Thursday, March 19, 2015

Amar on Court Clones

Akhil Reed Amar writes in this month's Atlantic that the high Court is now packed with Justices that have nearly identical backgrounds--elite educations, prestigious clerkships, and appellate court judgeships--and why that's a problem. Amar argues that the lack of experience in Congress or at high levels in the executive branch is a particular worry:

While a bench overloaded with ex-pols would be unfortunate, the Court would benefit from having at least one or two justices who know how Washington works at the highest levels, and who have seen up close how presidents actually think, how senators truly spend their days, how bills in fact move through Congress, and so on--in short, one or two justices whose resumes resemble those of former Secretary of State John Marshall, Hugo Black, and Robert Jackson.

March 19, 2015 in Courts and Judging, News | Permalink | Comments (1) | TrackBack (0)

Brennan Center: What Went Wrong with the FISA Court?

The Brennan Center just released What Went Wrong with the FISA Court?, a history and analysis of the FISA court, its problems, and some suggested solutions, penned by Elizabeth Goitein and Faiza Patel.

The report walks through the history of FISA to show just how the law, technology, and the FISA court itself changed to create the conditions for the bulk, or programmatic, surveillance programs that we have today. The report argues that current programmatic surveillance programs raise significant Article III and Fourth Amendment problems. In order to solve these, the report suggests the following:

  • End programmatic surveillance by prohibiting bulk surveillance under Section 215 and replacing Section 702 with a regime that would require an individualized court order for surveillance.
  • Enact additional reforms and processes, including adding an adversarial process (an advocate against the government before the FISA court) and increasing transparency.
  • Enact additional Fourth Amendment reforms, including restoring the requirement that the surveillance target is a foreign power or its agent, narrowing the definition of "foreign intelligence information," and restoring the test that requires that obtaining foreign intelligence information is the "primary purpose" of the surveillance.
  • Reform programmatic surveillance, if it must continue.

March 19, 2015 in Courts and Judging, Fourth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 18, 2015

New Jersey Supreme Court Finds Portion of Bias Intimidation Statute Unconstitutional

The Supreme Court of New Jersey has found a section of the state's "bias intimidation" statute, NJ 2C:16-1, unconstitutional in its opinion in State v. Pomianeck.  Subsection a (3) of the statute provides that bias intimidation includes an offense committed:

under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

Justices
New Jersey Supreme Court Justices

The defendant was convicted of violating subsection 3.  He and another public employee, both white, tricked another employee, who was black, into going into a wide steel storage cage, then locked the door, made a "banana" remark and laughed, and after a few minutes opened the cage door.  The defendant was convicted of official misconduct as well as petty disorderly persons’ offenses of harassment by alarming conduct and harassment by communication, in addition to subsection (a)(3) of the bias intimidation statute.

On appeal challenging the constitutionality of subsection (a)(3) , the New Jersey appellate court found that the subsection's focus on the victim's reasonable belief - - - rather than the defendant's actual state of mind - - - was a violation of the First Amendment, relying on cases such as Virginia v. Black and R.A.V. v. St. Paul.  The appellate court therefore found the statute should be construed to include a mens rea and remanded the case.

New Jersey's highest court unanimously found that the appellate court exceeded its bounds by interpreting the statute to include a mens rea.  It then proceeded to the constitutional issues, noting that the first inquiry was "whether the line separating lawful from criminal conduct in subsection (a)(3) is so vague that a reasonable person would not have fair notice when that line is crossed," and thus would not meet the "due process demands of the Fourteenth Amendment.":

The answer raises interrelated First Amendment concerns. Nevertheless, only if subsection (a)(3) can survive due process scrutiny is it necessary to engage in a First Amendment analysis.

The New Jersey Supreme Court concluded that subsection (a)(3) could not survive due process because it hinged on the victim's reasonable belief:

Of course, a victim’s reasonable belief about whether he has been subjected to bias may well depend on the victim’s personal experiences, cultural or religious upbringing and heritage, and reaction to language that is a flashpoint to persons of his race, religion, or nationality. A tone-deaf defendant may intend no bias in the use of crude or insensitive language, and yet a victim may reasonably perceive animus. The defendant may be wholly unaware of the victim’s perspective, due to a lack of understanding of the emotional triggers to which a reasonable person of that race, religion, or nationality would react. Nothing in the history of the bias-intimidation statute suggests that the Legislature intended to criminalize conduct through the imposition of an amorphous code of civility or criminalize speech that was not intended to intimidate on the basis of bias. It bears repeating that no other bias-intimidation statute in the nation imposes criminal liability based on the victim’s reasonable perceptions.

The court thus found subsection (a)(3) unconstitutional under due process doctrine requiring adequate notice and lack of vagueness:  the defendant "was convicted not based on what he was thinking but rather on his failure to appreciate what the victim was thinking"  The court therefore did not reach the First Amendment issue.  The court emphasized that the "twin pillars of the bias- intimidation statute -- subsections (a)(1) and (a)(2) of N.J.S.A. 2C:16-1 -- still stand."

The ruling could also be relevant to a more famous New Jersey bias intimidation conviction of Dharun Ravi of the victim, his Rutgers roommate Tyler Clementi, as the NYT reports.

March 18, 2015 in Courts and Judging, Due Process (Substantive), First Amendment, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)

California Supreme Court on Citizenship and Bar Admission

In its opinion in In re Hong Yen Chang on Admission, the California Supreme Court granted posthumous admission to the bar and reversed its more than a century-old decision in In re Hong Yen Chang 84 Cal. 163 (1890). The case was brought by LawProf Gabriel "Jack" Chin and students at UC-Davis College of Law.

Although Chang had been naturalized and was a lawyer in New York, a combination of the notorious Chinese Exclusion Act, upheld by the United States Supreme Court in Chae Chan Ping v. United States (1889), which prohibited naturalization of Chinese persons and the California requirement that members of the bar be citizens, the 1890 California Supreme Court held that Chang was not a "bona fide" citizen and could thus not be a member of the bar.  In discussing the decision, the 2015 California Supreme Court stated:

Understanding the significance of our two-page decision denying Chang admission to the bar requires a candid reckoning with a sordid chapter of our state and national history.

Yet the court's opinion is not only of historic note.  In discussing the repudiation of the sordid chapter, the California Supreme Court wrote:

More than a century later, the legal and policy underpinnings of our 1890 decision have been discredited. In 1972, this court unanimously held it was “constitutionally indefensible” to forbid noncitizens to practice law, calling such a ban “the lingering vestige of a xenophobic attitude” that “should now be allowed to join those anachronistic classifications among the crumbled pedestals of history.” (Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 291.) One year later, the high court reached the same conclusion. (In re Griffiths (1973) 413 U.S. 717.) In 2013, our Legislature passed a law making undocumented immigrants eligible for admission to the State Bar. (Bus. & Prof. Code, § 6064, subd. (b).) We thereafter granted admission to an undocumented immigrant who had been brought to the United States as a child, put himself through college and law school, passed the California bar exam, and met the requirement of good moral character. (In re Garcia (2014) 58 Cal.4th 440, 466.) We said “the fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar, or prevent the individual from taking an oath promising faithfully to discharge the duty to support the Constitution and laws of the United States and California.” (Id. at p. 460.)

While California has allowed noncitizens to be attorneys as the court notes, the issue is pending in other states, including - - - perhaps paradoxically - - - New York.

Hong-yen-chang-portrait
portrait of Hong Yen Chang via UC Davis School of Law

 

March 18, 2015 in Courts and Judging, Current Affairs, International, Opinion Analysis, Profiles in Con Law Teaching, Race, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Monday, March 16, 2015

Daily Read: Lidsky on Gajda's The First Amendment Bubble

Over at Jotwell, First Amendment scholar Lyrissa Barnett Lidsky discusses Amy Gajda's just-published book  The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.

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Professor Lidsky provides the provocative thesis of Gajda's book: it's the fault of quasi-journalists and paparazzi that the First Amendment is losing its luster, or at least its ability to protect what might be called "real journalists."

Lidsky's last paragraph provides a terrific insight - - - as we wait for the United States Supreme Court's opinion in Williams-Yulee v. The Forida Bar - - - linking how elected state judges might feel about the press given their own experiences.

Although she never makes the point explicitly, Gajda’s book is fundamentally an exercise in legal realism. Even though the scope of constitutional rights is not supposed to vary with the winds of public opinion, The First Amendment Bubble documents that the scope of press rights has changed as judges have perceived changes in the press. As she amply and comprehensively demonstrates, trial court judges seem more hostile to the media and more favorable to privacy claimants than their appellate brethren. This hostility may reflect the fact that trial judges, especially state judges, are more likely to have been elected to their positions than their appellate brethren and are thus more likely to be alert to shifts in public opinion. Perhaps the starting point, then, for changing judicial opinions is changing public opinion. To do this, journalists must change their slipshod and sensationalist practices. Let’s hope they can.

Looks like a terrific read, especially for those who might not agree that journalists have lost their integrity any more than lawyers (or judges) may have.

 

March 16, 2015 in Books, Courts and Judging, First Amendment, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, March 13, 2015

Groups Sue to Stop NSA's Upstream Surveillance

The ACLU filed suit this week on behalf of several media and human rights organizations challenging the NSA's "upstream surveillance" program. The plaintiffs argue that the program violates the First and Fourth Amendments, and that NSA has implemented upstream surveillance in violation of the FISA Amendments Act of 2008. (H/t reader Darren Elliot.)

Through upstream surveillance, a program disclosed by Edward Snowden after the Court handed down Clapper v. Amnesty International (more on that below), the NSA intercepts, collects, and searches all of Americans' international communications (e-mails, web-browsing, search engine queries, and the like). The NSA intercepts communications through devices directly on the internet backbone (with the help of providers like Verizon and AT&T), and it searches that material using keywords associated with NSA targets--that is, anyone outside the United States believed likely to communicate "foreign intelligence information."

The Supreme Court dismissed the last major suit of this type. The Court said that the plaintiffs in Clapper v. Amnesty International lacked standing to challenge NSA surveillance under the FISA Amendments Act (50 USC Sec. 1881a), because they didn't allege that they'd actually be targets of surveillance (only that they'd likely be targets).

This suit addresses the standing problem by alleging that upstream surveillance has already targeted them--because upstream surveillance is up and running and collects, in a drag-net kind of way, the kinds of communications that they engage in. And by including Wikimedia (with all its international internet connections), the ACLU ensures that at least one plaintiff has certainly been a target of this program.

March 13, 2015 in Cases and Case Materials, Courts and Judging, Executive Authority, First Amendment, Fourth Amendment, News, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, March 12, 2015

Airlines Have Standing to Challenge TSA Fee, But Lose on Merits

The D.C. Circuit ruled this week that airlines have standing to challenge a TSA fee charged to passengers, because the fee, built into the price of an airline ticket, increases the net price for tickets and thus reduces demand. But the court went on to rule against the airlines on the merits.

The airlines in Airlines for America v. TSA challenged a TSA rule implementing a statutory fee designed to cover the cost of screening passengers. Airlines collect the fee as part of the ticket price and pass the proceeds along to TSA. The airlines challenged the rule as it applies to passengers whose travel begins abroad but includes a connecting flight within the United States.

TSA argued that the airlines lacked standing. But the court disagreed. The court said that the airlines were harmed by the fee (even if minimally), because it jacked up the ticket price and thus reduced demand:

We recognized . . . the basic proposition that "increasing the price of an activity . . . will decrease the quantity of that activity demanded in the market." . . . TSA has given no reason to suspect that any . . . exception is applicable here. Thus, the security fees injure the airlines by increasing the net price for airline tickets and reducing demand for those tickets. . . .

While the impact on demand is likely to be modest, the direction of change in demand is clear (downward). . . . [T]he court's duty to refrain from merits rulings until assured of jurisdiction . . . does not mandate an econometric study of the exact quantity of change. And, as the injury is inferable from generally applicable economic principles rather than from any special circumstances, it is sufficiently "self-evident" that we require "no evidence outside the administrative record."

But the court went on to rule against the airlines on the merits. In short, the court said that the statute, which sets the security fee at "$5.60 per one-way trip in air transportation or intrastate air transportation that originates at an airport in the United States," allows TSA to collect the fee for travel that begins abroad and connects in the United States (for example, from Paris to New York with a connection to Chicago).

March 12, 2015 in Cases and Case Materials, Courts and Judging, News, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 11, 2015

Sixth Circuit on Susan B Anthony List v. Driehaus

In its relatively brief opinion in Susan B. Anthony List v. Driehaus, the Sixth Circuit seemingly brought an end to the extensive litigation that arose from Stephen Dreihaus's 2010 campaign during which the Susan B. Anthony list, an anti-abortion organization wanted to put up a billboard criticizing Driehaus's vote in favor of  "Obamacare," reading "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." But the billboard never went up because the advertising company that owned the billboard space refused to put up the advertisement after Driehaus's counsel threatened legal action against it. Driehaus filed a complaint with the Ohio Elections Commission against SBA List claiming that the advertisement violated two sections of Ohio's false-statement in elections statute.  SBA List then sued, seeking declaratory and injunctive relief, based on a First Amendment challenge to the statute. Recall that the United States Supreme Court unanimously reversed the Sixth Circuit's finding that federal courts had no Article III power to hear the case.

The First Amendment issues, including Dreihaus' counterclaim for defamation, were thus remanded.  The federal district judge found the Ohio election provision violated the First Amendment.  In considering the defamation claim, which the judge also foreclosed on the basis of the First Amendment, the Sixth Circuit found that although the district judge's "categorical proclamation" that “[A]s a matter of law, associating a political candidate with a mainstream political position, even if false, cannot constitute defamation" was "a misstatement of First Amendment defamation law."  However, the Sixth Circuit affirmed the district judge's grant of summary judgment on the basis that Driehaus could not satisfy the elements of the state law defamation tort. Specifically, Driehaus could not prove that the statements by SBA were false: "it is enough that the statements had some truth, were substantially true, or were subject to differing interpretations" and Driehaus could not show any basis for a finding that the statements were made with actual malice.

Thus after extended litigation it now seems that there remain few, if any, bars to "falsehoods" in campaigns.

March 11, 2015 in Campaign Finance, Cases and Case Materials, Courts and Judging, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, March 9, 2015

Court Re-Shifts Power Back to Federal Agencies

The Supreme Court ruled today in Perez v. Mortgage Bankers Association that the Department of Labor need not engage in notice-and-comment rule-making when it changes a Department interpretation of an existing rule. At the same time, the Court overturned the D.C. Circuit rule that forced agencies to do this whenever an agency wished to issue a new interpretation that deviated significantly from an old one.

The ruling thus re-shifts power back to executive agencies in determining the meaning of their own regulations. That's because Congress didn't require agencies to use notice-and-comment rule-making for interpretations, but the D.C. Circuit did, when a new interpretation deviated significantly from an old one--that is, when an agency changed its interpretation. By overturning that decision, and putting interpretive decisions back in the exclusive hands of the agencies (with loose, deferential judicial oversight), the Court re-set the balance that Congress struck. The ruling is thus a victory for agencies and their power to interpret their own regulations without notice-and-comment rule-making and with deferential judicial review. (More on that last part below.)

The case grows out of DOL's re-interpretation of its FLSA rule on minimum wage and overtime for mortgage-loan offices. The agency's rule exempts certain classes of employees, including individuals who are "employed in a bona fide executive, administrative, or professional capacity . . . or in the capacity of outside salesman . . . ." In 1999 and 2001, DOL issued interpretive letters opining that mortgage-loan officers did not qualify for this exemption. In 2006, however, DOL reversed course and opined that mortgage-loan officers did meet the exemption. But in 2010, DOL went back to its old position, withdrew the 2006 interpretation, and opined that mortgage-loan officers didn't meet the exemption.

The Administrative Procedure Act requires agencies to provide public notice and an opportunity to comment when they propose new rules and regulations under an authorizing statute. But the APA does not require this notice-and-comment rule-making when an agency simply issues an interpretation. Seeing the potential for abuse, the D.C. Circuit devised a court-created rule that said that agencies still had to use notice-and-comment rule-making, even for a mere interpretation. The D.C. Circuit rule is called the Paralyzed Veterans rule, after the case that established it.

So the question in Mortgage Bankers Association was whether DOL had to use notice-and-comment rule-making in issuing its 2010 interpretation.

The Supreme Court said no. The Court, in an opinion by Justice Sotomayor, ruled that the APA by its plain terms exempts interpretative decisions from the notice-and-comment requirement, and that the D.C. Circuit's Paralyzed Veterans rule violated those plain terms. Justice Sotomayor wrote that Congress, in enacting the APA, considered the costs and benefits of applying notice-and-comment rule-making requirements to agency interpretations, and that Congress decided that notice-and-comment procedures weren't necessary.

All nine justices agreed on the result, but Justices Scalia, Thomas, and Alito each wrote separately to take issue in different ways and to different degrees with judicial deference to agency interpretations. In other words, they're not sure that the courts should defer to agency interpretations (even if courts do validly defer to agency rules), or they reject deference altogether. Judicial deference to agency interpretations comes from Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins. In Auer (relying on Seminole Rock) the Court held that agencies may authoritatively resolve ambiguities in their own regulations.

The rule that courts defer to an agency's interpretation of its authorizing statute is well settled in Chevron v. Natural Resources Defense Council. This is called Chevron deference. But Auer extended that deference to an agency's interpretation of its own rules. This Auer deference is what caught the eyes of Justices Scalia, Thomas, and Alito.

They all indicated that they'd reconsider Auer deference if given the chance. Justices Scalia and Thomas both outlined their (separate) separation-of-powers objections to Auer deference. In short, Justice Scalia expressed concern that an agency could both write its own rule and then interpret that rule without meaningful oversight; Justice Thomas explained why Auer deference took power away from the judiciary and gave it to the executive agencies.

Both Chief Justice Roberts and Justice Kennedy signed on in full to Justice Sotomayor's opinion (as did Justices Ginsburg, Breyer, and Kagan). None of these joined Justice Scalia, Justice Thomas, or Justice Alito and the concerns with Auer deference that they expressed.

March 9, 2015 in Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 3, 2015

Alabama Supreme Court Orders Probate Judges to Discontinue Issuing Same-Sex Marriage Licenses

In a per curiam opinion in excess of 130 pages, the Alabama Supreme Court has ordered certain probate judges to 'discontinue the issuance of marriage licenses to same-sex couples' in compliance with a district judge's order  and a denial of a stay by the United States Supreme Court.

[UPDATED: Reports state that the controversial Chief Justice Roy Moore  recused himself from the ruling, but neither Moore nor recusal seems to be mentioned in the opinion].  The Alabama Supreme Court's opinion per curiam opinion states that "Stuart, Bolin, Parker, Murdock, Wise, and Bryan, JJ., concur," and that "Main, J., concurs in part and concurs in the result," and that "Shaw, J., dissents."  Chief Justice Moore is the ninth of the nine justices of the Alabama Supreme Court (pictured below).   

SC2013_Photo_Small

The case is styled 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; In re: Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al., and is an Emergency Petition for Writ of Mandamus. Justice Greg Shaw's dissent highlights the unusual procedural posture of the case: he concludes that the Alabama Supreme Court does not have original jurisdiction, that the public interest groups (Alabama Policy Institute and Alabama Citizens Action Program) cannot sue in Alabama's name and do not have standing, that the petition for writ of mandamus is procedurally deficient given that there is no lower court opinion, and that the court's opinion improperly rules on the constitutionality of the Alabama marriage laws since that issue is not before it.  Justice Shaw concludes:

I believe that this case is not properly before this Court. As the main opinion notes, this case is both unusual and of great public interest; however, I do not see a way for this Court to act at this time. By overlooking this Court's normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an issue that this Court cannot meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State's probate judges, this Court, in my view, is venturing into unchartered waters and potentially unsettling established principles of law.

Shaw's dissent provides a window into the Alabama Supreme Court's lengthy opinion.  Much of the opinion concerns the odd procedural posture of the case.  The opinion does specifically address the relationship between Alabama and the federal judge's decision by declaring that the "Respondents' Ministerial Duty is Not Altered by the United States Constitution":

The United States District Court for the Southern District of Alabama has declared that Alabama's laws that define marriage as being only between two members of the opposite sex -- what has been denominated traditional marriage -- violate the United States Constitution. After careful consideration of the reasoning employed by the federal district court in Searcy I, we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law.

Thus, because the Alabama Supreme Court disagrees, Alabama is not bound by the federal decision. The Alabama Supreme Court's "per curiam" opinion on the constitutionality of the same-sex marriage ban is scholarly, lengthy, and well-reasoned (and perhaps more persuasive than the Sixth Circuit's opinion in DeBoer v. Snyder, to which the United States Supreme Court granted certiorari, and on which the Alabama Supreme Court relies extensively).  But this discussion does little to resolve the basic federalism of whether the state is bound by the federal court's judgment.  The court's order does include this specific provision, which may engage the issue most directly:

As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.

This is certainly not the last parry in this continuing federalism struggle.

March 3, 2015 in Courts and Judging, Current Affairs, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 2, 2015

Nebraska Federal Judge Declares Same-Sex Marriage Ban Unconstitutional

Senior United States District Judge Joseph Bataillon has enjoined Nebraska's same-sex marriage ban in its state constitution and found it violates the Fourteenth Amendment in his  Memorandum and Order today in Waters v. Ricketts.

Recall that the United States Supreme Court will be hearing the issue this Term, having granted certiorari to the Sixth Circuit's divided opinion in the consolidated cases of DeBoer v. Snyder. The Court previously denied certiorari to opinions from the Fourth, Seventh, and Tenth Circuits all finding that same-sex marriage bans were unconstitutional, and the Ninth Circuit has ruled similarly.  The Eighth Circuit, in which Nebraska is located, has not issued a definitive opinion on the constitutionality of same-sex marriage. 

NebraskaJudge Joseph Bataillon's ruling sounds in both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He finds that marriage is a "fundamental liberty" and that the same-sex marriage ban is a facial classification based on gender. He also finds that Nebraska's state interests, including opposite sex parenting  and protecting tradition, are insufficient.  Throughout his analysis, he relies heavily on the Seventh Circuit's opinion in Baskin and the Ninth Circuit's opinion in Latta. 

 Interestingly, Judge Bataillon offers a prediction of the Court's conclusion:

The court finds the plaintiffs have demonstrated they will likely prevail on the merits of their claim. The court is persuaded that the Supreme Court will ultimately endorse, for one reason or another, the results obtained in the Fourth, Seventh, Ninth and Tenth Circuit challenges to same sex marriage bans.

Judge Bataillon supports this statement with an interesting footnote [15]:

This conclusion is supported by the Supreme Court's recent denial of a stay of an Alabama district court decision invalidating a same-sex marriage ban. See Strange v. Searcy, 2015 WL 505563 (U.S. Feb. 9, 2015) (denying of application for stay of an injunction preventing Attorney General of Alabama from enforcing Alabama laws as defining marriage as a legal union of one man and one woman) (Justice Thomas noting in dissent that the failure to stay the injunction “may well be seen as a signal of the Court's intended resolution [of the constitutional question it left open in Windsor]."); see also Armstrong v. Brenner, No. 14A650, 2014 WL 7210190 (U.S. Dec. 19, 2014) (denying stay of preliminary injunction barring enforcement of Florida’s marriage exclusion); Wilson v. Condon, 14A533, 2014 WL 6474220 (U.S. Nov. 20, 2014) (denying stay of judgment finding South Carolina’s marriage exclusion laws unconstitutional); Moser v. Marie, 14A503, 2014 WL 5847590 (U.S. Nov. 12, 2014) (denying stay of preliminary injunction preventing enforcement of Kansas’ marriage exclusion); Parnell v. Hamby, No 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014) (denying stay of district court decision declaring Alaska’s marriage exclusion unconstitutional); Otter v. Latta, No. 14A374, 2014 WL 5094190 (U.S. Oct. 10, 2014) (denying application for stay of Ninth Circuit’s judgment finding Idaho’s marriage exclusion laws unconstitutional)

Also, the Supreme Court itself has telegraphed its leanings. See Lawrence [v. Texas] 539 U.S. at 605 (Scalia, J., dissenting) (stating that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage); see also United States v. Windsor, 133 S. Ct. 2675, 2709 (2013) (Scalia, J., dissenting) (essentially stating that the majority opinion in Windsor makes a finding of unconstitutionality regarding state same-sex marriage bans "inevitable.")

The use of Scalia's dissenting opinions is yet another example of the Scalia's "petard" phenomenon.

Also interesting is Judge Bataillon's rejection of injury to Nebraska should there be a preliminary injunction: 

All but one of the plaintiff couples are married in a state that recognizes same-sex marriage. All of the couples have been in committed relationships for many years. Those that have resided in Nebraska have not caused damage to society at large or to the institution of marriage.

The preliminary injunction is effective March 9, at 8:00 am.  Nebraska is reportedly appealing and seeking an emergency stay.

 

March 2, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Gender, Interpretation, Opinion Analysis, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Saturday, February 28, 2015

Second Circuit Allows Police Officer's First Amendment Claim

In its opinion in Matthews v. City of New York, the Second Circuit upheld the First Amendment rights of a police officer in a unanimous panel opinion, authored by Judge Walker.

The court reversed the district judge's grant of summary judgment in favor of the City that had concluded that the police officer, Craig Matthews spoke as a public employee, not as a citizen, and that his speech was thus not protected by the First Amendment. 

At issue is the application of the closely divided Garcetti v. Ceballos  and its "clarification" in the United States Supreme Court's 2014 decision in Lane v. Franks ,regarding the "scope of employment" exclusion for First Amendment protection. Matthews alleged that he was retaliated against for speaking about an alleged quota system mandating the number of arrests, summons, and stop‐and‐frisks that police officers must conduct.  These are the same policies that have been so controversial in NYC and have been considered by the Second Circuit.

NYPD_Special_PatrolmanThe court detailed Matthews' speech:

In February 2009, Matthews, believing that the quota system was damaging to the NYPD’s core mission, reported its existence to then‐Captain Timothy Bugge, the Precinct’s commanding officer at that time. In March and April of 2009, Matthews again reported the quota system’s existence to Captain Bugge, and, in May 2009, Matthews reported the same to an unnamed Precinct executive officer.

In January 2011, Matthews met with then‐Captain Jon Bloch, the Precinct’s new commanding officer, and two other officers in Captain Bloch’s office. Matthews told them about the quota system and stated that it was “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers,” and that it “was having an adverse effect on the precinct’s relationship with the community.”

The Second Circuit panel held that "Matthews’s speech to the Precinct’s leadership in this case was not what he was “employed to do,” unlike the prosecutor’s speech in Garcetti."  Importantly, "Matthews’s speech addressed a precinct‐wide policy.  Such policy‐oriented speech was neither part of his job description nor part of the practical reality of his everyday work."

The court also considered whether the speech had a "civilian analogue," discussing its previous opinion in Jackler v. Byrne, a 2011 opinion in which the panel had also found the speech of a police officer protected by the First Amendment.  In part, the panel's conclusion rested on the fact that "Matthews reported his concerns about the arrest quota system to the same officers who regularly heard civilian complaints about Precinct policing issues."  

In holding that Matthews' speech is protected by the First Amendment, the opinion may be further indication that the grip of Garcetti on employee speech is loosening.  It is not only Lane v. Franks, in which the United States Supreme Court unanimously reversed the Eleventh Circuit's summary opinion and the Second Circuit's previous opinion in Jackler, but cases such as the Third Circuit's Flora v. Luzerne County decided last month.  This is not to say that Garcetti does not remain a formidable obstacle to any First Amendment claim by a public employee, but only that the obstacle is becoming less insurmountable. 

February 28, 2015 in Courts and Judging, Criminal Procedure, First Amendment, Opinion Analysis, Speech, Supreme Court (US), Theory | Permalink | Comments (1) | TrackBack (0)

Monday, February 9, 2015

Supreme Court Denies Stay of Alabama Same-Sex Marriage While Alabama Supreme Court Chief Justice Continues the Argument

Over a dissenting opinion by Justice Thomas, joined by Justice Scalia, the Court denied the application for a stay in Strange v. Searcy.  Recall that in January, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.

381px-LGBT_flag_map_of_Alabama.svgThe controversial Chief Judge of the Alabama Supreme Court Roy Moore has reacted negatively to the federal court opinion, including penning a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order.  That letter prompted an ethics complaint filed against Roy Moore from the Southern Poverty Law Center arguing that:

Chief Justice Roy Moore has improperly commented on pending and impending cases; demonstrated faithlessness to foundational principles of law; and taken affirmative steps to undermine public confidence in the integrity of the judiciary. For all these reasons, we respectfully request that this Judicial Inquiry Commission investigate the allegations in this complaint and recommend that Chief Justice Moore face charges in the Court of the Judiciary.

On February 3, the Eleventh Circuit denied the stay of Judge Granade's injunction and Judge Moore issue a 27 page memorandum addressed to Alabama Probate Judges with the intent to 

assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.

Judge Moore's argument that the state need not comply with federal decisions has prompted some commentators to make comparisons to Alabama's position during the Civil Rights Era, including a thoughtful WaPo piece by ConLawProf Ronald J. Krotoszynski Jr. at University of Alabama Law School. 

The dissenting opinion from Justice Thomas (joined by Scalia) did not mention Judge Moore by name, but did include a decisive nod to some of Moore's arguments:

Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. *** It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.

Perhaps more importantly, Justice Thomas notes that the constitutionality of same-sex marriage is now before the Court, but yet

the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013).  This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.

 Justice Thomas is not the only one considering whether the Court's denial of a stay and thus allowing same-sex marriages to proceed in Alabama is a "signal" of the Court's leanings in DeBoer v. Snyder.

February 9, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Interpretation, News, Opinion Analysis, Recent Cases, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Friday, February 6, 2015

Daily Video: Nancy Leong Interviews Scott Dodson, Editor of RBG Book

LawProf Nancy Leong's exciting new project, TheRightsCast, starts off with an interview of LawProf Scott Dodson about his new anthology, The Legacy of Ruth Bader Ginsburg just published by Cambridge University Press.  The book has a terrific array of contributors.

 Worth a watch!

 

 

 

 

February 6, 2015 in Books, Courts and Judging, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2015

Alabama Supreme Court Chief Judge Moore: federal courts have no power over state marriage law

In a Letter to the Governor of Alabama, Robert Bentley today, the Chief Justice of Alabama Supreme Court, Roy Moore (pictured) asked the Governor to continue to uphold the respect for different-sex marriage and reject the judicial "tyranny" of the federal district court's opinion last Friday finding the same-sex marriage ban unconstitutional.  He writes grounds the sacredness of man-woman marriage in the Bible, and writes

RmooreToday the destruction of that institution is upon us by federal courts using specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses of the United States Constitution. As of this date, 44 federal courts have imposed by judicial fiat same-sex marriages in 21 states of the Union, overturning the express will of the people in those states. If we are to preserve that “reverent morality which is our source of all beneficent progress in social and political improvement," then we must act to oppose such tyranny!

 He argues that United States district court opinions are not controlling authority in Alabama, citing a case, Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 744n.5  (Ala. 2009), regarding a common law negligence claim rather than a constitutional issue. He does not argue the Supremacy Clause.

Justice Moore is no stranger to controversial positions, including promoting his biblical beliefs over federal  law, and gained notoriety as the "the Ten Commandments Judge."  Recall that Moore was originally elected to the Alabama Supreme Court with the campaign promise to “restore the moral foundation of the law” and soon thereafter achieved notoriety for installing a 5,280-pound monument depicting the Ten Commandments in the rotunda of the Alabama State Judicial Building. See Glassroth v. Moore, 335 F.3d 1282, 1285 (11th Cir. 2003). After federal courts found that the monument violated the Establishment Clause of the First Amendment, Glassroth v. Moore, 229 F. Supp. 2d 1290, 1304 (M.D. Ala. 2002), aff’d, Glassroth v. Moore, 335 F.3d 1282, 1284 (11th Cir. 2003), Chief Justice Moore was ordered to remove the monument. See Glassroth v. Moore, No. 01-T-1268-N, 2003 LEXIS 13907 (M.D. Ala. Aug. 5, 2003). After the deadline to remove the monument passed, Chief Justice Moore was suspended, with pay, pending resolution of an ethics complaint, which charged that he failed to “observe high standards of conduct” and “respect and comply with the law.” Jeffrey Gettleman, Judge Suspended for Defying Court on Ten Commandments, N.Y. Times, August 23, 2003, at A7.

In 2012, Justice Moore was re-elected to the Alabama Supreme Court as its chief justice after almost a decade out of office during which time he served as "President of the Foundation for Moral Law."

 [UPDATE: A great video produced by Christopher Scott and Mary Baschab, University of Alabama School of Law, Class of 2011 is here].

January 27, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US), Theory | Permalink | Comments (3) | TrackBack (0)

Thursday, January 22, 2015

No Remedy for Inmate when Authorities take Medical Settlement for Cost of Incarceration

The Ninth Circuit ruled in Shinault v. Hawks that a state has to provide pre-deprivation notice and hearing before it freezes funds in an inmate's trust account to recover the cost of his incarceration. But at the same time, the court said that this rule wasn't "clearly established" at the time, so the defendants enjoyed qualified immunity. The court also rejected the inmate's Eighth Amendment claim.

The upshot is that prison authorities took more than $60,000 of an inmate's money--money from a settlement for a medical liability claim--in violation of procedural due process. But according to the Ninth Circuit, the inmate has no recourse against the officers.

Lester Shinault received a $107,417.48 settlement from a medical claim against a drug manufacturer who products (prescribed while Shinault was not in custody) caused him to develop diabetes. Shinault's attorney deposited the money in his inmate trust account.

Prison authorities then ordered Shinault to pay $65,353.94 to cover the cost of his incarceration. On the same day that Shinault requested a hearing, authorities transferred this amount from his trust account into a "reserved miscellaneous" sub-account in Shinault's name, but which Shinault could not access. An ALJ ruled against Shinault (in a hearing where Shinault didn't have an attorney and struggled mightily to represent himself), and about a year later authorities withdrew $61,352.39.

Shinault sued, arguing that the withdraw violated procedural due process and the Eighth Amendment. The district court granted summary judgment against him.

The Ninth Circuit held that authorities violated procedural due process under the Mathews v. Eldridge balancing test, because they failed to provide a pre-deprivation hearing prior to freezing the funds. But it also held that the violation wasn't "clearly established" at the time (because it couldn't find precedent directly on point, and because it said that procedural due process questions were fact specific, that is, not determined until a particular case is litigated), so the officials enjoyed qualified immunity.

In other words, the court said it wasn't "clearly established" that authorities had to provide a pre-deprivation hearing before freezing over $60,000.00 that Shinault obtained from a settlement with a drug company whose products caused him to develop diabetes. Because this wasn't "clearly established," the defendants enjoyed immunity, and Shinault has no claim against them for return of his money.

The court also held that authorities did not violate Shinault's Eighth Amendment rights, because "no authority supports the notion that freezing or withdrawing funds from an inmate account constitutes deliberate denial of care under the Eighth Amendment."

January 22, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 21, 2015

CAC on Access in the Roberts Court

The Constitutional Accountability Center published its most recent issue paper in its series on the Roberts Court at 10, this one on access issues. And it doesn't paint a pretty picture.

Brianne Gorod, the author of Roberts at 10: Roberts's Consistent Votes to Close the Courthouse Doors, looks at Roberts Court cases in four areas: standing, arbitration, pleading standards, and suits against states. Gorod concludes that the Court's record is mixed, but mostly negative:

Although most of the decisions of the Roberts Court in this area have limited access to the courts, there have been a few that have not, including most significantly the Court's 2007 decision, Massachusetts v. EPA, holding that Massachusetts could sue the Environmental Protection Agency to challenge its failure to regulate greenhouse gas emissions under the Clean Air Act.

But if the Court's record is mixed, Gorod says that Chief Justice Roberts's record is not:

He dissented in that 2007 case and in every other case during his tenure as Chief Justice in which the Court has refused to limit access to the courts, and he has always been in the majority when it has decided to limit such access. 

Gorod says that Chief Justice Roberts's record is "not terribly surprising," given his pre-confirmation positions on access.

Check it out.

January 21, 2015 in Courts and Judging, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 20, 2015

Supreme Court Hears Oral Arguments on Judicial Campaign Ethics and First Amendment

The United States Supreme Court heard oral arguments in Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule of judicial conduct prohibiting the personal solicitation of campaign contributions in a judicial election. 

Recall that the Florida Supreme Court held that Florida Code of Judicial Conduct, Canon 7C(1) (substantially similar to Canons 4.1(A)(8) and 4.4 of the ABA Model Code of Judicial Conduct), satisfied strict scrutiny, finding that there were two compelling governmental interests (preserving the integrity of the judiciary and maintaining the public's confidence in an impartial judiciary) and that the provision was narrowly tailored to serve these interests (the prohibition of direct fundraising nevertheless allows for the establishment of "campaign committees" to raise funds).  The Florida Supreme Court's opinion also pointedly noted that federal "judges have lifetime appointments and thus do not have to engage in fundraising" were divided on the constitutionality of the canon, while state judges were not.

Bench_and_Bar_Vanity_Fair_5_December_1891
"Bench and Bar" via

In the arguments before the life-tenured Justices today, the problem of line-drawing was pronounced.  The fact that the Florida rule was a compromise that allowed judicial campaigns to establish committees to solicit funds and allowed the candidate to know who had contributed and allowed the candidate to write thank you notes called into question whether the canon was narrowly tailored. But, as Justice Kagan noted, that might mean that the state would simply broaden the proscriptions, to include thank you notes for example, and asked whether that would be constitutional.  Counsel for the petitioner ultimately answered in the negative, linking the election to the availability of money. 

At the heart of this issue is whether judicial elections are like other elections or whether they are distinctly judicial.

Justice Ginsburg, who is decidedly in the camp that judicial elections are different, essentially urged her position at the beginning of the arguments ("the First Amendment allows the State to do things with respect to the election of judges that it wouldn't allow them to do with respect to the election of members of the legislature.")

Chief Justice Roberts seemingly leaned toward equating judicial and political elections, stating that "it's self-evident, particularly in judicial races" that "prohibiting a form of raising funds is to the great advantage of the incumbent" because the only way  "incumbents are going to be challenged if you have somebody who can get their own distinct message out."  Later he stated that the "fundamental choice was made by the State when they said we're going to have judges elected."  This echoes Justice O'Connor's concurring opinion in Republican Party of Minnesota v. White, (2002). 

Yet the issue of the coercion of the people being solicited, including attorneys as I have previously discussed, surfaced repeatedly.  As Justice Sotomayor candidly revealed:

It's very, very, very rare that either by letter or by personal call that I ask a lawyer to do something, whether it's serve on a committee, help organize something, do whatever it is that I'm asking, that that lawyer will say no. Isn't it inherent in the lawyer/­judge context that people are going to say yes?

Whether the Court "says yes" to the ability of a state to ban direct solicitation by judicial candidates will most likely result in a closely divided opinion.

 

January 20, 2015 in Campaign Finance, Courts and Judging, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

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

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

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

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

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

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

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

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

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

 

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

Friday, January 16, 2015

Government Settles Al-Kidd Case

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

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

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

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

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