Tuesday, December 3, 2013
Ever since the Supreme Court upheld the Affordable Care Act's individual mandate in NFIB, we've been treated to a new and surprising argument by constitutional conservatives. That argument is in favor of judicial activism. Yes, that's right: after years of railing against activist judges, conservatives now claim that the federal courts aren't activist enough, in particular, in checking out-of-control exercises of legislative power.
In a series of new books this fall, and reviews in the WSJ here and here (h/t Jon Gutek), constitutional conservatives argue that government regulation has gone wild, and that the courts have not properly checked this growth. Exhibit A: the Supreme Court's ruling upholding the individual mandate in NFIB.
For example, Randy Barnett, reviewing Clark M. Neily III's Terms of Engagement, argues that Chief Justice Roberts rewrote the individual mandate as a tax, using a "saving construction" as an exercise in judicial restraint in order to uphold a law validly enacted by the legislature. George Melloan, reviewing Josh Blackman's Unprecedented and Ken Cuccinelli's The Last Line of Defense, similarly argued that Chief Justice Roberts saved the mandate by "call[ing] the act's penalty for noncompliance . . . a 'tax' and waved the ACA through."
But this turns history on its head. The government always defended the individual mandate under both its Commerce Clause authority and its taxing power. It argued the tax point explicitly to the Supreme Court, starting at page 52 of its brief. It's hardly novel, then, let alone a rewrite of the Act, that the Court upheld the individual mandate under the taxing power. Indeed, it's exactly what the government argued. This may not be how constitutional conservatives read the Act's mandate, but it's how all three branches of government did. The Court's ruling on the taxing power wasn't a reach to defer to the legislature. Indeed, it wasn't a reach at all.
Barnett's argument that the courts aren't activist enough also ignores the startling activism of the Roberts Court. Remember, the Court rejected the individual mandate under the Commerce Clause, even as it upheld it under the taxing power. The Court also limited the Medicaid expansion component of the ACA. We could go on and on with examples of how this Court overturned state and federal legislative acts, but this one is undoubtedly the biggest: the Court last summer rejected the coverage formula for preclearance under the Voting Rights Act--a provision enacted by a breathtaking bipartisan majority in Congress and signed by a Republican president (no big government types, these). Given the history, it's hard to argue that this wasn't a supremely activist ruling. This Court has demonstrated its appetite for activism. But it's apparently not activist enough.
Barnett goes on to argue that judicial activism in the name of legislative restraint is necessary because voters don't know enough to hold their elected representatives accountable:
In practice, the claim that laws and administrative regulations reflect the will of the public is often a fiction. In the economic sphere, regulations are more commonly the product of pressure from politically connected and well-established companies at the expense of upstart entrepreneurs. Because voters know little about these laws and their impact, they can't hold their representatives accountable for enacting them, and the few affected individuals can hardly influence a general election.
This seems a remarkable claim, given the political backlash to the ACA, or Obamacare, and, as Melloan notes, the political blows that Obamacare supporters suffered in the 2008 mid-terms and beyond. Voters apparently knew how to hold Obamacare supporters accountable. But the claim is also ironic: the very problem that Barnett describes only gets worse with more money in politics--a result that the activist Supreme Court ensured when it overturned congressional regulation of corporate campaign expenditures in Citizens United.
These constitutional conservative talking points fall apart on their own terms. And that's not even getting to the merits.
Monday, December 2, 2013
The Supreme Court today heard oral arguments in Michigan v. Bay Mills Indian Community, the case asking whether a Native American Indian tribe enjoys tribal sovereign immunity against a state's suit against it for operating an illegal casino outside of Indian lands.
One thing seemed clear: the Court is prepared to reconsider the scope of tribal sovereign immunity.
One problem is the odd result under the Tribe's position that a state could sue a tribe for operating a casino on its lands, but not off its lands. The Tribe's position is that the state has a number of other ways to regulate a casino outside Indian lands, short of a suit against the Tribe, which would require relinquishing tribal sovereign immunity. For example, the state could deal with the problem under the required compact between the state and the Tribe; it could sue Tribal officials for injunctive relief under an Ex Parte Young theory; the state could prosecute individuals who work at or frequent the casino; or it could get the federal government to enforce federal law against an illegal, off-Indian land casino. But it's not clear that any of these alternatives would be effective--and the Court seemed skeptical of each of them. In other words, practically speaking, relinquishing tribal sovereign immunity may be the only way that the state could regulate an off-Indian land casino. (The Tribe and federal government both noted that the casino isn't currently operating--that it's waiting for a defiinitive answer to the question whether it can operate legally.)
At the end of the day, this problem may come down to the state's ability to collect money damages--something it can't do if the Tribe enjoys tribal sovereign immunity. Justice Kagan proposed this modification to tribal sovereign immunity to the Tribe's attorney, Neal Katyal:
JUSTICE KAGAN: Mr. Katyal, what is the difference--the State can really--it can shut down these gambling operations easily if it's off Indian lands. What the State can't do is get any kind of damages or money remedies; is't that really the difference?
MR. KATYAL: I do think so. I think that's--I think that that's underlying some of this, absolutely.
JUSTICE KAGAN: Maybe that's an important difference. I mean, maybe we should give the State the ability to collect damages.
Justice Kennedy came at it from a different angle, the problem with the definition of the land where the casino is located:
But if the tribe takes such an obscure position, such a changing position, as to whether or not we are dealing with . . . Indian land, maybe that's a reason why we should confine and limit [tribal immunity as defined in] Kiowa so that it doesn't apply to Indian gaming and we won't have this problem.
Another problem is the odd result that under the Tribe's theory a Native American Indian tribe would enjoy wider sovereign immunity than other states and foreign sovereigns. Chief Justice Roberts put this fine point on the problem:
[Native American Indian tribes are] [d]ependent sovereigns, which is surprising that the scope of their immunity exceeds that of States or foreign sovereigns.
Combining the two problems, Justice Ginsburg proposed this to the Deputy Solicitor General:
Mr. Kneedler, you went through the development of foreign sovereign immunity, and whether the courts were influenced by the government, it was the courts that recognized this distinction between commercial activity and governmental activity.
Why couldn't the court extend that same distinction to Indian tribes and say it makes sense in the foreign country context, it also makes sense in the context of the tribes, to distinguish commercial from governmental?
Finally, there's the problem of who decides on tribal sovereign immunity. Both the Tribe and the federal government argues that Congress should decide. But that didn't sit well with the Court. Justice Ginsburg said this on the question:
Mr. Katyal, isn't it odd to say that when this is the Court--the doctrine of tribal immunity is something that was announced by this Court. Congress never passed a law that said the tribes have immunity. It's all this Court. And then you say what this Court made only Congress can unmake. That seems strange to me.
In all, it seems likely that the Court will redefine the scope of tribal sovereign immunity. It's less clear exactly how: whether the Court will carve out a limited exception to tribal sovereign immunity for off-Indian land commercial activity, or whether it will more substantially restrict tribal sovereign immunity.
That's the question before the Supreme Court today in Michigan v. Bay Mills Indian Community. More particularly, the case asks whether the federal courts have jurisdiction to hear a state's claim that a Native American tribe's off-reservation casino violates the Indian Gaming Regulatory Act, and whether the tribe enjoys immunity from such a suit.
With the rapid proliferation of tribal gaming, including off-reservation gaming, the case could make an important statement about the regulatory authority of the tribe, the state, and the federal government over off-reservation gaming. It could also make an important statement about federal court jurisdiction over a state's claim that a tribe's off-reservation gaming violates federal law, and about tribal immunity for such gaming.
Here's my oral argument preview of the case, republished, with permission, from the ABA Preview of U.S. Supreme Court Cases:
Congress enacted the Indian Gaming Regulatory Act of 1988 (IGRA) in order to regulate gaming activities on “Indian lands.” The IGRA divides gaming into three separate classes and specifies how each class is regulated. Class I gaming includes social games and traditional tribal games; it is under the exclusive jurisdiction of the tribe. Class II gaming includes bingo and certain card games like poker; it is primarily within the jurisdiction of the tribe but subject to federal oversight.
Class III gaming, the class at issue here, includes everything else, such as slot machines and casino-style games. Class III gaming is not regulated by a uniform structure. Instead, an Indian tribe wishing to conduct Class III gaming has to adopt a gaming ordinance that is approved by the National Indian Gaming Commission (NIGC), a federal agency. The tribe also has to negotiate with the state where it is located and enter into a compact that will govern the gambling.
The Bay Mills Indian Community, a federally-recognized Indian tribe with a reservation in Michigan’s northern peninsula, entered into a compact with Michigan in 1993. Soon after the compact was finalized, the NIGC approved Bay Mills’s gaming ordinance. Bay Mills then proceeded to establish its own Gaming Commission. Bay Mills has continuously operated one or more gaming facilities on its reservation ever since.
In 1997, Congress passed the Michigan Indian Land Claims Settlement Act. The Act appropriated funds to Bay Mills and other Michigan Indian tribes to satisfy judgments that the Indian Claims Commission had entered in favor of the tribes. The Settlement Act directed that 20 percent of the funds awarded to Bay Mills be deposited in a “Land Trust” and required that earnings from the Trust “be used exclusively for improvements on tribal land or the consolidation and enhancement of tribal landholdings through purchase and exchange.” It also said that “[a]ny land acquired with funds from the Land Trust shall be held as Indian lands are held.”
In August 2010, Bay Mills used the funds from the Settlement Act land trust to purchase approximately 40 acres of land in Vanderbilt, Michigan, about 100 miles from the Tribe’s reservation. Bay Mills constructed a small casino on the property (initially with 38 electronic gaming machines, but later expanded to 84 machines) and began operating it on November 3, 2010. The U.S. Department of the Interior and the NIGC later issued letters concluding that the Vanderbilt casino was not located on “Indian lands” as defined by the IGRA, that it was therefore not eligible for gaming under the IGRA, and that the NIGC had no jurisdiction over it.
The state filed suit against Bay Mills in federal court. The state’s counts I and II alleged that the Vanderbilt land did not constitute “Indian lands” under the IGRA, and that Bay Mills therefore violated the compact. The state’s count III alleged that Bay Mills violated the IGRA by conducting gaming outside of Indian lands and that even if the Vanderbilt land constituted “Indian lands,” Bay Mills violated 25 U.S.C. § 2719 (and therefore the compact’s requirement that gaming comply with federal law) by operating a gaming facility on land acquired after October 17, 1988, that does not satisfy any statutory exception. The Little Traverse Bay Bands of Odawa Indians, which operated a competing casino about 40 miles away, filed a separate suit with similar claims the next day.
The district court consolidated the cases and entered a preliminary injunction halting the Bay Mills casino. Bay Mills appealed and moved for a stay of the injunction; the district court and the United States Court of Appeals for the Sixth Circuit both denied a stay.
While Bay Mills’s appeal was pending, the state amended its complaint to add three additional claims. Count IV alleged that Bay Mills violated federal common law by operating a casino that exceeds the scope of its authority. Count V alleged that Bay Mills failed to obtain a state license for a gaming facility in violation of Michigan law. Count VI alleged that the casino was a public nuisance under state law. The state also added several defendants—the Bay Mills Tribal Gaming Commission, the Commission’s members in their official capacities, and the members of the Bay Mills Executive Council in their official capacities.
On appeal, the Sixth Circuit reversed and vacated the preliminary injunction. The court held that the district court lacked jurisdiction as to counts I, II, and III. The court held that the district court had jurisdiction as to counts IV, V, and VI against Bay Mills, but that those counts were barred by tribal sovereign immunity. The court remanded the case to the district court to address the state’s counts IV-VI against the additional individual defendants.
The state brought this appeal. Little Traverse is not a party to it; neither are the individuals named in the state’s amended complaint.
Federal courts are courts of limited jurisdiction. This means that their jurisdiction must be defined by statute. One common source of federal jurisdiction is found in 28 U.S.C. § 1331, which creates the so-called “federal question” jurisdiction. Under § 1331, federal district courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.”
Another source of federal jurisdiction—one that goes particularly to gaming on Indian lands—is found in 25 U.S.C. § 2710(d)(7)(A)(ii), part of the NIGC. That provision says that federal district courts have jurisdiction over “any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact . . . .”
The parties here dispute whether the federal courts have jurisdiction over the state’s claims. In particular, they dispute whether the state’s claims arising out of the Bay Mills’s alleged violation of the compact fall under § 1331 (because these claims might amount to a violation of the IGRA, a federal statute), and whether the Vanderbilt casino is “a class III gaming activity located on Indian lands” under § 2710.
But even if a federal court has jurisdiction (under §§ 1331, 2710, or some other federal statute), certain parties, like Indian tribes, enjoy immunity from suit. The Supreme Court has recognized tribal sovereign immunity, and both parties agree that “the doctrine is now part of this Court’s settled precedent . . . .” But they disagree sharply over the extent of that immunity.
The state argues first that the district court has jurisdiction over its suit pursuant to § 2710. The state says that the Vanderbilt casino is “a class III gaming activity located on Indian lands,” because Bay Mills authorized, licensed, and operated the casino from its reservation. More particularly, it contends that § 2710 extends federal court jurisdiction to the gaming itself, but also to the gaming activity, which, the state argues, includes authorizing, licensing, and operating the casino. The state claims that its interpretation of the text is consistent with the congressional intent.
The state argues next that the district court has jurisdiction over its federal claims pursuant to § 1331. The state says that it alleged a violation of the IGRA, a federal statute, when it claimed that Bay Mills violated the compact (in counts I, II, and III). It also says that nothing in the IGRA limits the federal courts’ federal question jurisdiction under § 1331.
The state argues that tribal sovereign immunity does not bar its suit for two independent reasons. First, the state contends that the IGRA abrogated tribal sovereign immunity. The state says that the Court uses a “more holistic approach” in determining whether a federal statute abrogates tribal sovereign immunity, and that the IGRA viewed as a whole (and not just § 2710) makes clear that Congress intended that a state could enforce its gaming laws in federal court against an Indian tribe engaged in off-reservation gaming. The state claims that the opposite rule would lead to an absurd result—that the state could obtain a federal court injunction to stop illegal gaming on Indian lands, but not on its own sovereign state lands. The state says that Congress could not have intended this result.
Second, the state argues that even if the IGRA does not abrogate tribal sovereign immunity, the Court should decline to extend immunity here. The state says that the Court has never expressly extended tribal immunity to a tribe’s off-reservation commercial activities, and, especially given tribal immunity’s “dubious foundation,” the Court should decline to extend it to those activities in this case.
In response, Bay Mills first argues that the state cannot claim that the Vanderbilt casino is “on Indian lands,” as it does in its first point. Bay Mills says that that argument falls outside the questions presented, which speak solely to gaming activities “outside of Indian lands.” But even if this argument were properly before the Court, Bay Mills contends that the state is wrong: the IGRA itself says that a tribe’s decision to open a gaming facility is not a “class III gaming activity.”
Next, Bay Mills argues that it is immune from Michigan’s suit under § 1710. Bay Mills claims that § 1710 only abrogates tribal sovereign immunity “on Indian lands,” and that the whole premise of the state’s claim is that the Vanderbilt casino is off Indian lands. Bay Mills says that under the plain language of § 1710, “Michigan has simply pled itself out of court.”
To the extent that Michigan and its amici argue for a Court-created exception to tribal sovereign immunity, Bay Mills argues that the Court has already rejected the proposed exceptions. Bay Mills also says that the Court has rejected pleas to overrule its tribal sovereignty immunity precedents. Bay Mills contends that it is Congress’s prerogative, not the Court’s, to alter the scope of tribal sovereign immunity, and that Congress has only reaffirmed it. Bay Mills claims that tribal sovereign immunity “has deep roots in this country’s jurisprudence,” and that there is no reason for the Court to abrogate it now.
Finally, Bay Mills argues that the Ninth Circuit decision will not leave the state without a remedy, as the state argues. Bay Mills says that Michigan most obviously can invoke the dispute resolution procedure in the compact. Bay Mills claims that Michigan could also sue tribal officials for injunctive relief. Additionally, Bay Mills argues that the state could negotiate a waiver of sovereign immunity in the next round of compact negotiations, seek federal intervention in the dispute, or even outlaw gaming throughout the state.
The federal government, as amicus in support of Bay Mills, also argues that the federal courts lack jurisdiction over Michigan’s claims. The federal government says that § 2710 does not extend jurisdiction of the state’s claims to the district court. Contrary to the state’s argument, the federal government says that numerous provisions in the IGRA demonstrate that the phrase “class III gaming activities” refers to the games themselves, and not to authorizing, licensing, and operating games. And because the games themselves are not located on Indian lands, § 2710 is not a basis for jurisdiction. Moreover, the federal government says that § 1331 does not extend jurisdiction, because the state’s federal claims (counts I, II, and III) do not fall within § 2710, and because the compact does not contain a provision agreeing to federal court review of the state’s other claims.
Next, the federal government argues that Bay Mills enjoys tribal sovereign immunity. The federal government says that § 2710 did not abrogate sovereign immunity, because the state alleged that the Vanderbilt casino is not on Indian lands. The federal government contends that 18 U.S.C. § 1166 also does not abrogate sovereign immunity, because that statute gives the federal government (not the states) enforcement authority in Indian lands for violations of assimilated state gambling laws. The federal government says that § 1166 does not give states authority to enforce state gambling laws outside Indian lands, and even less to sue the tribe itself. The government contends that tribal sovereign immunity already extends to a tribe’s commercial activities wherever they take place, and that the Court should leave it to Congress to balance the interests of the tribes and the states and to determine the scope of immunity.
Finally, the federal government argues that Michigan has other remedies. Like Bay Mills, the federal government says that the state could seek injunctive relief against an individual tribal official. The federal government claims that the state could also negotiate a waiver of sovereign immunity in the compact. Moreover, the federal government contends that the state could request approval from the NIGC of a site-specific gaming ordinance for the Vanderbilt casino, forcing the NIGC to determine whether the site is eligible for gaming, and appeal the decision in court. Finally, the federal government notes that the state can enforce its own gaming laws against individuals involved in gaming at the Vanderbilt casino. With all these options, the federal government argues that there is no need to diminish tribal sovereign immunity to create a remedy that would resolve this dispute.
At its core, this case is about the allocation of power between states and Indian tribes over the operation of an activity, tribal-sponsored gambling, that has seen astonishing growth in recent decades and today is worth tens of billions of dollars nationwide. (The NIGC tracks this growth in Gaming Revenue Reports, available at http://www.nigc.gov/Gaming_Revenue_Reports.aspx.) Both Indian tribes and states use legalized gaming more and more for revenue, economic development, and economic activity and opportunity. Within this broader context, the regulation of tribal gaming, even at the margins, is itself a high-stakes game.
To be sure, this case deals with only a small part of this larger question, that is: off-reservation gambling. And it involves only special federal jurisdictional and immunity questions that come up in the particular case when an Indian tribe purchases land to build an off-reservation casino.
Still, in the rapidly growing sector of Indian gaming, the case already matters. As Michigan indicates, it “is already aware of at least three additional lawsuits where parties have cited the Sixth Circuit’s decision here in support of a tribe’s operation (or planned operation) of a casino in violation of IGRA or tribal-state gaming compacts.” The state notes that “[a]s tribes continue to look for better casino locations . . . or new ways to profit from the explosion of casino gaming, the friction between state authority and tribal immunity will inevitably increase.” That’s not to say that Michigan’s positions in the case are (necessarily) right, but only that the issues are already significant, and only likely to grow in importance.
Moreover, the issues are highly controversial. On the one hand, many favor expanding off-reservation gaming opportunities, because Indian tribes and states can use off-reservation gaming to generate more revenue and economic development in more attractive locations off the reservations (like closer to urban centers). On the other hand, many oppose off-reservation gaming, because it encroaches on local communities. The debate is playing out in communities across the country where Indian tribes are seeking permission to conduct off-reservation gaming. The debate is also playing out in Washington, where the Obama administration moved in 2011 to loosen requirements for some off-reservation gaming, and where some in Congress have introduced legislation to tighten them. Again, this case sits right at the center of these debates.
Whatever happens in this case, though, it cannot change the basic statutory framework under the IGRA: Indian tribes will still have to adopt a gaming ordinance and negotiate a compact with the state. The compact requirement ensures that both states and Indian tribes will have a significant hand in regulating casino-like tribal gaming. But the outcome of the case may affect how Indian tribes and states negotiate their compacts and the terms they include in them.
It is important to remember that the Department of the Interior and the NIGC issued opinions that the Vanderbilt casino was not on “Indian lands” and was therefore not eligible for gaming under the NGRA. The federal government does not disavow these opinions. Indeed, the federal government sets out an array of options for Michigan to regulate the Vanderbilt casino (and other future casinos), notwithstanding (as the federal government argues) the federal courts’ lack jurisdiction over the state’s claims and Bay Mills’s immunity from suit. In other words, the Sixth Circuit ruling does not mean that Bay Mills can operate its casino, or that other tribes could operate like casinos off reservation, without at least some state and federal oversight and permission.
Finally, the case is significant because it will resolve splits in the circuits. There is disagreement among the circuits on both questions presented—the scope of federal jurisdiction, and the scope of tribal sovereign immunity.
Tuesday, November 26, 2013
As widely expected, United States Supreme Court has granted the petitions for writ of certiorari to the Tenth Circuit's divided en banc opinion in Hobby Lobby v. Sebelius as well as to the Third Circuit's divided opinion in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services.
In lengthy opinions, the Tenth Circuit en banc in Hobby Lobby essentially divided 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause. The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.
The majority of the Third Circuit panel opinion in Conestoga Wood Specialities Corporation, articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both. First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010), distinguishing free speech from free exercise of religion. Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners, and concluded that the PPACA did not actually require the persons who are owners to "do" anything.
For ConLaw Profs, here are some useful links: A discussion of the most recent circuit case, decided earlier in November by the Seventh Circuit, is here; a digest of the previous circuit court cases and some discussion of the controversy is here, some interesting hypotheticals (good for teaching and exam purposes) as posed by Seventh Circuit Judge Rovner are here, ConLawProf Marci Hamilton's discussion is here, a critique of the sincerity of claims in Eden Foods is here, a discussion of the district judge's opinion in Hobby Lobby is here, a discussion of the Tenth Circuit en banc opinion in Hobby Lobby is here, and the SCOTUSblog page with briefs is here.
[image: Supreme Court Justices by Donkey Hotey via]
November 26, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Religion, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Monday, November 25, 2013
Daily Read: Julie Goldscheid on the Constitutional and Social Problems of Violence Against "Women" (on this International Day for the Elimination of Violence Against Women)
The 25th of November is "International Day for the Elimination of Violence against Women" declared by the United Nations by a Resolution in 2000.
The resolution echoes earlier attention to the problem which it defines as including
any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.
The responsibility of governments to address private violence is one that is controversial in United States constitutional law, but so - - - and perhaps increasingly - - - is the framing of the issue with special attention to victims on the basis of gender. Isn't a focus on women violative of sex-equality, excluding not only men but transgender and gender nonconforming people?
Professor Julie Goldscheid (pictured) takes on this issue in her forthcoming article, Gender Neutrality, the “Violence Against Women” Frame, and Transformative Reform, available in draft on ssrn. Goldscheid uses framing theory to explain the benefits and disadvantages of the frame "violence against women." She discusses constitutional challenges against anti-violence legislation and regulations that codify the woman-specific lens, including one from West Virginia and California in which equal protection arguments were mounted. In West Virginia, the Supreme Court of Appeals in Men & Women Against Discrimination v. Family Protection Servs. Bd. ultimately upheld the special requirements for men. As Goldscheid describes it, the court
concluded that the rule authorizing particular rules for male victims and adult male children was “not unreasonable” given that the majority of domestic violence victims seeking shelter are women, and that the provision requiring training in historical attitudes toward women simply mandated gender-neutral instruction about the history of domestic violence and did not imply that all perpetrators are men or that women cannot be perpetrators.
To the contrary, in California the appellate court applied strict scrutiny under its state constitution to state sex-specific provisions in Woods v. Horton and found they were not justified by a compelling governmental interest and that gender-neutral alternatives were possible. However, the court did not find the state provisions unconstitutional, but, as Goldscheid explains,
the remedy was to reform the statutory provisions to provide funding to survivors regardless of gender. The court recognized that the vast majority of the programs funded under the programs already were provided on a gender-neutral basis. It also recognized that programs need not offer identical services to men and women, given the disparity in the number of women needing services. For example, the court recognized that a program might offer shelter for women, but only hotel vouchers for men.
These cases do not lead Goldscheid to advocate for a simplistic gender-neutral approach, but to argue for what she names a "modest shift" that "meets both descriptive and transformative goals, and that is sensitive to differences in context and usage."
Goldscheid's solution - - - discussed in her article - - - credits the power in naming and framing. It may be "modest," as she suggests, but it is certainly worth contemplating on this International Day for the Elimination of Violence against Women.
Saturday, November 23, 2013
The Second Circuit late Friday entered yet another decision in In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., this time on four motions before the panel. Recall that the Second Circuit panel previously entered an opinion clarifying its removal of District Judge Shira Scheindlin after its original brief order issuing a stay and removing her as judge, an occurrence that is apparently not so rare. Judge Shira Scheindlin's opinions and orders in Floyd v. City of New York and in Ligon v. City of New York found the NYPD's implementation of stop and frisk violative of equal protection.
In this most recent order from the Second Circuit panel, it denied NYC's motion to vacate Judge Scheindlin's orders and opinions, rather than issuing a stay. This move by NYC - - - given that a change in mayors is imminent - - - certainly had political interpretations. But whatever NYC's motives, the Court rejected the invitation to vacate the opinions.
The Second Circuit panel also denied the motions seeking intervention by Judge Scheindlin, essentially characterizing them as moot given the panel's clarifying order and the denial of the motion to vacate. However, the panel did take the opportunity to disagree with the motion's representation that the panel did not have access to the transcript of proceedings in the related case upon which it based its findings that Judge Scheindlin may have committed an improper application of the Court’s “related case rule.” The Second Circuit panel stated:
A review of the record of the Court of Appeals, and of the October 29, 2013 extended oral argument in these cases, will reveal that the panel members had the transcript of the December 21, 2007 proceeding in front of them during the hearing, and that they asked questions in open court regarding its substance. For example, during the oral argument, one member of the panel twice referred to the proceedings in detail, and clearly noted that he was quoting from page 42 of the December 21, 2007 transcript. Our October 31, 2013 order specifically cited the transcript by caption, docket number, and date, and it included quotations that had not been reported in the New York Times article that was cited, or in any other public news report known to the panel.
It's interesting that the Second Circuit panel took time to refute the contention with specifics - - - and perhaps it is important that the panel also noted that the assertion that it did not have the transcript was being "echoed" by "other movants in the case," with this citation:
See, e.g., Br. of Amici Curiae Six Retired United States District Court Judges and Thirteen Professors of Legal Ethics, Ligon v. City of New York, No. 13-3123, Dkt. 221, Floyd v. City of New York, No. 13-3088, Dkt. 313, at 14.
The Second Circuit panel surely wants to correct the record about the record on this point.
Tuesday, November 19, 2013
In a 5-4 decision in Planned Parenthood of Greater Texas v. Abbott, the United States Supreme Court has refused to vacate the Fifth Circuit's stay of the district judge's injunction against the enforcement of the abortion restriction law known as Texas HB 2, that had been the subject of the well-publicized filibuster by state senator Wendy Davis.
The Court's Order was accompanied by two opinions. In the first, a concurring opinion authored by Justice Scalia and joined by Justices Thomas and Alito, the four factors for a stay are laid out:
(1) whether the State made a strong showing that it was likely to succeed on the merits,
(2) whether the State would have been irreparably injured absent a stay,
(3) whether issuance of a stay would substantially injure other parties, and
(4) where the public interest lay.
Justice Scalia's relatively brief opinion is primarily a refutation of the dissenting opinion, arguing that the
dissent would vacate the Court of Appeals’ stay without expressly rejecting that court’s analysis of any of the governing factors. And it would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably un- constitutional. Reasonable minds can perhaps disagree about whether the Court of Appeals should have granted a stay in this case. But there is no doubt that the applicants have not carried their heavy burden of showing that doing so was a clear violation of accepted legal standards— which do not include a special “status quo” standard for laws affecting abortion.
The dissent, written by Justice Breyer and joined by Justices Ginsburg, Sotomayor, and Kagan, argued that the Fifth Circuit's issuance of the stay was "demonstrably wrong" in its application of the standards for issuing a stay based on six reasons:
- the district judge's order maintained the status quo that existed in Texas prior to the hospital admitting privileges requirement;
- the Fifth Circuit's stay disrupted that status quo, so that a "significant number of women seeking abortions" will be affected and that the "longer a given facility remains closed, the less likely it is ever to reopen even if the admitting privileges requirement is ultimately held unconstitutional;"
- the Fifth Circuit agreed to expedite its consideration, again favoring the status quo;
- the balance of harms tilts in favor of the applicants;
- the "underlying legal question—whether the new Texas statute is constitutional—is a difficult question" that at least four Members of this Court will wish to consider irrespective of the Fifth Circuit's ultimate decision;" and
- there was not a significant public interest consideration.
Given the four Justices who joined the dissent, it is clear that the decision not to vacate the stay was 5-4, although Justice Kennedy and Chief Justice Roberts did not join Justice Scalia's concurring opinion.
The restrictive abortion statute passed by Texas has been deeply divisive and the Court's decision demonstrates that the members of the Court are likewise deeply divided.
Among the materials released today as we discussed earlier, is the 87 page opinion by the Presiding Judge of the Foreign Intelligence Surveillance Court, again difficult to name or cite given that the usual caption material is redacted:
But the opinion's footnote 27 with the portions redacted - - - and not redacted - - - does deserve special notice:
"For ease of reference, the term XXXXXXXXXXXXX is used to mean XXXXXXXXXXXXXX."
Monday, November 18, 2013
In its routine order list today, the Court's list of "MANDAMUS DENIED" included "13-58 - IN RE ELECTRONIC PRIVACY INFORMATION CENTER."
The petition for writ of mandamus and prohibition or writ of certiorari was filed by the Electronic Privacy Information Center and essentially sought review of an Order from the Foreign Intelligence Surveillance Court. The order redacts the names of the parties from whom the "tangible things" are sought, but the petition describes the order as compelling "Verizon Business Network Services to produce to the National Security Agency, on an ongoing basis, all of the call detail records of Verizon customers."
As one of its Questions Presented, the petition stated:
Whether the Foreign Intelligence Surveillance Court exceeded its narrow statutory authority to authorize foreign intelligence surveillance, under 50 U.S.C. § 1861, when it ordered Verizon to disclose records to the National Security Agency for all telephone communications “wholly within the United States, including local telephone calls.”
The import of the Supreme Court's denial is both trivial and momentous. On the one hand, there is little if anything to be read into the Court's refusal to exercise its highly discretionary power to grant a petition for a writ as it does in 1% of cases. On the other hand, there is something to be inferred about the Court's interest in and willingness to supervise the unusual FISA given constitutional rights.
But the Court's failure to accept the case certainly does not mean the underlying issues will be so easily dispatched.
Daily Read: "Reassignment" by Toby Heytens (or was it so unusual that the Second Circuit reassigned the "Stop and Frisk" cases?)
As we discussed last week, in In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., the Second Circuit clarified its removal of Judge Shira Scheindlin and as to the removal of Judge Scheindlin, wrote that reassignment "while not an everyday occurrence, is not unusual in this Circuit" and in support cited nine cases from 1999 - 2011, and discussed that it occurs in other circuits.
Would that the panel had had Professor Toby Heytens' forthcoming article, simply entitled "Reassignment," available in draft on ssrn. Heytens discusses more than 650 reassignment cases and concludes that circuit courts have
exercised that power in pretty much every type of case imaginable: criminal cases and civil cases, federal question cases and diversity cases, “big” cases and “small” cases. Reassignment has been going on since 1958, but the pace seems to be quickening: more than 20% of the cases in my 55-year dataset were decided during the last five years, at a rate of a little more than one every two weeks during that span.
Although Heytens begins his article discussing a contentious 1996 case from the Second Circuit, involving District Judge Jack Weinstein of New York, he finds that it is another circuit that has by far the most reassignments. Guesses? It's the Seventh Circuit. Interestingly, the Seventh Circuit is the only one to have a circuit rule governing reassignments and thus allows for the circuit panel to simply cite the rule and not provide any rationale for the change. Depending upon one's point of view, this may have obscured the "removal" of Judge Scheindlin or it might have portrayed it as a normal procedure.
Although not focused on Scheindlin, here's what Heytens says about the possible differences:
On one hand, this may seem problematic, because it violates the intuition that public reason-giving is an important part of justifying the exercise of coercive judicial power.
On the other hand, reassignment underscores that there can be virtues in circumspection as well. Appellate court decisions have many audiences: not just the trial judges and the parties, but also other judges, future litigants, and other interested readers. Both the Seventh Circuit’s approach of ordering reassignment via an unexplained reference to a circuit rule that may not mean anything to most readers and the First Circuit’s approach of separating the reassignment order from the underlying opinion can be seen as ways of reducing the salience of the decision to order reassignment and thus make the decision feel less like a public scolding.
In the stop and frisk cases, the public scolding aspect of the Second Circuit's brief initial opinion predominated - - - at least in its reception by the public. Indeed, the revised opinion seemingly took pains to refute that interpretation.
In his conclusion, Heytens identifies the question of "whether more fine-grained methods of measuring judicial ideology reveal any interesting patterns about how appellate judges use reassignment" as one meriting further investigation. Certainly the reassignment of Judge Shira Scheindlin in the highly controversial stop and frisk cases will prove fertile ground. Moreover, the question of disciplining a judge's out-of-court activities, including those that might implicate the First Amendment, should also be added to the mix.
[image of circuit courts of appeal map via]
Wednesday, November 13, 2013
In a 15 page opinion (with extensive appendices) issue late Wednesday, In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., the Second Circuit clarified its removal of Judge Shira Scheindlin, which we discussed here. Calling her a "long serving and distinguished jurist of the United States District Court for the Southern District of New York," the Second Circuit panel nevertheless again concluded that "reassignment is advisable to preserve the appearance of justice."
Recall that the underlying controversy involves Judge Shira Scheindlin's orders in Floyd v. City of New York and in Ligon v. City of New York regarding the NYPD's implementation of stop and frisk as violative of equal protection.
In today's opinion, the panel
"explains the basis for our order of October 31, 2013, directing the reassignment of these cases to a randomly selected district judge and supersedes that order. To reiterate, we have made no findings that Judge Scheindlin has engaged in judicial misconduct. We conclude only that, based on her conduct at the December 21, 2007 hearing and in giving the interviews to the news media in May 2013, Judge Scheindlin’s appearance of impartiality may reasonably be questioned within the meaning of 28 U.S.C. § 455 and that “reassignment is advisable to preserve the appearance of justice.”
The explanation stresses that the opinion is based on the appearance of partiality rather than any "findings of misconduct, actual bias, or actual partiality on the part of Judge Scheindlin." Again, this appearance of partiality is twofold. First, there are the judge's statements on the record in a related case. After quoting some of the statements, the panel concluded:
We believe that a reasonable observer viewing this colloquy would conclude that the appearance of impartiality had been compromised. We do not mean to suggest that a district judge can never engage in a colloquy with a party during which the judge advises the party of its legal or procedural options. However, we think, particularly in combination with the public statements described below, that a reasonable observer could question the impartiality of the judge where the judge described a certain claim that differed from the one at issue in the case before her, urged a party to file a new lawsuit to assert the claim, suggested that such a claim could be viable and would likely entitle the plaintiffs to documents they sought, and advised the party to designate it as a related case so that the case would be assigned to her.
Second, the panel considered - - - as the "statements described below" - - - the judge's statements to the press. While the panel noted the judge "did not specifically mention the Floyd or Ligon cases in her media interviews," nevertheless, the context was critical. And while "nothing prohibits a judge from giving an interview to the media,"
judges who affiliate themselves with news stories by participating in interviews run the risk that the resulting stories may contribute to the appearance of partiality. It is perhaps illustrative of how such situations can get out of the control of the judge that, later in The New Yorker piece, the article quotes a former law clerk of Judge Scheindlin: “As one of her former law clerks put it, ‘What you have to remember about the judge is that she thinks cops lie.’”
The panel opinion does not reference the First Amendment. The panel did, however, reference the Code of Conduct for United States Judges, but only to disavow its mention in the earlier order. Here, the Second Circuit panel of judges wrote,
We now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and Disability Act. . . .
But as to the removal - - - or reassignment - - - the panel again found this to be the proper remedy. Reassignment, the panel wrote, "while not an everyday occurrence, is not unusual in this Circuit." In support of this, the panel cited nine cases from 1999 - 2011. The panel also noted it occurs in other circuits. [UPDATE: For scholarship on this topic, see here].
Thus, the opinion softens some of the original language, expanding on the relatively brief previous order, but does not waver from the conclusion or remedy. If the original order was a "slap" as some people characterized it, this replacement is more of a stern lecture rendered in patronizing and disappointed tones.
Wednesday, November 6, 2013
Update on Stop and Frisk Judge's Removal by Second Circuit: Judge Shira Scheindlin Seeks Intervention
It was not only that a panel of the Second Circuit stayed Judge Shira Scheindlin's orders in Floyd v. City of New York and in Ligon v. City of New York regarding the NYPD's implementation of stop and frisk as violative of equal protection. But the panel - - -consisting of Judges John M. Walker, Jr, José A. Cabranes, and Barrington D. Parker - - - took the unusual move of removing Judge Scheidlin from the case, as we discussed here.
Now, counsel on behalf of Judge Scheindlin, have filed a Request for Leave to File Motion to Address Order of Disqualification (here). In addition to rules of appellate procedure, the motion relies upon the First and Fifth Amendments. Specifically, the motion alleges that discussion of important legal issues by members of the judiciary is crucial to public understanding of the rule of law and is consistent with the values of the First Amendment, and that the general discussions by the judge cannot be deemed to "run afoul" of the Code of Judicial Conduct and cannot justify a sua sponte order removing her as judge.
The removal of the judge has been roundly criticized, but now the Second Circuit has been asked to respond.
Monday, November 4, 2013
The United States Supreme Court today heard oral argument in Sandifer v. United States Steel Corporation centered on the meaning of “changing clothes” in section 203(o) of the Fair Labor Standards Act. The Seventh Circuit's opinion by Judge Richard Posner found in favor of U.S. Steel that donning and doffing the safety gear was not necessarily changing clothes, because
He included an image in the opinion (at right) and stated
not everything a person wears is clothing. We say that a person “wears” glasses, or a watch, or his heart on his sleeve, but this just shows that “wear” is a word of many meanings.
Almost any English speaker would say that the model in our photo is wearing work clothes.
And indeed, Justice Ginsburg, during the oral argument at the Supreme Court did just that, but the discussion continued:
JUSTICE GINSBURG: But we're dealing with here, from the picture, that looks like clothes to me.
MR. SCHNAPPER: Your Honor, I think that your question raises an excellent point. One of the problems with the picture is that it withholds from you other information that you would use to assess whether to describe it as clothes. You don't know what -
JUSTICE KENNEDY: Except you would look and say, those clothes probably have something special underneath them. I mean, in ordinary parlance I think that would be a proper use of diction.
MR. SCHNAPPER: If you saw an airbag jacket, you would probably call it clothes unless you are an equestrian. It looks like a jacket. If you saw a compression torsion -- a torso compression bandage in a photograph, you would call it clothes, because you don't have all the relevant information.
JUSTICE ALITO: Why is it that the jacket and the pants in that picture are not clothes?
MR. SCHNAPPER: In our view -- well, let me -- part of it -- first of all, they are designed for a protective function, to protect you from catching fire.
In addition to the ruminations on the meaning of clothes, perhaps leading to a definitional rule, there were attempts to understand why it mattered in this interpretation of the statute. The statute excludes from “hours worked”
any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.
Thus an employee would need to be paid for putting on "gear."
But if the Court can't tell by simply looking, then what? As Justice Kagan noted toward the end of the argument, the distinction between clothes and gear "seems the quintessential question of statutory interpretation to which we would normally defer to the agency," but in this case, the agency hasn't issued a regulation. Justice Scalia offered his own explanation for the administrative failure to address the matter with a rule: "Too complicated is why."
Thus, while Judge Posner's opinion did raise some constitutional considerations about agency and executive power regarding differing meanings driven by politics, the constitutional question implicit in the Supreme Court arguments involve the separation of powers and the role of the Court in statutory interpretation.
So it is up to the Court to "fashion a standard," as Eric Schnapper, representing Clifton Sandifer, phrased it during oral argument.
Thursday, October 31, 2013
A Fifth Circuit panel has entered its opinion staying the injunction pending a full consideration of the merits, concluding that there is "a substantial likelihood that the State will prevail in itsargument that Planned Parenthood failed to establish an undue burden on women seeking abortions or that the hospital-admitting-privileges requirement creates a substantial obstacle in the path of a woman seeking an abortion." The panel also concluded that "the State has made a strong showing of likelihood of success on the merits" on its appeal on the partial injunction pertaining to medication abortions.
As to mandated hospital admitting provisions, the panel observed that the district judge's finding that the requirement failed a rational basis standard "overlooks substantial interests of the State in regulating the medical profession and the State’s interest in “‘protecting the integrity and ethics of the medical profession." Further, the panel held that the district judge's finding of an undue burden did not apply to "a large fraction" of the women seeking abortions in Texas.
Regarding the partial injunction on medical abortions, the Fifth Circuit panel found it is was overbroad, except in a single respect in which the injunction will remain in effect:
the district court’s injunction continues to apply pending appeal with respect to a mother who is 50 to 63 days from her last menstrual period if the physician who is to perform an abortion procedure on the mother has exercised appropriate medical judgment and determined that, due to a physical abnormality or preexisting condition of the mother, a surgical abortion is not a safe and medically sound option for her.
Otherwise, HB 2, the subject of the well-publicized filibuster by state senator Wendy Davis in now in effect.
In a brief opinion , a panel of the United States Court of a Appeals for the Second Circuit - - -John M. Walker, Jr, José A. Cabranes, and Barrington D. Parker - - - have issued a stay of the decisions of District Judge Shira Scheindlin (pictured right) in Floyd v. City of New York and in Ligon v. City of New York, In both cases, Judge Scheindlin essentially found that the NYPD's implementation of stop and frisk violated equal protection.
The Second Circuit not only stayed the decisions, but also remanded the cases with the order they be assigned to a different judge:
Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of partiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), [footnote 1] and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court. [footnote 2].
In support, the opinion's footnote 1 provides:
In a proceeding on December 21, 2007 involving the parties in Daniels v. City of New York, No. 99 Civ. 1695 (S.D.N.Y. filed Mar. 8, 1999), the District Judge stated, “[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.” She also stated, “[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.” She concluded the proceeding by noting, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.” Two of the attorney groups working on behalf of plaintiffs in Daniels, a case challenging the New York Police Department’s stop-and-frisk practices, helped file Floyd the next month. See generally Joseph Goldstein, A Court Rule Directs Cases Over Friskings to One Judge, N.Y. Times, May 5, 2013.
In footnote 2, the court 's "see e.g." cite lists three articles:
- Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence, N.Y. Law Journal, May 5, 2013;
- Larry Neumeister, NY “Frisk” Judge Calls Criticism “Below-the-Belt,” The Associated Press, May 19, 2013;
- Jeffrey Toobin, A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013. [*]
While the Second Circuit's panel opinion includes the disclaimer that the judges "intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued," it certainly expresses deep disapproval.
*UPDATE: See Toobin's response to the ruling and use of the article he authored here
Senate Republicans today successfully filibustered Patricia Millett's nomination for the D.C. Circuit. The Senate voted 55-38 to end debate and proceed to a vote on the nomination, but the body needed 60 votes under Senate rules. The Republicans' move blocks the nomination, unless and until the Senate can muster 60 votes, or changes its rules.
Millett would fill one of three vacancies on the court. The Republicans' move means that this exceptionally important court--often called the second most important court in the country--continues to operate three shy of a full bench. The move also means that the court continues to be dominated by judges appointed by Republican presidents (despite Republicans' argues to the contrary). (There's an even split among the active judges, but judges appointed by Republicans are dominant among the semi-retired. Those semi-retired judges still sit and help decide cases.) Finally, the move means that a supremely well qualified nominee who receieved bipartisan praise won't get the nod from the Senate, despite receiving a majority to proceed to a vote.
No word yet whether Democrats will use the nuclear option and try to change the filibuster rule to bypass Republican obstruction, or whether leaders will come up with some other way to proceed.
UPDATE: Here's a link to the roll-call (h/t Glenn Sugameli).
Monday, October 28, 2013
In his opinion in Planned Parenthood of Greater Texas v. Abbott, Judge Lee Yeakel has enjoined portions of Texas HB 2, passed in July (despite a well-publicized filibuster by state senator Wendy Davis) and slated to become effective October 29, 2013.
The judge found unconstitutional the "admitting privileges provision" that provided:
A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services
He concluded that the provision placed a substantial obstacle in the path of a woman seeking an abortion and failed the rational basis test. As to the substantial obstacle, the judge noted that hospital admitting privileges for physicians performing abortions can be difficult to obtain; for example a physician performing low-risk abortions may simply not have sufficient surgeries to qualify. Moreover, many physicians are not within the 30 mile limit. Regarding a rational relationship, the judge found that hospital emergency rooms admitting a patient and hospitals subsequently treating her do not disfavor a patient whose physician does not have admitting privileges.
Judge Yeakel did not declare unconstitutional HB 2's revision of physician prescription of abortion-inducing medications such as RU-486. HB 2 essentially mandates following the FDA protocol, a protocol that is not usually followed and about which there is substantial disagreement. Judge Yeakel, however, found that HB 2 did not impose an undue burden because the physician could perform a surgical abortion. An exception, however, must be added if the physician determines that the health or life of the woman is at stake.
Texas is reportedly already appealing the decision. It is not the first time that Judge Lee (Earl Leroy) Yeakel has rendered an opinion declaring portions of a Texas statute restricting abortion unconstitutional and been appealed. Last year in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, a panel of the Fifth Circuit reversed Judge Yeakel's preliminary injunction involving a Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.
October 28, 2013 in Abortion, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Medical Decisions, Opinion Analysis, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack (0)
Sunday, October 27, 2013
The Department of Justice for the first time notified a criminal defendant that evidence against him was obtained through a warrantless wiretap, according to the New York Times. The move gives the criminal defendant the standing to challenge warrantless wiretapes that the plaintiffs in Clapper v. Amnesty International lacked and invites his challenge of warrantless wiretaps. Our previous post on the issue is here.
The defendant, Jamshid Muhtorov, is charged with "provid[ing] and attempt[ing] to provide material support and resources, to wit: personnel . . . to a foreign terrorist organization, specifically the Islamic Jihad Union . . . knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States" in violation of 18 U.S.C. Sec. 2339B. The notice says that the government
hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. Secs. 1806(c) and 1881e(a), that the government intends to offer into evidence or otherwise use or disclose from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 . . . .
The Supreme Court held that the plaintiffs in Clapper lacked standing to challenge warrantless wiretaps, because they couldn't show that they'd been, or would be, wiretapped under the specific statutory authority they sought to challenge. Now that the government has disclosed that its evidence resulted from warrantless wiretaps, Muhtorov has clear standing to challenge the wiretaps.
This merely puts the legality of the wiretaps before the courts; it doesn't answer the underlying question. For that, we'll have to await the ruling and appeals.
Thursday, October 24, 2013
As we discussed when we reported that Marc Nadon had been nominated to be the newest Justice on the Supreme Court of Canada, there existed a constitutional question regarding whether a judge on the Federal Court of Appeal was eligible for the Supreme Court.
Michael Plaxton and Carissima Mathen have made available on ssrn their excellent paper, Purposive Interpretation, Quebec, and the Supreme Court Act.
They set out the facts at the beginning of their discussion:
On 30 September 2013, the Prime Minister announced the nomination of Marc Nadon, a Federal Court of Appeal judge, to fill the seat vacated by Supreme Court Justice Morris Fish. The announcement was accompanied an unusual supporting document – an opinion by a former Supreme Court Justice, The Honourable Ian Binnie. Asked whether the Supreme Court Act permits the appointment of Federal Court judges, Binnie wrote a brief memorandum arguing that it does – a conclusion endorsed by another former Supreme Court Justice, Louise Charron, and Professor Peter Hogg. After Nadon was sworn in, a Toronto lawyer launched proceedings in Federal Court to contest the appointment. This prompted Nadon to decline to participate in court hearings until the issue is resolved. On October 22, in apparent response to these events, the federal government announced that it would introduce a “declaratory” change to the Supreme Court Act. It would also seek an advisory opinion from the Supreme Court of Canada as to whether Federal Court judges are qualified for appointment.
The Supreme Court of Canada action is now docketed here.As Plaxton and Mathen describe the "apparent interpretive problem raised by Justice Nadon’s appointment,"
Section 5 of the Supreme Court Act states: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Section 6 provides: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Mr Justice Nadon was, at the time of his nomination, neither a judge of a Quebec superior court nor a current member of the practicing bar. It is therefore not clear that he is “among the advocates” of Quebec within the meaning of section 6.
Ultimately, they conclude that the argument in favor of Nadon's eligibility privileges section 5 over section 6, with its purpose "to protect the authority and legitimacy of the Court in the eyes of Quebec citizens, advocates and jurists."
This controversy over eligiblity has certainly eclipsed the earlier concerns regarding Nadon's appointment contributing to the lack of gender balance and representation on the Court.
Wednesday, October 23, 2013
The First Amendment includes a right of public (and press) access to trials. But what is a "trial"? Or, as the Third Circuit considered in its opinion in Delaware Coalition for Open Government v. Strine, is there a right of public access to a state sponsored arbitration program. By a divided panel - - - with a separate opinion from each of the three judges - - - the majority held that the First Amendment requires public access to state arbitration proceedings.
While the majority affirmed the district judge, the appellate panel disagreed with the standard the district judge applied. The correct standard, according to the apellate panel, is the "experience and logic" test. The test derives from cases applying the open access to a trial principle that the United States Supreme Court enunicated in Richmond Newspapers v. Virginia in 1980, including Press Enterprise v. Superior Court (II), in 1986, considering whether preliminary criminal hearings must be open to the public. Thus, quoting from Press Enterprise II, as the majority opinion by Judge Dolores Sloviter phrased it:
A proceeding qualifies for the First Amendment right of public access when “there has been a tradition of accessibility” to that kind of proceeding, and when “access plays a significant positive role in the functioning of the particular process in question.”
The history prong - - - asking whether there is a tradition of accessibility - - - rests upon a determination of the "kind" of proceeding in question. Here, the parties disagreed whether the focus should be on "civil trials" or "arbitrations": the court provided an in-depth discussion of both. The civil trial discussion traversed familiar ground, with the easy conclusion that civil trials and courtrooms are generally open to the public. The arbitration discussion began with a mention of English arbitrations in the twelfth century, concluding with a finding that the "history of arbitrations reveals a mixed record of openness." But, the court continued, the history shows that "arbitrations with non-state action in private venues tends to be closed." This is distinct from the Delaware scheme at issue, "a binding arbitration before a [state] judge that takes place in a courtroom," which is more like a usual civil trial.
On the logic prong, not surprisingly given the majority's discussion of history, public access was deemed to play a significant positive role. Judge Sloviter's opinion revealed a pointed disagreement with Judge Jane Roth's dissent:
I agree with Judge Roth on the virtues of arbitration. I cannot help but question why the Delaware scheme limits those virtues to litigants whose disputes involve an amount in controversy of at least a million dollars, and neither of whom is a consumer. One wonders why the numerous advantages set forth in Judge Roth’s dissenting opinion (which apparently motivated the Delaware legislature) should not also be available to businesspersons with less than a million dollars in dispute. I see no explanation in Judge Roth’s dissent for the limitation to rich businesspersons.
In her dissent, Judge Roth states that she believes that I do not appreciate the difference between adjudication and arbitration, i.e., “that a judge in a judicial proceeding derives her authority from the coercive power of the state, while a judge serving as an arbitrator derives her authority from the consent of the parties.” Indeed I do.
Delaware’s proceedings are conducted by Chancery Court judges, in Chancery Court during ordinary court hours, and yield judgments that are enforceable in the same way as judgments resulting from ordinary Chancery Court proceedings. Delaware’s proceedings derive a great deal of legitimacy and authority from the state. They would be far less attractive without their association with the state. Therefore, the interests of the state and the public in openness must be given weight, not just the interests of rich businesspersons in confidentiality.
In his concurring opinion, Judge Julio Fuentes seeks to clarify that it is not the entire arbitration scheme that violates the First Amendment, but only the provision requiring the proceedings to be "confidential" and "not of public record" until they are appealed.
Thus, these high stakes commercial arbitrations allowed by Delaware law and performed by Delaware judges can continue - - - but they are no longer confidential. This certainly seems the correct outcome if the First Amendment access to "trials" has substantive meaning.