Thursday, January 7, 2016

Daily Read: Attorneys, Abortions, and the Amicus Brief in Whole Women's Health

The amicus brief of Anice MacAvoy, Janie Schulman, and Over 110 Other Women in the Legal Profession Who Have Exercised their Constitutional Right to an Abortion filed in Whole Woman's Health v. Cole, the abortion case before the United States Supreme Court regarding Texas's controversial HB2 statute, puts the emotions and stories of legal professionals whose abortions have played a positive role in their lives and careers.

Although the amicus does not cite the Court's most recent abortion decision, Gonzales v. Carhart (Carhart II), the import of the amicus is a challenge to some of the reasoning in that case.  Specifically, Justice Kennedy writing for the majority in Carhart II stated that:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. Casey, supra, at 852–853 (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05–380, pp. 22–24. Severe depression and loss of esteem can follow. See ibid.

The dissenting opinion of four Justices, authored by Justice Ginsburg, responded to this passage at length:

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Ante, at 29. Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28–29. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

 

Myra_Bradwell_1870
Myra Bradwell, attorney, circa 1870

This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, 208 U. S. 412, 422–423 (1908) (“protective” legislation imposing hours-of-work limitations on women only held permissible in view of women’s “physical structure and a proper discharge of her maternal funct[ion]”); Bradwell v. State, 16Wall. 130, 141 (1873) (Bradley, J., concurring) (“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.”), with United States v. Virginia, 518 U. S. 515 , n. 12 (1996) (State may not rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women; “[s]uch judgments have … impeded … women’s progress toward full citizenship stature throughout our Nation’s history”); Califano v. Goldfarb, 430 U. S. 199, 207 (1977) (gender-based Social Security classification rejected because it rested on “archaic and overbroad generalizations” “such as assumptions as to [women’s] dependency” (internal quotation marks omitted)).

Though today’s majority may regard women’s feelings on the matter as “self-evident,” ante, at 29, this Court has repeatedly confirmed that “[t]he destiny of the woman must be shaped … on her own conception of her spiritual imperatives and her place in society.” Casey, 505 U. S., at 852. See also id., at 877 (plurality opinion) (“[M]eans chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”); supra, at 3–4.

[footnotes omitted].

The brief of the attorneys who have had abortions and are legal professionals clearly supports the view that women must be able to exercise reproductive free choice.  The stories of the women attorneys gathered in the amicus brief is a testament to the positive aspects of abortions - - - rather than the regrets - - - that women attorneys have experienced. 

 

 

 

 


January 7, 2016 in Abortion, Courts and Judging, Current Affairs, Equal Protection, Family, Fourteenth Amendment, Gender, Medical Decisions, Privacy, Recent Cases, Reproductive Rights, Scholarship | Permalink | Comments (0)

Wednesday, January 6, 2016

Alabama's CJ Roy Moore Issues Administrative Order on Same-Sex Marriage

Despite the United States Supreme Court's holding last Term in Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, the controversial Chief Judge of the Alabama Supreme Court Roy Moore issued an " Adminstrative Order" forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect."

Alabama5Today's administrative opinion is part of Moore's ongoing reaction to constitutional issues surrounding same-sex marriage.  After an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Judge Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue.  Recall that the United States Supreme Court declined to stay the federal judge's judgment.  Despite these direct orders, seemingly Moore's current argument in today's Administrative Order is that Obergfell does not apply to Alabama but only the states involved in the Sixth Circuit opinion to which the Court granted certiorari.

Judge Moore's "interesting" construction of constitutional law is not limited to the precedential value of United States Supreme Court opinions.  Several months ago - - - in a lesbian second-parent adoption case, E.L. - - - the Alabama Supreme held that Alabama need not accord full faith and credit to a Georgia decision because of a dissenting opinion. The United States Supreme Court stayed the decision in E.L. pending a decision on the petition for certiorari.

 

 

January 6, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0)

Monday, December 14, 2015

United States Supreme Court Stays Alabama Opinion Refusing to Recognize Adoption

The United States Supreme Court today issued a simple Order staying the mandate of the Alabama Supreme Court's controversial denial of full faith and credit to a Georgia adoption of three children by a member of a same-sex couple in V.L. v. E.L.   Recall that the Supreme Court of Alabama's opinion, reversing the lower courts, relied primarily on a dissent from the Georgia Supreme Court in another case.

Today's Order reads in full:

The applications for recall and stay of the Supreme Court of Alabama’s Certificate of Judgment, in case No. 1140595, presented to Justice Thomas and by him referred to the Court, are granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court.

It is clearly not a ruling on the merits.  Whether or not it provides an indication that the Court will grant the petition for writ of certiorari is speculative. 

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Nevertheless, this controversy is reminiscent of previous controversies involving the Alabama Supreme Court - - - whose Chief Justice is Roy Moore  (pictured above) - - - and the state courts' interpretation of same-sex marriage as opposed to the United States Supreme Court.

December 14, 2015 in Courts and Judging, Full Faith and Credit Clause, Fundamental Rights, Recent Cases, Reproductive Rights, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)

Wednesday, December 9, 2015

Court Hears Oral Arguments In Fisher II

Today the Court heard oral arguments in Fisher v. University of Texas - - -  Fisher II - - - (again) raising the constitutionality of the admissions plan at the University of Texas that includes a consideration of race.  How much a consideration of race is included in the plan as well as the effect of any considerations surfaced in today's argument which demonstrated the deep divide amongst the Justices on issues of race.

This deep divide was apparent, despite the fact that Fisher I was a 7-1 opinion as Justice Breyer noted today.  (Only Justice Ginsburg dissented in Fisher I; Justice Kagan was recused).  Breyer stated that the Court "promised in Fisher I" that strict scrutiny would not be "fatal in fact" as applied in university affirmative action.  Justice Breyer had previously stressed in a colloquy with Bert Rein, representing Fisher, that it must be possible to use race, actually "spelling it out" to counsel.  After Breyer asked for an example of using race and Rein replied "you could give more emphasis to socio-economic factors," Breyer stated:

That's not to use race. I'm saying r­-a­-c­-e, race. I want to know which are the things they could do that, in your view, would be okay. Because I'm really trying to find out. Not fatal in fact, we've said. Okay? Not fatal in fact. Fine.

Yet the problem of the requirement of narrowly tailored proved difficult.  Perhaps Solicitor General Verrilli, supporting the University of Texas, expressed the problem best by calling it a "Catch-22."  Indeed, it seemed that the university's plan was problematic both because it was and was not effective. Nevertheless, one recurring argument was whether the University of Texas plan was as good as - - - if not better - - - than the plans upheld in Grutter and Bakke.

The arguments were not limited to the means chosen, however, for the continued validity of diversity as a compelling interest in higher education surfaced repeatedly.  While General Verrilli did not mention George Washington, he did aver to the continued importance of diversity in higher education and for the nation.  Moreover, there were references to the hope expressed by the Court in Grutter v. University of Michigan that affirmative action would not be necessary in 25 years.  Chief Justice Roberts asked counsel for University of Texas, Gregory Garre, whether we were going to "hit the deadline" in 12 more years.  Justice Scalia asked Solicitor General Verrilli if he thought we could "stop disadvantaging some applicants because of their race" in another 13 years.

Scalia made it clear that he thought the time for any type of racial affirmative action was long past, if there ever was such a time.  Indeed, in what was probably the most controversial commentary in the argument, Scalia advanced what might be called a separate-but-unequal argument:

There are ­­ there are those who contend that it does not benefit African­-Americans to ­­ to get them into the University of Texas where they do not do well, as opposed to having them go to a less­ advanced school, a less ­­ a slower ­track school where they do well. One of ­­ one of the briefs pointed out that ­­ that most of the ­­ most of the black scientists in this country don't come from schools like the University of Texas.

. . . . They come from lesser schools where they do not feel that they're ­­ that they're being pushed ahead in ­­ in classes that are too ­­ too fast for them.

Will it all devolve to Justice Kennedy?

5900480459_2e14f47115_oIf Justice Kennedy, the author of Fisher I,  is the "swing vote" in Fisher II, it may be that the Court would remand Fisher to the district court for a trial. 

Recall that the Fifth Circuit in Fisher on remand from the United States Supreme Court did not remand to the district court, but decided the case.  But just what that evidence might possibly be adduced at a trial was also a controversial subject at the oral argument. 

 

Still, this might be the only compromise available for such a divided Court.

 

December 9, 2015 in Affirmative Action, Courts and Judging, Fourteenth Amendment, Oral Argument Analysis, Race | Permalink | Comments (0)

Tuesday, November 24, 2015

Seventh Circuit Finds Wisconsin's Physician "Admitting Privileges" Abortion Requirement Unconstitutional

In its divided opinion in Planned Parenthood of Wisconsin v. Schimel, the Seventh Circuit affirmed the district judge's grant of a permanent injunction against the 2013 Wisconsin Statute, §253.095(2), that prohibits a physician from performing an abortion unless she or he has admitting privileges at a hospital no more than 30 miles from the clinic in which the abortion is performed.

Writing for the majority, Judge Richard Posner (pictured) concluded that the state statute imposed an undue burden on women seeking abortions and focused on the statute's intent to "strew impediments to abortion" rather than achieve its stated purpose of protecting women's health. 

Posner, Richard 08-10Judge Posner first noted that the statute was signed into law on a Friday and required doctors comply with it by Sunday; this revealed the legislative intent to prevent abortions rather than protect women's health. 

Additionally, Judge Posner concluded that any focus on women's health was spurious.  First, "A woman who experiences complications from an abortion (either while still at the clinic where the abortion was per- formed or at home afterward) will go to the nearest hospital, which will treat her regardless of whether her abortion doc- tor has admitting privileges," citing the brief by the American College of Obstetricians and Gynecologists, the American Medical Association, and the Wisconsin Medical Society.  Second, citing the same brief, Judge Posner concluded that studies show that "complications from an abortion are both rare and rarely dangerous," and contended that this fact "further attenuates the need for abortion doctors to have admitting privileges."  Third, Posner found it troublesome that abortion was singled out for such an admitting privileges law:

Wisconsin appears to be indifferent to complications of any other outpatient procedures, even when they are far more likely to produce complications than abortions are. For example, the rate of complications resulting in hospitalization from colonoscopies done for screening purposes is four times the rate of complications requiring hospitalization from first-trimester abortions.

As to the "continuity of care" justification, Posner noted that while the statute requires the physician to have admitting privileges at a hospital within 30 miles, it does not require the physician to care for that patient at the hospital.

Judge Posner firmly rejected the argument that women in Wisconsin could exercise their constitutional right to an abortion in Chicago - - - across state lines - - - and further found that there was an undue burden for women given that such a trip could be "prohibitively expensive" especially for women living below the poverty line.

In his inimitable style, Judge Posner also provided his views on the Fifth Circuit's decision regarding Texas's HB2 in Whole Woman's Health v. Cole, to which the United States Supreme Court recently granted certiorari.  Judge Posner distinguished the Fifth Circuit's conclusion on the admitting privileges provision, noting that the plaintiffs there did not satisfy the court that the statute would lead to a substantial decline in the availability of abortion.  But Judge Posner also provided his opinion on the Texas statute's ambulatory surgical center requirements - - - notwithstanding the fact that a similar provision was not before the Seventh Circuit - - - noting that

The [Fifth Circuit] court remarked the absence of evidence that the remaining clinics could not expand their capacity to compensate for the closing of more than three-fourths of them,  although one wouldn’t think it necessary to parade evidence that the remaining clinics would find it extremely difficult to quadruple their capacity to provide abortions, which would require, in the face of fierce opposition to abortion clinics and the difficulty of relocating abortion doctors from the closed clinics, extensive physical enlargement to house additional patients and doctors.

Judge Posner also responded to the Fifth Circuit's previous decision on HB2 in Planned Parenthood of Greater Texas v. Abbott that "excoriated" the Seventh Circuit's opinion upholding the preliminary injunction against the Wisconsin statute for engaging in "empirical basis review." Judge Posner wrote:

But a statute that curtails the constitutional right to an abortion, such as the Wisconsin and Texas statutes, cannot survive challenge without evidence that the curtailment is justifiable by reference to the benefits conferred by the statute. The statute may not be irrational, yet may still impose an undue burden—a burden excessive in relation to the aims of the statute and the benefits likely to be conferred by it— and if so it is unconstitutional.

Judge Posner ultimately concluded that "We do not agree with the Fifth Circuit that evidence is irrelevant in a constitutional case concerning abortion."

Judge Daniel Manion's well-organized dissenting opinion disagrees with the majority at almost every turn.  For example, Judge Manion finds that abortion is "subject to less regulatory oversight than almost any area of medicine."  On the subject of state-lines, Judge Manion declares: "Consumers who live near the border of two states tend to shop at the closest destination, regardless of whether they reside in that state." Thus, the courts should consider "distance" rather than "the governor's mansion" to decide whether or not a regulation will constitute an undue burden.  Instead, Wisconsin - - - or the courts - - -need not intervene if "the market fails to provide qualified abortionists within its boundaries." 

For Posner, joined in the opinion by Judge David Hamilton, the overturning of Roe v. Wade is a "steep uphill fight," so persons opposed to abortion "proceed indirectly" in the guise of protecting women's health and thereby pass unconstitutional laws.  Whether or not Judge Posner's predictions will prove correct will be tested as the United States Supreme Court considers Whole Woman's Health this Term.

November 24, 2015 in Abortion, Courts and Judging, Due Process (Substantive), Gender, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0)

Wednesday, November 18, 2015

Students Lack Standing to Challenge SAT, ACT Sale of Personal Information for Profit

The Seventh Circuit ruled today that students who authorized the corporations who run the SAT and ACT standardized tests to provide their personal information to educational organizations lacked standing to challenge the corporations' sale of that information. The ruling means that the putative class action against the SAT and ACT is dismissed.

Along the way, the court also ruled that the Iqbal/Twombly heightened pleading standard ("plausibility") applies to facial challenges to standing under Rule 12(b)(6). This may raise the bar for plaintiffs in pleading and arguing standing. This portion of the ruling aligns with the approach in several other circuits; but it's in tension with the Ninth Circuit, which says that "Twombly and Iqbal are ill-suited to application in the constitutional standing context."

The case arose when ACT, Inc., and The College Board (which administers the SAT) sold personal information of students who signed up to take the tests. The students agreed that the corporations could share their personal information with educational groups (schools, scholarship funds, and the like), but they didn't know that the corporations were going to sell their personal information. (The price was small--$.33 per student per educational group--but would add up quickly for the defendants.) The plaintiffs argued that they were harmed by the sale because (1) they should have received some of the proceeds, (2) the sale diminished the value of their personal information, and (3) they paid a fee to take the ACT or SAT, which presumably would have been lower if they had not consented to the sale.

The Seventh Circuit flatly rejected these claims. The court ruled that under the Iqbal/Twombly standard, the plaintiffs' allegations didn't plausibly suggest that they'd been harmed. The court said that just because the defendants benefited doesn't mean that the plaintiffs were harmed for standing purposes: "Plaintiffs have claimed injury based solely on a gain to Defendants and without alleging a loss to themselves." (Although the court applied the Iqbal/Twombly standard, it looks like the plaintiffs would have failed even without it.)

The court rejected the plaintiffs' claim that their complaint gave rise to a reasonable inference that if they knew of the sale they would have conditioned their permission on receipt of a portion of the proceeds. The court said that the plaintiffs didn't provide factual support for the inference, so it didn't even need to get to whether the claim gives rise to a plausible claim of subject matter jurisdiction under Iqbal and Twombly.

In other words, it's not clear that the heightened Iqbal/Twombly standard mattered to the outcome at all. Still, the case says that the standard now applies to standing in the Seventh Circuit.

 

November 18, 2015 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, November 13, 2015

Supreme Court Grants Certiorari in Texas HB2 Abortion Case

The United States Supreme Court today granted certiorari in Whole Woman's Health v. Cole to the Fifth Circuit's decision essentially upholding the bulk of the controversial HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis).   Recall that a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.

The Fifth Circuit's most recent opinion, reversing the district judge, held that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements, did not impose an "undue burden" on women and were thus constitutional under the Fourteenth Amendment's Due Process Clause. 

596px-Texas_travel_map.svgThe Fifth Circuit did find that HB2 was unconstitutional as applied to the Whole Woman's Health facility in McAllen, Texas, but not as to the the Reproductive Services Facility in El Paso, Texas.  The facility in McAllen is the only one in the "Rio Grande Valley."  However, there is another facility close to the closed facility in El Paso - - - a mere 12 miles away - - - but importantly across the state line in New Mexico.  The Fifth Circuit distinguished its own opinion in Jackson Women's Health Organization v. Currier regarding Mississippi's restrictive abortion law which had the effect of closing all the clinics in the state, by emphasizing the fact that even before HB2 "half of the patients at the St. Teresa [New Mexico] clinic came from El Paso which is in the same 'cross-border' metropolitan area as St. Teresa," and including a footnote that the court's analysis would be different "in the context of an international border."   Thus, the court found it irrelevant that the nearest in-state facility was 550 miles away.

The United States Supreme Court's grant of certiorari means that the Court will consider direct abortion regulations - - - and thus the continuing precedential value of Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - - - for the first time since Carhart v. Gonzales in 2007 in which the Court upheld the controversial federal so-called partial birth abortion ban.  The Court's most recent foray into the abortion controversy was its 2014 opinion in McCullen v. Coakley finding Massachusetts' buffer-zone legislation protecting abortion clinics violative of the First Amendment.

November 13, 2015 in Abortion, Courts and Judging, Current Affairs, Due Process (Substantive), Fourteenth Amendment, Gender, Reproductive Rights, Supremacy Clause | Permalink | Comments (0)

Monday, November 2, 2015

Standing, Access Case Meets Sharply Divided Court

The Supreme Court heard oral arguments today in Spokeo v. Robins, the case testing whether Congress can confer standing on a plaintiff by statute, even when the plaintiff lacks a sufficient and independent harm for Article III standing purposes.

The case is important for what it will say about access to the courts, and, in particular, class actions. The justices at oral arguments seemed sharply divided along conventional ideological lines, with progressives favoring access and conservatives, including Justice Kennedy, going the other way. If so, the case will take its place among the line of cases coming out of the Roberts Court that limit access to the judiciary and favor (corporate and government) defendants.

(Check out the outstanding Vanderbilt roundtable on the case, with six different takes, available here.)

The case arose when Spokeo, the owner of a web-site that provides searchable reports containing personal information about individuals, reported false information about Thomas Robins. For example, Spokeo reported that Robins had a graduate degree (he doesn't), that he was employed in a professional or technical field, with "very strong" "economic health" and wealth in the "Top 10% (he's unemployed), and that he's in his 50s, married, with children (he's not in his 50s, not married, and no children).

Robins filed suit, claiming that Spokeo's representations violated the federal Fair Credit Reporting Act. He sought damages under the Act for a willful violation. Robins claimed that Spokeo's false report made it harder for him to find a job.

Justices Kagan and Scalia marked out the competing positions early in Spokeo's argument, and at times bypassed Spokeo's attorney (Andrew Pincus) entirely and simply argued with each other. At one point, Justice Scalia even intervened to answer a question for Pincus, and then told Pincus that it was the right answer. In short, Justice Kagan argued that Congress identified a concrete harm in the Act and provided a remedy for it; Justice Scalia argued that any harm was merely "procedural," because any harm was only Spokeo's violation of the Act's procedures (with no additional concrete harm). Here's a little of the exchange:

Justice Kagan: But did that procedural requirement--this is--this is exactly what Lujan says, "It's a procedural requirement the disregard of which could impair a concrete interest of the plaintiff."

And we distinguished that from procedural requirements in vacuo.

. . .

Justice Scalia: Excuse me. That--that would lead to the conclusion that anybody can sue . . . not just somebody who--whose information was wrong.

Pincus seemed to make an important concession in response to a question by Justice Kennedy, whether "Congress could have drafted a statute that would allow [Robins] to bring suit?" Pincus said yes, and proceeded to describe it--basically a statute that required a plaintiff to show a concrete harm that would be sufficient for Article III. If Justice Kennedy is in play, Pincus's softer position may assuage any concerns over an extreme position that Congress can never confer standing. The softer position also saves other statutes that have similar Congress-confered-standing provisions. (Justice Kennedy picked up this theme with Robins's attorney (William Consovoy) and noted that Consovoy's position of a Congress-created-harm (alone) seemed circular--but Consovoy didn't seem to give a satisfying answer.) At one point Pincus made another important concession: some plaintiffs might have standing under the FCRA, so long as they show an independent and sufficient harm.

On the other side, Chief Justice Roberts pressed Consovoy early on the limits of his argument--a point we're likely to see in the opinion:

Chief Justice Roberts: What about a law that says you get a--a--$10,000 statutory damages if a company publishes inaccurate information about you? . . . The company publishes your phone number, but it's wrong. That is inaccurate information about you, but you have no injury whatever. Can that person bring an action for that statutory damage?

Consovoy didn't have a response, or, rather, his response only opened new cans of worms. (Justice Breyer intervened and offered an interpretation of the statutory language that gives a cause of action to "any consumer who has obtained--who suffers from false information.") Chief Justice Roberts and Consovoy had a similar exchange later in the argument, too. Consovoy maintained that the FCRA was different than the Chief's hypotheticals, because the FCRA authorizes damages only for someone who was injured. He didn't seem to persuade the Chief on this point, though, despite Justice Breyer's help.

Justice Alito pointed to the record and argued that it didn't support a concrete harm. Indeed, he pointed out that nobody in the record (other than Robins himself) searched for him on Spokeo--a "quintessential speculative harm"--probably another point we'll see in the final opinion.

Chief Justice Roberts asked a different question--and a far more loaded one (politically, and constitutionally)--to the government, amicus for Robins:

Chief Justice Roberts: [L]et's kind of say your--your--Congress thinks that the president is not doing enough to stop illegal immigration, so it passes a law that says, anyone in a border State--so it's particularized--who is unemployed may bring an action against an illegal immigrant who has a job. And they get damages, maybe they get an injunction.

. . .

And I would have thought that the--the president would be concerned about Congress being able to create its own enforcement mechanism. I thought that you would be concerned that that would interfere with the executive prerogative.

The government tried to distinguish the hypo, but, again, counsel probably didn't persuade the conservatives.

November 2, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0)

Court Hears Oral Arguments in Batson Challenge to Death Sentence

The Court heard oral arguments today in Foster v. Humphrey regarding a challenge to a 1987 conviction and death sentence by an all-white Georgia jury based on  Batson v. Kentucky (1986) applying equal protection principles to peremptory challenges in jury selection.

A seemingly new issue on the case involved whether or not the United States Supreme Court should be hearing the case at all.  While the Court granted certiorari to the Georgia Supreme Court (as we discussed and as the petition requested), the problem is that the Georgia Supreme Court had denied review . . . . for reasons that are unclear.  Was it discretionary? Was that discretion bounded?  Did the Georgia Supreme Court's denial of review for lack of a meritorous claim constitute a decision on the merits?  And even more complexly, did the Georgia state courts have an adequate and independent state ground - - - res judicata - - - under Michigan v. Long (1983)?  (Beth Burton, the attorney for Georgia seemed to concede this was not the case.)  And to add yet another layer of complexity, even if the United States Supreme Court decided it should review the matter, what exactly should it review? As Chief Justice Roberts asked, "In other words, are we addressing just whether there's arguable merit to the claim or are we addressing the claim on its own merits?"

On the merits of the Batson claim, the problem arises from the "smoking gun" of prosecutorial notes singling out the Black potential jurors in the case.  Although Steve Bright, attorney for Foster suggested that there was "an arsenal of smoking guns" here, Justice Scalia suggested that Foster had to "establish [in order ] to reverse the Georgia courts is that the new smoking gun, assuming that all the rest were not enough to demonstrate a Batson violation ­­ the new smoking guns would tip the scale."  Justice Kagan seemed to see it differently, suggesting to Beth Burton, the Georgia Deputy Attorney, that this was a clear Batson violation:

You have a lot of new information here from these files that suggests that what the prosecutors were doing was looking at the African-­American prospective jurors as a group, that they had basically said, we don't want any of these people.  Here is the one we want if we really have to take one.  But that there ­­ all the evidence suggests a kind of singling out, which is the very antithesis of the Batson rule.

Burton initially suggested that the prosecutors' notes highlighting Black jurors was that the prosecutor was preparing for a Batson challenge.  Justice Breyer expressed some incredulity at this based on the fact that prosecutors never previously advanced such a reason.  Justice Breyer also seemingly expressed incredulity at the prosecutors' argument that there were "40 different reasons" - - - other than race - - - meant that one was truly valid, rather than drawing an inference from the sheer number of reasons that they were invalid. 

Justice Kennedy, perhaps the decisive vote, seemed convinced the prosecutors committed a Batson violation: "They've ­­ - - - they've made a mistake - - - ­­ they've made a mistake of - - -­­ in Batson."  But Justice Kennedy was also quite vocal in pressing the attorneys on the procedural issue, which could be an escape hatch for the Court in what could prove to be a difficult case.

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November 2, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Supreme Court (US) | Permalink | Comments (0)

Friday, October 30, 2015

D.C. Circuit Finds Competitor Standing in Case Against IRS

The D.C. Circuit ruled today that an association of CPAs and their firms had "competitor standing" to challenge an IRS program that allows previously uncredentialed tax return preparers who meet certain prerequisites to have their names listed in the IRS's online "Directory of Federal Tax Return Preparers."

The ruling is a victory for the association and allows the case to go forward on the merits.

The ruling is also a victory for anyone who wants to get into federal court to challenge an action that may give their competitors an edge, even if the link between the action and the edge is based only on "basic economic logic."

The IRS program allows previously uncredentialed tax return preparers--so-called "unenrolled preparers"--to get listed if they take a class and meet other requirements. The program is a boon to preparers who take advantage of it, because they'll get listed with the IRS and, as a result, get more tax preparation business. It'll also likely deal a blow to CPAs and other already-credentialed preparers, because they'll now have to compete toe-to-toe with lower-cost unenrolled preparers.

The association challenged the program for violating notice-and-comment rulemaking requirements. The district court dismissed the case for lack of standing. The association appealed and argued, among other things, competitor standing.

The D.C. Circuit agreed with the association. It wrote that association members "will face intensified competition as a result of the challenged government action. Specifically, participating unenrolled preparers will gain a credential and a listing in the government directory." The court accepted the association's claim that this "will 'dilute[] the value of a CPA's credential in the market for tax-return-preparer services' and permit unenrolled preparers to more effectively compete with and take business away from presumably higher-priced CPAs."

You might wonder why the link between the IRS program and the CPAs' harm isn't too speculative (under, say, Clapper v. Amnesty International). After all, the IRS program is voluntary, not compulsory, so it's not obvious that any unenrolled preparer will even participate; moreover, it's not obvious that IRS listing will benefit a participant; and moreover it's not obvious that listing will benefit a participant to the detriment of CPAs. The court had an answer to all this: "basic economic logic." The court explained:

To begin with, the link between the government-backed credentials offered to unenrolled preparers and the reputational benefit they will enjoy is hardly speculative. Indeed, the reputational benefit is the very point of the IRS Program. . . . Moreover . . . the IRS Program at issue here is both voluntary and clearly intended to offer competitive benefits to those unenrolled preparers who participate in the Program. "Basic economic logic" suggests that unenrolld preparers will choose to participate only if they believe the resulting reputational benefit will produce a substantial enough competitive advantage to outweigh their compliance costs.

The court declined to consider the IRS argument that the association's complaint wasn't within the "zone of interests protected or regulated by the statutory provision" it invokes, because the IRS didn't raise it at the district court.

October 30, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Thursday, October 29, 2015

En Banc Sixth Circuit Rejects "Heckler's Veto" in "Bible Believers" Protest at Arab-American Festival

The en banc Sixth Circuit's opinion in Bible Believers v. Wayne County clearly rejected the existence of a "heckler's veto" to inflammatory but protected speech under the First Amendment's speech clause, as well as finding the speech protected under the Free Exercise Clause and the Equal Protection Clause of the Fourteenth Amendment.  The en banc court also found that the government was liable and that there was no qualified immunity.

Recall that last year a panel of the Sixth Circuit rejected the constitutional challenges of the Bible Believers group, affirming the district judge's grant of summary judgment for the government.

The underlying controversy arose when a group known as the "Bible Believers," Evangelical Christians, came to the Arab International festival on the streets of Dearborn, Michigan - - - as they had done the year before - - - to "preach."  Their speech included "strongly worded" slogans on signs, t-shirts, and banners (e.g., "Islam Is A Religion of Blood and Murder"),  a "severed pig's head

800px-Repin_17October
Repin, Demontsration 1905, via

on a stick" (intended to protect the Bible Believers by repelling observers who feared it), statements through a megaphone castigating the following of a "pedophile prophet" and warning of "God's impending judgment."  A crowd gathered, seemingly mostly of children and adolescents, who yelled back and threw items at the preachers.  A law enforcement asked the Bible Believers to leave, and - when pressed - saying they would be cited for disorderly conduct. They were eventually escorted out.

The Sixth Circuit's extensive en banc opinion, authored by Judge Eric Clay - - - and in which 8 (including Clay) of the 15 Sixth Circuit judges joined - - - resolutely "confirms" the free speech protections that should be accorded to a speaker even when "angry, hostile, or violent crowds" seek to silence that speaker. 

The opinion first finds that the Bible Believers' speech was protected, rejecting exception of incitement (to riot) and fighting words.  The "fighting words" discussion is regrettably short - - - a single paragraph - - - and summarily advances the "objective standard" requiring the insult to be likely to provoke the "average person" (emphasis in original) and moreover to be directed at an "individual."  In the context of the facts here, these principles deserved further exploration.

After a brief discussion of the public forum, the en banc opinion then discussed at length the "heckler's veto" doctrine and concluded it was not a viable doctrine.  Applying that conclusion, the opinion discussed law enforcement performance, citing the video record (which the court did at several points in the opinion): there was "next to no attempt made by the officers to protect the Bible Believers or prevent the lawless actions of the audience" and  it was not sufficient an effort "to maintain peace among a group of rowdy youths" - - - i.e., the crowd at the festival - - - if it consists of  a"few verbal warnings and a single arrest.  The court advised:

We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested; or allowing the Bible Believers to speak from the already constructed barricade to which they were eventually secluded prior to being ejected from the Festival. If none of these measures were feasible or had been deemed unlikely to prevail, the WCSO [Wayne County Sheriff's Office] officers could have called for backup—as they appear to have done when they decided to eject the Bible Believers from the Festival—prior to finding that it was necessary to infringe on the group’s First Amendment rights. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.

In a very brief analysis, the court held that the free exercise claim "succeeds on the same basis as the free speech claim."  As for the Equal Protection Clause claim, the court's discussion is similarly summary, but its analysis seems much too conclusory:

The Festival included a number of other religious organizations that came to share their faith by spreading a particular message. There are several distinctions between the Bible Believers and these other groups. Mainly, the Bible Believers chose, as was their right, not to register for an assigned table under the information tent. Instead, they paraded through the Festival and proselytized, as was also their right, while carrying signs and a severed pig’s head. Although these actions set them apart from the other speakers and religious organizations at the Festival, they do not do so in any relevant respect. Any speaker could have walked the Festival grounds with or without signs if they chose to do so. The Bible Believers, like the other religious organizations at the Festival, sought to spread their faith and religious message. Although they declined to utilize the tent set aside for outside groups, their conduct was at all times peaceful while they passionately advocated for their cause, much like any other religious group. Wayne County did not threaten the Bible Believers based on their decision to march with signs and banners, but based on the content of the messages displayed on the signs and banners. The county’s disparate treatment of the Bible Believers was based explicitly on the fact that the Bible Believers’ speech was found to be objectionable by a number of people attending the Festival. Wayne County therefore violated the Bible Believers’ right to equal protection by treating them in a manner different from other speakers, whose messages were not objectionable to Festival-goers, by burdening their First Amendment rights.

The en banc court also held that the officers were not entitled to qualified immunity and that municipal liability was established.  On these issues, there were vigorous dissents.  And indeed, the en banc majority seems on tenuous ground, especially given its earlier discussion of Sixth Circuit precedent in Glasson v. City of Louisville decided in 1975:

In this Circuit, a modicum of confusion is understandable with respect to the prohibition against the heckler’s veto due to Glasson’s discussion of a good-faith affirmative defense.  . . . . Therefore, to the extent that Glasson’s good-faith defense may be interpreted as altering the substantive duties of a police officer not to effectuate a heckler’s veto, it is overruled.

Yet in the discussion of qualified immunity, the en banc court reasoned:

To the extent that Glasson’s discussion of a good-faith defense confused the issue of whether a heckler’s veto constitutes a constitutional violation, the facts and analysis in Glasson nonetheless alerted Defendants that removing a peaceful speaker, when the police have made no serious attempt to quell the lawless agitators, could subject them to liability.

That both the district judge and a previous panel of the Sixth Circuit had found that law enforcement's actions were constitutional, this seems a harsh conclusion - - - and is inconsistent with recent qualified immunity in First Amendment cases.  (For example, recall the unanimous Supreme Court 2014 opinion in Lane v. Franks, not cited in the Sixth Circuit opinions).

On the whole, the Sixth Circuit opinion validates the First Amendment right of provocative, offensive, and "challenging speech" - - - including symbolic speech such as marching with a pig's head on a stick - - - and requires law enforcement to protect such speech against (physically) hostile reactions by directing their efforts against those who are hostile rather than the speakers.   As Judge John Rogers, dissenting, suggested, one way to view the underlying controversy was that the "Bible Believers were hecklers seeking to disrupt the cultural fair" being held by the Arab-American community as an expressive enterprise.  The en banc majority clearly rejected that view - - - and held that the government should be liable for damages.

October 29, 2015 in Cases and Case Materials, Courts and Judging, Equal Protection, First Amendment, Free Exercise Clause, Opinion Analysis, Race, Religion, Speech | Permalink | Comments (0)

Tuesday, October 27, 2015

Ninth Circuit on Unconscious Bias, Equal Protection, and Batson

A divided Ninth Circuit panel has affirmed the district judge in granting habeas corpus and vacating a death sentence in its opinion in Crittenden v. Chappell.

Crittenden's claimed the prosecutor at trial excluded an African-American prospective juror on account of her race, in violation of the Equal Protection Clause of the Fourteenth Amendment, as interpreted in Batson v. Kentucky (1986). The Ninth Circuit had previously clarified that the peremptory challenge at issue need not be motivated solely by race, but only “motivated in substantial part” by race, “regardless of whether the strike would have issued if race had played no role.” On remand, the district judge found that the prosecutor was substantially motivated by race.

Lady-justice-juryWhile there are several issues in the case, including deference, appellate procedure, and retroactivity, the issue of "intent" under equal protection doctrine in the Batson context was central. The district judge's opinion engaged in specific comparisons regarding jurors and also stated "[t]he [side-by-side juror] comparisons demonstrate that . . . [the prosecutor] was motivated, consciously or unconsciously, in substantial part by race."   The relevance of "unconsciously" was a division among the Circuit judges.  For the majority, this was a "passing comment" in the district judge's opinion, and "all the court meant was, whatever the explanation for the prosecutor’s racial motive, that motive was a substantial reason for his use of a peremptory strike." (emphasis in original).  The majority added, "In other words, why the prosecutor had a conscious racial motive to strike [the potential juror] Casey in the first place – whether or not 'unconscious racism' partly explained that motive – was simply irrelevant to the Batson inquiry."  It interestingly added this footnote:

It was relevant, of course, to the prosecutor’s reputation. The district court’s reference to “unconscious racism” spared him from being found a racist. By suggesting the prosecutor may have had more benign racial motives for the strike, or that his racial motive may have been influenced by unconscious racism, the court hoped to shield the prosecutor from possible disrepute. As the court made clear, however, this effort was not designed to – and did not – detract from the court’s key finding that the strike was consciously motivated by race.

Thus, because the majority upheld the district court’s finding of a conscious racial motive, "we do not – and need not – address whether unconscious bias can establish a Batson violation."

Judge Margaret McKeown dissented from the opinion authored by Judge Raymond Fisher and joined by Judge Marsha Berzon, arguing that there needed to be a clearer indication of discriminatory purpose:

The remaining question is whether, in striking [the potential juror] Casey, the prosecutor had a discriminatory purpose. “‘Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected . . . a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Hernandez v. New York (1991) (plurality) (quoting Person. Admin. of Mass. v. Feeney,  (1979)). The touchstone, as described in our caselaw, is whether race was a “substantial motivating factor” in the prosecutor’s decision to strike Casey.

(ellipses in original).  For dissenting judge McKeown, the burden was on the defendant to prove purposeful discrimination and he failed to do so. She added,

This case calls to mind Justice Breyer’s observation that the Batson inquiry can be an “awkward, sometime hopeless, task of second-guessing a prosecutor’s instinctive judgment—the underlying basis for which may be invisible even to the prosecutor exercising the challenge.” Miller-El v. Dretke (2005) (Breyer, J., concurring). In view of the record of what actually happened, the trial judge’s findings and the ultimate composition of the jury, our retrospective parsing simply cannot elevate ambiguous, speculative foundation to proof that the prosecutor was motivated in substantial part by racism.

The problem of the degree of proof of intent in equal protection claims generally and Batson specifically has vexed the courts.  Recall that the United States Supreme Court will be taking another look at equal protection doctrine under Batson this term in Foster v. Humphrey; the lower court had held that  merely because the prosecutor's notes and records revealed "that the race" - - - meaning Black - - - "of prospective jurors was either circled, highlighted or otherwise noted on various lists" did not establish purposeful discrimination. 

October 27, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Fourteenth Amendment, Opinion Analysis, Race | Permalink | Comments (0)

Monday, October 26, 2015

D.C. Circuit Denies Bivens Remedy for Overseas Violations in Criminal Terrorism Investigation

The D.C. Circuit on Friday ruled in a fractured opinion that a U.S. citizen secretly detained, transferred involuntarily between countries, and threatened with torture by FBI agents did not have a claim for violation of the Fourth Amendment in federal courts. That's because "special factors" counseled against such a remedy under Bivens v. Six Unknown Agents.

The ruling means that Plaintiff Meshal's case is dismissed, and leaves him without a remedy. It also makes it yet even more difficult for plaintiffs like Meshal to get their cases heard in federal court. 

The FBI originally detained and held Meshal because of his alleged connections to al Qaeda; it later released him without charges.

The court wrote that Meshal's claim involved a "new context" for Bivens--a strike against him right out of the gate:

Not only does Meshal's claim involve new circumstances--a criminal terrorism investigation conducted abroad--it also involves different legal components--the extraterritorial application of constitutional protections. Such a different context requires us to think anew. To our knowledge, no court has previously extended Bivens to cases involving either the extraterritorial application of constitutional protections or in the national security domain, let alone a case implicating both--another signal that this context is a novel one.

Because the case arose in a "new context," the court looked to special factors counseling against a Bivens remedy. And it found two, which, taken together, left Meshal without a Bivens cause of action: (1) the case involves "the military, national security, or intelligence," and (2) the conduct occurred outside the borders of the United States. The court also said that a host of "practical factors" counseled against a Bivens remedy, including requiring the court to second guest executive officials operating in foreign justice systems, unknown diplomatic consequences of the suit, and forcing the courts to answer hard questions about the extraterritorial application of the Constitution outside of peacetime.

Judge Kavanaugh wrote separately to especially emphasize the military, counter-terrorism, and foreign context of the suit--the "new context" that triggered the special factors analysis and weighted so heavily against a Bivens claim.

Judge Pillard wrote a lengthy and scathing dissent, dissecting the court's analysis point-by-point. Judge Pillard was particularly concerned about the blind judicial deference to the government's mere invocation, without reasonable explanation, of foreign policy and national security as special factors counseling against a Bivens remedy. She summed up the strange and deeply disturbing result:

Had Meshal suffered these injuries in the United States, there is no dispute that he could have sought redress under Bivens. If Meshal's tormentors had been foreign officials, he could have sought a remedy under the Torture Victim Protection Act. Yet the majority holds that because of unspecified national security and foreign policy concerns, a United States citizen who was arbitrarily detained, tortured, and threatened with disappearance by United States law enforcement agents in Africa must be denied any remedy whatsoever.

October 26, 2015 in Cases and Case Materials, Courts and Judging, Fourth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, October 13, 2015

No Standing in Case for Constitutional Convention

Judge James E. Boasberg (D.D.C.) ruled today that an individual plaintiff lacked standing to sue House Speaker John Boehner and Senate Majority Leader Mitch McConnell to force them to call a constitutional convention. But the ruling doesn't end the matter: the case now goes back to D.C. Superior Court under the federal statute that allowed the defendants to remove to federal court in the first place.

Repeat plaintiff Montgomery Blair Sibley, described by the court as "a United States citizen with a propensity for filing unmeritorious lawsuits," sued Boehner and McConnell, arguing that thirty-five states have voiced their support for a constitutional convention, "some as far back as 1901 (Minnesota), some as recently as 1979 (Mississippi)." But Sibley argued that the congressional leaders failed to call a convention, as required by Article V. ("The Congress . . . on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments . . . .")

While Sibley filed first in D.C. Superior Court, Boehner and McConnell removed the case to federal court under a federal statutes that allows removal of suits in state court against any officer of either House of Congress. They then moved to dismiss, arguing that Sibley lacked standing, that they're protected by the Speech and Debate Clause, and that the case raises a non-justiciable political question.

Judge Boasberg ruled only on standing, and said that Sibley lacked it. (The ruling was even easier than it looks, as it turned out, because Sibley conceded the point early in the lawsuit.)

But Judge Boasberg also remanded the case to D.C. Superior Court, because the statues that allowed removal also required remand, and because Judge Boasberg held that there was no futility exception.

Still, the D.C. court is almost certain to dismiss the case, if only because D.C. law on standing follows the federal courts.

October 13, 2015 in Courts and Judging, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0)

Friday, October 2, 2015

Daily Read: Chief Justice Roberts at Ten

The inimitable Linda Greenhouse in "A Chief Justice Without A Friend" notes that John Roberts is unpopular as he celebrates his decade on the bench.

I can’t think of a chief justice who has been so uniformly vilified by both left and right.

The attacks from the left are logical enough. It’s the fire from the right that merits closer observation than it has generally received. Sure, it’s titillating in a man-bites-dog sort of way. But it’s also revealing of an ideological transformation now underway in how an increasingly influential segment of the conservative elite views the role of courts.

A good quick read, with a link to The Nation special issue - - - The Case Against the Roberts Court - - - which is likewise worth a read.

Cover1012

 

October 2, 2015 in Courts and Judging, Current Affairs, Supreme Court (US) | Permalink | Comments (0)

Thursday, October 1, 2015

Court Grants Review of Bias of Pennsylvania State Supreme Court Justice in Death Penalty Case

The Court has granted certiorari in Williams v. Pennsylvania on issues of due process and the Eighth Amendment revolving around former Chief Justice of the Pennsylvania Supreme Court Ronald Castille (pictured). 

RCastillePA

Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013.  Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row."

One of those people on death row is Terrence Williams, the petitioner in Williams v. Pennyslvania.  Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief.  Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty.  Williams' claim, moreover, is based on prosecutorial misconduct. 

Williams relies on Caperton v. Massey (2009) regarding judicial bias. Unlike the situation of Justice Benjamin in Caperton, Castille did not cast a "deciding vote" on the court.  [Nevertheless, Castille's concurring opinion is worth reading for its defensiveness].  Recognizing this distinction, Williams also relies on Atena Life Insurance v. Lavoie (1986), and notes there is a circuit split regarding bias when the biased decided is only one member of a multi-member tribunal.

October 1, 2015 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Supreme Court (US) | Permalink | Comments (0)

Wednesday, September 30, 2015

Seventh Circuit Upholds Chicago's Weed and Fence Ordinances

In its opinion in Discount Inn v. City of Chicago, the Seventh Circuit has rejected constitutional challenges to the city's fence and weed ordinances, affirming the district judge's dismissal of the complaint.  The plaintiff, a corporation that Judge Posner's opinion for the unanimous panel notes is inadequately identified in the record, sought "recovery of the fines that it has paid for violating" the ordinances —"it claims to have been fined more than twenty times." 

Discount Inn alleged that the challenged ordinances violate the prohibition in the Eighth Amendment of “excessive fines.”  Basically, Judge Posner rejects this claim with a simple statement: "A fine topped off at $600 can hardly be deemed an excessive penalty for violating the ordinance."

Discount Inn also alleged that the challenged "weed ordinance is vague and forbids expressive activity protected by the First Amendment."  Posner does recognize that it is possible that plants could have an expressive dimension:

The gardens of Sissinghurst Castle and of Giverny might well be recognized as works of art were they in the United States. There may be gardens in Chicago, whether consisting of native or other plants, that are or should be recognized as works of art.

However, he ultimately dispatches the First Amendment claim thusly:

the plaintiff’s claim that the free‐speech clause insulates all weeds from public control is ridiculous. It’s not as if the plaintiff invented, planted, nurtured, dyed, clipped, or has otherwise beautified its weeds, or that it exhibits or in‐ tends or aspires to exhibit them in museums or flower shows. Its weeds have no expressive dimension. The plaintiff just doesn’t want to be bothered with having to have them clipped.

Thus, this should be a rather routine affirmance of a dismissal. 

However, Judge Posner has taken the opportunity to provide some discourse - - - and some illustrations - - - of "weeds."  Posner writes:

there is an ambiguity in the concept of a “weed,” an ambiguity brought out by comparing “weed” to ”native plant.” A native plant, like a weed (or perhaps it could be thought of as an elite type of weed), is “born” and matures normally without human intervention although it may also have been deliberately planted. It need not be destructive. In contrast, an “invasive plant species” enters either naturally or by human transport into an area in which native or other valued plants are growing, and squeezes out or otherwise injures or destroys those plants. Cf. 40 C.F.R. § 166.3, defining “invasive species” for purposes of federal pesticide regulations as “any species that is not native to [a particular] eco‐system, and whose introduction does or is likely to cause economic or environmental harm or harm to human health.”

Here is one of the five photographs included in the 16 page opinion:

Posner

This image, like the other images in the opinion, and some of the discussion, is not in the record.

This opinion seems more confirmation of ConLawProf Josh Blackman's labeling of Judge Posner as the "most flagrant, and brazen offender" of the appellate rule against fact-finding. 

Nevertheless, coupled with the Second Circuit's decision on "credit card surcharges," this case could be a great introduction in First Amendment: Neither prices nor weeds are speech.

September 30, 2015 in Courts and Judging, First Amendment, Opinion Analysis | Permalink | Comments (0)

Tuesday, September 29, 2015

SEC Target Can't Jump the Gun (to Federal Court)

The D.C. Circuit ruled in Jarkesy v. SEC that the target of an SEC administrative proceeding has to run the administrative course before he can challenge the proceeding in federal court for violating his constitutional rights.

The ruling aligns with a recent Seventh Circuit decision, but is at odds with some of the district courts that have ruled on the question.

The SEC brought an administrative proceeding against George Jarkesy, charging him with securities fraud. Before the SEC ruled on the case, but after Jarkesy's co-respondents settled (in a way that didn't look good for Jarkesy), Jarkesy sued in federal court to stop the proceeding, arguing that it violated various constitutional rights.

The district court dismissed Jarkesy's case, and the D.C. Circuit affirmed.

The court applied the two-part framework in Thunder Basin Coal Co. v. Reich and held (1) that congressional intent to require a litigant to proceed exclusively through the SEC's statutory scheme of administrative and judicial review was "fairly discernible in the statutory scheme" itself and (2) that Jarkesy's claims were "of the type Congress intended to be reviewed within [the SEC's] statutory structure."

The court rejected an argument that Jarkesy's case was like the plaintiffs' challenge in Free Enterprise Fund v. PCAOB. In that case, the Supreme Court sustained district-court jurisdiction over the plaintiffs' facial constitutional challenge to Sarbanes-Oxley. The court also rejected an approach that would distinguish between different types of constitutional challenges (allowing some on collateral attack, but not allowing others). The court explained:

We do not read the Free Enterprise Court's characterization of the plaintiffs' claims in that case, however, to define a new category of collateral claims that fall outside an otherwise exclusive administrative scheme. In its subsequent decision in Elgin [v. Department of the Treasury], the Court considered and rejected the idea that one could divine an exception to an otherwise exclusive administrative scheme based on the distinction between various types of constitutional challenges. "[A] jurisdictional rule based on the nature of an employee's constitutional claim would deprive the aggrieved employee, the MSPB, and the district court of clear guidance about the proper forum for the employee's claims at the outset of the case," the Court wrote, dismissing the plaintiffs' proposed line between constitutional challenges to statutes and other types of constitutional arguments to be "hazy at best and incoherent at worst." The Elgin Court also rejected the dissent's proffered rule making an exception to the CSRA scheme specifically for facial attacks on statutes. The Court explained that "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge."

September 29, 2015 in Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Monday, September 28, 2015

D.C. Circuit to Rehear Judgment Vacating Military Commission Conviction

The D.C. Circuit announced that it would rehear en banc a panel's earlier judgment vacating the military commission conviction of Ali Hamza Ahmad Suliman al Bahlul, an alien enemy combatant who one time bragged about his role in the 9/11 attacked.

A panel this past June vacated al Bahlul's conviction for inchoate conspiracy. The panel said that the conviction violated Article III because it was based on "the purely domestic crime" of inchoate conspiracy, which is not an offense under the international law of war.

The panel's summer ruling was a victory for al Bahlul and a blow to the government in conducting military commission trials. But the court's latest ruling gives it a second bite at this apple. The ruling vacates the panel's summer judgment and sets oral argument before the entire court for December 1, 2015.

September 28, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0)

Tuesday, September 22, 2015

No Constitutional Claim for Former Embed Journalist

Schwinn-steven
Steven D. Schwinn, John Marshall Law School

The D.C. Circuit this week dismissed a case of a former embed journalist against Defense Department officials for terminating his embed status in violation of the First Amendment and the Administrative Procedure Act.

The ruling may reveal a rift on the court over the sweep of sovereign immunity in a constitutional case for non-monetary, specific relief against government actors in their official capacity--that is, over the meaning or sweep of Clark v. Library of Congress (D.C. Cir.). The issue is critically important for access to justice.

The case arose when NATO officials terminated Wayne Anderson's embed status after he posted pictures that violated the Ground Rules for embeds. Anderson sued the Secretary of Defense and DoD officials in their individual and official capacities, seeking reversal of the memo terminating his embed status and declaratory relief (but no monetary damages).

Anderson appealed the lower court's dismissal, but only as to the defendants in their official capacities. He alleged a claim for retaliation under the First Amendment and a violation of the Administrative Procedure Act. (Anderson's precise arguments were a little muddied, and maybe included a procedural due process claim, too.)

The D.C. Circuit ruled that the government enjoyed sovereign immunity against a suit against the defendants in their official capacities, and did not waive it through the APA. (The APA might have provided a statutory waiver of immunity, except that it exempts "military authority exercised in the field in time of war.")

The court went on to say that Anderson's claim was also moot. That's because the Afghanistan mission was drawn down, and NATO (not a party to the suit) led the embed program. In other words, the court said that it couldn't grant any relief to Anderson. But the court noted that Anderson could re-apply for the current embed program.

Judge Srinivasan concurred and dissented. He argued that the government did not enjoy sovereign immunity, citing Clark v. Library of Congress (D.C. Cir.). In that case, the court declined to apply sovereign immunity to shield the government from suit for non-monetary, specific relief for officials' unconstitutional behavior. The Clark court wrote, "Clark's claims for non-monetary, specific relief are not barred by sovereign immunity. It is well-established that sovereign immunity does not bar suits for specific relief against government officials where the challenged actions of the officials are alleged to be unconstitutional or beyond statutory authority."

Judge Srinivasan also argued that the case was not moot, given that the "government has not shown that the transition to a NATO-led mission has made it impossible for the court to provide any relief bearing on a United States journalist's ability to embed."

September 22, 2015 in Cases and Case Materials, Courts and Judging, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)