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.

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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)

Tuesday, April 12, 2016

Tenth Circuit: Utah's Ban on Polygamous Cohabitation and Marriage Stands

The Tenth Circuit has ruled that the Browns - - - of Sister Wives reality television fame - - - cannot challenge Utah's ban on polygamous cohabitation and marriage under Article III judicial power constraints.  In its opinion in Brown v. Buhman, the unanimous three judge panel found that the matter was moot. 

Recall that federal district judge Clark Waddoups finalized his conclusion from his previous opinion that Utah's anti-bigamy statute is partially unconstitutional. The statute, Utah Code Ann. § 76-7-101, provides:

  •             (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
  •             (2) Bigamy is a felony of the third degree.
  •             (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.

 [emphasis added].  Judge Waddoups concluded that the "the cohabitation prong does not survive rational basis review under the substantive due process analysis."  This analysis implicitly imported a type of equal protection analysis, with the judge concluding:

Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.

On appeal, the Tenth Circuit panel held that the district judge should not have addressed the constitutional claims because the case was moot.  Even assuming the Browns had standing when the complaint was filed, any credible threat of prosecution was made moot by a Utah County Attorney's Office (UCAO) 2012 policy which stated that "the UCAO will prosecute only those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse."  The opinion stated that nothing "in the record" suggested that Browns fit into this category and additionally, there was an affirmation from the defendant that "the UCAO had 'determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration. ' ”

The opinion found that the "voluntary cessation" exception to mootness was not applicable because that was intended to prevent gamesmanship: a government actor could simply reenact the challenged policy after the litigation is dismissed. 

Yet the problem, of course, is that the statute remains "on the books" and the policy is simply not to enforce it except in limited cases.  The court rejected all of the Browns' arguments that the UCAO statement did not moot the challenge to the constitutionality of the statute including a precedential one; the possibility that a new Utah County Attorney could enforce the statute; the failure of defendant, the present Utah County Attorney, to renounce the statute's constitutionality; and the tactical motives of the defendant, the present Utah County Attorney, in adopting the policy.  The court stated:

The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Buhman’s credibility as a public official and might even expose him to prosecution for perjury and contempt of federal court for violating his declaration. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.

Thus, like other criminal statutes that are said to have fallen into "desuetude," the statute seems immune from constitutional challenge.

In a very brief section, the court does note that the plaintiffs no longer live in Utah, but have moved to Nevada, another rationale supporting mootness.  The Nevada move is discussed in the video below featuring some of the children involved.

 

 

 

 

April 12, 2016 in Courts and Judging, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Mootness, Opinion Analysis, Religion, Sexuality, Standing, Television | Permalink | Comments (0)

Monday, April 11, 2016

Fifth Circuit Lets State AG Subpeona, Civil and Criminal Threats Against Google Stand

The Fifth Circuit ruled on Friday in Google v. Hood that a federal district court's injunction against Mississippi Attorney General James M. Hood III jumped the gun, and struck it. The ruling means that AG Hood's subpoena to Google remains live, and that he is not enjoined from bringing civil and criminal action against the web giant.

The case arose when AG Hood and certain other state AGs started expressing concerns that search engines weren't doing enough to stop copyright infringement, prescription drug and counterfeit product sales, and other "illegal and harmful" activity on the internet. Hood wrote to Google, and after some back-and-forth, issued a wide-ranging administrative subpoena, stating that there were "reasonable grounds to believe that Google Inc. may have violated . . . the Mississippi Consumer Protection Act."

Google sued in federal court, alleging that Hood's investigation violated Google's immunity under the Communications Decency Act, the Fourth Amendment, and the First Amendment rights of Google and its users, and seeking an injunction. The district court preliminarily enjoined Hood from enforcing the administrative subpoena and "bringing a civil or criminal charge against Google under Mississippi law for making accessible third-party content to Internet users (as threatened)."

Without touching the merits (even for likelihood of success, under the preliminary injunction standard), the Fifth Circuit struck the injunction. The court said that Google could bring the case in federal court, and that the district court did not err in not abstaining under Younger. But the court went on to say that Google's federal lawsuit was not ripe. That's because the subpoena was non-self-executing, and Hood had no independent authority to enforce it. (Instead, he has to enforce it through injunctive relief and a contempt motion in state court.) As to Hood's threats of civil or criminal enforcement: the court said that these were too "fuzzily defined," and that the court could not "on the present record predict what conduct Hood might one day try to prosecute under Mississippi law." In short: Google's case wasn't ripe, and the district court jumped the gun in issuing the injunction.

The ruling means that Hood can go ahead and try to enforce his subpoena in state court. He can also initiate any civil and criminal actions that Mississippi might allow. But when he does, he'll face Google's immunity and constitutional defenses in state court, and a likely second try in federal court.

April 11, 2016 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Ripeness | Permalink | Comments (0)

Friday, April 8, 2016

First Circuit: Same-Sex Marriage Ruling in Obergefell Applies to Puerto Rico

In a brief per curiam opinion, a panel of the First Circuit essentially reversed the ruling of Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez that denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.

The panel stated:

The district court's ruling errs in so many respects that it is hard to know where to begin. The constitutional rights at issue here are the rights to due process and equal protection, as protected by both the Fourteenth and Fifth Amendments to the United States Constitution. Obergefell v. Hodges; United States v. Windsor. Those rights have already been incorporated as to Puerto Rico. Examining Bd. Of Eng'rs, Architects & Surveyors v. Flores de Otero (1976). And even if they had not, then the district court would have been able to decide whether they should be. See Flores de Otero.

In any event, for present purposes we need not gild the lily.  Our prior mandate was clear . . . 

[citations and footnote omitted].

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After quoting its previous opinion, the panel then addressed the procedural posture of the case, noting that the district court "compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course."  Both parties therefore sought a writ of mandamus, which the court granted and additionally "remitted" the case to the district court "to be assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly, and to conduct any further proceedings necessary in this action."

The First Circuit did not explicitly discuss the district judge's conclusions regarding Puerto Rico's status and his argument that under The Insular Cases (1901), territorial incorporation of specific rights is questionable.  But  the First Circuit did cite contrary authority and made clear its disagreement.  The intensity of the disagreement is also made evident by the First Circuit's somewhat unusual instruction that Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez be removed from the case.

 

April 8, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Opinion Analysis, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Thursday, April 7, 2016

Ninth Circuit Finds Arizona's Denial of Drivers Licenses to DACA Recipients Unconstitutional

In its opinion in Arizona Dream Act Coalition v. Brewer, the Ninth Circuit has found unconstitutional an Executive Order by Arizona Governor Jan Brewer that prohibits recipients of the federal program called the “Deferred Action for Childhood Arrivals” (DACA) from obtaining driver’s licenses by using Employment Authorization Documents as proof of their authorized presence in the United States. 

Recall that the Ninth Circuit had earlier reversed the denial of a preliminary injunction finding that the plaintiffs had a substantial likelihood of success on their equal protection claim.  The United States Supreme denied Arizona's application for a stay. On remand, the district judge had found that the plaintiffs prevailed on their equal protection claim, applying a rational basis standard of review, and entered a permanent injunction. 

In this appeal by the Arizona state defendants, the same Ninth Circuit panel of judges - - - Harry Pregerson, Marsha S. Berzon, and Morgan Christen - - - in the opinion again authored by Judge Pregerson, not surprisingly found equal protection "problems" but decided to resolve the case on the "nonconstitutional grounds" of preemption, explaining (in footnote 5),

Though preemption principles are rooted in the Supremacy Clause, this court has previously applied the principle that preemption does not implicate a constitutional question for purposes of constitutional avoidance.

Yet the panel's opinion spends more than half of its analysis on the equal protection question.  The court's opinion states that the judges "remain of the view" that "Arizona's policy may well fail even rational basis review" and rejected all of Arizona's asserted government interests.  Moreover, the opinion stated that it "bears noting, once again" that "the record does suggest" that Arizona's policy was motivated by "a dogged animus against DACA recipients," and as the Supreme Court has "made very clear that such animus cannot constitute a legitimate state interest, and has cautioned against sowing the seeds of prejudice," citing cases including United States v. Windsor.

The opinion continued

Given the formidable Equal Protection concerns Arizona’s policy raises, we turn to a preemption analysis as an alternative to resting our decision on the Equal Protection Clause. Doing so, we conclude that Arizona’s policy encroaches on the exclusive federal authority to create immigration classifications and so is displaced by the INA.

While the court's final opinion is of questionable precedential value concerning the equal protection conclusion, the previous opinion's equal protection conclusion remains of high precedential value, and certainly the ultimate conclusion - - - here based on the Supremacy Clause preemption - - - is definitive. 

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April 7, 2016 in Cases and Case Materials, Courts and Judging, Equal Protection, Opinion Analysis, Preemption, Supremacy Clause | Permalink | Comments (0)

Tuesday, April 5, 2016

Court Can't Second-Guess Prosecution's Charging Decisions

The D.C. Circuit ruled today in U.S. v. Fokker Services B.V. that a federal district court cannot deny an exclusion of time under the Speedy Trial Act for a deferred prosecution agreement (DPA) because the court disagrees with the government's charging decisions. The ruling, a victory for both parties, reverses the district court's decision on separation-of-powers grounds and remands the case.

The case arose when the parties asked the court for an exclusion of time under the Speedy Trial Act in order to allow the defendant to meet the government's conditions under the DPA. (The DPA provided that the government would defer prosecution so long as Fokker met certain conditions over an 18-month period. But if Fokker failed to meet the conditions after 18 months, the Speedy Trial Act would have prevented the government to pursue prosecution. So the parties moved the court for an exclusion of time under the Act.) The court denied the motion, saying that it disagreed with the government's decision to charge only the corporation, and not its individual officers, with violations. Both parties appealed.

The D.C. Circuit reversed. The court said that "[t]he Constitution allocates primacy in criminal charging decisions to the Executive Branch," and that "the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preference." So when the court denied an exclusion of time because of its disagreement with the government's charging decision, it exceeded its own authority and intruded into the prerogative of the Executive.

The court said that "we construe [the Speedy Trial Act] in a manner that preserves the Executive's long-settled primacy over charging decisions and that denies courts substantial power to impose their own charging preferences."

The case now goes back to the district court for an order excluding time under the Speedy Trial Act and implementation of the DPA.

April 5, 2016 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, April 1, 2016

Federal Judge Enjoins Mississippi's Same-Sex Couple Adoption Ban as Unconstitutional

In his opinion  in Campaign for Southern Equality v. Mississippi Department of Human Services (DHS), United States District Judge Daniel Jordan III found that Mississippi Code §93-17-3(5) prohibiting "adoption by couples of the same gender" violates the Equal Protection Clause and ordered that the Executive Director of DHS is preliminarily enjoined from enforcing the statute.

The majority of the 28 page opinion is devoted to matters of standing and the Eleventh Amendment relevant to the multiple plaintiffs and multiple defendants, including judges.  However, Judge Jordan did find that the individual plaintiffs had standing and DHS was an appropriate defendant.

 On his discussion of likelihood to prevail on the merits, Judge Jordan wrote in full:

Obergefell [v. Hodges] held that bans on gay marriage violate the due-process and equal-protection clauses. It is the equal-protection component of the opinion that is relevant in the present dispute over Mississippi’s ban on gay adoptions. Under traditional equal-protection analysis, a law that does not “target[ ] a suspect class” or involve a fundamental right will be upheld, “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). Conversely, “if a classification does target a suspect class or impact a fundamental right, it will be strictly scrutinized and upheld only if it is precisely tailored to further a compelling government interest.” Sonnier v. Quarterman, 476 F.3d 349, 368 (5th Cir. 2007) (citation omitted).

In this case, Defendants argue that rational-basis review applies. But Obergefell made no reference to that or any other test in its equal-protection analysis. That omission must have been consciously made given the Chief Justice’s full-throated dissent. 135 S. Ct. at 2623 (Roberts, C.J., dissenting) (“Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases . . . .”).

While the majority’s approach could cause confusion if applied in lower courts to future cases involving marriage-related benefits, it evidences the majority’s intent for sweeping change. For example, the majority clearly holds that marriage itself is a fundamental right when addressing the due-process issue. Id. at 2602. In the equal-protection context, that would require strict scrutiny. But the opinion also addresses the benefits of marriage, noting that marriage and those varied rights associated with it are recognized as a “unified whole.” Id. at 2600. And it further states that “the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.” Id. at 2604 (emphasis added).

Of course the Court did not state whether these other benefits are fundamental rights or whether gays are a suspect class. Had the classification not been suspect and the benefits not fundamental, then rational-basis review would have followed. It did not. Instead, it seems clear the Court applied something greater than rational-basis review. Indeed, the majority never discusses the states’ reasons for adopting their bans on gay marriage and never mentions the word “rational.”

While it may be hard to discern a precise test, the Court extended its holding to marriage- related benefits—which includes the right to adopt. And it did so despite those who urged restraint while marriage-related-benefits cases worked their way through the lower courts. According to the majority, “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.” Id. at 2606 (emphasis added).

The full impact of that statement was not lost on the minority. Chief Justice Roberts first took issue with the majority’s failure to “note with precision which laws petitioners have challenged.” Id. at 2623 (Roberts, C.J., dissenting). He then criticized the majority for jumping the gun on marriage-related cases that might otherwise develop:

Although [the majority] discuss[es] some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. . . . Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.

Id. at 2623–24 (Roberts, C.J., dissenting) (emphasis added).

In sum, the majority opinion foreclosed litigation over laws interfering with the right to marry and “rights and responsibilities intertwined with marriage.” Id. at 2606. It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits—expressly including the right to adopt—would then conclude that married gay couples can be denied that very same benefit.

Obergefell obviously reflects conflicting judicial philosophies. While an understanding of those positions is necessary for this ruling, it is not this Court’s place nor intent to criticize either approach. The majority of the United States Supreme Court dictates the law of the land, and lower courts are bound to follow it. In this case, that means that section 93-17-3(5) violates the Equal Protection Clause of the United States Constitution.

 The judge's interpretation of Obergefell v. Hodges interestingly focuses on the dissent of Chief Justice Roberts to explain the doctrine of Kennedy's opinion for the Court, a phenomenon familiar from the use of Justice Scalia's dissents in the same-sex marriage litigation.

800px-2002_MS_Proof

 

April 1, 2016 in Courts and Judging, Due Process (Substantive), Eleventh Amendment, Equal Protection, Family, Federalism, Fourteenth Amendment, Sexual Orientation | Permalink | Comments (0)

Thursday, March 31, 2016

South Africa's Constitutional Court on Corruption, Presidential and Legislative Responsibilities, and the Constitution

The controversy at the center of today's unanimous judgment by the South Africa Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others arises from "improvements" to President Jacob Zuma's private residence in Nkandla done at public expense. 

President_Jacob_Zuma's_Nkandla_homestead
Zuma's Nkandla Residence via

Although the cost of "security features" can be born by the state, other improvements - - - such as the visitors' centre, amphitheater, cattle kraal, chicken run, and swimming pool involved in this case - - - should not be state-funded and should be personally paid by the President.

The constitutional questions in the case are not only about apportioning costs, however, but are about apportioning power in the South Africa government. 

The South Africa Constitution establishes the "Public Protector" (sections 181, 182) as an independent entity with the power

a. to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;

b. to report on that conduct; and

c. to take appropriate remedial action.

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Thuli Madonsela, Public Protector of South Africa, via

In this case, the Public Protector, Thuli Madonsela (pictured left) investigated the allegations of "irregular expenditure" and issues a report in 2014 directing the President to make reimbursements  and reprimand the Ministers involved in the expenditures; this report was also submitted to the National Assembly. 

The President basically refused to comply and the National Assembly "resolved to absolve the President of all liability."  Once the matter reached the Constitutional Court's exclusive jurisdiction, President Zuma essentially agreed that he would pay the costs of improvement.  Thus, the decision in the case is not surprising.

Nevertheless, the Constitutional Court's decision is an important one.  It strongly sides with the Public Protector and states that her remedial action taken against the President is "binding."  Additionally, it finds that both the President and the National Assembly acted unconstitutionally:

The failure by the President to comply with the remedial action taken against him, by the Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.

The resolution passed by the National Assembly absolving the President from compliance with the remedial action taken by the Public Protector in terms of section 182(1)(c) of the Constitution is inconsistent with sections 42(3), 55(2)(a) and (b) and 181(3) of the Constitution, is invalid and is set aside.

Jennifer Elgot has a good basic overview of the 52 page decision and background controversy in her piece in The Guardian.

Pierre deVos, Constitutional Law Professor at University of Cape Town has a terrific discussion on his blog Constitutionally Speaking.

 

 

March 31, 2016 in Comparative Constitutionalism, Courts and Judging, Current Affairs, Executive Authority, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, March 28, 2016

Argument Preview: Access to Justice in the PLRA

The Court will hear oral arguments on Tuesday in Ross v. Blake, the case testing whether the Prison Litigation Reform Act includes a "special circumstances" exception to the exhaustion requirement that excuses an inmate's failure to exhaust when he had a reasonable, but mistaken, belief that no further administrative remedies were available.

The case raises important access-to-justice questions in the context of administrative exhaustion in PLRA litigation. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

Shaidon Blake is a prisoner serving a life sentence in the custody of the state of Maryland. In 2007, Blake was housed at the Maryland Reception, Diagnostic and Classification Center.

On June 21 of that year, Lieutenant James Madigan and Sergeant Michael Ross, officers at the Center, attempting to relocate Blake to another cellblock, handcuffed Blake and removed him from his cell. As the two officers escorted Blake to his new cellblock, Madigan shoved Blake twice. He then wrapped a key ring around his fingers and struck Blake at least four times in the face.

Ross asked another officer to call for assistance. Ross and Madigan then lifted Blake and dropped him to the floor. Ross put his knee into Blake’s chest, and Madigan restrained Blake until other officers arrived.

The responding officers took Blake to the medical unit. Blake declined treatment, but was later diagnosed with nerve damage.

Blake reported the episode to senior corrections officers and provided a written account of the assaults. Captain Calvin Vincent conducted a preliminary investigation. Vincent concluded that Madigan used excessive force and recommended that Madigan be disciplined. (Madigan later resigned in order to avoid termination.)

Vincent referred the incident to the Internal Investigative Unit, or “IIU,” a division of the Maryland Department of Public Safety and Correctional Services charged with investigating criminal violations and serious misconduct of correctional officers. The IIU undertook a year-long investigation into Madigan’s behavior and issued a formal report concluding that Madigan used excessive force against Blake. The report did not assign any fault to Ross or Blake. The IIU did not otherwise provide any redress or compensation to Blake. (The IIU is a criminal investigative unit. It lacks authority to remedy a prisoner’s complaint, or to discipline a correctional officer.)

Blake sued Ross, Madigan, two supervisors, and two government entities in federal court for civil rights violations. The district court dismissed the claims against the two supervisors and the government entities, leaving only Ross and Madigan as defendants.

Ross then moved to dismiss the case against him, alleging that Blake failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, or “PLRA,” 42 U.S.C. § 1997e(a). In particular, Ross claimed that Blake failed to use the administrative remedy process, or “ARP,” that the state created to address inmate grievances, including complaints about the use of force, and to provide redress and compensation to inmates. (Ross now claims that Blake alternatively could have filed a complaint with the Inmate Grievance Office, or “IGO,” an independent entity outside the prison that has authority to hear grievances in the first instance and award monetary damages, if the ARP was unavailable. When the ARP is available, the Inmate Grievance Office hears appeals from the ARP.) Ross said that Blake admitted having received a copy of the inmate handbook, which contains information about the ARP, but that Blake did not read those portions of the handbook and did not initiate an ARP grievance.

The district court granted Ross’s motion to dismiss. (The court at first dismissed Blake’s case against Madigan, too. But the court later reinstated that case, and Blake won a $50,000 judgment against Madigan. Madigan is not a part of this appeal.) Blake appealed, and the United States Court of Appeals for the Fourth Circuit reversed. This appeal followed.

CASE ANALYSIS

The PLRA says that “[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This means that a prisoner like Blake has to pursue, and exhaust, any internal, administrative remedies that he has available before filing a civil rights suit in federal court. Congress adopted the measure in order to allow a prison to address complaints internally, to reduce litigation (at least to the extent that a prison can resolve complaints internally), and to improve litigation by allowing the parties to develop a useful administrative record before going to court.

The Supreme Court has said that exhaustion means “proper exhaustion.” In other words, a prisoner must use all the administrative steps that the prison makes available, and do so in compliance with the applicable deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81 (2006).

Still, some read more flexibility into the requirement. For example, Justice Breyer suggested in his concurrence in Woodford that well-settled exceptions to exhaustion in administrative law should also apply to the PLRA. Justice Breyer pointed to a Second Circuit case holding that “special circumstances” can excuse exhaustion (as in administrative law). The Second Circuit in that case concluded that a prisoner’s failure to exhaust “was justified by his reasonable belief” that no further remedies were available. Giano v. Goord, 380 F.3d 670 (2004). The Fourth Circuit adopted this same approach in ruling for Blake.

The parties dispute whether the PLRA has a “reasonable belief” exception to exhaustion. But they also dispute whether Blake actually exhausted his remedies. Recall that Blake pursued his complaint through the IIU, and not the ARP or IGO. The parties disagree over whether the IIU process amounts to exhaustion, and whether the ARP and IGO processes were actually available.

Ross argues first that the plain language of the PLRA requires strict and mandatory exhaustion. Ross claims that the Supreme Court affirmed this reading through its “proper exhaustion” rule in Woodford. Ross says that the Fourth Circuit’s approach—adopting an exception to exhaustion based on a prisoner’s “reasonable belief”—conflicts with the PLRA’s strict approach to exhaustion, because it excuses a prisoner’s failure to use a particular remedy based only on the prisoner’s misunderstanding. Ross contends that the PLRA’s plain language is clear, and that the courts have no authority to create an extra-textual exception to its strict and mandatory exhaustion requirement.

Ross argues next that the Fourth Circuit’s approach conflicts with the history and purposes of the PLRA. Ross claims that Congress enacted PLRA’s exhaustion requirement in order to replace a prior, ineffective requirement that permitted courts to require exhaustion only if doing so would be in the “interests of justice” and that the remedies were “plain, speedy, and effective.” Ross says that the current PLRA was enacted in order to eliminate judicial discretion from the exhaustion inquiry. He contends that the Fourth Circuit’s approach takes us back to the old system, which Congress unambiguously superseded with the more recent mandatory exhaustion requirement. Moreover, Ross claims that the Fourth Circuit’s approach would undermine the purposes of the PLRA, because it would result in more lawsuits without affording the prisons an opportunity to resolve them in the first instance. According to Ross, the Fourth Circuit’s approach would also mire the courts in the nuances of a prison’s grievance system in order to determine the reasonableness of a prisoner’s belief as to available remedies within the prison.

Third, Ross argues that the Fourth Circuit wrongly interpreted traditional administrative law exceptions, and thus wrongly imported a “reasonable belief” exception into the PLRA’s exhaustion requirement. Ross claims that there are only three sets of traditional exceptions to administrative exhaustion—where exhaustion would cause irreparable harm, where exhaustion would be futile, and where an agency is biased. Ross says that none of these traditional categories includes a “reasonable belief” exception, and so the Fourth Circuit erred in importing that exception (even if traditional administrative law exceptions apply to PLRA exhaustion).

Finally, Ross argues that even if the Fourth Circuit were correct in applying a “reasonable belief” exception, Blake does not satisfy it. Ross points to the fact that Blake never read the state’s grievance procedures. Ross says that if Blake would have read them, he would have seen that the APR process was available and most relevant to his kind of complaint. (Ross claims that the IIU process that Blake used against Madigan is designed for a different purpose—investigation of wrongdoing, not redress and compensation—and therefore does not satisfy the PLRA’s exhaustion requirement.) Ross contends that Blake’s failure to read the processes cannot amount to a “reasonable belief,” even if there is a “reasonable belief” exception to PLRA exhaustion.

(The government weighs in as amicus curiae in favor of Ross and makes substantially similar arguments.)

Blake argues first that this case does not properly address the Question Presented, whether the PLRA exhaustion requirement bars a lawsuit by a prisoner who made an objectively reasonable mistake in pursuing his administrative remedies. This is because Blake says that he made no mistake. He claims that the ARP process was not available to him, because routine practice at the time was to dismiss an ARP complaint when (as here) an IIU investigation was pending. (Blake points to five separate cases, including one filed on the same day as his assault, in which ARP complaints were dismissed as procedurally improper because an IIU investigation was pending.) He contends that the IGO procedure was similarly unavailable to him. Because his case does not fall within the Question Presented, Blake says that the Court should either affirm the Fourth Circuit’s decision or dismiss the appeal (as improvidently granted).

In the alternative, Blake argues that he properly exhausted his administrative remedies, because the ARP process and the IGO procedure were unavailable to him. Blake says that for a remedy to be available under the PLRA, it must be “sufficiently clear so that an objectively reasonable prisoner would know which remedy to use and how to use it.” Blake asserts that the two processes here fail that test. He claims that even Ross (represented here by the state attorney general) fails to identify which of the two proffered processes were available to him, underscoring just how unclear the policies were. Moreover, Blake claims that Ross’s position that the exhaustion requirement applies whenever a prisoner makes an error—and that the clarity of the remedy is irrelevant to its availability—is untenable, and gives the prisons a perverse incentive to make their administrative processes unnecessarily complex.

SIGNIFICANCE

This case tests the flexibility of the exhaustion requirement in the PLRA. It asks: Does the exhaustion requirement apply rigidly, so that a prisoner must exhaust all administrative remedies, even if he reasonably, but mistakenly, thought he satisfied it? Or does the requirement have some give, so that a prisoner can satisfy it under those circumstances? The answer to these questions will also tell us when a federal judicial remedy is available to prisoners for civil rights violations. This is an important access-to-justice issue, and the Court’s ruling (one way or the other) will impact when and how prisoners can pursue a meaningful damages claim in court.

Whatever the Court says, however, Congress will have the last word. That’s because the case raises only a statutory question—interpretation of the PLRA—and not a constitutional one. Congress can always go back and undo through legislation anything the Court does through litigation.

March 28, 2016 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News | Permalink | Comments (0)

Wednesday, March 16, 2016

President Obama's Nomination to the United States Supreme Court

Merrick Garland, the chief judge on the U.S. Court of Appeals for the D.C. Circuit is Obama's nominee. 

The New Yorker analyzes Garland as a "sensible choice."

NPR says "Reputation Of Collegiality, Record Of Republican Support."

First Amendment ConLawProfs might note that Garland was in the majority in American Meat Institute v. U.S. Department of Agriculture.  Also of note is that he was part of the panel that decided that there was no clearly established right not to be tasered during a protest under the First, as well as Fourth, Amendment in Lash v. Lemke.

 

 


Merrick_Garland

March 16, 2016 in Congressional Authority, Courts and Judging, Executive Authority, News, Supreme Court (US) | Permalink | Comments (0)

Tuesday, March 15, 2016

When Does a Court's Dismissal of a Prisoner's FTCA Case Foreclose a Parallel Bivens Claim?

Here's my argument preview in Simmons v. Himmelreich, originally posted at SCOTUSblog. The case is scheduled for oral argument next Tuesday.

Federal prisoners who seek redress for civil rights violations face an infamous thicket of rules, regulations, statutes, and case law. Prisoners have to navigate often-complicated prison rules and regulations to file an administrative claim in the first instance. They have to check to see that they have exhausted all administrative options before filing in federal court. And they have to choose and plead their federal claims carefully. (And that’s just the beginning.) This thicket sometimes seems especially designed only to thwart prisoners’ claims entirely, creating an access barrier that restricts and even prohibits a federal prisoner from obtaining a remedy for a civil rights violation.

On the other hand, this thicket serves some important governmental interests. It helps ensure that a prison itself gets a first crack at providing relief to a prisoner. It helps narrow the issues and streamline a case for the federal court. And it ensures that a federal employee and the government itself need only defend against a single lawsuit arising out of the same incident.

This case tests the push and pull between the rules in this thicket. And while the case deals in the technical and sometimes complicated interplay between different statutory provisions, it really comes down to this simple question: When a federal prisoner seeks redress for a civil rights violation, does federal law favor relatively more open access to the courts, or does it favor protection of federal employees and the government?

The facts

In October 2008, Walter Himmelreich was serving a 240-month sentence at the Federal Correctional Institution in Elkton, Ohio, for the production of child pornography. Himmelreich’s crime didn’t sit well with another inmate at Elkton, a prisoner who was housed in the Special Housing Unit because of his disciplinary violations. That prisoner told officials that he was “not able to live with pedophiles” and that if he were released into the general compound he “will smash a pedophile.” Just four days after this prisoner made these claims, prison officials nevertheless transferred him back into the general compound where, perhaps unsurprisingly, he assaulted Himmelreich. Himmelreich suffered serious injuries, including internal bruising, external injuries, permanent ringing in the ears, persistent headaches, and a pinched nerve.

Himmelreich filed and lost an administrative tort claim. He then filed two separate suits in federal court – one under the Federal Tort Claims Act, and the other under Bivens, which allows a plaintiff to sue a federal officer for a constitutional violation, in this case the Eighth Amendment. The court dismissed the FTCA case and then the Bivens case. Himmelreich appealed the Bivens ruling, and after the case went up to the Sixth Circuit twice (where Himmelreich won both times), this question is now before the Court: Does a court’s dismissal of a prisoner’s FTCA case under the FTCA’s “discretionary act” exception foreclose that prisoner’s separate Bivens claim?

The law

The case sits at the intersection of four provisions of the FTCA. The first is the FTCA’s jurisdictional provision, Section 1346(b). This provision waives the United States’s sovereign immunity and grants district courts “exclusive jurisdiction” over claims against the United States for torts by government employees arising out the scope of their employment. In practice, this section operates like ordinary tort claims against a private employer who concedes respondeat superior liability, that is, liability on behalf of its employees for acts within the scope of their employment.

The second provision is the FTCA’s list of exceptions in Section 2680. This provision contains several categories of claims to which the FTCA does not apply. One of those categories encompasses what is commonly known as the “discretionary function” exception: any claim based on a federal employee’s “exercise or performance or the failure to exercise or perform a discretionary function or duty.”

The third is the FTCA’s judgment bar in Section 2676. The judgment bar provides that:

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

In practice, the judgment bar forecloses a plaintiff’s ability to pursue other kinds of claims against government employees arising from the same underlying incident. Congress enacted the judgment bar to protect federal employees and the government itself from multiple suits by the same plaintiff for the same injuries. At the time of its adoption, this provision served primarily to bar parallel state-law tort claims filed against federal employees in state court. But since 1971, when the Court recognized a federal constitutional-tort cause of action against federal employees in Bivens, the judgment bar has also foreclosed a parallel Bivens cause of action.

The final provision is the Westfall Act. That act, enacted in 1988, after the FTCA, makes the FTCA the “exclusive” remedy for a tort claim against a federal employee. It also precludes state-tort claims against federal employees and provides for the prompt substitution of the United States for the employee-defendants in those state-tort cases. Because the Westfall Act bars state-tort suits directly against federal employees, the judgment bar now functions primarily to foreclose parallel federal Bivens claims.

The case

After Himmelreich filed his first case (the FTCA case), the federal government moved to dismiss pursuant to the FTCA’s discretionary-function exception. The court granted the motion, noting that Section 2680 is an exception to the FTCA’s general waiver of sovereign immunity, and that the court therefore “lacks subject matter jurisdiction over acts falling within the discretionary function exception.” The court issued a document titled “JUDGMENT ENTRY” in which the court “ORDERED, ADJUDGED and DECREED” that the case was dismissed.

The court then dismissed Himmelreich’s second case, the Bivens case, for failure to state a claim. The Sixth Circuit reversed and remanded. The district court again dismissed the case, this time based on two alternative theories: Himmelreich’s failure to exhaust administrative remedies and the FTCA’s judgment bar. The Sixth Circuit again reversed, ruling that Himmelreich’s failure to exhaust administrative remedies was excused (an issue that is not now before the Court), and that the judgment bar did not foreclose Himmelreich’s Bivens claim. As to the latter, the court of appeals said that the district court’s dismissal under Section 2680 amounted to a dismissal for lack of subject matter jurisdiction, and that it was therefore not a “judgment” subject to the judgment bar. This is the question now before the Court.

The arguments

The government argues that the district court’s dismissal of Himmelreich’s FTCA case was a “judgment” under the FTCA judgment bar and thus forecloses his Bivens claim against the individual prison officials. The government says that this interpretation comports with the plain definition of the term, Congress’s use of the term in other portions of the FTCA, and the congressional purpose of the judgment bar. The government contends that Himmelreich is wrong to argue that the judgment bar applies only to the subset of judgments that is capable of having some preclusive effect under the principle of res judicata. According to the government, the term “judgment” is nowhere confined only to judgments having preclusive effect. But even if the term “judgment” is so confined, the government claims that the district court’s dismissal under Section 2680 is still a “judgment” under the judgment bar. That’s because Section 2680 imposes “substantive limitations” on FTCA liability, which makes the dismissal a ruling “on the merits” and therefore (under claim preclusion) precludes another case raising the same claim. It’s also because the district court actually determined that Section 2680 applies, and so (under issue preclusion) the ruling precludes Himmelreich from relitigating the issue. (This argument hinges on Himmelreich’s claim that the judgment bar extends the same res judicata preclusive effect that the government has under the FTCA to a government employee.) Finally, the government says that Himmelreich is wrong to argue that the judgment bar does not apply to an FTCA action dismissed under Section 2680 (because the judgment bar covers any FTCA action), and that he is wrong to claim that the introductory language to Section 2680 prevents Section 2680 dismissals from triggering the judgment bar (because the Court has ruled otherwise in a related context).

Himmelreich counters that the judgment bar does not foreclose his Bivens claim against the individual officials. As an initial matter, he says that the judgment bar does not even apply here, because the plain terms of Section 2680 say that the FTCA’s other provisions, including the judgment bar, “shall not apply” to the categories of exceptions in Section 2680. It’s also because the judgment bar is only triggered by a “judgment” in a suit “under section 1346(b).” But he says that Section 1346(b) does not apply to the “claims” enumerated in Section 2680, so that his FTCA action was not even “under” Section 1346(b) in the first place.

Himmelreich argues next that the court’s dismissal for lack of jurisdiction is not a “judgment” under the judgment bar, because the court’s dismissal carries no res judicata effect (and thus does not shield the government employee from suit). Finally, Himmelreich claims that the government’s approach would lead to absurdities, including lower courts blocking Bivens claims based on technical defects (that result in dismissal) in a plaintiff’s FTCA case, encouraging personal-capacity lawsuits (before FTCA claims, which the FTCA was designed, in part, to prevent), and depriving plaintiffs of a remedy for civil rights violations.

In the end – as technical and complicated as this thicket can be – the bottom line is pretty simple: the Court will either favor more access to justice for federal prisoners who seek redress for civil rights violations, or it will favor the government’s interest in protecting its employees from lawsuits.

March 15, 2016 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News | Permalink | Comments (0)

Wednesday, March 9, 2016

United States District Judge: Same-Sex Ruling (and 14th Amendment) Do Not Apply in Puerto Rico

In a 10 page opinion, Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.

Recall that in October 2104, Judge Juan Perez-Gimenez had largely relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question" to find that there was no constitutional right to same-sex marriage.  In the appeal to the First Circuit, the Solicitor General of Puerto Rico decided that it would not defend the same-sex marriage ban.   And then the United States Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples. 

The First Circuit thus remanded Conde-Vidal v. Garcia-Padilla to Judge Juan Perez-Gimenez "for further consideration in light of Obergefell v. Hodges" and specifically stated "We agree with the parties' joint position that the ban is unconstitutional." The parties submitted a  Joint Motion for Entry of Judgment with a proposed order.

In rejecting the parties' joint motion, Judge Juan Perez-Gimenez contended that because Puerto Rico was a "stranger to the proceedings" in Obergefell which involved same-sex marriage bans in the Sixth Circuit (Michigan, Kentucky, Ohio, and Tennessee), it was not bound by the decision.  This reasoning is similar to some of the arguments most recently raised by some Justices on the Supreme Court of Alabama. 

Additionally - - - and perhaps with more legal grounding - - - he concluded that Obergefell does not apply to Puerto Rico because it is not a "state":

the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico.

The judge based this "juridical reality" on his conclusion that the doctrine of selective incorporation only applies to states and not Puerto Rico, or perhaps more correctly, that the Fourteenth Amendment itself is not applicable to Puerto Rico "insofar as it is not a federated state." 

Additionally, Judge Perez-Gimenez asks "does the Constitution follow the flag?" and concludes that under The Insular Cases (1901), territorial incorporation of specific rights is questionable:

Notwithstanding the intense political, judicial and academic debate the island’s territorial status has generated over the years, the fact is that, to date, Puerto Rico remains an unincorporated territory subject to the plenary powers of Congress over the island under the Territorial Clause.More importantly, jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment. As explained by the Supreme Court, “noting the inherent practical difficulties of enforcing all constitutional provisions ‘always and everywhere,’ the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed.” Boumedine v. Bush. 

Thus, this court believes that the right to same-sex marriage in Puerto Rico requires: further judicial expression by the U.S. Supreme Court; or the Supreme Court of Puerto Rico, see e.g. Pueblo v. Duarte, 109 D.P.R. 59 (1980)(following Roe v. Wade, 410 U.S. 113 (1973) and declaring a woman’s right to have an abortion as part of the fundamental right to privacy guaranteed under the Fourteenth Amendment); incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause, see Const. amend. Art. IV, § 3; or by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68 [prohibiting same-sex marriage].

In staking out a position regarding Puerto Rico's status, Judge Perez-Gimenez's opinion reverberates with the two cases regarding Puerto Rico presently before the United States Supreme Court even as it looks back to his earlier opinion hostile to the right of same-sex marriage. 800px-Map_of_USA_PR

[updated: March 11, 2016:  Further discussion of these issues available here].

March 9, 2016 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Monday, March 7, 2016

United States Supreme Court Reverses Alabama Supreme Court's Denial of Full Faith and Credit to Lesbian "Second-Parent" Adoption

In a brief and straightforward per curiam opinion today in V.L. v. E.L.,  the United States Supreme Court granted certiorari and reversed the Alabama Supreme Court's denial of full faith and credit to a Georgia adoption involving a lesbian couple. 

As we discussed last September when the Alabama Supreme Court's opinion was rendered, it relied in large part on the dissenting opinion of a Georgia Supreme Court in a different case to support its conclusion that the Georgia courts did not have proper "jurisdiction" over the adoption. 

The United States Supreme Court stated that the Alabama Supreme Court's "analysis is not consistent with this Court's controlling precedent." It continued:

Indeed, the Alabama Supreme Court’s reasoning would give jurisdictional status to every requirement of the Georgia statutes, since Georgia law indicates those requirements are all mandatory and must be strictly construed. That result would comport neither with Georgia law nor with common sense.

As Justice Holmes observed more than a century ago, “it sometimes may be difficult to decide whether certain words in a statute are directed to jurisdiction or to merits.” Fauntleroyv. Lum, 210 U. S. 230, 234–235 (1908). In such cases, especially where the Full Faith and Credit Clause is concerned, a court must be “slow to read ambiguous words, as meaning to leave the judgment open to dispute, or as intended to do more than fix the rule by which the court should decide.” Id., at 235. That time-honored rule controls here. The Georgia judgment appears on its face to have been issued by a court with jurisdiction, and there is no established Georgia law to the contrary. It follows that the Alabama Supreme Court erred in refusing to grant that judgment full faith and credit.

That the parties to the case are lesbians - - - "two women who were in a relationship" - - - is made apparent by the United States Supreme Court.  This fact most likely figured largely in the Alabama Supreme Court's original majority ruling given the well-known hostility of its controversial chief justice to sexual minority rights.  However, given Friday's odd dismissal of the same-sex marriage litigation by the Alabama Supreme Court and today's United States Supreme Court definitive and unanimous reversal, it seems as if the opinions of Alabama Supreme Court Justice Greg Shaw (pictured below),  who dissented in E.L. as well as the earlier same-sex marriage opinions, has been vindicated.

Shaw
Alabama Supreme Court Justice Greg Shaw

 

March 7, 2016 in Courts and Judging, Family, Full Faith and Credit Clause, Interpretation, Opinion Analysis, Recent Cases, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)

Friday, March 4, 2016

Alabama Supreme Court on Same-Sex Marriage

The Supreme Court of Alabama has issued its opinions- - - totaling 170 pages typescript - - - in Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County dismissing all pending petitions and motions that seek relief from having to issue marriage licenses.  And yet, the lengthy concurring opinions in the case contradict rather than support this dismissal.

Recall that in January, controversial Chief Justice of the Alabama Supreme Court Roy Moore issued an Administrative Order forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect." Earlier, after an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Justice Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue.  In a March 2015 opinion  in  this same case - - - Ex parte State of Alabama ex rel. Alabama Policy Institute - - - known as API,  the court, without Justice Moore and over a dissent by Justice Shaw held  that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Recall that the United States Supreme Court declined to stay the federal judge's judgment.  A few months later, the United States Supreme Court decided Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.

In today's opinions, Chief Justice Moore is center-stage and plays a confusing part.

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First, he provides a "statement of nonrecusal."  He discusses his own participation in various aspects of this continuing litigation and concludes he is not reviewing his own Administrative Order but instead "the effect of Obergefell."  

Second, in his own "specially concurring" opinion, his ultimately conclusion is that Obergefell is incorrectly decided and that the Alabama Supreme Court is under no duty to obey it.  He writes quite personally:

I took my first oath to support the Constitution of the United States in 1965 at the United States Military Academy on the banks of the Hudson River at West Point, New York. On this very site General George Washington defended the northwest territory against British invasion during the Revolutionary War. I repeated that oath many times during my military service in Western Europe, Vietnam, and locations in the continental United States. Following my military service and upon graduation from the University of Alabama School of Law, I again took an oath to "uphold and support" the United States Constitution. As a private practitioner, deputy district attorney, circuit judge, and Chief Justice of the Alabama Supreme Court on two separate occasions, I took that oath and have administered it to other Judges, Justices, Governors, and State and local officials. In both civilian and military life the oath of loyalty to the Constitution is of paramount importance. **** The oath I took as a cadet at the United States Military Academy at West

Point stated, in part, "that I will at all times obey the legal orders of my superior officers, and the Uniform Code of Military Justice." 57 Bugle Notes, at 5 (1965) (emphasis added). Later, as a company commander in Vietnam, I knew the importance of following orders. The success or failure of a mission and the lives of others depended on strict adherence to the chain of command. The principle of obedience to superior orders is also crucial to the proper functioning of a court system. Nevertheless, the principle of obedience to superior officers is based on the premise that the order given is a lawful one.

He then discusses "Lt. William Calley, a unit commander at My Lai in Vietnam who was convicted of killing 22 innocent civilians," to support his "military analogy" that one should not simply "follow orders" when the orders are immoral.

Third,  Chief Justice Moore's opinion is the major, if not majority opinion. 

The opinion garnering the most Justices - - - three - - - is by Justice Stuart and is quite short, but speaks volumes.  It reads in full:

Motions and petitions are dismissed without explanation by this Court for numerous reasons as a matter of routine. When a Justice issues a writing concurring in or dissenting from an order summarily dismissing a pending motion or petition the writing expresses the explanation for the vote of only the Justice who issues the writing and of any Justice who joins the writing. Attributing the reasoning and explanation in a special concurrence or a dissent to a Justice who did not issue or join the writing is erroneous and unjust.

Justice Greg Shaw also concurs specially, but his is the opinion that supports the conclusion. Justice Shaw had dissented from the March 2015 Order.   He now concludes that given Obergefell, the March 2015 Order "no longer has a field of operation or any legal effect."  

It is the accepted legal doctrine and the historic legal practice in the United States to follow the decisions of the Supreme Court as authoritative on the meaning of federal law and the federal Constitution. Arguments have been put forth suggesting that this doctrine and this practice are incorrect. Those arguments generally have not been accepted by the courts in this country. For example, in Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court of the United States rejected the argument by certain state officials that they were not bound by that Court's decisions.

The idea that decisions of the Supreme Court of the United States are to be followed is not something new or strange. Thus, the members of this Court who would follow the Obergefell decision would not, as either Chief Justice Moore or Justice Parker suggests, be "bow[ing their] knee[s] to the self-established judicial despots of America," "blindly follow[ing] the unsubstantiated opinion of 'five lawyers,'" "'shrink[ing] from the discharge'" of duty, "betray[ing]" their oaths, "blatantly disregard[ing] the Constitution," standing "idly by to watch our liberties destroyed and our Constitution violated," participating in the "conversion of our republican form of government into an aristocracy of nine lawyers," or be adhering to a perceived "evil."  They would, quite frankly, be doing what the vast majority of past and present judges and lawyers in this country have always assumed the Constitution requires, notwithstanding the unconvincing arguments found in the requests before us and in the specially concurring opinion of Chief Justice Moore. I charitably say the arguments are "unconvincing" because virtually no one has ever agreed with their rationales.

 [footnote omitted].

Justice Shaw certainly seems to have the better view and the citation of Cooper v. Aaron is exactly on point.  But given the result, it does not seem as if the National Guard will be marching into Montgomery any time soon.

Could this part of the saga be concluded?

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March 4, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Monday, February 29, 2016

Federal Magistrate Finds All Writs Act Not Sufficient to Compel Apple to "Unlock" IPhone in Brooklyn Case

Bearing remarkable similarity to the ongoing controversy in California often styled as FBI v. Apple, a federal magistrate in the Eastern District of New York today sided with Apple, finding that the All Writs Act does not grant judicial authority to compel Apple to assist the government in "unlocking" an iPhone by bypassing the passcode security on a iPhone. 

In his 50 page Memorandum and Order in  In Re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued By This Court, Magistrate James Orenstein concluded that while the All Writs Act as applied here would be in "aid of jurisdiction" and "necessary and proper," it would not be "agreeable to the usages and principles of law," because Congress has not given such specific authority to the government.  Similar to Apple's argument in the California case, Magistrate Orenstein notes the constitutional argument:

The government's interpretation of the breadth of authority the AWA confers on courts of limited jurisdiction thus raises serious doubts about how such a statute could withstand constitutional scrutiny under the separation-of-powers doctrine.

There is no mention of the First, Fifth, or Fourth Amendments.

500px-Apple_Computer_Logo_rainbow.svgMagistrate Orenstein engaged in an application of the United States v. New York Telephone Co. (1977) factors, finding that even if the court had power, it should not exercise it.   The magistrate found that New York Telephone was easily distinguished.  On the unreasonable burden factor, the magistrate stated:

The government essentially argues that having reaped the benefits of being an American company, it cannot claim to be burdened by being seen to assist the government. See Govt. II at 19 (noting the "significant legal, infrastructural, and political benefits" Apple derives from being an American company, as well as its "recourse to the American courts" and to the protection of "American law enforcement ... when it believes that it has been the victim of a crime"); id at 19-20 ("This Court should not entertain an argument that fulfilling basic civic responsibilities of any American citizen or company ... would 'tarnish' that person's or company's reputation."). Such argument reflects poorly on a government that exists in part to safeguard the freedom of its citizens – acting as individuals or through the organizations they create – to make autonomous choices about how best to balance societal and private interests in going about their lives and their businesses. The same argument could be used to condemn with equal force any citizen's chosen form of dissent.

At the end of his opinion, Judge Orenstein reflected on the divisive issues at stake and concluded that these were ones for Congress.

But Congress will certainly not be acting in time to resolve the pending controversies.  Unlike the California case, this warrant and iphone resulted from a drug prosecution and had proceeded in a somewhat haphazard manner.  Pursuant to the Magistrate's request about other pending cases,

Apple identified nine requests filed in federal courts across the country from October 8, 2015 (the date of the instant Application) through February 9, 2016.  In each, Apple has been ordered under the authority of the AWA (or has been told that an order has been requested or entered) to help the government bypass the passcode security of a total of twelve devices; in each such case in which Apple has actually received a court order, Apple has objected. None of those cases has yet been finally resolved, and Apple reports that it has not to date provided the requested assistance in any of them. 

So it seems that the California "terrorism" case is not unique.  Judge Orenstein's opinion is well-reasoned and well-structured and could easily be echoed by the federal courts in California - - - and elsewhere. 

February 29, 2016 in Congressional Authority, Courts and Judging, Criminal Procedure, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Supreme Court Hears Oral Arguments on Pennsylvania Supreme Court Judge's Recusal

The Court today heard oral arguments in Williams v. Pennsylvania on issues of due process and the Eighth Amendment revolving around the court's decision in a death penalty case and judicial ethics. The Pennsylvania Supreme Court has been especially rocked by scandals - - - with one Justice resigning because of corruption and another because of sexually explicit emails and another Justice being subject to disciplinary proceedings over the explicit emails - - - but this controversy involves a different Justice, former Chief Justice of the Pennsylvania Supreme Court Ronald Castille. 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. 

The central case in today's oral argument was  Caperton v. Massey (2009) regarding judicial bias. Unlike the situation of Justice Benjamin in Caperton, Castille did not cast a "deciding vote" on the court.  [Nevertheless, Castille's concurring opinion is worth reading for its defensiveness].  The problem is how - - - or even whether - - - to apply the 5-4 decision in Caperton, which involved judicial bias resulting from campaign contributions. 

Nypl.digitalcollections.510d47e4-4e67-a3d9-e040-e00a18064a99.001.wStuart Lev, arguing for Williams, faced an almost-immediate question from Chief Justice Roberts, who dissented in Caperton, asking whether the nature of the decision of the former-prosecutor now-Justice should matter - - - was it mere policy or something more individualized?  Justice Alito, who also dissented in Caperton, was wary of constitutionalizing the matters of recusal without clear lines.  On the other hand, Ronald Eisenberg, arguing for Pennsylvania, seemed to admit that there could be cases in which recusal was necessary, but stressed the long time involved here - - - 30 years - - - which at one point prompted Justice Kennedy to ask "So the fact that he spent 30 years in solitary confinement actually helps the State?"  (Eisenberg noted that this wasn't "exactly" the situation).  Justice Sotomayor stressed that what was important was that Castille was prosecutor and judge in the "same case."  For both sides, much of the wrangling was over what any "rule" should be - - - with the background of the Caperton rule being fluid rather than rigid.

The fact that Castille was only one of the Justices was important, but perhaps less so than it would be for another court.  The idea that a judge simply "votes" for a result was looked on with disfavor.  As Justice Kennedy stated:

But if - - - ­­ if we say that, then we say that being a judge on a 15­ judge court doesn't really make much difference. You ­­ - - - you don't have a duty, and you don't have can't persuade your colleagues. It's very hard for us  to write that kind of decision.

Earlier in the argument, there was some discussion of the remedy - - - and the "unsatisfying" remedy (as Justice Kagan phrased it) of sending the case back to the Pennsylvania Supreme Court to (re)consider the recusal motion.  Lev, arguing for Williams, noted that this was the remedy in Caperton and also that the "Pennsylvania Supreme Court is constituted differently," now than it was then.  "There were three new justices elected this last November and took office in January."

But what rule should the Court instruct the Pennsylvania Supreme Court to apply?  This is likely to divide the Court just as it did in Caperton.  But there does seem to be a belief among a majority of Justices that the judicial ethical rules alone are not protecting due process.  

February 29, 2016 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Oral Argument Analysis, Supreme Court (US) | Permalink | Comments (0)