Thursday, October 24, 2013
As we discussed when we reported that Marc Nadon had been nominated to be the newest Justice on the Supreme Court of Canada, there existed a constitutional question regarding whether a judge on the Federal Court of Appeal was eligible for the Supreme Court.
Michael Plaxton and Carissima Mathen have made available on ssrn their excellent paper, Purposive Interpretation, Quebec, and the Supreme Court Act.
They set out the facts at the beginning of their discussion:
On 30 September 2013, the Prime Minister announced the nomination of Marc Nadon, a Federal Court of Appeal judge, to fill the seat vacated by Supreme Court Justice Morris Fish. The announcement was accompanied an unusual supporting document – an opinion by a former Supreme Court Justice, The Honourable Ian Binnie. Asked whether the Supreme Court Act permits the appointment of Federal Court judges, Binnie wrote a brief memorandum arguing that it does – a conclusion endorsed by another former Supreme Court Justice, Louise Charron, and Professor Peter Hogg. After Nadon was sworn in, a Toronto lawyer launched proceedings in Federal Court to contest the appointment. This prompted Nadon to decline to participate in court hearings until the issue is resolved. On October 22, in apparent response to these events, the federal government announced that it would introduce a “declaratory” change to the Supreme Court Act. It would also seek an advisory opinion from the Supreme Court of Canada as to whether Federal Court judges are qualified for appointment.
The Supreme Court of Canada action is now docketed here.As Plaxton and Mathen describe the "apparent interpretive problem raised by Justice Nadon’s appointment,"
Section 5 of the Supreme Court Act states: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Section 6 provides: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Mr Justice Nadon was, at the time of his nomination, neither a judge of a Quebec superior court nor a current member of the practicing bar. It is therefore not clear that he is “among the advocates” of Quebec within the meaning of section 6.
Ultimately, they conclude that the argument in favor of Nadon's eligibility privileges section 5 over section 6, with its purpose "to protect the authority and legitimacy of the Court in the eyes of Quebec citizens, advocates and jurists."
This controversy over eligiblity has certainly eclipsed the earlier concerns regarding Nadon's appointment contributing to the lack of gender balance and representation on the Court.
Wednesday, October 23, 2013
The First Amendment includes a right of public (and press) access to trials. But what is a "trial"? Or, as the Third Circuit considered in its opinion in Delaware Coalition for Open Government v. Strine, is there a right of public access to a state sponsored arbitration program. By a divided panel - - - with a separate opinion from each of the three judges - - - the majority held that the First Amendment requires public access to state arbitration proceedings.
While the majority affirmed the district judge, the appellate panel disagreed with the standard the district judge applied. The correct standard, according to the apellate panel, is the "experience and logic" test. The test derives from cases applying the open access to a trial principle that the United States Supreme Court enunicated in Richmond Newspapers v. Virginia in 1980, including Press Enterprise v. Superior Court (II), in 1986, considering whether preliminary criminal hearings must be open to the public. Thus, quoting from Press Enterprise II, as the majority opinion by Judge Dolores Sloviter phrased it:
A proceeding qualifies for the First Amendment right of public access when “there has been a tradition of accessibility” to that kind of proceeding, and when “access plays a significant positive role in the functioning of the particular process in question.”
The history prong - - - asking whether there is a tradition of accessibility - - - rests upon a determination of the "kind" of proceeding in question. Here, the parties disagreed whether the focus should be on "civil trials" or "arbitrations": the court provided an in-depth discussion of both. The civil trial discussion traversed familiar ground, with the easy conclusion that civil trials and courtrooms are generally open to the public. The arbitration discussion began with a mention of English arbitrations in the twelfth century, concluding with a finding that the "history of arbitrations reveals a mixed record of openness." But, the court continued, the history shows that "arbitrations with non-state action in private venues tends to be closed." This is distinct from the Delaware scheme at issue, "a binding arbitration before a [state] judge that takes place in a courtroom," which is more like a usual civil trial.
On the logic prong, not surprisingly given the majority's discussion of history, public access was deemed to play a significant positive role. Judge Sloviter's opinion revealed a pointed disagreement with Judge Jane Roth's dissent:
I agree with Judge Roth on the virtues of arbitration. I cannot help but question why the Delaware scheme limits those virtues to litigants whose disputes involve an amount in controversy of at least a million dollars, and neither of whom is a consumer. One wonders why the numerous advantages set forth in Judge Roth’s dissenting opinion (which apparently motivated the Delaware legislature) should not also be available to businesspersons with less than a million dollars in dispute. I see no explanation in Judge Roth’s dissent for the limitation to rich businesspersons.
In her dissent, Judge Roth states that she believes that I do not appreciate the difference between adjudication and arbitration, i.e., “that a judge in a judicial proceeding derives her authority from the coercive power of the state, while a judge serving as an arbitrator derives her authority from the consent of the parties.” Indeed I do.
Delaware’s proceedings are conducted by Chancery Court judges, in Chancery Court during ordinary court hours, and yield judgments that are enforceable in the same way as judgments resulting from ordinary Chancery Court proceedings. Delaware’s proceedings derive a great deal of legitimacy and authority from the state. They would be far less attractive without their association with the state. Therefore, the interests of the state and the public in openness must be given weight, not just the interests of rich businesspersons in confidentiality.
In his concurring opinion, Judge Julio Fuentes seeks to clarify that it is not the entire arbitration scheme that violates the First Amendment, but only the provision requiring the proceedings to be "confidential" and "not of public record" until they are appealed.
Thus, these high stakes commercial arbitrations allowed by Delaware law and performed by Delaware judges can continue - - - but they are no longer confidential. This certainly seems the correct outcome if the First Amendment access to "trials" has substantive meaning.
Wednesday, October 16, 2013
Foreign Intelligence Surveillance Court Presiding Judge Reggie Walton wrote to Senators Leahy and Grassley this week that "24.4% of matters submitted [to the FISA court] ultimately involved substantive changes to the information provided by the government or to the authorities granted as a result of Court inquiry or action." Judge Walton wrote that "[t]his does not include, for example, mere typographical corrections." The figure comes from a three-month study of FISA court matters, between July 1, 2013, and September 20, 2013, but Judge Walton wrote that "we have every reason to believe that this three month period is typical . . . ."
The letter is a follow up to a letter that Judge Walton sent to the Judiciary Committee on July 29, 2013 (included after the most recent letter). It doesn't say how many matters the FISA court dealt with during the three-month period or give any other details. It does say, however, that the FISA court will continue to collect statistics.
The two letters come amid continued scrutiny of the FISA court, following criticism this summer after the Snowden release. The Senate Judiciary Committee held an oversight hearing on the FISA earlier this month. In his opening remarks, Senatory Leahy described features of his bill, S. 1215, the FISA Accountability and Privacy Protection Act of 2013:
Our legislation would end Section 215 bulk collection. It also would ensure that the FISA pen register statute and National Security Letters (NSLs) could not be used to authorize bulk collection. . . .
In addition to stopping bulk collection, our legislation would improve judicial review by the FISA Court and enhance public reporting on the use of a range of surveillance activities. The bill would also require Inspector General reviews of the implementation of these authorities . . . .
Senator Leahy's bill doesn't include the new privacy advocate that has gotten so much attention. That office, dubbed the Office of the Constitutional Advocate, is in Senator Wyden's S. 1551.
Tuesday, October 15, 2013
Today's oral arguments before the United States Supreme Court in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) raised a raft of interesting hypotheticals, including this question: Is the Michigan's state constitution's equal protection clause, which mirrors the federal one, itself unconstitutional under the Fourteenth Amendment's Equal Protection Clause.
Of course, the issue before the Court involves a different provision of Michigan's Constitution: Prop 2, adopted by voter referendum in 2006, and now Art I §26 of the state constitution.
The referendum occurred subsequent to the Court's upholding of Michigan University School of Law's affirmative action policy in Grutter v. Bollinger, even as the Court held unconstitutional the plan of the large undergraduate university as not sufficiently narrowly tailored.
Recall that the en banc Sixth Circuit majority in Coalition to Defend Affirmative Action v. Regents of the University of Michigan relied upon the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief, relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969).
The oral argument reflected a deep suspicion of the political process rationale, with the most serious questioning being directed at what the limits to such a doctrine might be. Justice Alito returned to the issue several times, posing various hypotheticals about faculty admissions plans that might be overruled by a dean or president of the university. Or maybe, he continued,
it's overruled by the regents. Maybe, if State laws allowed, it's -- it's overruled by an executive department of the State. Maybe it's overruled by the legislature through ordinary legislation. Maybe it's overruled through a constitutional amendment. At what point does the political restructuring doctrine kick in?
Later in the rebuttal argument of the Petitioner, Justice Alito suggested an answer to his own question:
Seattle and this case both involve constitutional amendments. So why can't the law -- the law be drawn -- the line be drawn there? If you change the allocation of power in one of these less substantial ways, that's one thing; but when you require a constitutional amendment that's really a big deal.
Indeed, this was exactly the rationale of the en banc Sixth Circuit's majority opinion, as the opening passages to that opinion illustrated.
And Justice Kennedy, seemingly in his role as a "swing vote" - - - although Justice Kagan is recused - - - seemed to share the specific concerns of how to draw a line in the cases.
Justice Scalia certainly did not seem inclined to worry about drawing lines or allocations of power. Indeed, he rejected the notion that Prop 2, now Article I §26 of the Michigan Constitution - - - despite its textual "on its face" use of a race - - - made a racial classification. He chastised Mark Rosenblum, arguing on behalf of some of the respondents, for referring to Prop 2 as including a "facial racial classification":
JUSTICE SCALIA: It's not a racial classification. You should not refer to it that way.
MR. ROSENBAUM: It is a racial -
JUSTICE SCALIA: It's the prohibition of racial classifications.
MR. ROSENBAUM: No, Your Honor.JUSTICE SCALIA: Every prohibition of racial classification is itself a racial classification?
After further discussion, Justice Scalia asked,
In that sense, the 14th Amendment itself is a racial classification, right?
To which Rosenbaum replied that he was using the Fourteenth Amendment itself as measurement. Yet this theme recurred, and had been part of the Petitioner's opening argument, including references to Michigan's equal protection clause.
Scalia also outright dismissed an appeal to originalism. When Shanta Driver (pictured right) on behalf of Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary (and who is its National Chair), began her argument asking the Court to affirm the Sixth Circuit and "to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case," Scalia interjected:
JUSTICE SCALIA: My goodness, I thought we've -- we've held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only -- only the blacks. But I thought we rejected that. You -- you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?
And Justice Roberts surfaced the position that affirmative action was actually a detriment to those it sought to benefit, echoing some of the arguments in Thomas's dissent in Fisher, such as the so-called "mismatch theory."
Thus, while the arguments sometimes sought to distance themselves from the affirmative action battles that the Court re-engaged last term in Fisher v. UT, certainly Schuette v. Coalition to Defend Affirmative Action is another such battle, albeit on slightly different doctrinal terrain. It seems unlikely that it will have a different ultimate outcome.
Monday, October 7, 2013
The facts of Madigan v. Levin argued today seem simple: Levin, an attorney working for the state of Illinois as an assistant state attorney was terminated in 2006 when he was 61 years old, being replaced by a younger attorney. At least two other older attorneys were also terminated, replaced by younger attorneys.
Whether these facts, and the further facts to be determined, would substantiate a claim of age discrimination is the question to be decided on the merits. But before any consideration of the merits, there is the thorny question of the grounding of the claim. Can it be the Age Discrimination in Employment Act, ADEA, 29 U.S.C. §§ 621? What about the Court's decision in Kimel v. Florida Board of Regents, holding that Congress had no power to abrogate a state's Eleventh Amendment immunity when it used its Fourteenth Amendment §5 power to pass ADEA? And is Levin even an "employee" within the ADEA? And what about GERA, the Government Employee Rights Act of 1991 (Title III of the Civil Rights Act of 1991), which has also run into abrogation of state immunity problems? Which is why, perhaps, Mr.Levin, even after exhausting his administrative remedies with the EEOC, sought to bring a claim under the Equal Protection Clause, using the jurisdictional statute 42 USC §1983. But the state argued that Levin's constitutional claims were precluded by the comprehensive scheme Congress had enacted to address age discrimination, the ADEA.
Affirming the district judge, the Seventh Circuit held that the ADEA did not bar a constitutional claim, with extensive analysis of the legislative history, but also reasoning in part that as a practical matter, this would mean that employees of state employers would be left without a federal damages claim because of the reasoning of Kimel. The Seveneth Circuit then ruled that the individual defendants did not enjoy qualified immunity, age discrimination being "clearly established" as a right under the Equal Protection Clause, with age classifications being scrutinized under the rational basis standard. The Seventh Circuit's opinion seemed well-reasoned, but it conflicted with the decisions of the other circuits - - - Fourth, Fifth, Ninth, and Tenth - - - that had decided that ADEA precluded equal protection claims based on age.
But while the attorney for the state of Illinois, Michael Scordo, did have a chance to articulate his finely crafted opening issue statement, Justice Ginsburg asked the first question, and the complex case became even more complex:
Mr. Scodro, there's a preliminary question before we get to the question you presented, and that is: What authority did the Seventh Circuit have to deal with the question under the Age Discrimination Act? I mean, it was -- it went to the Seventh Circuit on interlocutory review.
The procedural problem - - - did the Seventh Circuit have jurisdiction and thus does the Supreme Court have jurisdiction - - - had been flagged by an amicus brief of Law Professors, including Stephen Vladeck as counsel of record, who argued that
the Seventh Circuit lacked “pendent appellate jurisdiction” on an interlocutory qualified immunity appeal to decide the question on which certiorari was granted, i.e., whether the remedial scheme created by Congress in the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., displaces age-discrimination suits by state employees under the Equal Protection Clause and 42 U.S.C. § 1983.
As for the United States Supreme Court? The law professors brief argued:
To be sure, as this Court’s prior decisions attest, because the Seventh Circuit had jurisdiction over the qualified immunity issue, the Supreme Court still has the power to proceed to the merits notwithstanding the pendent jurisdictional defect below. But compelling reasons of prudence, practice, and policy all favor vacating the decision below and returning this case to the district court, rather than rewarding the Court of Appeals’ jurisdictional bootstrapping.
As Justice Scalia noted, most of the oral argument was taken up with these procedural matters - - - what he labeled the "other stuff" - - - with limited discussion of the merits.
But there was some discussion of the merits. In a colloquy with Justices Alito and later Kagan, the problem with the Equal Protection Clause claim got some attention. The attorney for Levin, Edward Theobald, was pressed on whether Levin could possibly prevail given the rational basis standard. Here's a snippet:
JUSTICE ALITO: And what if the Illinois legislature passed a statute that said: Now, forget about the ADEA. There is no ADEA. There is no state anti-discrimination law involved here. All we are talking about is equal protection. And they passed a law that said: All attorneys working for the State of Illinois must retire at the age of 60, because everybody knows, you know, once a lawyer passes 60, there's nothing left.
MR. THEOBALD: We're all in trouble.
JUSTICE ALITO: Would that be -- would that survive a rational basis review?
MR. THEOBALD: I don't believe so.
Of course, the Justices would not be in trouble if Illinois passed such a law; they are not only federal employees, they have life tenure, a benefit that is not universally applauded.
And they also have the power not only to decide the case, but also to decide that they do not - - - or should not - - - have the power to do so.
[image from Vanity Fair, 1903, via]
What newspapers does he read? Is he softening on his views of homosexuality? Does he believe in hell and the devil? Are women protected by the Fourteenth Amendment? What are his hobbies other than hunting? His television viewing? Favorite novels?
Most wrenching decision?:
Probably the most wrenching was Morrison v. Olson, which involved the independent counsel. To take away the power to prosecute from the president and give it to somebody who’s not under his control is a terrible erosion of presidential power. And it was wrenching not only because it came out wrong—I was the sole dissenter—but because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching.
But later, he comes back to the opinion:
As to which is the most impressive opinion: I still think Morrison v. Olson. But look, we have different standards, I suppose, for what’s a great opinion. I care about the reasoning. And the reasoning in Morrison, I thought, was devastating—devastating of the majority. If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.
It's not what he terms his most "heroic" decision, however, reserving that for a very different sort of opinion.
I mean the most heroic opinion—maybe the only heroic opinion I ever issued— was my statement refusing to recuse.
From the case involving Vice-President Cheney, with whom you’d gone hunting?
I thought that took some guts. Most of my opinions don’t take guts. They take smarts. But not courage. And I was proud of that. I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.
Given the standards of recusal - - - despite continuing controversies - - - there is little reason that Scalia or any other Supreme Court Justice should not give as many interviews as possible, even if they might reveal "bias."
Dahlia Lithwick over at Slate has an excellent analysis of the interview, including asking for the interviewer's perceptions about the interview: Are Jennifer Senior and Justice Scalia as far apart as they seem?
I asked Senior whether this [perception] felt accurate. She replied, “It's embarrassing, but the overlap between our worlds is almost nonexistent. It explains why the left and the right both responded so enthusiastically to this piece. Each side sees its own view, affirmed. One sees a monster and the other sees a hero. It's extraordinary, actually. The O'Reilly constituents think he's speaking sense; the Jon Stewart vote thinks virtually everything the guy says is nuts.”
October 7, 2013 in Books, Courts and Judging, Current Affairs, Equal Protection, Executive Authority, Fourteenth Amendment, Interpretation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 1, 2013
In an unanimous opinion in Marceaux v. Lafayette City-Parish Consolidated Government, a panel of the Fifth Circuit reversed and remanded the district court judge’s protective order requiring that the Plaintiffs, current and former police officers in the City of Lafayette, Louisiana, “take down” their website - - - "http://www.realcopsvcraft.com" - - - used to communicate their cause. (Note: the website is presently not operable).
The underlying lawsuit by the Plaintiff police officers claims that the government Defendants sought to “prevent police officers from reporting certain civil rights abuses and corruption” within the police department and “retaliated against them for objecting to these practices.” The website had “an image of the Lafayette Police Chief, a party in this suit; excerpts of critical statements made in the media concerning the Lafayette PD Defendants; certain voice recordings of conversations between the Officers and members of the Lafayette Police Department; and other accounts of the Lafayette PD Defendants’ alleged failings.” The website seemed to have been once owned by the Plaintiffs’ attorneys, but they “eventually transferred ownership of the website” to one of the police officers.
The appellate court rightly viewed the district judge’s order to cease the website as a prior restraint, but sought to “balance the First Amendment rights of trial participants with our affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity,” citing the classic case of Sheppard v. Maxwell, 384 U.S. 333 (1966).
In this civil case, theFifth Circuit, however held that there was not sufficient evidence to "establish a nexus between the comments and the potential for prejudice to the jury venire through the entirety of the Website." The panel found that ordering a removal of the website was not sufficiently “narrowly tailored” to "excising maters with a sufficient potential for prejudice to warrant prior restraint."
But the panel stated it did not intend to "tie the hands of the district court" in addressing some of the content of the website. As to the specific content of certain recordings made by the Plaintiffs and placed on the website, the panel did discuss the "ethics" of this, noting both the that ABA position is that a lawyer who records the conversation of another does not necessarily violate the Model Rules of Professional Conduct AND that the recordings were not made by an attorney. Thus, the district judge's conclusion that the recordings had to be omitted from the website because they were "unethically obtained" was disapproved.
This rather brief - - - 12 page - - - opinion is well reasoned and would make an interesting class exercise for First Amendment, especially should the website "go live" again.
[image circa 1900 via]
Monday, September 30, 2013
Judge Amy Berman Jackson (D.D.C.) today denied AG Eric Holder's motion to dismiss a case brought against him by the House Oversight and Government Reform Committee seeking to enforce its subpoena for documents related to DOJ's infamous February 4, 2011, letter denying that gun-walking in the "fast and furious" program had taken place. (The subpoena wasn't over the "fast and furious" program itself; instead, it was for any documents related to the government's February 4 denial.) Our latest post on the case, with background and links to earlier posts, is here.
Judge Jackson ruled in Committee on Oversight v. Holder that the case is justiciable, and that there's no good reason for the courts to decline to hear it. The ruling doesn't touch the merits.
The ruling means that the case will move forward on the merits question--whether executive privilege protects the subpoenaed documents--unless the parties settle.
Judge Jackson wrote that the case was a straightforward application of Committee on the Judiciary v. Miers:
And five years ago, another court in this District carefully considered and rejected the same arguments being advanced by the Attorney General here. In a case involving a different Congress and a different President, [Miers], the court concluded in a persuasive opinion that it had jurisdiction to resolve a similar clash between the branches.
Op. at 4.
September 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Privilege, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Jeanne Theoharis (pictured right) a Political Science Professor at Brooklyn College (CUNY) has an interesting article over at The Nation, as the first in a series of pieces in collaboration with Educators for Civil Liberties about the "domestic war on terror." Theoharis discusses the well-known situation of Syed Fahad Hashmi, one of her former students.
She observes that "researchers and human rights advocates, focused on the horrors abroad in the “war on terror” (Guantánamo, Abu Ghraib, extraordinary rendition), had largely overlooked the civil rights abuses happening right here at home."
Just because something is legal does not make it just. Many of the most egregious rights violations in American history—slavery, the seizure of Indian land, segregation and the expansion of the penal system, the internment of Japanese-Americans, the firing of gay and communist-sympathizing federal employees during the McCarthy era—were accomplished and legitimated through the law. Most of these historical instances were undertaken as necessary security measures. It took public dissent and a sustained outcry, long and arduous struggles, to reveal the rights abuses embodied in the law.
This would be a great short "think piece" to stimulate conversation in a Constitutional Law class.
Wednesday, September 25, 2013
Tuesday, September 24, 2013
decision in Adoptive Couple v. Baby Girl, known as the "Baby Veronica" case, has been quite painful for the parties. Recall that the Court's 5-4 decision concluded that the Indian Child Welfare Act, ICWA, would not be violated by the adoption of the child by a white couple. The constitutional issue of "racial classifications" (rather than Indian sovereignty) loomed, but was not directly engaged.
The Oklahoma Supreme Court dissolved the emergency stay of the adoption yesterday in Brown v. DeLapp. The majority's order is accompanied by two dissenting opinions, each of which describe the various proceedings and holdings, including the South Carolina Supreme Court's decision that did not remand for a "best interests of the child" determination, but decided to "remand this case to the Family Court for the prompt entry of an order approving and finalizing Adoptive Couple's adoption of Baby Girl."
Much of the press has been highly sympathetic to the adoptive parents, but also worth a read is an article from Indian Country Today Media Network.
Wednesday, September 18, 2013
The Sixth Circuit's succinct and unanimous opinion in Autocam Corporation v. Sebelius sided with the Third Circuit's July opinion in Conestoga Wood Specialties and against the en banc Tenth Circuit's June majority opinion in Hobby Lobby on the issue of whether a for-profit secular business has a free exercise of religion right (as a person) under RFRA, the Religious Freedom Restoration Act. There is some intertwining of the First Amendment free exercise of religion claim, but the Autocam decision rests on RFRA.
Autocam, like Conestoga Wood and Hobby Lobby, and its owners, argue that the regulations under the Patient Protection and Affordable Care Act of 2010 (“ACA”) requiring employers cover contraceptive methods for their employees - - - often called the contraceptive mandate - - - infringes on their religious rights. Autocam, like the others, is a large corporation. And a quick look at Autocam's "mission" on its website indicates no expression of a religious purpose, but only providing superior products.
The Sixth Circuit interestingly found that while Autocam as a corporation had standing to assert its claims, the Kennedy family as members (owners?) of a "closely held corporation" did not have shareholder standing: "Generally, shareholders of a corporation cannot bring claims intended to redress injuries to a corporation, even when the corporation is closely held." The Kennedys argued that this rule should not apply in RFRA claims, but the court found nothing in RFRA to support their view. Further, the court rejected their claims they were individually harmed or that a "pass through" theory could be applied.
As to the merits of the corporation's assertion of personhood under RFRA, the court found that RFRA did not support such an interpretation, and moreover, "Reading the term “person” in the manner suggested by Autocam would lead to a significant expansion of the scope of the rights the Free Exercise Clause" protected prior to Employment Division v. Smith and the enactment of RFRA.
By affirming the denial of the preliminary injunction by the district judge, the Sixth Circuit panel has entered the fray of a circuit split on the issue. With its unamious opinion, it does tilt the "count" toward a nonrecognition of religious rights of secular for proft corporations (recall that the en banc Tenth Circuit opinion was closely divided and the Third Circuit panel opinion was also split; additionally earlier this month a senior district judge in the Tenth Circuit applied applied Hobby Lobby to a for-profit nursing home chain.) However, the Sixth Circuit opinion adds little new to the analysis of this issue increasingly ripe for Supreme Court review.
September 18, 2013 in Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Medical Decisions, Opinion Analysis, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Sunday, September 15, 2013
Over at the New Yorker blog, Lincoln Caplan's piece, "Justice Ginsburg and Footnote Four" analyzes Ginsburg's discussion last week at the National Constitution Center, arguing that one of her statements "deserves more attention than it has gotten."
Ginsburg stated that her dissent last term in Fisher v. University of Texas Austin, regarding judicial review of affirmative-action plans of colleges and universities, "was inspired by a 1938 ruling not mentioned in the dissent—actually, by one of its footnotes." That most famous footnote - - - footnote four - - -of United States v. Carolene Products, is for many (including Caplan) the foundation of "a coherent justification for unelected justices to overturn legal decisions of elected officials when the fairness of the Constitution, and of democracy, is at stake."
Recall that the 1938 case of Carolene Products involved a federal statute regulating the shipment of "filled milk" (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream). It may be that this case was also on Ginsburg's mind during the oral arguments of another one of last term's cases: In her questioning of Paul Clement, who represented BLAG, in United States v. Windsor about the constitutionality of DOMA, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage." As we noted at the time, Ginsburg's allusion would have special resonance for those who recalled Carolene Products.
September 15, 2013 in Affirmative Action, Courts and Judging, Fifth Amendment, Food and Drink, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 11, 2013
As the headline in the Miami Herald article proclaims, "Guantánamo judge makes secret ruling on secret motion in secret hearing."
Released today, on the twelfth anniversary of September 11 tragedy, is a transcript of an August hearing relating to the September 11 co-conspirators. It's worth a read - - - or perhaps "a look" would be more accurate.
Here's a snippet:
However, it does become clear that the Prosecution sought to prevent "something" from discovery by defense counsel and that the judge decided in favor of defense counsel representing the September 11 co-conspirators.
Sunday, September 1, 2013
Texas Penal Code 21.15 seeks to do just that, providing:
A person commits an offense if the person: (1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room: (A) without the other person’s consent; and (B) with intent to arouse or gratify the sexual desire of any person.
While Texas courts had previously upheld the statute, the Texas Fourth Circuit Court of Appeals, sitting in San Antonio, ruled on a pretrial writ of habeas corpus that the statute was unconstitutional in its opinion in Ex Parte Thompson.
In its relatively brief discussion, the unanimous three judge panel held that "the statute not only restricts an individual’s right to photograph, a form of speech protected by the First Amendment, but the statute also restricts a person’s thoughts, which the U.S. Supreme Court has held is 'wholly inconsistent with the philosophy of the First Amendment.'" [citations omitted].
The court, however, rejected the argument that the statute was a content restriction, instead finding that it was "imposing time, place, and manner restrictions that are unrelated to content," and thus merited "intermediate scrutiny" under United States v. O’Brien. While O'Brien - - - the draft card burning case - - - is generally thought to be applicable to expressive conduct, the panel here uses O'Brien's factors to ultimately conclude that the statute is facially overbroad "reaching a substantial amount of constitutionally protected conduct," and relying in part on the Supreme Court's 2010 opinion in United States v. Stevens, declaring the federal "crush porn" statute unconstitutional.The opinion's analysis and use of precedent might trouble some First Amendment scholars and it will be interesting to watch whether the case reaches the Texas Court of Criminal Appeals [thanks to commentator for clarifying Texas court system].
Friday, August 30, 2013
The ACLU earlier this week filed a motion for a preliminary injunction in ACLU v. Clapper, the case in the Southern District of New York challenging the NSA's mass collection of Americans' telephone data. We most recently posted on the NSA program, in EFFs suit against it, here.
The ACLU argues that it has a substantial likelihood of success on its Fourth and First Amendment challenges to the NSA program. The group also argues that the government exceeded its statutory authority under Section 215 of the Patriot Act in collecting telephony metadata.
At the same time, the government filed a motion to dismiss. The government claims that the ACLU lacks standing (under Clapper v. Amnesty International), that Congress impliedly precluded judicial review of the NSA program, that the NSA program is authorized by Section 215 of the Patriot Act, and that the program doesn't violate the Fourth and First Amendments.
Standing will certainly be an important threshold issue in the case, especially after the Court's ruling in Amnesty International. In that case, the Court ruled that a group of attorneys and organizations didn't have standing to challenge the FISA Amendments Act, which allowed the Attorney General and the DNI to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be outside the United States. The Court said that the plaintiffs' alleged injury-in-fact was too speculative--that the plaintiffs couldn't show that they'd be targets of surveillance under this FISA authority, that the FISA court would necessarily approve the surveillance of them, or that the government would succeed in its surveillance of them.
Here, in contrast, the ACLU alleged in its complaint that its telephone communications were and are monitored, that this monitoring would reveal privileged and sensitive information between the ACLU and its clients, and that the monitoring will likely have a chilling effect on the group's communications with clients. In other words, the ACLU tried to navigate the Amnesty International barrier and show with more determinacy that it has suffered a sufficient injury in fact.
August 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0) | TrackBack (0)
Tuesday, August 27, 2013
The United States District Court for the District of Columbia ruled today in Burns-Ramirez v. Napolitano that a Secret Service Agent's Title VII claim based on her co-workers' alleged false statements about her, which led to the revocation of her top security clearance, can go forward. But the court was clear that it can't rule on the underlying agency decision to investigate, suspend, or revoke the plaintiff's security clearance; it can only rule on the plaintiff's claim that agency employees acted with discriminatory or retaliatory motive by making false reports to agency decisionmakers, knowing that those reports were false.
The ruling grows out of a Secret Service Agent's Title VII claims against DHS for suspending her top secret security clearance based on alleged statements by her co-workers that were false, discriminatory, and in retaliation for her earlier complaints about harassment and retaliation. The Service ultimately revoked her top secret security clearance, which led to her termination as an Agent. (You need a top secret security clearance to be an Agent.)
She sued, and the Service moved to dismiss. The court granted the motion to dismiss, ruling the claim nonjusticiable under Navy v. Egan (1988), insofar as the plaintiff's suit required the court to review the substantive agency decisions to investigate, suspend, or revoke her security clearance. But the court, applying a D.C. Circuit exception to Egan, denied the motion insofar as the suit alleged that agency employees acted with discriminatory or retaliatory motive by making false reports to agency decisionmakers, knowing that those reports were false.
The ruling means that the portion of the case relating to agency employees making false or discriminatory reports can go forward, even as the portion of the case relating to the substantive decision to revoke the plaintiff's security clearance is dismissed.
Monday, August 26, 2013
Judge Ellen Segal Huvelle (D.D.C.) ruled today in Bernstein v. Kerry that a group of Americans living in Israel lacked standing to challenge the U.S. government's funding of the Palestinian Authority. Relying heavily on Clapper v. Amnesty International (2013), Judge Huvelle ruled that the plaintiffs' fear of terrorist attacks was not a sufficient injury, that it wasn't fairly traceable to U.S. funding of the Palestinian Authority, and that changing U.S. funding policies wouldn't necessarily reduce their fears.
The ruling means that the case is dismissed. Judge Huvelle didn't rule on the government's political question defense or its its argument that the plaintiffs had no clear right to relief under the Mandamus Act, the basis for their suit.
The plaintiffs argued that the government violated laws that barred the use of U.S. funds to support a Palestinian state unless the Secretary of State determined and certified to Congress that the Palestinian Authority and any governing entity of a new Palestinian state satisfied certain requirements to pursue regional peace and to counter terrorism and that funding was in the U.S. interest.
Judge Huvelle held that the plaintiffs had no support for their view that "subjective emotional response to the possibility of an invasion of a legally-protected interest constitutes an injury-in-fact." Op. at 6. Indeed, she wrote that "a host of cases . . . hold the opposite." Id. (quoting Clapper (a "subjective fear of surveillance does not give rise to standing")). Judge Huvelle also held that the plaintiffs' "standing canot be based on plaintiffs' interest, common among all citizens, in the government following the law." Op. at 8.
Judge Huvelle also held that the plaintiffs failed to show causation and redressability.
Friday, August 9, 2013
President Obama said that he directed his national security team "to review where our counterterrorism efforts and our values come into tension," and "to be more transparent and to pursue reforms of our laws and practices." He said he'd work with Congress to reform Section 215 of the Patriot Act, the statutory authority for the Foreign Intelligence Surveillance Court to order the release of telephone records (and which came under fire with Snowden's release of the FISC order doing just that), and to reform the FISC, in particular, by appointing a civil liberties advocate at the court. He also said he'd work to be more transparent about surveillance and appoint an independent group "to step back and review our capabilities, particularly our surveillance technologies, and . . . how we can maintain the trust of the people . . . ."
As to the legal authority, the administration gave a broad read to the term "relevant" in Section 215--the issue that EPIC pressed in its recent suit challenging the program. That is, the administration takes the position that Section 215's requirement that FISC production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation" gives very broad sweep to the FISC's authority. The administration also focused on controls over abuse of the authority under Section 215.
The document argues that the program violates neither the Fourth Amendment nor the First Amendment. As to the Fourth, the document claims that surveillance of telephony metadata doesn't even qualify as a "search" under Smith v. Maryland (1979), and, even if it did, the "search would satisfy the reasonableness standard that the Supreme Court has established in its cases authorizing the Government to conduct large-scale, but minimally intrusive, suspicionless searches" under Maryland v. King (2013).
As to the First Amendment, the document argues that the program authorizes the collection of only metadata, not content. Moreover, it says that as a lawful investigative activity, can't violate the First Amendment, and that there's no chilling of protected speech.
August 9, 2013 in Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Fourth Amendment, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Monday, August 5, 2013
Recall that the district court dismissed the case for lack of standing and for raising a political question. The defendants in their brief raised those issues and another ground for dismissal: the claims are barred by the Speech or Debate Clause. The defendants said that "[u]nder that Clause, Senate officers are absolutely immune from suit for any actions assisting the Senate in carrying out debate under its rules because such acts fall squarely within the sphere of legitimate legislative activity protected from questioning by the Clause." Brief of Appellees at 21.
Common Cause responded:
Actions that violate the Constitution are not "within the sphere of legitimate legislative activity"--they are ultra vires. As the Supreme Court held in Powell, Dombrowski and Kilbourn, "legislative employees who participated in the unconstitutional activity" are not immune from suit under the Speech or Debate Clause and are "responsible for their acts." Powell.
Reply Brief at 30.