”

At the end of the day, the ruling means that Himmelreich can pursue his civil rights claim against the individual officers, even after the district court dismissed his earlier FTCA claim based on the “discretionary function” exception. More generally, it probably also means that a plaintiff can similarly pursue a civil rights claim against individual officials, even after a district court dismissed an FTCA claim based on other procedural grounds that have nothing to do with “whether an employee can be held liable instead.”

This is a clear win for Himmelreich and other, similarly situated civil rights plaintiffs, because it preserves their constitutional claims against individual officers. This is no small thing: These individual claims, more than any FTCA claim, help enforce civil rights by holding individual officers accountable and by creating a strong deterrent against civil rights abuses by other officers. Thus, today’s ruling, while dealing with just a narrow statutory issue under the FTCA, is nevertheless an important victory for Himmelreich, an important victory for access to justice, and an important victory for civil rights enforcement.

June 6, 2016 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis | Permalink | Comments (0)

Saturday, June 4, 2016

Daily Read: Clay v. United States (1971)

With the reported death of Muhammad Ali, f/k/a Cassius Clay, a look back at Clay v. United States (1971) seems appropriate. 

In Clay, the Court reversed Ali's conviction for "willful refusal to submit to induction into the armed forces." 

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Bust photographic portrait of Muhammad Ali in 1967. World Journal Tribune photo by Ira Rosenberg via

The Department of Justice had asserted that Ali's claim for conscientious objector status did not meet the "religious" requirement, even as it had previously been expanded in the now-classic cases of United States v. Seeger (1965) and Welsh v. United States (1970).  The Department of Justice had stated:

‘It seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. * * * It is therefore our conclusion that registrant's claimed objections to participation in war insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.’

However, the Department of Justice abandoned that argument before the United States Supreme Court:

In this Court the Government has now fully conceded that the petitioner's beliefs are based upon ‘religious training and belief,’ as defined in United States v. Seeger,  ‘There is no dispute that petitioner's professed beliefs were founded on basic tenets of the Muslim religion, as he understood them, and derived in substantial part from his devotion to Allah as the Supreme Being. Thus, under this Court's decision in United States v. Seeger, his claim unquestionably was within the ‘religious training and belief’ clause of the exemption provision.' [quoting the DOJ Brief].  This concession is clearly correct. For the record shows that the petitioner's beliefs are founded on tenets of the Muslim religion as he understands them. They are surely no less religiously based than those of the three registrants before this Court in Seeger. See also Welsh v. United States.

[citations and footnote omitted]

A unanimous Supreme Court thus reversed the conviction in a per curiam opinion. (Thurgood Marshall, who had been Solicitor General, recused himself).

Justice William Douglas, in his inimitable style, concurred separately with a discourse on the Koran and the meaning of “jihad.” Douglas concluded:"What Clay's testimony adds up to is that he believes only in war as sanctioned by the Koran, that is to say, a religious war against nonbelievers. All other wars are unjust."

Muhammad Ali's Greatest Fight: Cassius Clay vs. the United States of America, the 2000 book by Howard Bingham and Max Wallace and subsequent 2013 HBO televised drama center on the litigation.

 

 

June 4, 2016 in Books, Courts and Judging, Current Affairs, First Amendment, Opinion Analysis, Race, Religion, Sports, Supreme Court (US), Television | Permalink | Comments (0)

Friday, June 3, 2016

Daily (Re)Reads: Judicial Impartiality

Republican Presidential Candidate Donald Trump has made news by charging that United States District Judge Gonzalo Curiel has “an absolute conflict” in presiding over the litigation about Trump University because Curiel is of Mexican heritage and Trump proclaims he is "building a wall" between the United States and Mexico: "It’s an inherent conflict of interest.”  Trump's comments are reported in The Wall Street Journal here and The Washington Post (with video) here.

Nypl.digitalcollections.94398bd0-6987-0130-fdaa-58d385a7b928.001.wBut while this allegation of bias seems unprecedented and even alarming, the notion that judges are biased because of their identity is nothing new. 

Recall the motions and eventual ruling regarding the federal district judge who heard the same-sex marriage trial, Perry v. Schwarzenegger; there was an argument he should be disqualified when he revealed he was gay.  As the court stated, "The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself." Moreover, these allegations of bias usually seem to be leveled against persons who have not traditionally been members of the judiciary. 

This is distinct from situations such as Caperton v. Massey Coal Co., a divided opinion in which the Court's majority held that the financial campaign contributions to an elected judge on the state's highest court mandated the judge's recusal as a matter of due process when the contributor was a litigant. 

And it is distinct from the decision due this Term from the Court, Williams v. Pennsylvania, argued in February, in which the bias involves a justice on the state's highest court reviewing a habeas petition that includes allegations of prosecutorial misconduct when that justice happened to be the District Attorney.

The notion of an independent - - - and impartial - - - judiciary, whether state or federal, is fundamental, but where and how the lines should be drawn can be difficult.  Chief Justice Roberts's dissenting opinion in Caperton illustrated the difficulties of line-drawing with 40 numbered issues (often containing multiple questions). 

No one, however, seems to have argued that a litigant's beliefs, for example about Mexico, that have nothing to do with the actual matter of litigation, for example about alleged fraudulent practices at Trump University, could lead to a credible claim that of judicial bias because the judge happens to have Mexican heritage.  If this were to be the rule, then some litigants with unsavory ideas would be able to claim bias against every judge. 

 [image via]

June 3, 2016 in Courts and Judging, Current Affairs, Due Process (Substantive), Elections and Voting, News, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Saturday, May 7, 2016

Alabama Chief Justice Roy Moore Charged with Judicial Misconduct Based on Same-Sex Marriage Rulings

The continuing saga of the controversial Chief Justice of the Alabama Supreme Court, Justice Roy S. Moore, has taken another turn with a complaint against him filed by the Judicial Inquiry Commission of the State of Alabama, in the special Court of the Judiciary. [While the entire complaint is almost 300 pages, more than 250 pages are devoted to the 17 appendixes of supporting documents including opinions and letters].

As the complaint notes, this is not the first time that Justice Roy Moore has been before the Court of the Judiciary: the court removed him from office in 2003 for violation of the Alabama Canons of Judicial Ethics for failure to obey an injunction from a federal district court.  (He was re-elected in 2013.) While that earlier controversy revolved around the placement of the Ten Commandments in the courthouse, the present one concerns Justice Moore's actions on same-sex marriage.  As the complaint summarizes it, Chief Justice Moore's pertinent conduct "involves the interplay of four cases":

 The complaint gives a good chronology of the various events which have been contentious.  As we previously noted, the Southern Poverty Law Center filed a judicial ethics complaint after Chief Justice Moore penned a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order on same-sex marriage.

One of the more interesting aspects of the ethics charges is this:

On January 6, 2016—despite the United States Supreme Court's ruling in Obergefell, despite the United States District Court's injunction against all Alabama probate judges that specifically enjoined them from obeying any contrary order of the Alabama Supreme Court, and despite the Eleventh Circuit's October 20, 2015 order recognizing the abrogation of API by Obergefell—Chief Justice Moore, under the guise of his administrative authority as Chief Justice, unilaterally issued an Administrative Order to all probate judges that they continue to have a ministerial duty under API to enforce the Alabama marriage laws against same-sex couples.   His Administrative Order states in part:

IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.

[paragraph 38].  In paragraph 3, the complaint stated "Significant to the context of this matter is that the vast majority of probate judges in this state are not licensed to practice law."  However, the probate judges would be bound by the Canons of Judicial Ethics; the complaint alleges that Moore "flagrantly disregarded and abused his authority as chief administrative officer of Alabama's judicial branch by "ordering or appearing to order" the probate judges not to obey the federal district court's injunction and thus ordering the probate judges to commit violations of the Canons of Judicial Ethics "knowingly subjecting them to potential prosecution and removal from office."

Thus, it is not only Moore's own refusal to abide by federal interpretations of the United States Constitution, but his ordering of subordinates to do so that are included in the six specific charges against him, all of which involve alleged violations of Canons 1, 2, and 3 of the Alabama Canons of Judicial Ethics, which, broadly stated are:

  • Canon 1.     A judge should uphold the integrity and independence of the judiciary.
  • Canon 2.     A judge should avoid impropriety and the appearance of impropriety in all his activities.
  • Canon 3.     A judge should perform the duties of his office impartially and diligently.

Chief Justice Moore has reportedly been suspended, pending the decision of the Alabama Court of the Judiciary, which is composed of judges, lawyers, and lay persons, and has the power to remove the Justice.  Interestingly, appeal from the Alabama Court of the Judiciary is to Supreme Court of Alabama.

 

 

video via

May 7, 2016 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, State Constitutional Law, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Friday, April 22, 2016

Divided Second Circuit Upholds New York's "Maintain an Office" Requirement for Nonresident Attorneys

In the divided panel opinion in Schoenefeld v. Schneiderman,  a Second Circuit panel majority upheld the constitutionality of a requirement that attorneys who practice law in New York but do not reside within the state be required to maintain an office in New York.

The statute, N.Y. Judiciary Law §470, provides:

A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.

Schoenefeld, admitted to practice in New York but who lived in New Jersey and maintained her main office in New Jersey, wished to practice law in New York without having the expense of a separate office in New York.  She challenged §470 on several constitutional grounds.  The district judge found that the statute violated the Privileges and Immunities Clause, Art. IV, §2, cl.1.   The lack of clarity in the statute caused the Second Circuit on appeal to certify the question of the "minimum requirements" to satisfy §470 to New York's highest court.  The New York Court of Appeals answered the certified question: §470 "requires nonresident attorneys to maintain a physical office in New York."

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Syndicate and St. Paul Buildings, Highest Office Buildings in the World, New York City, 1920, via

Writing for the Second Circuit panel majority, Judge Reena Raggi, who was joined by Judge Susan Carney, concluded that §470 had no discriminatory or protectionist purpose.  Instead, §470 - - - with "its origins in an 1862 predecessor law" - - - was actually enacted to reverse a court ruling that had barred a nonresident attorney from practicing law at all given the difficulties of service of process.  Despite changes and recodifications, the majority concluded that there was no showing that the current §470 was "being maintained for a protectionist purpose."  Again, the majority found that §470 was enacted for "the nonprotectionist purpose of affording such attorneys a means to establish a physical presence in the state akin to that of resident attorneys, thereby eliminating a court‐identified service‐of‐process concern."

The majority relied in large part on the Supreme Court's unanimous 2013 decision in McBurney v. Young holding that a state can restrict its own freedom of information law, FOIA, to its own citizens without violating the Privileges and Immunities Clause. 

In his vigorous dissenting opinion, Judge Peter Hall argued that the real import of §470 is that resident attorneys need not maintain an office while nonresident attorneys must maintain an office, thus discriminating.  The next step in the analysis, Judge Hall contended, should be to consider the state's justification for such discrimination.  Judge Hall distinguished McBurney based on the "simple reason that the Virginia FOIA is not an economic regulation, nor does it directly regulate the right to pursue a common calling."  Hall's dissent criticized the majority for imposing a requirement of discriminatory intent as part of a prima facie case that would be appropriate under the Equal Protection Clause but is not under the Privileges and Immunities Clause. Moreover, Judge Hall concluded that New York's "proffered justifications for the in‐state office requirement— effectuating service of legal papers, facilitating regulatory oversight of nonresident attorneys’ fiduciary obligations, and making attorneys more accessible to New York’s courts—are plainly not sufficient."

Thus, New York can constitutionally compel attorneys who do not reside in New York to maintain a physical office in New York.

April 22, 2016 in Courts and Judging, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Wednesday, April 20, 2016

Court Says Congress Can Legislate to Impact Current Cases

The Supreme Court ruled today in Bank Markazi v. Peterson that Congress did not tread on the courts' territory in violation of the separation of powers by enacting a statute that ensured that the plaintiffs in an enforcement action would get the assets that they sought (and therefore win).

The ruling backs off the rule in United States v. Klein--that Congress can't legislate a rule of decision in a case--and thus gives somewhat wider berth to Congress (relative to Klein) to enact laws that impact currently pending cases. At the same time, however, the ruling reiterates familiar limits on Congress's authority over the judiciary.

This is the case in which over 1,000 victims of Iranian-sponsored terrorism and their families filed in the Southern District of New York to enforce their monetary judgments against Iran--through assets owned by Bank Markazi, the Central Bank of Iran, held in a New York bank account--for sponsoring terrorism.

While this claim was pending, Congress passed a law saying that, if a court makes specific findings, "a financial asset . . . shall be subject to execution . . . in order to satisfy any judgment to the extent of any compensatory damages awarded against Iran for damages for personal injury or death caused by" certain acts of terrorism. The law goes on to define available assets as "the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG), that were restrained by restraining notices and levies secured by the plaintiffs in those proceedings."

In other words, the newly enacted law, 22 U.S.C. Sec. 8772, ensured that the plaintiffs in this case would get these assets, notwithstanding the Bank's defenses.

The Bank claimed that the law violated the separation of powers--in particular, that Congress overstepped by directing the outcome of a case, in violation of United States v. Klein.

But the Supreme Court disagreed. Justice Ginsburg wrote the opinion for all but Chief Justice Roberts and Justice Sotomayor (and Justice Thomas, for a part of the opinion). She wrote that Congress may amend the law and apply the amendment to pending cases, even when the amendment is outcome determinative. She then said that's exactly what Congress did here: it wrote a law that covers all the various post-judgment execution claims that were consolidated in this case. She said it did not create a "one-case-only regime."

Justice Ginsburg also wrote that the law related to foreign policy--an area where the courts traditionally defer to the President and Congress. "The Executive has historically made case-specific sovereign-immunity determinations to which courts have deferred. Any exercise by Congress and the President of control over claims against foreign governments, as well as foreign-government-owned property in the United States, is hardly a novelty."

Along the way, Justice Ginsburg backed off on Klein. She wrote that Klein has been called "a deeply puzzling decision," and that "[m]ore recent decisions, however, have made it clear that Klein does not inhibit Congress from "amend[ing] applicable law." At the same time, she reiterated familiar limits: "Necessarily, [the courts' authority] blocks Congress from 'requir[ing] federal courts to exercise the judicial power in a manner that Article III forbids," "Congress, no doubt, 'may not usurp a court's power to interpret and apply the law to the [circumstances] before it," and "our decisions place off limits to Congress 'vest[ing] review of the decisions of Article III courts in officials of the Executive Branch.'" "Congress, we have also held, may not 'retroactively comman[d] the federal courts to reopen final judgments." Plaut v. Spendthrift Farm, Inc.

Chief Justice Roberts, joined by Justice Sotomayor, dissented. He argued, in short, "[n]o less than if it had passed a law saying 'respondents win,' Congress has decided this case by enacting a bespoke statute tailored to this case that resolves the parties' specific legal disputes to guarantee respondents victory"--and therefore violates the separation of powers.

April 20, 2016 in Cases and Case Materials, Congressional Authority, Courts and Judging, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, April 18, 2016

Fifth Circuit Finds Local Federal Rule Violates First Amendment as Applied to Attorney

In its relatively brief but important opinion in In re William Goode, the Fifth Circuit found that Western District of Louisiana Local Criminal Rule 53.5 (“L. Crim. R. 53.5”), violated the First Amendment as applied to Goode.

The rule provides:

During the trial of any criminal matter, including the period of selection of the jury, no lawyer associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial, for dissemination by any means of public communication, except that the lawyer may quote from or refer without comment to public records of the court in the case.

In Goode's situation, he was an attorney "associated" with the defense although not defense counsel in the criminal case. Instead, he was assisting the two defendants, both of whom were also attorneys. 

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image via

During the trial, one of the defendant attorneys  "suffered from a self-inflicted gunshot wound."  The prosecution stated it would not oppose a mistrial, but before the judge ordered a mistrial, Goode "gave interviews to two media outlets."  Goode contended he was under the belief that a mistrial would be granted and that a reporter had promised to hold the story until the mistrial was granted, although the story ran online before the mistrial was granted. The Chief Judge of the district later suspended Goode from practice in the district court for six months.

The Fifth Circuit discussed Gentile v. State Bar of Nevada (1991) as well as Fifth Circuit precedent that held that "prior restraints on trial participants must be narrowly tailored to only prohibit speech that has a “meaningful likelihood of materially impairing the court’s ability to conduct a fair trial.” and that the "prior restraint must also be the least restrictive means available."  The unanimous Fifth Circuit panel found that the application of the "expansive" Rule 53.5 that was applied to Goode was a prior restraint and was neither narrowly tailored nor the least restrictive means possible.

While the Fifth Circuit did not address the facial challenge and while Goode's situation has unique features, the Fifth Circuit's opinion casts the shadow of unconstitutionality on the local Rule 53.5.

April 18, 2016 in Courts and Judging, First Amendment, Speech | Permalink | Comments (0)

Thursday, April 14, 2016

California Appellate Court Finds State Teacher Tenure Statute Constitutional

In its opinion in Vergara v. California today, the Court of Appeal for the Second Appellate District of California reversed the conclusion of Los Angeles Superior Court Judge Rolf Treu that the state tenure statutes for public school teachers violate the California Constitution's provisions on equal protection and provision of education. California's so-called teacher tenure statutes challenged in the action are provisions of California's Education Code governing teacher employment, including the permanent employment statute (§44929.21(b)); dismissal statutes (§§ 4493444938(b)(l) and (2) and 44944); and a seniority statute, "Last In First Out" or "LIFO" statute (§44955).

In a nutshell, the appellate court found:

Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.

1024px-Elias_Martin_-_Reading_Lesson_at_a_Dame_School
Reading Lesson at a Dame School, by Elias Martin (1739–1818) via

The appellate court implied that the trial judge had misconstrued his constitutional task:

With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are “a good idea.” (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 388.) Additionally, our review is limited to the particular constitutional challenge that plaintiffs decided to bring. Plaintiffs brought a facial equal protection challenge, meaning they challenged the statutes themselves, not how the statutes are implemented in particular school districts. Since plaintiffs did not demonstrate that the statutes violate equal protection on their face, the judgment cannot be affirmed.

The appellate court's 36 page opinion contains a careful rehearsal of the evidence before the trial judge as well as a discussion of his opinion.  In its own analysis, the appellate court considered the plaintiffs' original contentions that:

the challenged statutes create an oversupply of grossly ineffective teachers because (i) the tenure statute’s probationary period is too short, preventing the identification of grossly ineffective teachers before the mandated deadline for reelection; (ii) when grossly ineffective tenured teachers are identified, it is functionally impossible to terminate them under the overly burdensome and complicated dismissal statutes; and (iii) when reductions-in-force are required, the statute requires the termination of junior, competent teachers while more senior, grossly ineffective teachers keep their jobs only because they have seniority. Plaintiffs argued, and the trial court agreed, that two distinct classes of students—Group 1 (an “unlucky subset” of students within the population of students at large) and Group 2 (poor and minority students)—were denied equal protection because the challenged statutes led members of these groups to be assigned to grossly ineffective teachers.

The unanimous panel found that there was no "identifiable class" for equal protection purposes:  the group of "unlucky students" who are allegedly harmed by being assigned to grossly ineffective teachers have only one defining characteristic - - - they are assigned to grossly ineffective teachers.  As for the second group - - - identified as poor and minority students - - - the appellate court found that there was insufficient causation for a facial constitutional violation: "the statutes do not differentiate by any distinguishing characteristic, including race or wealth."  While it is possible, the appellate court noted, that the plaintiffs could have shown that the implementation of the statutes inevitably resulted in "consequential assignment of disproportionately high numbers of grossly inefficient teachers to schools predominantly serving low-income and minority students," the plaintiffs here did not make such a showing.

While the appellate court recognized there were "deplorable staffing decisions made by some local administrators," this was not sufficient to support a facial challenge to teacher tenure statutes. 

The appellate decision is much better reasoned than the trial judge's opinion, which derided the "uber due process" provided by the statutes and did not elaborate on the facts and evidence.  It is likely to stand.

April 14, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Opinion Analysis, Race, Recent Cases, State Constitutional Law | Permalink | Comments (0)

Wednesday, April 13, 2016

Ninth Circuit Rejects Latest Class Action Pick-Off Strategy

The Ninth Circuit ruled today in Chen v. Allstate Insurance that a defendant's unaccepted offer of full judgment on a plaintiff's individual claim does not moot the plaintiff's individual claim, or his class action.

The ruling means that plaintiff Florencio Pacleb's individual claim and his class-action complaint against Allstate can move forward at the district court. This is a significant win for Pacleb (and other Ninth Circuit class plaintiffs) and answers a question left open by the Supreme Court.

The case arose when Pacleb filed a class-action suit against Allstate for calls he received from the insurance company on his cell phone, in violation of the Telephone Consumer Protection Act. Before Pacleb moved for class certification (and shortly after the Supreme Court handed down Campbell-Ewald), Allstate tried to pick him off (and thus undermine his class action) by depositing full monetary judgment in escrow and promising to stop making calls to his cell phone. Allstate then moved to dismiss the case as moot.

Allstate's move was a clever exploitation of an open question from Campbell-Ewald. In that case, the Supreme Court held that "an unaccepted settlement offer has no force" and does not moot a claim. But the Court left open the question "whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount." Allstate's move took up that open question.

But the Ninth Circuit didn't bite. The Ninth Circuit ruled first that Pacleb's individual claim wasn't moot, because he hadn't received full judgment. (The money was still in escrow, not in Pacleb's bank account.) The court went on to rule that circuit law allowed Pacleb to seek class certification, even if Allstate could fully satisfy Pacleb's individual claims. But the court said that even if circuit law didn't answer the question, language in Campbell-Ewald suggests that "when a defendant consents to judgment according complete relief on a named plaintiff's individual claims before certification, but fails to offer complete relief on the plaintiff's class claims, a court should not enter judgment on the individual claims, over the plaintiff's objection, before the plaintiff has had a fair opportunity to move for class certification."

In other words, a plaintiff's interest in class certification isn't satisfied by an offer of full judgment to the individual plaintiffs. And such an offer therefore doesn't moot the plaintiff's class claims.

The ruling is a victory for Pacleb and class plaintiffs in the Ninth Circuit (and maybe beyond), as it forecloses the latest pick-off gambit left open by the Supreme Court in Campbell-Ewald.

April 13, 2016 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (0)