Monday, December 11, 2017

Bray on Nationwide Injunctions

Check out Prof. Samuel L. Bray's piece, Multiple Chancellors: Reforming the National Injunction, in the Harvard Law Review. Bray argues that the national injunction--issued in key cases challenging policies of the Trump Administration and, earlier, the Obama Administration--is a recent development in equity that comes with negative consequences, including more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices in the federal courts. Bray offers a "single clear rule" for injunctions: the "plaintiff-protective injunction," which enjoins the defendant's conduct only as to the plaintiff.

December 11, 2017 in Courts and Judging, Jurisdiction of Federal Courts, News, Scholarship | Permalink | Comments (0)

Saturday, December 9, 2017

Ninth Circuit Upholds Montanta Limit on Judicial Campaign Speech

In its opinion  in French v. Jones, a unanimous Ninth Circuit panel rejected a First Amendment challenge to a Montana judicial ethics rule restricting political endorsements in campaigns.

Montana Code of Judicial Conduct 4.1(A)(7) prohibits judicial candidates from seeking, accepting, or using endorsements from a political party/organization or partisan candidate, although it does allow political parties to endorse and even provide funds to judicial candidates.  Affirming the district judge and upholding the provision's constitutionality, the Ninth Circuit opinion by Judge Jay Bybee surveys the United States Supreme Court's two opinions on the First Amendment and judicial campaign ethics - - - Republican Party of Minnesota v. White (2002) and Williams-Yulee v. Florida Bar (2015) - - - and notes that although the Supreme Court has provided "mixed guidance," the "clear shift in favor of state regulation" and "palpable change" in Williams-Yulee renders the arguments of the challengers unavailing.

220px-John_Mellor_Vanity_Fair_24_May_1873After a rehearsal of the cases, including a Ninth Circuit en banc decision, Judge Bybee applied strict scrutiny.  Montana's compelling governmental interest of "actual and perceived judicial impartiality" had been accepted in Williams-Yulee. The second interest in a "structurally independent judiciary" is also evaluated, with a supporting citation to The Federalist No. 78, and implicitly found to be even "more compelling." The major challenge, however, was that the judicial canon was not narrowly tailored because it was "fatally underinclusive." On this issue, Judge Bybee's opinion again relied on the change wrought by Williams-Yulee, quoting language disapproving on underinclusiveness.  More specifically, the court found that the interest in judicial independence was differently served by endorsements from political parties (whose use was prohibited by the canon) than by endorsements by interest groups. Likewise, the court found that permitting judicial candidates to solicit and use money from political parties was unpersuasive because endorsements are more public, although the information regarding contributions is also available to the public. 

Additionally, the court rejected the equation between the announcement prohibition in White, which was found unconstitutional, and the political party endorsement prohibition at issue.  Party endorsement is not simply "shorthand" for views. "An endorsement is a thing of value: it may attract voters' attention, jumpstart a campaign, give assurance that the candidate has been vetted, or provide legitimacy to an unknown candidate . . ."

The court also rejected the argument that Montana did not show political endorsements cause harm noting that such an argument could lead to a finding that Montana's choice of nonpartisan judicial elections was itself unconstitutional.  Moreover, the elimination of judicial elections entirely is not a less restrictive means consistent with Williams-Yulee.

Although Williams-Yulee was a closely divided case and its reasoning not entirely clear, it provides the basis on which courts are upholding judicial campaigning restrictions.

December 9, 2017 in Campaign Finance, Courts and Judging, Elections and Voting, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Monday, December 4, 2017

Preview of Masterpiece Cakeshop Argument on First Amendment Challenge to Anti-Discrimination Statute

Set for oral argument Tuesday, December 5, 2017, the high visibility case of  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission can be seen as a clash of constitutional principles of individual conscience vs. equality, or as a federalism case, or as part of the backlash to LGBTQ rights, or as part of the rise of religiously-motivated challenges to secular laws.

Recall that a cake-maker seeks the right to refuse to make a cake for a same-sex wedding, asserting an exemption from Colorado's anti-discrimination law on the basis of the First Amendment's Free Speech and Free Exercise Clauses. In the state proceedings, the Colorado Administrative Law Judge (ALJ) rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'" On the Free Exercise claim, the ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test.   A Colorado appellate court affirmed in a lengthy opinion, rejecting the First Amendment claims.

Chocolate_Cake_Flourless_(1)On the First Amendment speech claim, the initial hurdle for the cakemaker is establishing that the cake constitutes speech.  The cakemaker argues that he is a "cake artist." The Court has held that symbolic speech needs to convey a particularized and understood message, Spence v. Washington (1974), but that includes the "unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll," Hurley v. Irish American Gay Group of Boston (1995).  The cakemaker has also argued that the cake itself is so central to the wedding as to be a participant. Thus, the cakemaker as business owner should be able to refuse to make cakes for events with which he disagrees otherwise his speech is being compelled, akin to the landmark flag salute case of West Virginia Bd. of Ed. v. Barnette (1943). 

On the religious claim, the cakemaker essentially argues that the Colorado anti-discrimination law is not a law of neutral and general applicability because it includes sexual orientation as a protected ground and therefore targets (certain) religions, and thus strict scrutiny applies.

On both claims, the oral arguments will most likely include explorations of the slippery slopes.  If the cake is art, then what about restaurant dinners? Photography? Bed and breakfasts?  If the cake is akin to a participant in the wedding celebration, then would the rule extend to birthdays? And can the exemption for individual conscience be limited to sexual orientation?  What about race? Ethnicity or national origin? Gender?

There are a little less than 50 amicus briefs on each side.  The Court has allowed the Solicitor General of the United States to participate in oral argument on the side of the cakemaker, and for the respondents (the Colorado Civil Rights Commission and the original would-be customers) to both participate.

The case has attracted extensive commentary (here's a good round-up by Edith Roberts on SCOTUSBlog) and there is certainly much more to come.

December 4, 2017 in Courts and Judging, Family, Federalism, First Amendment, Food and Drink, Recent Cases, Religion, Speech, Supreme Court (US) | Permalink | Comments (0)

Sunday, November 26, 2017

Greenhouse on Calabresi's Court-Packing Plan

Check out Linda Greenhouse's review in the NYT of Prof. Steven Calabresi's piece, Proposed Judgeship Bill. Calabresi argues that Congress should "immediately pass a judgeship bill funding new federal judgeships for the federal courts of appeals and the federal district courts" in order to meet the "woefully understaffed" federal courts. (Greenhouse wrote that she learned of the piece from a post at Think Progress.)

Greenhouse says that Calabresi's piece, styled as a "Memorandum to the Senate and the House of Representatives," is a "head-snapping" effort to stack the lower federal courts with conservatives. She also argues that it's based on a false premise that there's a workload crisis in the lower federal courts. (There isn't a crisis, she says, or at least not a new one. Federal appeals have remained more-or-less steady for the last decade.)

Calabresi also argues that administrative law judges should be eliminated and replaced with Article III administrative law judges.

He says that Congress should make these changes in the currently pending Reconciliation Bill, "because that Bill cannot be filibustered in the Senate."

November 26, 2017 in Courts and Judging, News | Permalink | Comments (0)

Monday, November 13, 2017

SCOTUS Grants Certiorari on First Amendment Challenge to California's Regulation of "Crisis Pregnancy Centers"

The United States Supreme Court has granted certiorari in National Institute of Family and Life Advocates (NIFLA) v. Becerra to the Ninth Circuit's opinion  upholding the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act).  The California law requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California.  The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”

Ann_Agnes_Bernatitus
Recall
that affirming the district judge, the unanimous Ninth Circuit panel rejected both the free speech and free exercise of religion claims advanced by NIFLA in seeking a preliminary injunction.  After finding that the challenge was justiciable as ripe, the panel opinion, authored by Judge Dorothy W. Nelson, first considered the free speech challenge which is at the center of the case.  The panel concluded that the California statute's requirement of disclosure of state-funded services merited intermediate scrutiny under the First Amendment, which it survived, and that the unlicensed disclosure requirement survived any level of scrutiny.  The Ninth Circuit rejected the argument that the FACT Act was viewpoint-discrimination subject to strict scrutiny. The Ninth Circuit did agree with the challengers that the disclosure requirement was content-based, but held that not all content-based regulations merit strict scrutiny under Reed v. Town of Gilbert (2015). The court looked back to Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), noting that it did not announce a standard for abortion-related disclosure and applied Ninth Circuit precedent of Pickup v. Brown (2013) in which the court upheld a California statute banning conversion therapy under a "professional speech" intermediate standard of scrutiny. The panel upheld the statute applying intermediate scrutiny.

The Ninth Circuit ruling is at odds with other opinions, including, as the opinion noted, the Second Circuit in Evergreen Ass’n, Inc. v. City of N.Y.(2014) and the Fourth Circuit en banc in Centro Tepeyac v. Montgomery Cty. (2013) applied strict scrutiny and held similar provisions unconstitutional because there were other means available to inform pregnant women, including advertising campaigns.  Thus, it is this circuit split that will inform the United States Supreme Court arguments.

The Supreme Court's decision should resolve the debate concerning state regulation of crisis pregnancy centers but could also be much broader concerning so-called professional speech.

 

 

November 13, 2017 in Abortion, Courts and Judging, First Amendment, Recent Cases, Speech, Supreme Court (US) | Permalink | Comments (0)

Tuesday, October 24, 2017

No Surprise: SCOTUS Vacates Trump v. Hawai'i Travel Ban Certiorari

In an Order today the Court brought the litigation in Hawai'i v. Trump on Muslim Ban/Travel ban 2.0 to a close. The Order provides:

We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens and refugees under Section 2(c) and Section 6 of Executive Order No. 13,780. Because those provisions of the Order have “expired by [their] own terms,” the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.

This Order replicates the Court's previous dismissal in IRAP v. Trump on October 10.

This does not end litigation on the issues.

Recall that so-called Muslim Ban/Travel Ban 2.0 has been replaced by so-called Muslim Ban/Travel Ban 3.0, Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017.  Like the previous iterations, this has been enjoined by federal judges in Hawai'i (Hawai'i v. Trump) and in Maryland (IRAP v. Trump).

 

October 24, 2017 in Courts and Judging, Current Affairs, Establishment Clause, Executive Authority, First Amendment, Fundamental Rights, Race, Recent Cases, Religion | Permalink | Comments (0)

Wednesday, October 18, 2017

Second Federal District Judge Issues Preliminary Injunction on Muslim Ban 3.0

 A few hours after Hawai'i District Judge Derrick Watson granted a nationwide preliminary injunction in Hawai'i v. Trump in an extensive order based largely on statutory grounds, Maryland District Judge Theodore Chuang has also issued a nationwide injunction against the so-called "Muslim Ban 3.0" in an almost 100 page opinion  in International Refugee Assistance Project (IRAP) v. Trump

Recall that Judge Chuang had issued an injunction against the enforcement of Muslim Ban 2.0, which the en banc Fourth Circuit had affirmed finding that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order. The United States Supreme Court, having granted certiorari to the case (as well as Hawai'i v. Trump), had recently vacated the Fourth Circuit opinion given the Government's suspension of version 2.0 of the "Muslim Ban" (President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), with Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017, known colloquially as "Muslim Ban" or "Travel Ban" or EO "3.0."

In short, although there are some differences in this third iteration, including the addition of nationals from the countries of Chad, North Korea, and Venezuela, as well as Iran, Libya, Somalia, Syria, Yemen, Judge Chuang concluded that "Muslim Ban 3.0" suffered from the same constitutional infirmities as the previous bans.

Judge Chuang found that the Plaintiffs had standing and that parts on the Proclamation conflicted with the Immigration and Nationality Act, similar to the conclusions of Judge Watson in Hawai'i v. Trump. However, because the statutory claims were not sufficient to enjoin the challenge to nonimmigrantion visas, Judge Chuang proceeded to the constitutional claims.

On the Establishment Clause challenge, Judge Chuang ultimately concluded that the Plaintiffs had a likelihood of prevailing on the merits.  The central question, as it had been previously, is the extent to which the President's motivation is a "Muslim Ban" and thus comes within the First Amendment's prohibition as most exemplified by McCreary County. v. ACLU of Kentucky (2005) and the first prong of the well-established test from Lemon v. Kurtzman (1971), essentially requiring a government act to have a secular purpose.  Given that courts had previously held that the two previous iterations of the travel ban were motivated by anti-Muslim sentiment, Judge Chuang considered whether this new Proclamation was still tainted by that motivation or if it had been replaced by nuetral considerations such as national security.  The "taint" does not persist forever, but neither should courts be "absentminded" as to the context.

Judge Chuang wrote:

Thus, while Defendants assert that the Proclamation’s travel ban was arrived at through the routine operations of the government bureaucracy, the public was witness to a different genealogy, one in which the President—speaking “straight to the American people,” — announced his intention to go back to and get even tougher than in EO-1 and EO-2. Notably, the June 5 tweet calling for a “much tougher version” reveals that even before President Trump had received any reports on the DHS Review that ostensibly identified the need for a travel ban, the first of which he received over a month later on July 9, 2017, the President had already decided that the travel ban would continue. His September 15, 2017 tweet calling for a “far larger, tougher” travel ban, issued the same day that that the final report was received, reinforced this position. . . . [The President's] statements

Here, those statements do not offer “persuasive” rejection of the President’s prior calls for a Muslim ban, or his stated intention to use a ban on certain “dangerous territory” to effectuate a Muslim ban, nor do they show that the stated intention to impose a Muslim ban has been “repealed or otherwise repudiated.”  Rather, they cast the Proclamation as the inextricable re-animation of the twice-enjoined Muslim ban, and, in echoes of McCreary, convey the message that the third iteration of the ban—no longer temporary—will be the “enhanced expression” of the earlier ones.

[citations omitted].  Thus, Judge Chuang concluded that

where the Proclamation itself is not sufficiently independent of EO-2 to signal a purposeful, persuasive change in the primary purpose of the travel ban, and there were no other public signs that “as persuasively” as the original violation established a different primary purpose for the travel ban, it cannot find that a “reasonable observer” would understand that the primary purpose of the Proclamation’s travel ban is no longer the desire to impose a Muslim ban.

Having concluded that the Plaintiffs would likely prevail on the merits of the First Amendment claim, Judge Chuang did not discuss the Equal Protection challenge.

Judge Chuang issued an Order enjoining enforcement of section 2 of the Proclamation.

Like the injunction issued in Hawai'i v. Trump, this is sure to be appealed by the Trump Administration.

 

October 18, 2017 in Courts and Judging, Current Affairs, Establishment Clause, First Amendment, Opinion Analysis, Race, Religion | Permalink | Comments (0)

Tuesday, October 17, 2017

Federal District Judge Issues Preliminary Injunction on "Muslim Ban 3.0"

In the third iteration of the "Muslim Ban" or "Travel Ban" before the courts, federal District Judge Derrick Watson has issued an Order  granting a nationwide preliminary injunction in Hawai'i v. Trump.

Recall that Judge Watson previously issued a preliminary injunction in Hawai'i v. Trump regarding a previous incarnation of the travel ban and that the United States Supreme Court has not yet disposed of the case to which it granted certiorari although it did vacate a similar Fourth Circuit case.

In today's Order and Opinion, Judge Watson began pointedly:

Professional athletes mirror the federal government in this respect: they operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue. And so it goes with EO-3.

The constitutional issues before the court involved standing of the States and of the individual plaintiffs. Given that the judge had previously held there was standing and there had been no substantial changes, Judge Watson unsurprisingly held there was standing. Judge Watson also held the claims were ripe and justiciable, rejecting the government's "troubling" contentions that the statutory challenges were not reviewable.

Judge Watson rests the likelihood to succeed on the merits conclusion on the statutory claims and did not discuss any constitutional issues.  However, embedded in the statutory analysis is the question of Executive powers.  For Judge Watson, EO-3 "improperly uses nationality as a proxy for risk" and its findings are "inconsistent with and do not fit the restrictions that the order actually imposes."

Judge Watson repeats the Plaintiffs' assertion that the President has never repudiated his early calls for a Muslim ban and that the "record has only gotten worse." In support, the Order's footnote 9 reads:

For example, on June 5, 2017, “the President endorsed the ‘original Travel Ban’ in a series of tweets in which he complained about how the Justice Department had submitted a ‘watered down, politically correct version’” to the Supreme Court. TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:29 AM EDT) https://goo.gl/dPiDBu). He further tweeted: “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:25 AM EDT), https://goo.gl/9fsD9K). He later added: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20 PM EDT), https://goo.gl/VGaJ7z). Plaintiffs also point to “remarks made on the day that EO-3 was released, [in which] the President stated: ‘The travel ban: The tougher, the better.’” TAC ¶ 94 (quoting The White House, Office of the Press Sec’y, Press Gaggle by President Trump, Morristown Municipal Airport, 9/24/2017 (Sept. 24, 2017), https://goo.gl/R8DnJq).

Judge Watson enjoined the federal defendants from

"enforcing or implementing Sections 2(a), (b), (c), (e), (g), and (h) of the Proclamation issued on September 24, 2017, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court."

The Judge also preemptively denied a stay in the case of emergency appeal - - - which will surely follow.

 

 

October 17, 2017 in Courts and Judging, Current Affairs, Executive Authority, Foreign Affairs, Opinion Analysis, Race, Recent Cases, Standing | Permalink | Comments (0)

Daily Read: SCOTUS and Mistakes of Fact

In a report for Pro Publica, Ryan Gabrielson discusses the underlying truth claims in some recent United States Supreme Court opinions and finds them inaccurate.

Perhaps most worrisome is from Chief Justice Roberts's opinion for the Court in the 2013 closely divided case declaring a provision of the Voting Rights Act unconstitutional, Shelby County v. Holder. Gabrielson writes that Chief Justice Roberts

called the “extraordinary and unprecedented” requirements of the Voting Rights Act outdated and unfair.

To illustrate his point, Roberts constructed a chart and published it in the body of the opinion. It compared voter registration rates for whites and blacks from 1965 and 2004 in the six southern states subject to special oversight. Roberts assembled his chart from data in congressional reports produced when lawmakers last renewed the act. The data displayed clearly that registration gaps between blacks and whites had shrunk dramatically.

But some of the numbers Roberts included in his chart were wrong.

Additionally, Gabrielson notes that Roberts's chart "did not use generally accepted definitions of race."

Roberts, whose recent dismissal of statistical reality in the oral argument in another voting case, Gill v. Whitford, attracted attention,  is not the only Justice to be highlighted in the Pro Publica article and not only for nonlegal matters.  Justice Kennedy, writing in another closely divided case, United States v. Windsor, also in 2013, inaccurately discussed the number of states that prohibited marriage between cousins. Kennedy wrote:

 “most States permit first cousins to marry, but a handful — such as Iowa and Washington ... prohibit the practice.” Kennedy listed only the two states’ marriage statutes as sources.

The primary elements of his statement are false. Half the states prohibit marriages between first cousins, Iowa and Washington among them.

Whether or not such inaccuracies are central to judicial reasoning is certainly debatable.  Whether or such inaccuracies sully judicial reputation is less so.

 

October 17, 2017 in Courts and Judging, Recent Cases, Scholarship, Supreme Court (US) | Permalink | Comments (0)

Wednesday, October 11, 2017

Ninth Circuit Denies En Banc Review for Berkeley Ordinance Requiring Cell Phone Retail Disclosures

In an Order of denial of en banc review in CTIA- The Wireless Ass'n v. City of Berkeley, a concurring opinion by the original majority judges and a dissenting opinion demonstrate the continuing controversies surrounding the constitutionality of compelled commercial speech.

Recall that the original panel opinion in April upheld the constitutionality of Berkeley's mandated notice to purchasers of cell phones regarding exposure to RF radiation.  The First Amendment issue was the controversial choice of standards in compelled disclosure in a commercial context: is the correct standard the commercial speech test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) or the more lenient test for disclosure of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985)? A majority of the panel, affirming the district judge, held that Zauderer applied.

In the denial of rehearing and the denial of en banc review, the original panel judges in the majority, Fletcher and Christen,wrote briefly to rearticulate their views. While they stated their panel opinion "largely speaks for itself," they stressed that their opinion was consistent with other circuits.  The opinion has a thorough yet succinct list of the cases in this area. They concluded that:

Our colleague would have us create a circuit split with the D.C., First, Second and Sixth Circuits. We decline to do so on two grounds. First, circuit splits are generally to be avoided. Second, and more important, we believe that our four sister circuits got it right.

Writing a dissenting opinion from the denial of en banc was not Judge Friedland of the original panel - - - who did vote for rehearing - - - but Judge Kim Wardlaw, who wrote that although she does not ordinarily file "dissentals" (quotes in original), she believes that the Ninth Circuit should clarify that Zauderer's rational basis standard should apply only when the government compels speech to prevent consumer deception. She discussed the recent Ninth Circuit panel decision finding  warnings about sugary drinks violated the First Amendment. She argued that there was the potential for conflicting results as "district judges to make essentially factual judgments about a disclosure’s veracity and its burden on a business even before the parties have developed an evidentiary record." 

Judge Wardlaw concluded by stating that she is "looking forward" to  the next compelled disclosure case.  Most likely, she will not have too long to wait as this continues to be a contentious issue. 

October 11, 2017 in Courts and Judging, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Daily Read: American Sociological Ass'n Takes Issue With CJ Roberts

 In an open letter to Chief Justice Roberts, the President of the American Sociological Association, Eduardo Bonilla-Silva, responded to the Roberts's comment during the Gill v. Whitford oral argument that social science data regarding partisan gerrymandering was "sociological gobbledygook." 

After noting that during the oral argument "Justices Kagan and Sotomayor subsequently expressed concern about your statement and spoke to the value of social science measures," President Bonilla-Silva continued:

In an era when facts are often dismissed as “fake news,” we are particularly concerned about a person of your stature suggesting to the public that scientific measurement is not valid or reliable and that expertise should not be trusted.  What you call “gobbledygook” is rigorous and empirical.  The following are just a few examples of the contributions of sociological research to American society that our members offered in response to your comment:

  • Clear evidence that separate is not equal
  • Early algorithms for detecting credit card fraud
  • Mapped connections between racism and physiologic stress response
  • Network analysis to identify and thwart terror structures and capture terrorists
  • Pay grades and reward systems that improve retention among enlisted soldiers
  • Modern public opinion polling
  • Evidence of gender discrimination in the workplace
  • Understanding of the family factors that impact outcomes for children
  • Guidance for police in defusing high-risk encounters
  • Strategies for combatting the public health challenge of drug abuse

ExplorePresident Bonilla-Silva also offered additional training for Chief Justice Roberts:

Should you be interested in enhancing your education in this area, we would be glad to put together a group of nationally and internationally renowned sociologists to meet with you and your staff. Given the important ways in which sociological data can and has informed thoughtful decision-making from the bench, such time would be well spent.

Indeed, during the oral argument Chief Justice Roberts did comment that his "goobledygook" perspective might be attributable to "simply my educational background." 

There has not yet been a reported response from the Chief Justice.

October 11, 2017 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Elections and Voting, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (1)

Thursday, September 28, 2017

Greenhouse on the Travel Ban Case

Check out Linda Greenhouse's take on the travel ban case at the NYT, the case's likely mootness, and what it all means. Here's a link to Robert Loeb's piece at Lawfare (cited by Greenhouse) on the "presumption of regularity"--the basis for the administration's argument that the Court should grant it deference, and not look behind the stated purposes of the travel ban to the President's and surrogates' anti-Muslim statements.

September 28, 2017 in Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Friday, September 22, 2017

Court Rebuffs Challenge to New Jersey's Bail Reform Law

Judge Jerome B. Simandle (D.N.J.) today declined to halt New Jersey's bail-reform law. The law provides for alternative, non-monetary pretrial release options in order to give poor defendants (who often can't afford bail) a shot at pretrial release while still serving other criminal justice interests. The plaintiffs in the case argued that the law violated the Eighth Amendment, due process, and the Fourth Amendment.

The preliminary ruling, denying the plaintiffs' motion for a preliminary injunction, leaves the law in place, for now. But today's order isn't a final ruling on the merits.

The plaintiffs lawyered-up big time (Paul Clement appeared pro hac), suggesting that this is just the first step in their aggressive challenge to New Jersey's law. One reason for the attention to the case: Taking money out of the bail system also takes away a stream of revenue from corporations like plaintiff Lexington National Insurance Corporation. As more jurisdictions look to non-monetary bail options to avoid keeping poor, nonviolent defendants behind bars pending trial, bail providers stand to lose even more.

The New Jersey bail-reform law sets up a five-stage, hierarchical process for courts to follow in setting bail. It allows for pretrial release of certain defendants with non-monetary conditions, like remaining in the custody of a particular person, reporting to a designated law enforcement agency, home supervision with a monitoring device, and the like. In order to help navigate the process for any particular defendant, the court gets risk-assessment recommendations from a Pretrial Services Program. According to the court, in less than a year under this system, "[t]his reform has shown great success in placing persons into pretrial release who would previously have been held in jail for failure to meet monetary bail and because pretrial monitoring options were largely unavailable. As a result, many fewer defendants are being detained in jail as they await trial."

Using this system, a New Jersey court ordered plaintiff Brittan Holland released, but subject to home confinement (except for work), with an ankle bracelet for monitoring, weekly reporting, and no contact with the victim. (Holland was charged with second-degree aggravated assault and agreed to these conditions on his release in exchange for the state withdrawing its application for detention.)

Holland argued that the system deprived him of a right to have monetary bail considered as a primary condition of release, and that as a result his conditions amount to an undue restraint on his liberty. (He said that the conditions "severely restricted [his] liberty, disrupted [his] family life, made [him] concerned about [his] job security, and made [him] feel that [his] life is up in the air.") Plaintiff Lexington, a national underwriter of bail bonds, joined, arguing that the system would cause it to lose money.

The court ruled first that Holland had standing, but that Lexington probably did not. Here's how the court explained Holland's standing:

Holland claims that his injury is not simply the restriction on his liberty, but rather the imposition of that restriction after a hearing that violated his rights under the Fourth, Eighth, and Fourteenth Amendments. He claims that such injury will be sufficiently redressed should the Court order that a hearing respecting those constitutional rights (as he understands them) be held, regardless of the ultimate outcome of such a hearing. Should the Court order such a hearing to be held, the relief then would not be speculative. He claims that he was injured by the holding of a hearing that did not afford him his constitutional rights, including the alleged right to have monetary bail considered as a primary condition of release pending trial, and that ordering a new hearing that does afford him those rights will redress that injury.

As to Lexington, the court said that it failed to establish standing for itself (because it could only assert harms of a third party, someone like Holland), and that it likely failed to establish third-party standing (because criminal defendants don't face any obstacles in bringing their own claims--obviously, in light of Holland's participation in the suit). (The state also argued that Lexington lacked prudential standing, because its injury doesn't fall within the zone of interests of the statute. The court said that the state could raise that argument later, as part of a failure-to-state-a-claim argument.)

Next, the court said that Younger abstention was inappropriate, because "[p]laintiffs, here, do not seek to enjoin the state prosecution against Holland; instead, they challenge the procedure by which the conditions of pre-trial release during that prosecution was decided and seek an injunction ordering a different procedure."

As to the merits, the court held that the plaintiffs were unlikely to success on all claims. The court said that the Eighth Amendment doesn't guarantee monetary bail, and that Holland waived his right to it, anyway. It said that Holland received procedural due process, and that he had no right to monetary bail under substantive due process. And it said that conditions were reasonable under the Fourth Amendment, and, again, that Holland agreed to them, anyway.

September 22, 2017 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Standing | Permalink | Comments (1)

Wednesday, September 20, 2017

Arizona Supreme Court Accords Parental Status to Same-Sex Married Partner

 In its opinion in McLaughlin v. McLaughlin (Jones), the Arizona Supreme Court interpreted the United States Constitution to require that the statutory presumption of parentage applies to a woman in a same-sex marriage in the same way as would to a man in a different-sex marriage.

The Arizona Supreme Court relied on the United States Supreme Court's 2015 decision in Obergefell v. Hodges as well as the Court's per curiam opinion a few months ago in Pavan v. Smithreversing the Arkansas Supreme Court's divided decision to deny a same-sex parent's name be listed on the child's birth certificate.  The Arizona Supreme Court in McLaughlin, echoing Pavan, quoted Obergefell as constitutionally requiring same-sex married couples be afforded the “constellation of benefits the States have linked to marriage.”

The majority opinion of the Arizona Supreme Court, authored by Chief Justice Scott Bales, rejected the interpretation of Obergefell advanced by Kimberly McLaughlin, the biological mother, that "Obergefell does not require extending statutory benefits linked to marriage to include same-sex couples; rather, it only invalidates laws prohibiting same-sex marriage."  Instead, Chief Justice Bales wrote that that such a "constricted reading is precluded by Obergefell itself ad the Supreme Court's recent decision in Pavan v. Smith."  Moreover, as in Pavan, the statute itself did not rest on biology but sought to sideline it.  The marital presumption assigns paternity based on marriage to the birth mother, not biological relationship to the child.  Thus, any differential treatment cannot be justified and the statute was unconstitutional as applied.

As a remedy, Judge Bales' opinion concluded that the extension of the presumption rather than striking the presumption was proper, relying on yet distinguishing the Court's recent decision in Sessions v. Morales-Santana.  It was on this issue that one Justice dissented, contending that the court was rewriting the statute.  Two other Justices wrote separately to concur on the remedy issue, noting that the majority must follow the United States Supreme Court and "circumstances require us to drive a remedial square peg into a statutory round hole," but "nothing in the majority opinion prevents the legislature from fashioning a broader or more suitable solution by amending or revoking" the statute.

Perhaps the Arizona legislature will see fit to abolish the marital presumption for all children?

1600px-Fountain_of_the_Mothers_of_Macedonia

 image via

 

September 20, 2017 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)

Wednesday, September 6, 2017

States Challenge DACA Rescission in New York v. Trump

 In a Complaint filed today in the Eastern District of New York in New York v. Trump, fifteen states and the District of Columbia have challenged the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood.  The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, and is now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky.  The complaint describes the rescission as "animus-driven."

The first two causes of action of the five total causes of action in the 58 page Complaint allege constitutional infirmities. 

The first cause of action is based on the Equal Protection component of the Due Process Clause of the Fifth Amendment, and alleges that the rescission targets individuals based on their national origin and is based, at least in part, by the desire to harm a particular group. Paragraphs 239-252 detail the statements by Trump, both as a candidate and as President, expressing anti-Mexican sentiments.  Part of these allegations include the controversial pardon of former Maricopa County, Arizona Sheriff Joe Arpaio. As for the timing of the rescission, the complaint also contains allegations regarding Texas, alleging that a "demand that President Trump eliminate DACA is part of a history of intentional discrimination against Latinos/Hispanics by the State of Texas" (¶256) and then detailing federal court findings that Texas has been found liable for "engaging in unlawful discrimination based on race and/or national origin."  Among the cases cited is the recent Perez v. Abbott concerning redistricting.

The second cause of action sounds in Due Process, arguing a breach of "fundamental fairness" relating to information use.  Specifically, ¶278 avers:

Given the federal government’s representations about the allowable uses of information provided by DACA applicants, a refusal to prohibit the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non-citizens, is fundamentally unfair.

Two other causes of action relate to the Administrative Procedure Act - - - arbitrary and capricious action and failure to follow notice and comment - - - while the final cause of action is based on the Regulatory Flexibility Act, requiring federal agencies to "analyze the impact of rules they promulgate on small entities and publish initial and final versions of those analyses for comment."

The extensive allegations in the complaint by individual states include statements regarding each state's harm if DACA were rescinded in an effort to establish each state's standing.  In addition to New York, the plaintiffs are Massachusetts, Washington, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia. Generally, the allegations pertaining to each states detail the effect on their state colleges and universities, state companies, and state economies.

The complaint is a serious challenge to the DACA rescission and in some ways is similar to the ongoing state challenges to the so-called Muslim travel ban, another highly controversial Trump administration action still in litigation.

Rally_Against_the_Immigration_Ban_(32487618142)[image via]

 UPDATE: Additional complaints discussed here.

September 6, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Fifth Amendment, Standing | Permalink | Comments (0)

Sunday, September 3, 2017

Tenth Circuit Recognizes Substantive Due Process Right for Child Placed in Father's Custody

 In its unanimous panel opinion in D.T. v. Patton (and the Denver Department of Health and Human Services), the Tenth Circuit recognized a claim for substantive due process and rejected qualified immunity based on a social worker's removal of the adolescent child, D.T., from his mother and recommending to the court that D.T. be placed with his father, who sexually abused him.

The court distinguished the landmark case of DeShaney v. Winnebago County Department of Social Services (1989), in which the United States Supreme Court held, in somewhat similar circumstances, that state officials are not liable for private-violence under the Fourteenth Amendment.  The court relied on the "danger-creation" exception to the DeShaney doctrine, which allows liability if  a state actor affirmatively acts to create, or increase a plaintiff’s vulnerability to, danger from private violence." The court cited the Tenth Circuit's 2001 decision in Currier v. Doran, noting that "all circuits" have carved out a similar exception (in addition to the special-relationship exception), although the United States Supreme Court has not ruled on such exceptions.  

Writing for the majority, Judge Scott Matheson extensive opinion discussed both DeShaney and Currier, including the elements developed in Currier:

  • the charged state entity and the charged individual actors created the danger or increased plaintiff’s vulnerability to the danger in some way;
  • plaintiff was a member of a limited and specifically definable group;
  • defendants’ conduct put plaintiff at substantial risk of serious, immediate, and proximate harm;
  • the risk was obvious or known;
  • defendants acted recklessly in conscious disregard of that risk; and
  • such conduct, when viewed in total, is conscience shocking.

Candlelight_Master_Young_Boy_SingingJudge Matheson's opinion then analyzed analyzed each of these.  Of central importance was the fact that the social worker knew of the father's previous conviction of attempted sexual assault on a minor, his step-daughter, as well as the father's violation of probation for contacting her and his failure to fulfill his sex offender treatment with regard to that conviction, in addition to "other charged offenses including misdemeanor wrongs to minors and misdemeanor domestic violence."  The social worker omitted these facts as well as her concerns about them from the court because of her supervisor's comments and her resultant fear she would be terminated from her employment if she shared these facts.  Moreover, she failed to investigate D.T.'s situation once he was placed in his father's home, and recorded her visits to the home that did not actually occur.

On qualified immunity, the court found that Currier clearly established a right that she violated. The court rejected the social worker's arguments attempting to draw lines between her pre-placement and post-placement conduct. The court also rejected the social worker's claims to avoid responsibility by sharing it with her "team" or assigning it to her supervisor.  The court found that she was the major actor and withheld facts from her team.  And while her supervisor might also be liable,

Ms. Patton’s reasons for deleting parts of her initial report to the juvenile court that outlined her concerns about T.D.’s placement with Mr. Duerson (i.e., to avoid being fired) support that she knew of the danger posed to T.D. in Mr. Duerson’s home and that she consciously disregarded that risk.

The court thus affirmed the grant of summary judgment to D.T. by the district judge.

Concurring, Judge Mary Beck Briscoe, who has been on the Tenth Circuit since 1995, expressed her belief that Currier was wrongly decided in 2001 and conflicts with DeShaney. For Judge Briscoe,

As a general matter, I find it hard to conclude that a social worker can be “responsible for” the independent decision of a judge who ultimately orders a change of custody. But, even if we assume such responsibility exists, we cannot transform omissions or failures to act into affirmative conduct merely by considering them “in the general context of” a custody recommendation. The only affirmative act that could be found in Currier is the recommendation itself, which, in my view is no different from the affirmative recommendation in DeShaney that Joshua be returned to his father’s custody. . . . This makes the state the permanent guarantor of a child's safety.

Yet the United States Supreme Court failed to grant certiorari in Currier and there is little here to make it likely that a petition for certiorari would not have the same result.

[image "Young Boy Singing" circa 1650 via]

 

September 3, 2017 in Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Opinion Analysis, Sexuality | Permalink | Comments (0)

Tuesday, August 22, 2017

District Judge Finds Arizona Anti-Ethnic Studies Law Violates Fourteenth and First Amendments

 In his opinion in González v. Douglas, United States Circuit Judge A. Wallace Tashima, sitting by designation in the District of Arizona, found that Arizona Revised Statutes §§15-111 and 15-112, the so-called anti-ethnic studies law eliminating the Tucson Unified School District's Mexican-American Studies (MAS) program violated the Fourteenth and First Amendments.

Recall that the law, passed in 2010, prohibits any school or charter school from including in its program of instruction any courses or classes that:

  • Promote resentment toward a race or class of people; 
  • Are designed primarily for pupils of a particular ethnic group; or
  • Advocate ethnic solidarity instead of the treatment of pupils as individuals

Recall also that in 2013, Judge Tashima upheld most of the statute in a facial challenge based on the First and Fourteenth Amendments on summary judgment.

On appeal, in Arce v. Douglas, the Ninth Circuit concluded that subsections (3) and (4) of the statute, while not facially discriminatory, raised Equal Protection Clause issues because of evidence of their discriminatory purpose in enactment or enforcement, and found there might be First Amendment viewpoint discrimination, and remanded the case.

In his opinion on remand, Judge Tashima found both an equal protection and First Amendment violation after a non-jury trial in an opinion with extensive findings of fact. As the Ninth Circuit had instructed, Judge Tashima considered the equal protection issue regarding racial intent in light of the Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997) factors:

  • (1) the impact of the official action and whether it bears more heavily on one race than another;
  • (2) the historical background of the decision;
  • (3) the specific sequence of events leading to the challenged action;
  • (4) the defendant’s departures from normal procedures or substantive conclusions; and
  • (5) the relevant legislative or administrative history.

Judge Tashima's opinion carefully analyzes each of the factors. He noted that the anonymous blog posts of  then-Senator John Huppenthal, who  was chairman of the Senate Education Accountability and Reform Committee at the time the statute was passed, were "the most important and direct evidence that racial animus infected the decision to enact A.R.S. § 15-112." Judge Tashima rejected the defendants' argument that Huppenthal’s public statements, which were facially neutral as to race, should be considered more probative of his true intent. Instead,

The blog comments are more revealing of Huppenthal’s state-of-mind than his public statements because the guise of anonymity provided Huppenthal with a seeming safe-harbor to speak plainly. Huppenthal’s use of pseudonyms also shows consciousness of guilt. Had Huppenthal, a public official speaking in a public forum on a public issue, felt that his inflammatory statements were appropriate, he would not have hidden his identity. 


 In looking at the legislative history, Judge Tashima also focused on Huppenthal, who along with other officials used "code words" to refer to Mexican-Americans.  These code words included “Raza,” “un-American,” “radical,” “communist,” “Aztlán,” and “M.E.Ch.a,” were employed as derogatory terms. "In Huppenthal’s own words, the term “Raza” became “shorthand for . . . communicating with Republican primary voters” in the Tucson community." Then, considering the application of the statute to the Tucson program, Judge Tashima noted that Huppenthal had become Superintendent of Public Instruction, with an enforcement process rife with irregularities.  Essentially, it seemed that Huppenthal and other officials, believed they knew what really happened in the classrooms, with no need to investigate or believe evidence contrary to their preconceived notions.  In sum, "the passage and enforcement of the law against the MAS program were motivated by anti-Mexican-American attitudes."

On the First Amendment claim, Judge Tashima relied upon Island Trees Union Free Sch. Dist. No. 26 v. Pico (1982), that there may be a  First Amendment violation if the reasons offered by the state, "though pedagogically legitimate on their face, in fact serve to mask other illicit motivations."  Judge Tashima found that while the "stated policy" of the statute was to "reduce racism in schools, which is a legitimate pedagogical objective," the plaintiffs' argument that this was only a pretextual objective, and that the "statute was in fact enacted and enforced for narrowly political, partisan, and racist reasons was valid, "because both enactment and enforcement were motivated by racial animus" as found in deciding the Fourteenth Amendment claim.

 Given the previous rulings and Judge Tashima's extensive findings of fact including on credibility, the ruling that the enforcement of the statute is unconstitutional may be the final chapter in the lengthy saga of Arizona's anti-ethnic studies statute.
 
Painel_Paulo_Freire
 
[ image: Painel Paulo Freire by Luiz Carlos Cappellano via]
 
 

August 22, 2017 in Courts and Judging, Equal Protection, First Amendment, Fourteenth Amendment, Race | Permalink | Comments (0)

Thursday, August 17, 2017

Daily Read: Gorsuch To Give Speech at Trump Hotel Venue

As reported, the newest Supreme Court Justice, Neil Gorsuch, appointed by President Trump is scheduled to deliver a talk at the “Defending Freedom Luncheon,” hosted by the nonprofit Fund for American Studies, an invitation-only event to be held at the Trump Hotel in Washington, D.C.

34033716420_bd72e5fd56_bIt's not the conservative Fund for American Studies sponsorship that is attracting attention, but the venue of the private Trump Hotel. As the emoluments clauses challenges to Trump's alleged intermingling of his office and his personal profits proceed, it is possible that the issue will reach the United States Supreme Court, including facts about functions at the Trump Hotel in D.C.

As we've previously discussed, the Judicial Code of Conduct does not apply to Supreme Court Justices.  And even if it did, it is unclear that the appearance at the hotel - - - without a link to a specific pending case before the Court at this time  - - - would be encompassed or if the only remedy would be subsequent recusal from that case.

Nevertheless, given the controversy surrounding the nomination of Gorusch, this may not be the best look for a Justice intending to eschew continuing controversy.

[caricature of Justice Neil Gorsuch by Donkey Hotey via]

 

 

August 17, 2017 in Courts and Judging, Supreme Court (US) | Permalink | Comments (0)

Tuesday, August 15, 2017

Three Judge Court Finds Fault with Texas Redistricting Plan

 In its extensive and detailed opinion in Perez v. Abbott, a three judge court found problems including intentional racial discrimination in some aspects of Plan C235, the redistricting plan enacted by the Texas Legislature in 2013.

Authored by United States District Judge Xavier Rodriguez, joined by Chief Judge for the Western District of Texas District Judge Garcia, and Fifth Circuit Judge Jerry Smith, the panel opinion is another episode in the ongoing litigation regarding redistricting in Texas.  The opinion itself is an interlocutory order, with the remedial phase to follow.  Additionally, as in most redistricting litigation, there is a mix of determinations under the Voting Rights Act and the Equal Protection Clause.

Perhaps one of the more interesting issues in the case involves the court's findings regarding intentional discrimination. The court considered the Shaw v. Reno racial gerrymandering claims elaborating on the strict scrutiny standard if racial classifications could be proven.The court rejected the state's position that the discriminatory intent inquiry was limited to the drawing of district lines in 2013, but relying on Fifth Circuit precedent found that the challengers could demonstrate "either through direct or circumstantial evidence that the government body adopted the electoral scheme with a discriminatory purpose, that the body maintained the scheme with discriminatory purpose, or that the system furthered pre-existing intentional discrimination." The court stated:

The decision to adopt the interim plans was not a change of heart concerning the validity of any of Plaintiffs’ claims . . . . {in previous litigation} and was not an attempt to adopt plans that fully complied with the VRA and the Constitution—it was a litigation strategy designed to insulate the 2011 or 2013 plans from further challenge, regardless of their legal infirmities. The letter from then-Attorney General Abbott to Speaker Joe Straus makes the strategy clear: Abbott advised that the “best way to avoid further intervention from federal judges in the Texas redistricting plans” and “insulate the State’s redistricting plans from further legal challenge” was to adopt the interim maps. Thus, Defendants sought to avoid any liability for the 2011 plans by arguing that they were moot, and sought to ensure that any legal infirmities that remained in the 2013 plans were immune from any intentional discrimination and Shaw-type racial gerrymandering claims.

The court did reject some of the challengers other claims, although finding that MALC (a Latino legislative caucus of Texas members in the House of Representatives) had standing, it rejected the claim that there was intentional discrimination in a specific "Latino opportunity district."

The court's summary of its more than 100 page opinion is useful:

  • In Part II, the Court concludes that the racially discriminatory intent and effects that it previously found in the 2011 plans carry over into the 2013 plans where those district lines remain unchanged. The discriminatory taint was not removed by the Legislature’s enactment of the Court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy. The Legislature in 2013 intentionally furthered and continued the existing discrimination in the plans.
  • In Part IIIA, the Court concludes that Plaintiffs’ § 2 results claims in the DFW {Dallas-Fort Worth} area fail for lack of proof of African-American and Hispanic cohesion.
  • In Part IIIB, the Court finds that the intentional discrimination found in DFW in Plan C185 is remedied in Plan C235, and that Plaintiffs failed to prove that any alleged cracking and packing that remains in DFW was intentionally dilutive.
  • In Part IV, the Court concludes that Plaintiffs’ § 2 results claims in the Houston area fail for lack of proof of African-American and Hispanic cohesion.
  • In Part V, the Court finds that CD23 is a Latino opportunity district and there is no evidence of intentional discrimination/dilution.
  • In Part VI, the Court concludes that the Plan C235 configurations of CD35 and Nueces County/CD27 violate § 2 and the Fourteenth Amendment. These statutory and constitutional violations must be remedied by either the Texas Legislature or this Court.

 The court directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered."

Map

 

UPDATE: Stay

August 15, 2017 in Courts and Judging, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, August 10, 2017

Federal Judge Declares Louisiana's Restriction on Non-Native Born Marriage Applicants Unconstitutional

 In an opinion in Vo v. Gee, Senior United States District Ivan L.R. Lemelle declared Louisiana's Act 436 violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Act 436 amended the requirements to obtain a Louisiana marriage license so that an applicant born outside of the United States must submit a copy of the person's birth certificate under the raised seal or stamp of the vital statistics registration authority of the person's place of birth, with additional requirements if the document is not in English, and a valid and unexpired passport or an unexpired visa accompanied by a Form I-94 issued by the United States, verifying that the applicant is lawfully in the United States.  Viet "Victor" Ahn Vo, naturalized as a United States citizen at the age of 8, was nevertheless denied a marriage license because he did not have a birth certificate.  Vo was born in Indonesia in a refugee camp to parents who were Vietnamese nationals, relocating to Louisiana when Vo was three months of age.

Nypl.digitalcollections.510d47e2-d195-a3d9-e040-e00a18064a99.001.rOn the equal protection issue, Judge Lemelle stated that the "birth certificate provisions that the Louisiana legislature enacted creates classifications that distinguish between United States citizens on the basis of their national origin," and thus merits strict scrutiny, requiring a compelling government interest which the statute serves by narrowly tailored means. Without discussing any interests put forward by the state, Judge Lemelle concluded that the "State of Louisiana fails to demonstrate in their opposition that this classification based on national origin furthers a compelling governmental interest."  The judge therefore concluded there was an equal protection violation.

On the due process challenge, Judge Lemelle cited the "fundamental right to marry" under Obergefell v. Hodges as well as the Zablocki v. Redhail (1978) test of directly and substantially interfering with marriage as warranting strict scrutiny.  The judge rejected Louisiana's claim that a subsequent amendment to the act that allows for a judicial waiver in some cases cures the constitutional defects or rendered the case moot. (Recall that in Zablocki itself the statute allowed a judicial waiver of the bar for past due child support payments as an impediment to marriage).  Instead, Judge Lemelle noted that "the failure of the State of Louisiana to proffer any evidence of why this regulation passes constitutional muster" and held it violated due process.

The bulk of Judge Lemelle's relatively brief opinion addresses the more procedural issues of summary judgment and injunction standards, perhaps because the constitutional issues were clear as Louisiana seemingly conceded. Nevertheless, this is an important opinion regarding the issue of differential treatment for non-native born citizens.

 

 

August 10, 2017 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fundamental Rights, Opinion Analysis, Race | Permalink | Comments (0)