Monday, March 7, 2016

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

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

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

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

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

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

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

Alabama Supreme Court Justice Greg Shaw


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

Friday, March 4, 2016

Alabama Supreme Court on Same-Sex Marriage

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

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

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


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

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

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

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

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

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

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

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

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

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

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

 [footnote omitted].

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

Could this part of the saga be concluded?



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

Monday, February 29, 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court today heard oral arguments in Williams v. Pennsylvania on issues of due process and the Eighth Amendment revolving around the court's decision in a death penalty case and judicial ethics. The Pennsylvania Supreme Court has been especially rocked by scandals - - - with one Justice resigning because of corruption and another because of sexually explicit emails and another Justice being subject to disciplinary proceedings over the explicit emails - - - but this controversy involves a different Justice, former Chief Justice of the Pennsylvania Supreme Court Ronald Castille. Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013.  Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row."

One of those people on death row is Terrance Williams, convicted at age 18 and whose story has attracted much interest. Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief.  Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty.  Williams' post-conviction claim, moreover, is based on prosecutorial misconduct. 

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

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

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

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

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

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

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

Supreme Court's Oral Argument in Voisine: Does Justice Thomas believe there is a Second Amendment issue?

Today's oral argument in Voisine v. United States centers on  the statutory construction of 18 U.S.C. § 921(a)(33)(A) which defines a "“misdemeanor crime of domestic violence” as an offense that is a misdemeanor AND 

has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

The relevance of this definitional section is its application to 18 U.S.C. §922(g)(9) which makes is a federal crime for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence," to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

At issue in Voisine is whether the misdemeanor crimes involving family offenses that can be satisfied with a reckless mens rea are included the definition.  Virginia Villa, arguing for the petitioners Voisine and Armstrong, stressed statutory definitions but the arguments delved into common law definitions as well.  Arguing for the United States, Assistant Solicitor General Ilana Eisenstein stressed Congressional intent, with Justice Ginsburg surfacing the "rule of lenity." 

But the argument then took a constitutional turn.


This was prompted by questioning from Justice Thomas (seemingly just as Eisenstadt believed her argument had concluded):

 This Court should continue to interpret Section 922(g)(9) in light of that compelling purpose.

If there are no further questions.

JUSTICE THOMAS: Ms. Eisenstein, one question.

Can you give me ­­ this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?

Justice Thomas thereafter made a First Amendment analogy, asked whether the Second Amendment was indefinitely suspended, and pointed out that the underlying misdemeanor need not have involved a firearm.   In considering possible analogies, Justice Kennedy pointed to SORNA which curtails the interstate travel of registered sex offenders.  (Justice Kennedy could have analogized to sex offender cases involving the restrictions on First Amendment rights as well).  Justice Breyer asked whether the Congressional statute was a "reasonable regulation of guns under the Second Amendment given Heller and the other cases with which I disagreed?"  This provoked laughter but was also a poignant reminder that Heller's author was not on the bench given his unanticipated death.  Justice Breyer, however, continued and attempted to make clear that the constitutional question was not clearly before the Court.  It may be before the Court as a matter of constitutional avoidance (the statute should be construed to avoid the constitutional question), but, as Justice Breyer stated:

 So one answer would be, well, maybe so. We aren't facing the constitutional question. We are simply facing the question of what Congress intended. And if this does raise a constitutional question, so be it. And then there will, in a future case, come up with that question. So we ­­ or our point is, we don't have to decide that here.

EISENSTEIN: That's correct, Your Honor.


EISENSTEIN: If there are no further questions.

 Ilana Eisenstein was then excused by Chief Justice Roberts.

Justice Thomas broke his own well-remarked upon habit of not asking questions during oral argument; it's been a decade since he has.  But as some Court observers has noticed, he did write notes which were passed to Justice Scalia.  It is difficult to not to make a causal connection in this regard.  Moreover, Justice Thomas assumed a more active role in a case seemingly involving Second Amendment rights, an issue which a future Court might reconsider. 

However, as the Court did in another domestic violence case last term,  Elonis v. United States, look for a decision that engages in statutory construction and avoid the constitutional issue.


February 29, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, Interpretation, Oral Argument Analysis, Second Amendment, Supreme Court (US) | Permalink | Comments (0)

Thursday, February 25, 2016

District Judge Dismisses Complaint Seeking Judge Cebull's Emails

Recall the controversy in 2012 regarding the racist and sexist emails of Judge Richard Cebull of the District of Montana reportedly regarding President Obama?  Judge Cebull resigned about a year later, as the matter was being investigated by judicial committees. The Ninth Circuit Committee on Judicial Conduct and Disability entered its Decision in January 2014 incorporated the findings of judicial misconduct of other committees, but found that remedial action was "inoperative" given Cebull's retirement. 

In Adams v. Committee on Judicial Conduct and Disability, two Montana journalists sought more information than the Committee included in that decision, including additional emails, and brought suit against the Committee and other defendants.  In an 25 page Order today, Judge Yvonne Gonzalez Rogers dismissed the complaint without leave to amend.  Judge Rogers's decision included several grounds.

circa 1894 via

First, Judge Rogers concluded that the Committee on Judicial Conduct and Disability was protected by federal sovereign immunity and that the Committee had not waived that immunity.

Second, Judge Rogers considered the Defendants' claim that the plaintiff journalists lacked standing.  Citing First Amendment cases such as Branzburg v. Hayes (1972), Judge Rogers found that the plaintiffs did suffer "injury in fact" as journalists.  However, Judge Rogers concluded that the plaintiff journalists failed to satisfy another element of standing, the causation inquiry, stating that "Plaintiffs have not alleged that their injury is fairly traceable to any conduct of the Committee, at least not with clarity."  She thus dismissed the complaint for lack of standing.

Third, Judge Rogers entertained the Committee's arguments that it was protected by judicial immunity.  Judge Rogers found that the Committee had both judicial immunity and quasi-judicial immunity, and granted the motion to dismiss on both these grounds.

Fourth, the Committee sought judicial deliberative privilege regarding Judge Cebull's emails.  However, Judge Rogers found that the particular emails sought were not "in pertinent part, communications relating to official judicial business."

Fifth and finally, was the First Amendment claim.  The Defendants claimed that the emails were "investigative materials" shielded from First Amendment disclosure by the confidentiality provision of the Judicial Council’s Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C section 360.  Judge Rogers framed the issue thusly:

(i) assuming Defendants are correct that the emails are “investigative materials” covered by 360(a), is that confidentiality restriction consistent with the First Amendment?; and alternatively,

(ii) assuming the emails are not “investigative materials” covered by 360(a), does the First Amendment provide any right or claim to compel their disclosure by Defendants?

The Court turns to the Press-Enterprise II framework to determine if, under either formulation, Plaintiffs’ access claim is one that meets the historical experience and logic criteria, such that a qualified First Amendment right of access exists.

Using the experience and policy framework of Press Enterprise II (1986) Judge Rogers concluded that under either formulation of the issue, the press did not sustain a claim for access to the emails. Instead, the "more general rule set forth by the Supreme Court in Houchins [v. KQED (1978) ] — that the First Amendment right of the public or the press does not grant unlimited access to all government information or information within the government’s control—prevails.

Thus, it seems we will never be have an opportunity to read  the other (presumably offensive) emails that Judge Cebull sent through his official judicial accounts when he was a sitting judge.  Given the multiple grounds on which Judge Rogers relied, and the well-reasoned First Amendment discussion,  any appeal would have much to overcome in order to be successful.


February 25, 2016 in Courts and Judging, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Apple Responds to Order to "Unlock" IPhone

In its Motion to Vacate filed today, Apple, Inc. argued that the Magistrate's Order Compelling Apple, Inc. to Assist Agents in Search of an Apple IPhone was not supported by the All Writs Act and is unconstitutional. 

The constitutional arguments are basically three:

First, embedded in the argument that the All Writs Act does not grant judicial authority to compel Apple to assist the government is the contention that such would violate the separation of powers.  Crucial to this premise is the Communications Assistance for Law Enforcement Act (CALEA), which Apple contends does not apply to Apple and which has not been amended to do so or amended to provide that companies must provide decryption keys. Absent such an amendment, which was considered as CALEA II but not pursued, the courts would be encroaching on the legislative role. 

For the courts to use the All Writs Act to expand sub rosa the obligations imposed by CALEA as proposed by the government here would not just exceed the scope of the statute, but it would also violate the separation-of-powers doctrine. Just as the “Congress may not exercise the judicial power to revise final judgments,” Clinton v. Jones (1997), courts may not exercise the legislative power by repurposing statutes to meet the evolving needs of society, see Clark v. Martinez (2005)(court should “avoid inventing a statute rather than interpreting one”) see also Alzheimer’s Inst. of Am. Inc. v. Elan Corp. (N.D. Cal. 2013) (Congress alone has authority “to update” a “technologically antiquated” statute “to address the new and rapidly evolving era of computer and cloud-stored, processed and produced data”). Nor does Congress lose “its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution” in times of crisis (whether real or imagined). Youngstown Sheet & Tube Co. v. Sawyer (1952).

[citations abbreviated].  Apple adds that "whether companies like Apple should be compelled to create a back door to their own operating systems to assist law enforcement is a political question, not a legal one," citing Baker v. Carr (1962). 

Second, Apple makes a cursory First Amendment argument that commanding Apple to "write software that will neutralize the safety features that Apple has built into the iPhone" is compelled speech based on content and subject to exacting scrutiny.  Apple also contends that this compelled speech would be viewpoint discrimination:

When Apple designed iOS 8, it wrote code that announced the value it placed on data security and the privacy of citizens by omitting a back door that bad actors might exploit. The government disagrees with this position and asks this Court to compel Apple to write new software that advances its contrary views.

Third, and even more cursorily, Apple makes a substantive due process argument under the Fifth Amendment.  Here is the argument in full:

In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from “‘arbitrary deprivation of [its] liberty by government.’” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“We have emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government,’ . . . [including] the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” (citations omitted)); cf. id. at 850 (“Rules of due process are not . . . subject to mechanical application in unfamiliar territory.”).

Interestingly, there is no Fourth Amendment argument.

The main thrust of Apple's argument is the statutory one under the All Writs Act and the application of the United States v. New York Telephone Co. (1977) factors that the government (and Magistrate) had relied upon.  Apple disputes the burden placed on Apple that the Order would place.  Somewhat relevant to this, Apple contends that "Had the FBI consulted Apple first" - - - before changing the iCloud password associated with one of the relevant accounts - - - "this litigation may not have been necessary." 



February 25, 2016 in Cases and Case Materials, Congressional Authority, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), First Amendment, News | Permalink | Comments (0)

Wednesday, February 24, 2016

Daily Read: Justice Scalia on Judicial Appointments as Political Prerogative

On this anniversary of Marbury v. Madison (decided February 24, 1803), and given the current controversies regarding the appointment of Justice Scalia's successor after his unexpected death, Justice Scalia's views on the political nature of judicial appointments, including those to the United States Supreme Court, is worth a read. 

Dissenting in Rutan v. Republican Party of Illinois (1990), Scalia wrote:

Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an "appropriate requirement." Ante, at 1. It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Marbury v. Madison, 1 Cranch 137 (1803). Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.

The Court's majority opinion - - - authored by Justice William Brennan, a Democrat appointed to the United States Supreme Court by the Republican President Dwight Eisenhower - - - held that the Illinois governor's practice of implementing certain austerity measures in state government in accordance with political affiliation violated the First Amendment rights of government employees.  Brennan's opinion for the Court notably began:

To the victor belong only those spoils that may be constitutionally obtained. Elrod v. Burns (1976), and Branti v. Finkel (1980), decided that the  First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. Today we are asked to decide the constitutionality of several related political patronage practices — whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not.

What the Constitution does - - - or does not - - - provide regarding the "spoils" of judicial appointment is being hotly contested.  And in this, Marbury v. Madison may be relevant as more than illustration should the controversy become subject to judicial review.

John Marshall Statute Outside United States Supreme Court Building via


February 24, 2016 in Courts and Judging, Current Affairs, First Amendment, History, Interpretation, Supreme Court (US) | Permalink | Comments (1)

Tuesday, February 23, 2016

Federal District Judge Finds Recording Police Conduct Not Protected by First Amendment

In a Memorandum Opinion in Fields v. City of Philadelphia, recently appointed United States District Judge for the Eastern District of Pennsylvania, Mark Kearney held that the First Amendment does not protect video-recording of the police absent a "stated purpose of being critical of the government." 

For Judge Kearney, video-recording is conduct and there is no "expressive" element unless there is an explicit intent of being critical of police conduct. Mere "observation," Judge Kearney wrote, is not expressive.  It is not within the First Amendment unless the observers are "members of the press."

Judge Kearney rather unconvincingly distinguished the First Circuit's 2011 opinion in Glik v. Cunniffee, by stating [in a footnote], "In Glik, the plaintiff expressed concern police were using excessive force arresting a young man in a public park and began recording the arrest on his cell phone and the police then arrested plaintiff."  Even if valid, this distinction is problematical.  It may be pertinent with regard to one plaintiff, Richard Fields, who took a picture of 20 or so police officers outside a home hosting a party.  However, with regard to the other plaintiff, Amanda Geraci, who the judge notes is a "self-described 'legal observer'" with training, the distinction seems to be one without a difference: she was at a protest and "moved closer" to videotape an officer arresting one of the protesters when a police officer restrained her and prevented her from doing so.

image via

Judge Kearney thus granted the motion for summary judgment on the First Amendment claims.  The judge did, however, deny summary judgment on the Fourth Amendment claims for unreasonable search and false arrest (for Fields) and excessive force (for Geraci).  Yet however these claims are resolved, the First Amendment ruling is one that is exceedingly suitable for Third Circuit review.


February 23, 2016 in Courts and Judging, Criminal Procedure, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, February 17, 2016

Magistrate Orders Apple to "Unlock" iPhone of Deceased Shooter

A California Magistrate has issued an "Order Compelling Apple, Inc. to Assist Agents in Search" exactly as requested by the government, with the exception of the word "Proposed" crossed off in Order's title, that requires Apple to provide "reasonable technical assistance in obtaining access to data on the subject device."  The subject device is an Apple iPhone seized from a black Lexus; this is the black Lexus that was driven by the so-called "San Bernardino shooters."  The government's motion explains some of the technology involved and argues that the All Writs Act, 28 USC §1651, authorizes the Order.

Iphone_3GS-1The Order specifies that the "reasonable technical assistance" shall accomplish these functions:

  • (1) it will bypass or disable the auto-erase function whether or not it has been enabled;
  • (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE; and
  •  (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware.

Apple is resisting the Order.  In an "open letter" to customers, the CEO of Apple has stated:

Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority.

The government would have us remove security features and add new capabilities to the operating system, allowing a passcode to be input electronically. This would make it easier to unlock an iPhone by “brute force,” trying thousands or millions of combinations with the speed of a modern computer.

The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.

We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country. We believe it would be in the best interest of everyone to step back and consider the implications.

While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.

Over at ars technica, Dan Goodin argues:

It would be one thing for the court to order Apple to brute force this one device and turn over the data stored on it. It's altogether something else to require that Apple turn over powerful exploit software and claim that whatever digital locks are included can't be undone by a determined adversary. That's why it's no exaggeration for Cook to call Tuesday's order chilling and to warn that its prospects for abuse of such a backdoor are high.

Although the Order is directed at one "subject device," Apple's compliance with the Order would make all our devices subject to government search.


February 17, 2016 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, Privacy, Web/Tech | Permalink | Comments (3)

Second Circuit: Is "Hispanic" a "Race"?

In a case involving both 42 USC §1981 and Title VII, a panel of the Second Circuit in its opinion in Village of Freeport v. Barrella addressed the question of whether "Hispanic" was included in definitions of race.  In a word, the answer was yes.  In a few words, Judge Jose Cabranes' opinion for the panel answered:

Based on longstanding Supreme Court and Second Circuit precedent, we reiterate that “race” includes ethnicity for purposes of § 1981, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under that statute. We also hold that “race” should be defined the same way for purposes of Title VII.

Don Quixote by Pablo Picasso, 1955, via

The plaintiff, Barrella, argued that the Village official had not appointed him chief of police because Barrella was a white Italian‐American, and that the Village had instead appointed a less‐qualified Hispanic. A jury found in favor of Barrella.  At trial and on appeal, the Village contended that there was no "race" discrimination or classification, because "Hispanic" is not a race.  Judge Cabranes' opinion discussed the "societal confusion" regarding "Hispanic," and included an interesting Appendix on the various labels the United States Census has used, starting in 1930.  The court, however, clearly stated:

The existence of a Hispanic “race” has long been settled with respect to §1981. Although that statute never uses the word “race,” the Supreme Court has construed it as forbidding “racial” discrimination in public or private employment.  The Court has further defined “racial discrimination,” for purposes of §1981, as including discrimination based on “ancestry or ethnic characteristics.”

But the clarity with regard to §1981 does not exist with regard to Title VII, which is further complicated by an "analytic" problem.  The Second Circuit recognized that although its precedent had "avoided the question so far,"

 the proper categorization of Hispanicity has important analytical implications. Section 1981 prohibits discrimination on the basis of race but not on the basis of national origin.  Accordingly, if we were to treat Hispanicity as a national origin, but not as a race, for purposes of Title VII, plaintiffs in cases involving pro‐ or anti‐Hispanic discrimination might in some circumstances need to present two different factual arguments in order to invoke the distinct remedies of that statute along with those of § 1981.

 In deciding the issue of "Hispanicity," the Second Circuit disapproved of the district judge's decision to treat the question as one of fact: "The meaning of the word “race” in Title VII is, like any other question of statutory interpretation, a question of law for the court."  The error was harmless, however.  On the question of law, the Second Circuit clearly held that "race" encompasses "ethnicity" for purposes of Title VII, just as in §1981.

On the ultimate disposition, an evidentiary issue caused the Second Circuit to vacate the judgment and remand the case for a new trial.  Yet the case makes an important contribution in the continuing dialogue on the meanings of race - - - both statutory and otherwise. 

February 17, 2016 in Affirmative Action, Courts and Judging, Opinion Analysis, Race | Permalink | Comments (0)

Tuesday, February 16, 2016

Morley on Injunctive Relief in Election, Voting, and Constitutional Cases

Check out Prof. Michael T. Morley's (Barry) just-posted and timely piece, De Facto Class Actions? Injunctive Relief in Election Law, Voting Rights, and Constitutional Cases.

Morley provides a framework for courts deciding whether to award plaintiff-oriented injunction (limited to the plaintiff in the case) or defendant oriented injunction (applying more broadly, to the defendant's actions anywhere) in these kinds of cases:

First the court should assess whether granting the requested relief solely to the individual plaintiffs would create unconstitutional disparities concerning fundamental rights in violation of Equal Protection principles, although this seldom, if ever, should be the case. Second, after confirming that limiting relief solely to the individual plaintiffs would be constitutional, the court should then determine whether such a Plaintiff-Oriented Injunction would be proper under the challenged statute or regulation itself by applying traditional severability principles. If the challenged provision can be applied coherently, and the entity that enacted the provision still would have intended for it to be enforced, even with the plaintiffs excluded from its scope, then a Plaintiff-Oriented injunction would be the proper remedy. Otherwise, a Defendant-Oriented Injunction is required.

February 16, 2016 in Courts and Judging, Elections and Voting, Jurisdiction of Federal Courts, News, Scholarship | Permalink | Comments (0)

Monday, February 15, 2016

Daily Read: Justin Pidot on 4-4 Decisions of the United States Supreme Court

It's rare that the Justices of the United States Supreme Court are equally divided, in part because of there are usually 9 Justices. 

But after the death of Justice Antonin Scalia, it's quite possible that there will be a number of  4-4 equally divided votes between the 8 Justices remaining on the United States Supreme Court.

LawProf Justin Pidot's article just posted to ssrn, Tie Votes in the Supreme Court, couldn't be more timely.  Pidot analyzes "the 164 ties in the Supreme Court between 1925 and 2015," arguing that most of these cases have not been controversial "in part because few of them involved particularly contentious cases in the eye of the public."  As Pidot notes, the practice is that when the Justices are evenly divided, the lower court opinion is affirmed:

The most common form of the affirmance by equal division is both unattributed and non- explanatory, with the order indicating only the justice recused (of course, if the Court is experiencing a vacancy, and this is the cause of the equal division, no such comment is made). This is the form of 149 of the 164 cases in the dataset.

As an example, Pidot cites Flores-Villar v. United States (2011), a case involving a gender differential in citizenship/ immigration treating unmarried mothers and fathers differently.  It was Justice Kagan's recusal that created the tie.

LawProf Justin Pidot

Pidot's argument is that a 4-4 affirmance brings disrepute on the Court, especially given that the vast majority of evenly divided splits are those in which the Court is exercising discretionary jurisdiction.  Pidot contends that the 4-4 affirmance is a "relic" of the past that the Court should abandon in favor of "DIG" - a dismissal of the writ as improvidently granted.  The advantage of the DIG over the affirmance by an equally divided Court might become muddied, however, if DIG simply replaces the explicit albeit non-precedential affirmance given that the lower court opinion will remain essentially undisturbed.

However, with the Justices now presumably divided in some major cases under consideration - - - Friedrichs v. California Teachers and the contraception mandate cases Zubik v. Burwell ( a follow-up to the 5-4  Burwell v. Hobby Lobby) - - - it is an opportune time for the Court to consider its 4-4 processes.





February 15, 2016 in Courts and Judging, Scholarship, Supreme Court (US) | Permalink | Comments (1)

Saturday, February 13, 2016

In Memoriam: Justice Antonin Scalia

The Washington Post obituary is here.

In a statement Saturday, Chief Justice John G. Roberts said: “On behalf of the Court and retired Justices, I am saddened to report that our colleague Justice Antonin Scalia has passed away. He was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the Court and the country he so loyally served. We extend our deepest condolences to his wife Maureen and his family.”

In the first official notice of Justice Scalia’s death, Texas Gov. Greg Abbott said: “Justice Antonin Scalia was a man of God, a patriot, and an unwavering defender of the written Constitution and the Rule of Law. His fierce loyalty to the Constitution set an unmatched example, not just for judges and lawyers, but for all Americans. We mourn his passing, and we pray that his successor on the Supreme Court will take his place as a champion for the written Constitution and the Rule of Law.”

Some of the first reports were from Texas media, including one from a San Antonio outlet:

Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.

Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.

According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.

from the official Supreme Court biography:

Antonin Scalia, Associate Justice,was born in Trenton, New Jersey, March 11, 1936. He married Maureen McCarthy and has nine children - Ann Forrest, Eugene, John Francis, Catherine Elisabeth, Mary Clare, Paul David, Matthew, Christopher James, and Margaret Jane. He received his A.B. from Georgetown University and the University of Fribourg, Switzerland, and his LL.B. from Harvard Law School, and was a Sheldon Fellow of Harvard University from 1960–1961. He was in private practice in Cleveland, Ohio from 1961–1967, a Professor of Law at the University of Virginia from 1967–1971, and a Professor of Law at the University of Chicago from 1977–1982, and a Visiting Professor of Law at Georgetown University and Stanford University. He was chairman of the American Bar Association’s Section of Administrative Law, 1981–1982, and its Conference of Section Chairmen, 1982–1983. He served the federal government as General Counsel of the Office of Telecommunications Policy from 1971–1972, Chairman of the Administrative Conference of the United States from 1972–1974, and Assistant Attorney General for the Office of Legal Counsel from 1974–1977. He was appointed Judge of the United States Court of Appeals for the District of Columbia Circuit in 1982. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat September 26, 1986.

February 13, 2016 in Courts and Judging, Current Affairs, Supreme Court (US) | Permalink | Comments (0)

Friday, February 5, 2016

Justice Souter Upholds Statute Authorizing Public Employee Union by Child Care Workers Against First Amendment Challenge

Justice Souter - - - retired from the United States Supreme Court but sitting by designation on a First Circuit panel - - - declined to extend the Court's decision in Harris v. Quinn to the context of home child care workers in the opinion in D'Agostino v. Baker. 

Justice David Souter, who served on the United States Supreme Court 1990- 1999

At issue was Massachusetts Gen. Laws ch. 15D, § 17(b), providing that family child care providers "shall be considered public employees . . . solely for the purposes of . . . chapter 150E," the statute authorizing employees in public service to organize for collective bargaining. The majority of the family child care providers chose Service Employees International Union (SEIU) as their exclusive agent for bargaining collectively with the state.  And while the statute did not mandate that any child care provider join the union or contribute any money to the union, the plaintiffs challenged the statute as violating their First Amendment rights, especially free association.

Writing for the unanimous panel, Souter opined that the "disposition of the constitutional claims turns on precedent, and the appellants' principal arguments probe the vitality of that precedent in light of recent developments."  For Souter, the precedents of Abood v. Detroit Board of Education (1977)  and Minnesota State Board for Community Colleges v. Knight (1984) remain controlling, despite Harris v. Quinn:

But the Harris distinction does not decide this case. While we can agree with the appellants in assuming the comparability of Harris's personal assistants and the child care providers here, the issues at stake in the two cases are different. Unlike the Harris litigants, the appellants are not challenging a mandatory fee; indeed, an agency fee previously enforced against the providers here was eliminated after Harris came down. What Harris did not speak to, however, was the premise assumed and extended in Knight: that exclusive bargaining representation by a democratically selected union does not, without more, violate the right of free association on the part of dissenting non-union members of the bargaining unit. Harris did not hold or say that this rule was inapplicable to "partial" employees covered by a collective bargaining agreement. Harris, in fact, did not so much as mention Knight, and precedent supports applying its rule here.

Souter was not on the Court when it decided Abood, Knight, or Harris.  And of course he is not on the Court as it deliberates Friedrichs v. California Teachers Ass'n, which may be the "demise" of public fair share union dues and the rejection of the  precedent on which Souter is relying here.

February 5, 2016 in Courts and Judging, First Amendment, Interpretation, Supreme Court (US) | Permalink | Comments (0)

Wednesday, February 3, 2016

Judge, Clerk Immune From Damages for Ordering Jail Time to Pay Off Court Fines

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled today that a state-court judge and clerk were immune from a suit for monetary damages for jailing plaintiffs for failure to pay their fines and court costs for low-level misdemeanors.

The case, Ward v. City of Norwalk, arose when Norwalk Municipal Court Judge John Ridge issued bench warrants for the plaintiffs' arrests for failing to pay their fines and court costs. (Ohio law authorizes this and sets a $50 per day rate.) Judge Ridge directed Clerk Pamela Boss to issue the warrants; Boss complied; and the plaintiffs were arrested and served time.

The plaintiffs sued for monetary damages, injunctive relief, and declaratory relief on a couple theories under 1983. (They also sued under state law claims, not at issue on appeal.) The court dismissed all but one--the plaintiffs' request for declaratory relief, and that probably will go away on remand.

The court held that the Eleventh Amendment barred the plaintiffs' suit for monetary damages against Judge Ridge and Clerk Boss, because they're employees of the Municipal Court, a state agency. (The court rejected the plaintiffs' argument that municipal corporations within the Municipal Court's jurisdiction are responsible for monetary damages, and so the court is identical to a municipality and not an arm of the state.) The court held that Judge Ridge and Clerk Boss enjoyed judicial immunity against claims against them in their official capacity.

As to injunctive and declaratory relief: the court pointed to the plain language of 1983, which requires the plaintiffs to show that a judicial officer violated a declaratory decree, or that declaratory relief was unavailable, before getting an injunction. The court thus dismissed the plaintiffs' request for an injunction. But it recognized that the plaintiffs' claim for declaratory relief could go on under Ex Parte Young, so it remanded to the district court to determine whether abstention, Rooker-Feldman, or the mootness doctrine barred the case from proceeding.

February 3, 2016 in Cases and Case Materials, Courts and Judging, Eleventh Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0)

Sunday, January 31, 2016

Daily Read: Kermit Roosevelt on Posner's Latest Book

In the Sunday New York Times Book Review, ConLawProf Kermit Roosevelt reviews Richard Posner's new book, Divergent Paths: The Academy and the Judiciary.    

Roosevelt begins by provocatively asking whether we could dare to even "invent" a character like Richard Posner if he did not exist, flatteringly describing Posner as "arguably America’s greatest living judge."   (A judgment that many might find more than a bit arguable.) 

9780674286030As to the book, Roosevelt has a few criticisms.  Although it is "a valuable contribution to debates over the future of federal courts and law schools alike," its "list of judicial problems and possible academic solutions is long enough to be overwhelming: It includes 55 problems and 48 solutions."  Moreover, some of the criticisms are "overstated."  As to legal scholarship, Roosevelt takes Posner to task for his judgment about the correctness of the now-reviled decision in Korematsu v. United States, upholding a Japanese internment conviction during World War II, and notes that legal scholarship has shown that the government not only over-reacted but was less than candid with the Court.

While Roosevelt has high praise for the book, it does not seem like a must-read. Instead, read Roosevelt's review.

January 31, 2016 in Books, Courts and Judging, History, Interpretation, Race, Scholarship | Permalink | Comments (0)

Friday, January 22, 2016

Kansas Appellate Court Affirms Finding That Kansas's "Dismemberment Abortion Act" is Unconstitutional under State Constitution

The Kansas Court of Appeals, the intermediate appellate court, has found that the Kansas Constitution includes a due process right applicable to abortion and that the Kansas Unborn Child Protection from Dismemberment Abortion Act (SB95) violates that right in its opinion by Judge Steve Leben in Hodes & Nauser v. Schmidt.

Before the discussion of the constitutionality of the Act, there were some preliminary - - - and unusual - - - issues, including some noteworthy matters of procedure. Unusually, the Court of Appeals heard the case en banc rather in a panel of three.  And presumably also unusual, the judges were "equally divided, seven voting to affirm the district court and seven voting to reverse."  Thus, the trial court's ruling granting a preliminary injunction against the Act was affirmed. 

Judges of the Kansas Court of Appeals via

Additionally, there were some state constitutional law issues.  Importantly, the plaintiffs' argument that the Act is unconstitutional rests solely on the state constitution.  As the Leben opinion stated, this was a case of first impression and a  "plaintiff has the procedural right to choose the legal theories he or she will pursue; we cannot force the plaintiffs here to choose another legal avenue.")  But the Kansas State Constitution does not include a due process clause - - - or even the words "due process" - - - unlike the United States Constitution's Fifth and Fourteenth Amendments, in which the right to an abortion has been anchored.  Instead, plaintiffs argued, and the court found, that §1 and §2 of the Kansas Constitution Bill of Rights include a due process right despite their explicit language:

§ 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.

§ 2. Political power; privileges. All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.

Judge Leben's finding was based in large part on previous decisions of the Kansas Supreme Court.  Where the dissent differed was not on the matter of due process as a general matter but on the specific inclusion of "abortion."  Indeed, as Judge Leben's opinion admitted "What the Kansas Supreme Court has not yet done is apply substantive-due-process principles in a case involving personal or fundamental rights, like the right to contraception, the right to marry, or the right to abortion."  But as Judge Leben's opinion noted, "the Kansas Supreme Court has explicitly recognized a substantive-due- process right under the Kansas Constitution and has applied a substantive-due-process legal standard equivalent to the one applicable under the Fourteenth Amendment at the time of these Kansas decisions."  This past practice was an embrace of the present, and Judge Leben's opinion interestingly quotes the Court's recent opinion by Justice Kennedy Obergefell  as well as opinions from the Kansas Supreme Court.  Judge Leben nicely sums up the position:

The rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state's constitution in 1859.

Having decided that the Kansas constitutional text merits a co-extensive interpretation with the federal constitution, Judge Leben's opinion for the Kansas Court of Appeal does not rest on "adequate and independent state grounds" under Michigan v. LongJudge Gordon Atcheson's extensive and scholarly concurring opinion makes the case that §1 of the Kansas Bill of Rights provides "entirely separate constitutional protection without direct federal counterpart" for abortion and that such protection is greater under the Kansas state constitution than under the Fourteenth Amendment.

Under the co-extensive interpretation, Judge Leben's opinion thus confronted the constitutionality of the Kansas Act under the substantive due process "undue burden" standard.  This entailed an application of the disparate Carhart cases: Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007).  In Stenberg, the Court concluded Nebraska's so-called "partial-birth abortion" statute was unconstitutional; in Gonzales, the Court concluded that the federal so-called "partial-birth abortion" statute was constitutional.

The Judge Leben opinion distinguished Gonzales:

But the circumstances here are quite unlike Gonzales. There, the Court considered a ban on an uncommon procedure and noted that the most common and generally safest abortion method remained available. Here, the State has done the opposite, banning the most common, safest procedure and leaving only uncommon and often unstudied options available.

Interestingly, Judge Atcheson's concurring opinion responded to the Justice Kennedy's language in Gonzales and the language of the Kansas Act:

The State's remaining argument rests on the unaesthetic description of a D &E abortion contained in Senate Bill 95 and in Gonzales v. Carhart (2007). But aesthetics really cannot justify legislative limitations on safe medical procedures. The lack of justification is even more pronounced when the procedure is integral to a woman's constitutional right to self-determination and reproductive freedom. The government cannot impose upon an essential right because some exercise of the right may be unaesthetic or even repulsive to some people. That's all the more true when those people needn't see or participate in the protected activity.

The dissenting opinion concludes that there is "nothing in the text or history of §§1 and 2 of the Kansas Constitution Bill of Rights to lead this court to conclude that these provisions were intended to guarantee a right to abortion."

This matter is surely going to the Kansas Supreme Court, as Judge Leben's opinion for the Kansas Court of Appeals acknowledged.  Rendered on the 43rd anniversary of the United States Supreme Court's decision in Roe v. Wade and as the Court prepares to consider its first abortion case in 8 years, Whole Woman's Health v. Cole, the Kansas Court of Appeals evenly split decision exemplifies how divided opinion on this issue can be.

January 22, 2016 in Abortion, Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Gender, International, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1)

Thursday, January 21, 2016

No Damages for Enforcing State Residency Requirement for Petition Circulators

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled this week in Citizens in Charge v. Husted that Ohio Secretary of State Jon Husted enjoyed qualified immunity against a damages claim that arose out of his enforcement of Ohio's law that prohibits out-of-staters from circulating petitions within the state to propose new legislation and constitutional amendments.

The court granted immunity because it said that Ohio's law didn't clearly violate the Constitution. In support, it pointed to a circuit split on the question whether a state law that requires in-state residency to circulate a petition violates the First Amendment.

In so ruling, the court came close to saying that an official's enforcement of a state statute is per se reasonable, if no court has (yet) ruled the law unconstitutional--a result that puts a heavy thumb on the scale in favor of qualified immunity (and against plaintiffs who seek to recover damages for constitutional torts). The outer boundary is only when a law is "grossly and flagrantly unconstitutional." (The court gave as one example separate-but-equal racial discrimination.) The court explained:

So far as the parties' research has revealed and so far as our own research has uncovered, the Supreme Court has never denied qualified immunity to a public official who enforced a properly enacted statute that no court had invalidated. This indeed would seem to be the paradigmatic way of showing objectively reasonable conduct by a public official.

. . .

Any other approach would place risky pressures on public officials to second-guess legislative decisions. When faced with a statute of questionable validity, executive actors would find themselves forced to choose between applying the law (and subjecting themselves to monetary liability) or declining to do so (and subjecting themselves to a mandamus lawsuit). When personal liability is added to the mix, one could well imagine the balance tipping toward non-enforcement in close cases, all the while sacrificing the legislature's considered judgments about a statute's unconstitutionality. That is not a recipe for good government or for encouraging public officials to act independently.

January 21, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis | Permalink | Comments (1)

Wednesday, January 20, 2016

Court Rebuffs Pick-Off Tactic in Class Action Suits

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today that a plaintiff's case does not become moot when the plaintiff rejects an offer of settlement for complete relief. The ruling means that a case can go on, even after a plaintiff rejects an offer of complete relief.

The ruling is a huge victory for plaintiffs, especially plaintiffs who might lead a class-action. It's also a sharp rebuke of the defense-side tactic to moot out a case or class action by offering full relief to the lead plaintiff--a tactic known as pick-off. By ruling for the plaintiff, and by rejecting the pick-off tactic, today's ruling is also a victory for access to justice, and stands in contrast to the spate of other Court rulings limiting access and favoring corporate defendants.

The case arose when Jose Gomez received an unwanted Navy recruitment text on his cell phone from Navy contractor Campbell-Ewald. Gomez sued Campbell-Ewald under the Telephone Consumer Protection Act. Before Gomez could move for class certification, however, the defendant offered complete relief; Gomez rejected the offer; and the defendant moved to dismiss the case as moot.

The Court ruled that the case was not moot. Justice Ginsburg, joined by Justices Kennedy, Breyer, Sotomayor, and Kagan, wrote that under basic contract principles, Campbell-Ewald's offer, once rejected by Gomez, had no continuing effect. With no settlement offer on the table, the parties retained the adversity necessary for an Article III case or controversy--so the rejected offer didn't render the case moot.

Justice Thomas concurred separately to argue that the result should "rest instead on the common-law history of tenders," not contract principles.

Chief Justice Roberts, joined by Justices Scalia and Alito, dissented. The Chief wrote that the rejected settlement offer meant that there was no longer any real dispute in the case:

If there is no actual case or controversy, the lawsuit is moot, and the power of the federal courts to declare the law has come to an end. Here, the District Court found that Campbell agreed to fully satisfy Gomez's claims. That makes the case moot, and Gomez is not entitled to a ruling on the merits of a moot case.

January 20, 2016 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis | Permalink | Comments (0)