Wednesday, June 10, 2015

Fifth Circuit on Texas's Abortion Law HB 2 Redux

The Fifth Circuit has issued its opinion in Whole Woman's Health v. Cole, as the latest in the continuing saga regarding the constitutionality of HB 2.

Recall that a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.

This opinion dissolves the district judge's opinion except as to one clinic in McAllen, Texas, holding that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements did not impose an "undue burden" on women seeking abortions as a facial matter (and relying in part on Planned Parenthood of Texas Surgical Providers v. Abbott  as a basis for res judicata).  As applied, the court distinguished McAllen from El Paso, which has another abortion clinic nearby, albeit across the Texas state border in New Mexico.

It is unlikely this latest opinion will be an end to the litigation regarding HB2.


June 10, 2015 in Abortion, Courts and Judging, Due Process (Substantive), Gender, Reproductive Rights, Sexuality | Permalink | Comments (0)

Friday, June 5, 2015

Clean Air Act Survives Federalism Challenges

The D.C. Circuit this week upheld a key authority of the EPA for enforcing the Clean Air Act against federalism and congressional authority challenges. The per curiam ruling rejected other challenges to EPA action, as well, and means that the case is dismissed. The ruling leaves intact the EPA's authority to designate geographic areas as noncompliant with the Clean Air Act and to take certain enforcement actions.

The federalism challenge in the case, Mississippi Commission on Environmental Quality v. EPA, sought to exploit the plurality's ruling in NFIB, where the Court held that Obamacare's Medicaid expansion couldn't condition a state's entire Medicaid grant on the ACA's Medicaid expansion. But the court rejected that argument, easily distinguishing Medicaid expansion and the EPA's actions here, as described below.

The case tested EPA's authority to designate certain geographic areas as noncompliant with the Clean Air Act's National Ambient Air Quality Standards. A variety of plaintiffs lodged complaints, but only two, Wise County, Texas, and the Texas Commission on Environmental Quality, raised constitutional claims. They argued that the EPA's designation of Wise County as a nonattainment area violated the Tenth Amendment and due process, and exceeded congressional authority under the Commerce Clause.

The court rejected these arguments. The court ruled that the Clean Air Act "authorizes the EPA to promulgate and administer a federal implementation plan of its own if the State fails to submit an adequate state implementation plan." The court said that's not commandeering, because the federal government isn't requiring the state or state officers to implement the federal plan.

The court also ruled that the Clean Air Act's sanctions for noncompliance--re-direction of a portion of federal highway funds to federal programs that would improve air quality--were not unduly coercive under NFIB. That's because they don't come close to the size of a state's federal Medicaid grant, and because it wasn't a new program that came as a surprise to the states. Indeed, the condition has been on the books (and states have taken advantage of it) for decades.

The court said that the Clean Air Act's delegation of authority to the EPA to designate areas as noncompliant is well within Congress's Commerce Clause authority. The court said that dirty air blows across state lines, causing a substantial effect on interstate commerce, and that the activities in Wise County that led to the dirty air themselves have a substantial effect on interstate commerce.

Finally, the court rejected a due process claim that the EPA administrator for Region 6 was biased. The court said that the administrator's past professional activities and statements did not rise to the level of an "unalterably closed mind" or an inability or unwillingness "to rationally consider arguments."

As mentioned, the court rejected other arguments against the EPA's authority, too, mostly under the APA.

June 5, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Due Process (Substantive), Federalism, News, Spending Clause, Tenth Amendment | Permalink | Comments (0)

Wednesday, June 3, 2015

New York Court Allows Bar Admission for "Undocumented" Immigrant

A New York appellate court has held that an "undocumented" immigrant can be admitted to the state bar and the practice of law in its opinion in In the Matter of Application of Cesar Adrian Vargas.

Cesar Vargas via

The court considered whether Vargas (pictured right), an "undocumented" immigrant who does posses documents authorizing him to be in the United States and to work under the Deferred Action for Childhood Arrivals (DACA) policy, could be admitted to the New York bar.  The court determined that under state law he could.  Importantly, the court also determined that pursuant to the Tenth Amendment, this state law should prevail.

The statutory landscape is somewhat complex.  As the court explains most succinctly:

[The issue is] whether such an individual is barred from admission to the practice of law by a federal statute, 8 USC § 1621, which generally prohibits the issuance of state professional licenses to undocumented immigrants unless an individual state has enacted legislation affirmatively authorizing the issuance of such licenses.  This presents an issue of first impression in New York and, in terms of the applicability of 8 USC § 1621 and its compatibility with the Tenth Amendment of the United States Constitution, an issue of first impression nationwide.

We hold that a narrow reading of 8 USC § 1621(d), so as to require a state legislative enactment to be the sole mechanism by which the State of New York exercises its authority granted in 8 USC § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 USC § 1621(a), unconstitutionally infringes on the sovereign authority of the state to divide power among its three coequal branches of government.  Further, we hold, in light of this state’s allocation of authority to the judiciary to regulate the granting of professional licenses to practice law (see Judiciary Law § 53[1]), that the judiciary may exercise its authority as the state sovereign to opt out of the restrictions imposed by section 1621(a) to the limited extent that those restrictions apply to the admission of attorneys to the practice of law in the State of New York.  

In essence, the court holds that a federal statute cannot constitutionally require that only a legislative enactment of a state will satisfy the statute's opt-out provision. 

While the court noted that it is "unusual" for a state court to pass judgment on the constitutionality of a federal statute, it is not unprecedented. 

The court found that the Tenth Amendment is implicated because "although Congress has left the ultimate determination whether to extend public benefits, including professional licensure, to the states, it has, at the same time, prescribed the mechanism" - - - exclusively legislative - - - "by which the states may exercise that authority."  But in New York,  the legislature has "determined that the state judiciary is the sovereign authority vested with the responsibility for formulating the eligibility qualifications and processes governing the admission of attorneys and counselors to the practice of law."  Thus, the court concludes that the legislative limitation in the federal statute "cannot withstand scrutiny under the Tenth Amendment."

The court analogized to Gregory v. Ashcroft (1991) in which the United States Supreme Court relied on the Tenth Amendment to reject a federal age discrimination claim by state judges to Missouri's mandatory retirement age of 70.  

Although Gregory addressed the state’s interest in determining who holds office, the State of New York has no less an interest in determining which of its branches of government is empowered to exercise the discretion authorized by section 1621(d) to determine who may be licensed as an attorney and counselor-at-law.  Indeed, the role of New York courts in regulating attorneys is deliberate, well-considered, and time-tested.  There are sound reasons why, in New York, the responsibility for attorney admissions is vested in the state’s judiciary rather than in other branches or departments of government.  As Judge Benjamin Cardozo declared nearly 90 years ago, an attorney is “an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.”

The court then cites the "variety of rules governing the admission and conduct of attorneys" that the New York  judicial branch formulates and oversees: the Rules of Professional Conduct;  the State Board of Law Examiners;  the 50-hour pro bono requirement for new attorney admissions;  the licensure of legal consultants; the admission of counsel pro hac vice;  the payment of biennial attorney registration fees;  the parameters of attorney advertising;  the requirements for attorney-client retainer agreements;  and the imposition of discipline upon attorneys who violate the state’s ethics rules.

For the court, the "ability, indeed the right, of the states to structure their governmental decision-making processes as they see fit is essential to the sovereignty protected by the Tenth Amendment."  Thus, the federal statute cannot limit the decision regarding noncitizen licensure to only one branch of a state's government.

While equal protection and other constitutional arguments were raised in the case, the court's interpretation of the federal statute and its own conclusion regarding the applicant's suitability for bar admission obviated consideration of those arguments.

[full disclosure: Vargas is a graduate of CUNY School of Law].

June 3, 2015 in Courts and Judging, Current Affairs, Equal Protection, Federalism, Tenth Amendment | Permalink | Comments (1)

Monday, June 1, 2015

Should the Supreme Court Grant Certiorari to Federal Courts Declaring State Laws Unconstitutional?

Dissenting in a denial of certiorari today in County of Maricopa, Arizona v. Lopez-Valenzuela, Justice Thomas, joined by Justice Scalia, argued that the Supreme Court should review decisions by lower federal courts invalidating state "constitutional provisions."  At issue in Lopez-Valenzuela is Arizona's "Proposition 100" a ballot measure passed by Arizona voters that amended the state constitution to preclude bail for certain serious felony offenses if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the charge. 

"A magician raising a ghost" circa 1825 via

The Ninth Circuit en banc held the measure unconstitutional as violative of due process, over dissents by Judges Tallman and O'Scannlain.

Justice Thomas notes that

Congress historically required this Court to review any decision of a federal court of appeals holding that a state statute violated the Federal Constitution. 28 U. S. C. §1254(2) (1982 ed.). It was not until 1988 that Congress eliminated that mandatory jurisdiction and gave this Court discretion to review such cases by writ of certiorari. See Pub. Law 100-352, §2, 102 Stat. 662.

More provocatively, Justice Thomas implicitly evokes the "Ghost of Lochner" by pointing out that the Ninth Circuit's decision rested on substantive due process grounds and quoting from West Coast Hotel Co. v. Parrish, 300 U. S. 379, 391 (1937) and Nebbia v. New York, 291 U. S. 502, 537–538 (1934), which specifically disapproved Lochner v. New York (1905). 

For Justice Thomas, the Court's refusal to grant certiorari is "disheartening," : "there are not four Members of this Court who would even review the decision below."  (Note that Justice Alito also dissented, although he did not join Justice Thomas's opinion, for a total of three Justices who would have granted certiorari). 

For Justice Thomas, the Court's "indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds."

June 1, 2015 in Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), Federalism, Interpretation, Opinion Analysis, Supreme Court (US) | Permalink | Comments (1)

Supreme Court Dodges First Amendment Issue in Facebook Threats Case

In its highly-anticipated opinion in Elonis v. United States seemingly involving the First Amendment protections for threatening language posted on Facebook, the Court deflected the constitutional issue in favor of statutory interpretation. 

No-facebookRecall that while the question presented in the certiorari petition focused on the First Amendment and pointed to a split in the circuits regarding an application of Virginia v. Black, 538 U.S. 343 (2003) to a conviction of threatening another person: did it require proof of the defendant’s subjective intent to threaten or whether it is enough to show that a “reasonable person” would regard the statement as threatening.  However, the Court's Order granting certiorari instructed:

In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."

And at oral argument, much of the discussion delved into common law and Model Penal Code doctrine, even as these were intertwined with First Amendment considerations. 

Today's opinion, authored by Chief Justice Roberts, disentangles the First Amendment from the analysis.  It concludes that as a matter of statutory interpretation, the instructions to the jury that guilt could be predicated on a "reasonable person" standard merited reversal. 

Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”

However, whether or not that mental state could include "recklessness" was not decided by the Court.  Chief Justice Roberts's opinion for the seven Justice majority, specifically disagreed with Justices Alito and Thomas, who each wrote separately, regarding the suitability of reaching the "recklessness" issue.  Roberts wrote:

In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it.

Moreover, although the Court  may be “capable of deciding the recklessness issue,” (quoting the opinion of ALITO, J.), Roberts wrote that "following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly."

Here is the Court's First Amendment "discussion":

Given our disposition, it is not necessary to consider any First Amendment issues.

Justice Alito would reach the First Amendment issue and hold that a recklessness standard would comport with the First Amendment.  Justice Thomas, dissenting, would affirm the Third Circuit's "general intent" standard and hold that Elonis' statements were "true threats" unprotected by the First Amendment.

Interestingly, Chief Justice Roberts's opinion does include extensive quotes from the postings, including Mr. Elonis's reference to "true threat jurisprudence."  It does not, however, include some of the more problematical sexual language.

June 1, 2015 in Courts and Judging, Criminal Procedure, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (1)

Sunday, May 31, 2015

DC Circuit Paves Way for Release of G-Mo Forced-Feeding Videos

The D.C. Circuit declined to intervene to reverse a lower court ruling that requires the government to move toward releasing videos of forced-feeding of a Guantanamo detainee. The decision means that the government and attorneys for detainee Abu Wa'el (Jihad) Dhiab will have to work together to agree on redactions and a proposal as to "how the videotapes can be made available to the public most efficiently," pursuant to the earlier district court orders.

Still, it may be some time, if ever, before the videos are released. That's because the redaction process could take a long time, even assuming the government doesn't foot-drag or tie up the process in further litigation. Or: after redaction, there may be nothing of substance to release; or the district court might decline to order release pursuant to the agreed-upon process; or the appeals court might reject release when the case inevitably comes back. In short: this is a victory for those seeking release, but it doesn't mean that we'll see release any time soon.

The case, Dhiab v. Obama, grows out of Dhiab's habeas petition, his hunger strike, and the government's efforts to force-feed him. Dhiab moved to stop the forced-feeding, and, in considering that motion, the district court reviewed 32 classified videotapes of Dhiab's forced-feedings. News media organizations intervened to get copies of the tapes, and the district court ordered the parties (1) to cooperate to redact the tapes and (2) to propose how the videos could be released. The order did not specifically require release.

The government appealed, but the D.C. Circuit declined to hear the merits. The appeals court ruled that it lacked appellate jurisdiction over the case, because the district court's orders weren't final, appealable orders (because they didn't conclusively resolve the matter, and the government still had opportunities under the district court orders to challenge the release). The court also ruled that it didn't have mandamus jurisdiction (for largely the same reasons).

The ruling paves the way for the release of redacted videos. But don't expect that to happen any time soon. Redaction will take some time, and even if the government doesn't deliberately foot-drag, redactions and the joint proposal for release will undoubtedly get tied up in lengthy litigation at the district court, and again on appeal.

May 31, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News | Permalink | Comments (1)

Friday, May 29, 2015

Fifth Circuit Denies Stay in Texas's DAPA Challenge

The Fifth Circuit this week denied the government's motion for a stay of Judge Hanen's nationwide injunction against the government's deferred action program for parents of Americans and lawful permanent residents, or DAPA. The denial is not a final ruling on the merits (the court wrote that "we do not decide whether the Secretary has the authority to implement DAPA" at this "early stage of the case"); it says only that Texas's challenge to the program is sufficiently likely to succeed to withstand the government's motion for a stay. Still, the ruling presages the likely result on the merits and makes the case look even more likely to end up at the Supreme Court.

We last posted on the case here.

The court addressed two issues: Texas's standing to challenge DAPA, and the state's claim that DHS violated the Administrative Procedures Act in failing to use notice-and-comment rulemaking before implementing DAPA.

The court held that Texas had standing, because it'll cost the state some $130 under state law to subsidize each driver license for each DAPA beneficiary. The government argued that Texas could avoid the economic injury by changing its license-fee structure, and that in any event the many economic benefits of the DAPA program would offset the costs for the state.

The court rejected the former argument, saying that the "forced choice" itself is an injury:

The flaw in the government's reasoning is that Texas's forced choice between incurring costs and changing its fee structure is itself an injury: A plaintiff suffers an injury even if it can avoid that injury by incurring other costs. And being pressured to change state law constitutes an injury.

The court rejected the latter argument, saying that the economic offsets are of a different type--and that the injury therefore still stands, notwithstanding any economic benefits that the program may bring to the state.

Because the court said that Texas had standing based on its economic harm, it did not rule on Texas's claim that it had standing based on the district court's "abdication theory" (that Texas had standing because the federal government "abdicated" its "responsibility" to enforce the law in an area where it has exclusive authority).

The court said that Texas easily falls within the zone of interests of the INA, because "Congress permits states to deny many benefits to illegal aliens," and "the states seek only to be heard in the formulation of immigration policy before [the government] imposes substantial costs on them." The court also said that the INA doesn't bar judicial review.

The court held that DAPA amounts to "nonenforcement" of the INA, because it is the "affirmative act of conferring 'lawful presence' [quoting Johnson's memo] on a class of unlawfully present aliens." "[T]hat new designation triggers eligibility for federal and state benefits that would not otherwise be available."

On the merits, the court held that DAPA is not a mere policy statement (as the government argued), but rather is a "substantive" rule that requires notice and comment under the APA. According to the court, that's because DAPA doesn't really offer enforcement discretion, and it's more than internal procedural guidance (it's substantive, according to the court).

As to the nationwide injunction, the court only said that anything short of a nationwide ban would result in a "patchwork system" that would detract from the uniformity that Congress sought in the INA.

Judge Higginson dissented. He argued that "Supreme Court and Fifth Circuit caselaw forecloses plaintiffs' arguments challenging in court this internal executive enforcement guideline," and that "DHS is adhering to the law, not derogating from it." He argued that DAPA amounts to discretionary enforcement guidelines that aren't subject to notice-and-comment rulemaking under the APA.

May 29, 2015 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Wednesday, May 27, 2015

No Standing for Homebuilders to Challenge Endangered Species Designation

The D.C. Circuit ruled in National Association of Home Builders v. U.S. Fish and Wildlife Service that the plaintiffs lacked standing to challenge settlement terms between the Service and environmental groups that would set designation of endangered species back on pace. The ruling means that the case is dismissed and should put the Service back on course to meet settlement deadlines for designating endangered species.

The case arose out of a ten-year backlog at the Service in designating endangered species. (The backlog grew out of a regulatory designation, "warranted-but-precluded," that allowed the Service to back-burner formal designation of a particular species as endangered. Some 250 species were on the list.) Environmental groups sued to get the Service moving, and the Service entered into settlement agreements designed to put the designation back on pace. But then Homebuilders sued (under the ESA's citizen suit provision and the APA) to stop the implementation of the settlement agreements--to stop the Service from putting endangered species designation back on pace.

The court said that Homebuilders lacked standing. The court ruled that Homebuilders lacked procedural standing (on the theory that the organization and its members didn't have a chance to comment on the settlement agreements), because under circuit law there's no procedural right to comment at the warranted-but-precluded stage. That's because nothing requires notice-and-comment at this stage, nothing gives Homebuilders a statutory right to sue, and Homebuilders couldn't show that the procedures were designed to protect its interests.

The court also ruled that Homebuilders couldn't identify a particular harm. Homebuilders sued to stop the settlement agreement, not to stop a designation of any particular species. And the court said that the settlement agreement simply required the Service to make a decision (one way or the other) within a timeline, and not necessarily to designate any particular species as endangered.

Finally, the court rejected Homebuilders' claim that the settlement would harm members, because members put resources into protected certain species, and designation would moot those efforts. The court said that these efforts were dictated by state and local law, or by members' independent efforts (designed to persuade the Service that a particular species didn't need protection, because it was already protected). Because the efforts weren't Service-mandated, they weren't "fairly traceable" to the Service's challenged actions.

May 27, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Second Circuit Upholds DMV Ban of "Choose Life" License Plate Against First Amendment Challenge

In its divided opinion in Children First Foundation v. Fiala, the Second Circuit held that the Commissioner of Motor Vehicle's rejection of "Choose Life" license plates for the state's specialty plate program is constitutional.  Judge Pooler, joined by Judge Hall, reversed the district judge's conclusion that the rejection violated the First Amendment. 

The Second Circuit's divided opinion enters the fray of what might be called the developing doctrine of license plates, be they state-mandated, vanity, or as here, "specialty" plates issued by the state as a means of raising revenue. As we've discussed, the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.  

The progenitor of this doctrine is the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech.  This Term the Court heard oral arguments in Walker v. Texas Sons of Confederate Veterans; a divided Fifth Circuit had held that the rejection of the Sons of Confederate Veterans plate (featuring the Confederate flag) was a violation of the First Amendment as impermissible content and viewpoint discrimination.  The Second Circuit stayed the mandate of its decision pending the outcome of Walker. 

The specialty license plate litigation involves the intersection of a number of First Amendment doctrines.  As Judge Pooler's opinion in Children First Foundation expressed its holding:

We conclude that the content of New York’s custom license plates constitutes private speech [rather than government speech] and that the plates themselves are a nonpublic forum. CFF’s facial challenge fails because New York’s custom plate program did not impermissibly vest the DMV Commissioner with unbridled discretion in approving custom plate designs. Furthermore, that program, as applied in this case, was reasonable and viewpoint neutral, which is all that the First Amendment requires of restrictions on expression in a nonpublic forum.

Judge Pooler's well-structured opinion supports this conclusion.  First, the court considers whether the license plate is government speech or private speech.  If the speech is government speech, then the First Amendment has little application. (Recall that this was the position of the dissenting judge in the Fifth Circuit's decision in Sons of Confederate Veterans).  Agreeing with other circuits, the court reasons that an application of Pleasant Grove City, Utah v. Summum (2009) and Johanns v. Livestock Marketing Ass’n (2005) leads to " little difficulty concluding that such an observer would know that motorists affirmatively request specialty plates and choose to display those plates on their vehicles, which constitute private property."

Next, Judge Pooler's opinion considers the type of forum and concludes it is a "nonpublic forum," rejecting a comparison to a designated public forum formed when the government accepts advertising on buses.   Nevertheless, the opinion notes that the prohibition of "unbridled discretion" as a type of prior restraint is prohibited even in nonpublic forums. 
However, the court finds that the DMV does not exercise unbridled discretion that renders the DMV specialty license plate program facially unconstitutionally.  The court does note that the statute and regulation afford the DMV "broad discretion" and - - - standing alone - - - their ability "to provide an adequate safeguard against the Commissioner’s exercise of unbridled authority is dubious."  This argument is the centerpiece of Judge Livingston's extensive dissent.  For the majority, the agency policies and practices, written and unwritten, are highly pertinent.  The court specifically considers whether there was a uniform application.  It approvingly notes that the DMV denied a vanity plate for "RU486," with its reference to the so-called "morning-after pill."  And the court distinguishes specialty plates like "Cop Shot" and "Union Yes":

bringing to justice individuals who have attacked police officers cannot reasonably compare—either by its very nature or by the level of contentiousness that surrounds it—to the issue of abortion. With respect to the decision to issue a “Union Yes” plate, while the myriad issues pertaining to organized labor in the United States are social and political in nature, there is no basis to conclude that the Department failed to apply the policy against creating plates that touch upon contentious political issues as opposed to having applied the policy and merely reaching a different result than it did with the “Choose Life” plate.

Finally, regarding the as-applied challenge, which in some respects overlaps with the facial challenge, the court noted that while the distinction between viewpoint and content discrimination can be "hazy," a rejection of all abortion-related speech in a nonpublic forum is the type of content related policy that is subject only to a reasonableness requirement.  The court recognized the state's legitimate interests of avoiding road rage and avoiding the appearance of the government endorsing one side in a contentious political debate.  Interestingly, regarding "road rage," the court rejected CFF’s contention that because the “Choose Life” plates have been "available for purchase in other states for twelve years with no definitive proof of ill effects," this  and concluded that this did not render unreasonable New York’s decision, especially given the timing of the application and ejection when "the DMV was aware of violent protests and bombings at abortion clinics." 
Additionally, the court rejected CFF's due process and equal protection claims.
The Second Circuit's opinion is sure to be reevaluated when the United States Supreme Court renders its decision in Walker v. Sons of Confederate Veterans, as the court recognized when it stayed its mandate.  The court's delivery of its decision before Walker could be subjected to much speculation.


May 27, 2015 in Abortion, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Opinion Analysis, Reproductive Rights, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 26, 2015

Supreme Court to Review Batson Challenge in Georgia Death Penalty Case

The United States Supreme Court granted certiorari today in Foster v. Humphrey to the Georgia Supreme Court denying post-conviction relief. 

According to the petition, in 1987, an all-white jury convicted Timothy Tyrone Foster, a "poor, black, intellectually compromised eighteen year old" of the murder of an elderly white woman.  At trial, one black potential juror was removed for cause, and the prosecutors removed all four of the remaining black prospective jurors by peremptory strike, and proffered race-neutral reasons when defense counsel raised a challenge under the then-recent case of  Batson v. Kentucky (1986).  The judge rejected defense counsel's argument that the race-neutral reasons were pretexual and denied the Batson challenge.  The Georgia courts affirmed.

FosterImageAlmost twenty years later, pursuant to a request under the state open records act, Foster gained access to the prosecution team's jury selection notes, which included highlighting the black potential jurors (image at right), circling the word "black" as an answer to the race question on the juror questionnaire, identifying the black potential jurors as B#1, B#2, and B#3 in the notes, and a draft affidavit by the prosecution investigator stating "“if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.”  (The affidavit was originally submitted to the court with all mentions of race excised). 

In the post-conviction proceeding, the court held that "[t]he notes and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race of prospective jurors was either circled, highlighted or otherwise noted on various lists."  The Georgia Supreme Court declined review.

In granting certiorari, the United States Supreme Court could certainly agree with the Georgia courts and simply affirm.  Assuming the Court granted certiorari because of some disagreement with the conclusions, the Court might take a broader approach.  According to the petition in Foster, the prosecution "proffered a combined forty reasons for striking" the four black potential jurors.  Because there are almost always "neutral" reasons for exercising a peremptory challenge - - - given that it can be based on essentially a "hunch" - - - proving racial motivation and discrimination can be difficult.  The Court has the opportunity to revisit Batson and the problem of distinguishing between race-neutral and pretextual reasons, perhaps providing a more workable and fair rule.



May 26, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Federalism, First Amendment, Fundamental Rights, Habeas Corpus, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, May 18, 2015

Supreme Court Finds Qualified Immunity for San Francisco Officers in Mental Disability

The United States Supreme Court's opinion in City and County of San Francisco v. Sheehan arises from an incident in which two police officers shot Teresa Sheehan, a woman suffering from a schizoaffective disorder who was living in a group home for those with mental illness. 

San_francisco_montage_asemblageThe seemingly primary issue upon which certiorari was granted was whether the Americans with Disabilities Act, ADA, 42 U. S. C. §12132, required law enforcement officers  to "provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.”  The Court, in an opinion by Justice Alito, found fault with the attorneys litigating on behalf of San Francisco and dismissed this first question presented as improvidently granted.  In a concurring and dissenting opinion, Justice Scalia, joined by Justice Kagan, also faulted the attorneys for San Francisco, noting that the Petition for Certiorari

assured us (quite accurately), and devoted a section of its argument to the point, that "The Circuits Are In Conflict On This Question.”

But, Justice Scalia continued,

Imagine our surprise, then, when the petitioners’ principal brief, reply brief, and oral argument had nary a word to say about that subject.

Instead, the petitioners argued that "the issue is not (as the petition had asserted) whether Title II applies to arrests of violent, mentally ill individuals, but rather how it applies under the circumstances of this case, where the plaintiff threatened officers with a weapon."

We were thus deprived of the opportunity to consider, and settle, a controverted question of law that has divided the Circuits, and were invited instead to decide an ADA question that has relevance only if we assume the Ninth Circuit correctly resolved the antecedent, unargued question on which we granted certiorari.

Scalia had especially harsh words for the attorneys for San Francisco, casting aspersion on their integrity:

Why, one might ask, would a petitioner take a position on a Circuit split that it had no intention of arguing, or at least was so little keen to argue that it cast the argument aside uninvited? The answer is simple. Petitioners included that issue to induce us to grant certiorari.

Scalia states that the Court would never have granted certiorari on the first question as it was argued in the briefs and would certainly have never granted certiorari on the"fact-bound" qualified immunity issue.  Scalia, with Kagan, dissented from the Court's holding on the qualified immunity issue:

I would not reward such bait-and-switch tactics by proceeding to decide the independently “uncertworthy” second question. And make no mistake about it: Today’s judgment is a reward. It gives the individual petitioners all that they seek, and spares San Francisco the significant expense of defending the suit, and satisfying any judgment, against the individual petitioners. I would not encourage future litigants to seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court’s docket, we will consider whatever workaday arguments they choose to present in their merits briefs.

The Court, absent Justice Breyer who did not participate in the case, did "reward" San Francisco by finding that the police officers were protected by qualified immunity: "no precedent clearly established that there was not 'an objective need for immediate entry' here."  The somewhat particular facts - - - the situation involved an entry and then a re-entry of Sheehan's room - - - nevertheless involved a "straightforward" and exceedingly brief qualified immunity analysis. 

And a reversal of the Ninth Circuit.

While the attorneys for the City and County of San Francisco may have endured a scolding, Scalia is correct that the Court's decision is ultimately a reward.

[image via]

May 18, 2015 in Courts and Judging, Criminal Procedure, Disability, Federalism, Jurisdiction of Federal Courts, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

DC Circuit Holds No Clearly Established Right Not To Be Tasered

In its opinion in Lash v. Lemke, the Court of Appeals for the District of Columbia Circuit affirmed the grant of a summary judgment in favor of law enforcement officers in a suit filed by an Occupy D.C. protestor for a violation of Fourth and First Amendment rights.

Judge Griffith, writing for the court, and joined by Chief Judge Garland and Judge Kavanaugh, described the arrest of Ryan Lash at the Occupy DC encampment in January 2012 by United States Park Police Officers Tiffany Reed, Frank Hilscher, and Jennifer Lemke:

Officer Tiffany Reed, who had been following Lash as he hurried through the tents, stepped up behind Lash and seized his arms from the rear. Lash pulled his arms away and held them in front of his body, continuing to walk away as he insisted that he was innocent. Reed again sought to restrain Lash from behind and Lash again pulled his arms away from her. Reed then took hold of Lash’s left arm while Hilsher approached and seized his right arm. Lemke approached at the same time and drew her Taser from its holster, holding it ready.

Though Lash’s arms were now held by two different officers, he continued to struggle to keep his feet while Reed and Hilsher worked for several moments to gain control of him. Lemke, standing nearby and behind the trio, fired her Taser into Lash’s lower back. He fell to the ground, and the officers handcuffed him.

Lash argued that Lemke’s use of the Taser constituted excessive force in violation of Lash’s Fourth Amendment rights and was motivated by retaliatory animus against his protected expression in violation of his First Amendment rights.  The defendant officers raised qualified immunity and the district judge granted summary judgment in their favor.

Relying on Ashcroft v. al- Kidd (2011), the DC Circuit Court of Appeals concluded that the "claimed right, whether it exists or not, is by no means 'clearly established.'"  In so doing, however, the court acknowledged that this inquiry cannot be abstract, but must occur "in the specific context of the case."  This "context," the court further acknowledged, depended on whether Lash was "resisting arrest." 

This would seemingly make summary judgment - - - requiring no genuine disputes of material fact - - - difficult, but the court interestingly relied on multiple video-recordings of the "episode" which rendered Lash's description a "visible fiction."   

Here is one of the videos of the incident:


The court further rejected Lash's arguments regarding the video as conclusive:

Lash argues that we may not rely on the videorecordings in this way because they “cannot fully convey everything that people at the scene felt” such as “how much force one person is exerting” or “the level of detail a person will experience in the moment.” This is no argument at all. The Supreme Court has explained that we determine whether a right is clearly established based on the “objective legal reasonableness of an official’s acts,”  protecting officers from liability unless “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”  Subjective factors like those Lash identifies here cannot shed any light on whether a reasonable officer in these circumstances would have believed her actions violated Lash’s clearly established rights. It is that objective test, not Lash’s knowledge or Lemke’s thoughts, that determines the scope of qualified immunity. The videorecordings in the record provide us all we need to determine what a reasonable officer would have known at the scene. And we do not hesitate to conclude from the videorecording that there is “no genuine issue of material fact” regarding Lash’s active resistance.

[citations omitted]

Given the increased use of videorecordings in cases against police officers, the court's discussion of 'what the video shows' might be expected to be used in other cases.

Here, however, the court concludes that Lash was "actively resisting arrest," and thus there was no clearly established right not be subject to a Taser. 

 As to the First Amendment claim, the court quickly found that Lash did not show the officer had "retaliatory animus."


May 18, 2015 in Courts and Judging, Criminal Procedure, Film, First Amendment, Fourth Amendment, Opinion Analysis, Speech, Web/Tech | Permalink | Comments (3) | TrackBack (0)

Sunday, May 17, 2015

Obamacare Opponents Lack Standing--Again

Judge Reggie B. Walton (D.D.C.) ruled in American Freedom Law Center v. Obama that the plaintiffs lacked standing to challenge the federal government's "transitional policy" and "hardship exemption," which permit individuals temporarily to maintain health insurance coverage through plans that are not compliant with the general requirements of the Affordable Care Act.

The ruling deals a blow to opponents of the government's exemption--but a fully predictable one.

The plaintiffs' theory of standing turned on market forces driving up an AFLC staff member's premiums. It goes like this: When the federal government temporarily exempted certain individuals from enrolling in non-compliant plans (in reaction to the political blow-back after many folks received notices that their insurance would be cancelled and changed to comply with the ACA), this depleted the pool of individuals enrolling in ACA-compliant plans; and that drove up the costs of those plans. Plaintiff Muise was enrolled in such a plan, and, indeed, saw his premiums rise.

In short, Muise argued that his premiums rose in his compliant plan because the government's exemption meant that fewer people enrolled in compliant plans.

Judge Walton disagreed. He noted that insurance premiums can fluctuate for any number of reasons, not just the government's exemption, and that the plaintiff's theory suffered from other defects in the causal chain. Quoting from the government's motion to dismiss:

[the] [p]laintiffs have not established any of the links in the causal chain . . . that would be necessary to their apparent theory of standing to challenge this particular exemption. [The] [p]laintiffs have not alleged, for example, that there are individuals in Michigan with cancelled policies; that any such individuals consider the other policies available to them to be unaffordable; that any such individuals have availed themselves of [the defendants'] "hardship" exemption for consumers with cancelled policies; that, but for this exemption, any such individual would have purchased "minimum essential coverage" . . .; that in purchasing such coverage, that individual would have entered the same risk pool as these [p]laintiffs; and that such individual's addition to the risk pool would have lowered [the] [p]laintiffs' premiums.

The ruling is consistent with similar rulings in other district courts.

May 17, 2015 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Saturday, May 16, 2015

DC Circuit Says No Standing to Challenge Clean Water Act Determination

A three-judge panel of the D.C. Circuit ruled in National Association of Home Builders v. EPA that a development association lacked standing to challenge the EPA's determination that two reaches of the Santa Cruz River are traditional navigable waters, subject to federal regulation. The court said that the plaintiff was barred by collateral estoppel, based on the same court's earlier ruling against the same plaintiff lodging the same complaint.

But two judges argued that the earlier ruling was flat wrong, rearguing an issue that the court wrangled over just three years ago. (The full D.C. Circuit denied en banc review of the earlier ruling in 2012.)

Home Builders filed its original lawsuit in 2009, challenging the determination by the EPA and Army Corps of Engineers that two reaches of the Santa Cruz River were traditional navigable waterways. That determination requires any party that wishes to dredge or discharge into the river, or any waterway with a "significant nexus" to the river, to get a federal permit. Parties who don't know whether they need a permit can seek a Jurisdictional Determination from the Corps.

Home Builders sued to stop the designation, on the theory that its members would have to choose between applying for a permit and facing enforcement penalties. The D.C. Circuit dismissed the case, holding that Home Builders lacked standing unless and until the agencies applied the determination to a particular property:

the owner or developer of the property suffers no incremental injury in fact from the [determination] and any challenge to it is therefore premature. In the meanwhile, [Home Builders'] members face only the possibility of regulation, as they did before the [determination]: Any watercourse on their property may (or may not) turn out to be subject to [Clean Water Act] dredging permit requirements because of a nexus (or not) with the two Santa Cruz reaches.

Home Builders came back in this latest suit with additional allegations designed to fill the standing gaps in its original case. But the D.C. Circuit said they weren't enough: Home Builders' standing in the second case has exactly the same problems it did in the first.

The ruling means that Home Builders, and its members, have to wait until later in the process--until the agencies determine that particular land is covered--until they can challenge the original designation of the Santa Cruz.

But two judges on the panel argued that the first ruling was flat wrong. Judges Silberman and Sentelle wrote that any regulated party has standing to challenge an agency rule:

And the law is rather clear; any party covered by an agency's regulatory action has standing to challenge a rule when it issues--it certainly need not wait until a government agency seeks to enforce a rule. That proposition is so clearly established it is beyond question. Nor do parties have to wait until the government takes preliminary steps before enforcing--clearing its throat, so to speak. It is only necessary for a potential litigant to show that it is part of the regulated class and its behavior is likely affected by the government's action.


May 16, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 13, 2015

Seventh Circuit Says No Immunity for Prosecutor, Lab Techs in Civil Rights Case

The Seventh Circuit ruled in Armstrong v. Daily that a prosecutor and two crime lab technicians were not entitled to qualified immunity after they bungled an investigation that resulted in a faulty trial and foiled the plaintiff's attempts to demonstrate his innocence. In all, this top-to-bottom outrageous investigation put a wrongfully convicted plaintiff behind bars for 29 years.

Ralph Armstrong brought the civil rights case against prosecutor John Norsetter and state lab technicians Karen Daily and Daniel Campbell. Armstrong was convicted of rape and murder in 1981 and sentenced to life plus 16 years. The prosecution had two key pieces of physical evidence against him: drug paraphernalia found at the crime scene that could have shown who was in the victim's apartment the evening she was murdered; and a bathrobe belt used as the murder weapon.

The drug paraphernalia was never examined; instead, it was tossed in a trash bag, left in an office storage locker at the police station, and eventually lost. The bathrobe belt was tested crudely for DNA in 1980, which didn't rule out Armstrong. (The prosecution also relied on the identification by an eyewitness who Norsetter had hypnotized. Armstrong challenged this evidence in a prior case, where he lost his habeas claim at the Seventh Circuit.)

Armstrong later presented new DNA testing definitively excluding him and, in 2005, won a new trial through the state courts. A state court also ordered the prosecution to inform the defense of future DNA tests and to allow the defense to be present for any handling of the evidence. Armstrong stayed in prison.

Norsetter then ordered new testing of the belt, without telling Armstrong (despite the court order). Daily and Campbell conducted testing that consumed the entire DNA sample from the belt. The results could not confirm or eliminate Armstrong as the source, because the test they used could not distinguish between men with the same father. (This is important, because Armstrong's brother, who died in 2005, earlier confessed to the crime.) Norsetter never disclosed to Armstrong or the technicians that Armstrong's brother might be a suspect.

After Armstrong's attorneys learned that the prosecution's secret testing destroyed the evidence, they moved to dismiss charges against him. The court found that the prosecution acted in bad faith and dismissed the charges because the destruction of that evidence had irreparably compromised his right to a fair trail. Armstrong remained in prison for the three years between the destruction of the evidence in 2006 and the court's dismissal in 2009.

Armstrong then sued Norsetter, Daily, and Campbell, arguing that they violated his civil rights. Norsetter claimed absolute immunity as a prosecutor for the destruction of DNA evidence and qualified immunity for the destruction of the drug paraphernalia; Daily and Campbell claimed qualified immunity. The district court denied these claims, except as to Norsetter's involvement in the destruction of DNA evidence.

The Seventh Circuit affirmed. As to Norsetter, it ruled that Norsetter did not enjoy absolute immunity for his investigatory acts, and that he did not enjoy qualified immunity because he acted in bad faith in allowing the destruction of the drug paraphernalia and DNA sample. As to Daily and Campbell, the court said that

we must assume that Daily and Campbell's actions caused Armstrong to suffer a loss of liberty as he languished in prison for three more years after Daily said he was excluded by the earlier DNA tests and after the last sample had been destroyed in the [later] test of the newly discovered stain.

The court rejected the defendant's arguments that a state tort action could have provided Armstrong a remedy sufficient to satisfy federal due process under Parratt v. Taylor. In a lengthy discussion, the court said that the argument was based on a fundamental mis-reading of Parratt. In short:

When Parratt and its progeny are read carefully, then, and are read against the broader sweep of due process jurisprudence, they do not bar Armstrong's claims based on deprivation of his liberty through deliberate destruction of exculpatory evidence. More specifically, Parratt does not bar Armstrong's claims because the defendants' conduct was not "random and unauthorized" and the available state remedies are not adequate.

The court recognized "some disagreement among the courts about the conditions for obtaining a civil remedy for destruction of exculpatory evidence, those disagreements do not support a qualified immunity defense."

Judge Flaum argued that Norsetter should get qualified immunity, because his destruction of the drug paraphernalia was negligent, not "in bad faith."

May 13, 2015 in Cases and Case Materials, Courts and Judging, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Thursday, May 7, 2015

District Judge Rejects Challenges to Requirement that Government Contractors Post Employee Rights Notice

In an opinion today in National Association of Manufacturers (NAM) v. Perez, Judge Amit Mehta of the District of Columbia District Court rejected various challenges to the Department of Labor's so-called "Posting Rule," a regulation requiring, as a condition of nearly all federal contracts, that contractors post workplace notices informing their employees of their rights under the National Labor Relations Act.  The "Posting Rule" is derived from President Obama's Executive Order 13496, promulgated in January 2009 pursuant to the Procurement Act.

140px-DOL_Seal_with_HammerThe central constitutional challenge is that the "Posting Rule" is compelled speech and violates the First Amendment as an unconstitutional condition.  The court's first task was to determine the relevance of a NAM v. NLRB, 717 F.3d 947 (D.C. Cir. 2013), overruled in part by Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014).  The judge concluded that while the posting at issue in NAM was "nearly identical," that case was not a First Amendment one - - - although it drew on some First Amendment principles - - - but an interpretation of §8(c) of the NLRA which prohibits the expression of views, argument, or opinions as constituting an unfair labor practice. 

Instead, the challenge here was analogous to the Supreme Court's decision in Rumsfeld v. FAIR involving the Solomon Amendment directed at law schools. 

There is little material distinction between FAIR and this case. The facts differ, but the First Amendment analysis and outcome are the same. Like the Solomon Amendment, the Posting Rule is a “far cry” from the government-mandated speech deemed unconstitutional in Barnette and Wooley.  Requiring an employer to post government speech about labor rights is “simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.”

Moreover, the Posting Rule does not require a contractor to speak at all. Rather, the contractor is required to host government speech as a condition of receipt of a federal contract. That, of course, presents a contractor with a choice—agree to post the Notice or forgo federal contracting. But that choice is no different than the one presented by the Solomon Amendment— either accommodate a military recruiter or forgo federal funds.

Additionally, the Posting Rule does not interfere with the contractor’s ability to convey a different message. A contractor can still express its own views or engage in lawful activities to discourage unionization. Indeed, nothing in the rule prevents a contractor from creating its own posting and placing it next to the Department of Labor-drafted Notice, so as to make clear that the Notice does not reflect the contractor’s own views and its display is government mandated. *** A contractor’s speech is thus not “affected by the speech it [is] forced to accommodate.” 

Nor are employees likely to believe that the Notice is their employer’s speech.

[citations omitted].  The court rejected NAM's attempt to distinguish FAIR because the speech here is a “slanted list of rights that unfairly promotes unionization while pointedly omitting a host of other critical employee rights,” noting even if the court could determine the meaning of "slanted," it is well settled that the government may make content-based choices about its own speech.

The court rejected NAM's arguments regarding preemption, as well as its statutory and administrative law arguments.  It therefore entered summary judgment in favor of the government.

Given the vigor with which NAM has litigated similar issues, it will most likely appeal.  However, recently appointed Judge Mehta has authored a closely reasoned opinion that should withstand review.
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May 7, 2015 in Cases and Case Materials, Courts and Judging, Executive Authority, First Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Second Circuit Finds NSA's Bulk Telephony Metadata Collection Not Authorized by Congress

In its lengthy, well-reasoned, and unanimous opinion in American Civil Liberties Union (ACLU) v. Clapper, the Second Circuit today concluded that NSA's bulk telephony metadata collection is not authorized by §215 of the PATRIOT Act, 50 USC §1861(b)(2)(A).   After hearing oral arguments last September, the panel reversed the district court's opinion that had rejected both the statutory and constitutional challenges to the scheme.  Recall that this widespread collection has been controversial since the program was first revealed through information obtained by Edward Snowden; we've additionally discussed the issues here, here, and here.

CallwaitingThe Second Circuit, in the opinion authored by Gerard Lynch, did agree with the district judge that the ACLU plaintiffs had standing to challenge the collection of call records.  The court stated that "the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program."  The court rejected the government's contention that any alleged injuries depend on the government's reviewing the information collected rather than simply collecting it: the collection is [challenged as] a seizure and the Fourth Amendment prohibits both searches and seizures.  The court distinguished Amnesty International v. Clapper in which the United States Supreme Court's closely divided opinion concluded that the alleged standing was based on a "speculative chain of possibilities."  Instead:

appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected.

The panel likewise held that the ACLU organizations have standing to assert a First Amendment violation regarding its own and its members' rights of association.

However, the court did not rule on the Fourth and First Amendment claims explicitly, although its conclusion regarding §215 occurs in the shadow of the constitutional issues, or as the court phrases it: "The seriousness of the constitutional concerns" has "some bearing on what we hold today, and on the consequences of that holding." 

What the court does hold is that "the telephone metadata program exceeds the scope of what Congress has authorized and there violates §215."  After a discussion of the program and §215, it first considers the government's arguments that the judiciary is precluded from considering the issue.  The court interestingly observes that judicial preclusion here would "fly in the face of the doctrine of constitutional avoidance."

[I]t would seem odd that Congress would preclude challenges to executive actions that allegedly violate Congress’s own commands, and thereby channel the complaints of those aggrieved by such actions into constitutional challenges that threaten Congress’s own authority. There may be arguments in favor of such an unlikely scheme, but it cannot be said that any such reasons are so patent and indisputable that Congress can be assumed, in the face of the strong presumption in favor of APA review, to have adopted them without having said a word about them.

The court likewise held that there was no implicit preclusion.  

On the merits of the §215 challenge, the court essentially found that the government's interpretation of "relevant" was too broad.  The court noted that both parties relied on the grand jury analogy, supported by the statute's language and legislative history.  Yet for the court, the government's argument faltered on this very ground:

Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.

Moreover, the court relies on the Privacy and Civil Liberties Oversight Board (PLCOB) Report regarding the overbreadth, noting that "counterterrorism in general" is not sufficiently narrow.  Further, the court states that the government's interpretation reads the "investigation" language of §215 out of the statute, and even more specifically, §215's language "relevant to an authorized investigation (other than a threat assessment)."
Again, the court squarely rests its conclusion on §215 and avoids the constitutional issues.  Nevertheless, it does discuss them.  It largely relegates the First Amendment issue to a footnote (footnote 12).  Its discussion of the Fourth Amendment issue is more robust, including a discussion of  Smith v. Maryland, the 1979 pen register case, and United States v. Jones, the 2012 GPS case.
These constitutional issues would - - - should? - - - shape any understanding by Congress according to the court.
Concurring, Judge Robert Sack, emphasizes that the role of the courts should not be minimized.  Judge Sack's concurrence is also worth reading its more robust discussion of the First Amendment issues.
Perhaps unexpectedly, the court does not enjoin the metadata collection program.  The court notes that §215 is set to expire and that it is "prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape."   Yet, it strongly implies, it remains ready and able to reach the constitutional issues if necessary.
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May 7, 2015 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Standing, State Secrets | Permalink | Comments (0) | TrackBack (0)

Court OKs Prosecution Use of Cell Tower Location

The en banc Eleventh Circuit ruled this week in United States v. Davis that a court order, pursuant to the Stored Communications Act, compelling the production of a telephone company's business records containing information as to cell tower locations (and linking the defendant's calls to those towers) did not violate the Fourth Amendment.

The ruling reverses an earlier panel decision, which held that the order violated the Fourth Amendment. The panel nevertheless affirmed the conviction, however, based on the good-faith exception to the exclusionary rule.

The ruling tests traditional Fourth Amendment rules against technological advances--and their ability to reveal vast amounts of highly personal data. The court applied a traditional Fourth Amendment approach, but invited Congress to revisit the appropriate balance between technology and privacy in cases like this.

The defendant, Quartavious Davis, was charged with several counts for his role in a string of robberies. At Davis's trial, the prosecution introduced telephone records  from Metro PCS, obtained through an earlier court order, showing the telephone numbers for each of Davis's calls and the number of the cell tower that connected each call. An officer-witness then connected the location of the cell towers with the addresses of the robberies, placing Davis near the robbery locations around the time of the robberies. (The evidence showed the location of the cell towers that connected Davis's calls, but not the precise location of Davis or his phone.) Davis was convicted and sentenced to 1,941 months in prison.

The court order for the records was based on the Stored Communications Act. The SCA provides that a federal or state governmental entity may require a telephone service provider to disclose "a record . . . pertaining to a subscriber to or a customer of such service (not including the contents of communications)" if "a court of competent jurisdiction" finds "specific and articulable facts showing that there are reasonable grounds to believe" that the records sought "are relevant and material to an ongoing criminal investigation." This does not require a showing of probable cause. Davis argued that the order violated the Fourth Amendment.

The Eleventh Circuit rejected Davis's arguments. The court wrote that the SCA actually provides greater privacy protections than a routinely issued subpoena to third parties for a wide variety of business records (credit card statements, bank statements, and the like). This, it said, was no different. It also wrote that Davis claimed no trespass, and that he had no reasonable expectation of privacy in the location of cell towers to which he voluntarily sent call signals, or in the business records of his third-party provider. The court thus concluded that there was no "search."

But even if there were a search, the court held that it was reasonable, balancing the government interests against Davis's expectations of privacy. It said that the government had compelling interests in investigating and preventing crimes, and that Davis had, at most, a diminished expectation of privacy.

Judges Martin and Jill Pryor dissented, arguing that technological advances, "which threaten to cause greater and greater intrusions into our private lives," threaten "to erode our constitutional protections."


May 7, 2015 in Cases and Case Materials, Courts and Judging, Fourth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 29, 2015

Supreme Court Upholds Florida's Judicial Campaign Solicitation Ban in Williams-Yulee

In its 5-4 opinion in Williams-Yulee v. The Florida Bar, the Court concluded that Florida's Code of Judicial Conduct 7C(1) prohibiting the personal solicitation of campaign funds by judicial candidates does not violate the First Amendment. 

From the oral arguments, it did seem as if the opinion would be closely divided, but it was less predictable that Chief Justice Roberts would be writing for the majority upholding Florida's Canon7C(1).  In the majority opinion, joined by Justices Breyer, Sotomayor, and Kagan in full, and by Ginsburg except as to part II, Roberts began:

Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Sen- ate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrity of their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.

We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court.

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However, writing only for a plurality, Chief Justice Roberts, relying on Republican Party of Minnesota v. White (2002), held that a "State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest."  The plurality rejected the Florida Bar's argument, supported by several amici, that the Canon should be subject to the more permissive standard of Buckley v. Valeo (1976) requiring that the law be  “closely drawn” to match a “sufficiently important interest.” It concluded that the  “closely drawn” standard is a "poor fit" for this case which is a claimed violation of a right to free speech rather than a claimed violation of “freedom of political association.”

Justice Ginsburg, concurring, reiterated her dissent in Republican Party of Minnesota v. White regarding the standard of review, and emphasized that the Court's "recent campaign-finance decisions, trained on political actors, should not hold sway for judicial elections," specifically discussing Citizens United (2010) and McCutcheon (2014).  Justice Breyer, who joined the Chief Justice's opinion in full, nevertheless wrote briefly regarding the standard of review, reiterating his previous statements that  he views "this Court’s doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied."

Despite the highest scrutiny, however, Chief Justice Roberts's opinion for the Court declared that

Canon 7C(1) advances the State’s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech. This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny.

The Court found that “protecting the integrity of the judiciary” and “maintaining the public’s confidence in an impartial judiciary” were both compelling governmental interests.  (The Court did not discuss a specific interest of lawyers or their clients in judicial integrity).  As to the narrow tailoring, the Court rejected the "underinclusive" argument - - - essentially that judicial candidates could indirectly solicit campaign funds - - - by noting that while underinclusivity may raise a "red flag," there is no "freestanding 'underinclusiveness limitation.'”  Here, the Court concluded that

personal solicitation by judicial candidates implicates a different problem than solicitation by campaign committees. However similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public. Florida’s choice to allow solicitation by campaign committees does not undermine its decision to ban solicitation by judges.

There are three dissenting opinions by the Justices: Scalia, joined by Thomas; Kennedy, and Alito.  As the author of Caperton v. Massey, on which the Court partially relies for its compelling governmental interest in judicial integrity, Kennedy's opinion is perhaps most noteworthy.  (And recall that Chief Justice Roberts dissented in Caperton).  Caperton, based in due process rather than free speech, is uncited in Kennedy's concurring opinion, which focuses on the First Amendment:

This separate dissent is written to underscore the irony in the Court’s having concluded that the very First Amendment protections judges must enforce should be lessened when a judicial candidate’s own speech is at issue. It is written to underscore, too, the irony in the Court’s having weakened the rigors of the First Amendment in a case concerning elections, a paradigmatic forum for speech and a process intended to protect freedom in so many other manifestations.

At the crux of Kennedy's dissent, as the other dissents, is the similarity of judicial elections to political elections.  The distinction - - - or lack thereof - - - between judicial and other elections is the linchpin on which the differing views of the case pivot.  Chief Justice Roberts ends the Court's opinion with an originalist reflection on that distinction:

The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with life tenure constituted “the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.” The Federalist No. 78, at 465. Jefferson thought that making judges “dependent on none but themselves” ran counter to the principle of “a government founded on the public will.” 12 The Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view of Hamilton; most States have sided with Jefferson. Both methods have given our Nation jurists of wisdom and rectitude who have devoted themselves to maintaining “the public’s respect . . . and a reserve of public goodwill, without becoming subservient to public opinion.” Rehnquist, Judicial Independence, 38 U. Rich. L. Rev. 579, 596 (2004).

It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity.


April 29, 2015 in Campaign Finance, Courts and Judging, Due Process (Substantive), Federalism, First Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 28, 2015

Supreme Court Hears Same-Sex Marriage Arguments in Obergefell v. Hodges

The Court today heard oral arguments in two parts in the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans.   There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.

For oral argument on the first certified question - - -does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? - - - Mary Bonauto argued for the Petitioners; Solicitor Donald Verrilli argued for the United States as amicus curiae supporting Petitioners; and John Bursh, as Special Assistant Attorney for Michigan argued for Respondents. 

For oral argument on the second certified question - - - does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? - - -Douglas Hallward-Driemeier argued for Petitioners and Joseph Whalen, Associate Solicitor General of Tennessee, argued for Respondents.

The Court and the advocates acknowledged that the second question is only reached if the first question is answered in the negative: Justice Ginsburg and Justice Kagan both posited this principle with Hallward-Driemeier and Whalen, respectively, agreeing. Chief Justice Roberts noted that" we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-­sex marriage as a marriage," and later raised the issue of whether the second question made practical sense:

It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It'd simply be a matter of time  until they would, in effect, be recognizing that within the State.


Donkey Hotey via

 The themes of the oral arguments held no surprising issues:

Is a same-sex marriage decision by the Court premature?  Interestingly, Justice Kennedy pointed out that it is "about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years." 

Should it be the Court or the states that should decide?  The question of the proper role of judicial review has long preoccupied the courts in the context of same-sex marriage. Justice Scalia raised this issue several times, but when John Bursh raised it on behalf of Michigan, Justice Kagan responded that "we don't live in a pure democracy; we live in a constitutional democracy."

Is the race analogy apt?  Bursch distinguished Loving (as well as Turner v. Safley and Zablocki v. Redhail) because previous cases involved man-woman marriage and  "States' interest in linking children to their biological" parents.

Is there a slippery slope?  What about polygamous and incestuous marriages?  What about age of consent laws?

What about religious freedom?  How do we know that ministers won't be forced to perform "gay marriages"?

Should the case be resolved on Equal Protection or Due Process?  Justice Kennedy asked General Verrilli about Glucksberg,   Verrilli replied:

  1. GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.

  2. JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental argument?

  3. GENERAL VERRILLI: Well, because we think ­­well, because we think while we do see that there is, of course, this profound connection, we do think that for reasons like the ones implicit in the Chief Justice's question, that this issue really sounds in equal protection, as we understand it, because the question is equal participation in a State conferred status and institution. And that's why we think of it in equalprotection terms

As an equal protection case, it is one about sexual orientation or sex discrimination?  One of the more interesting questions was posed by Chief Justice Roberts to Bursch:

Counsel, I'm ­­ I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

How is the state's interest in procreation related to the ban on same-sex marriage?  Justice Ginsburg, as well as others, posed questions about the elderly not being barred from marriage.
Is marriage a changing institution or is a constant for millennia?  Justice Ginsburg predictably noted that marriage was once "a dominant and a subordinate relationship," with women being subordinate, while Chief Justice Roberts disputed the fact that women's subordination (or coverture) was a universal aspect of marriage.
Does the Full Faith and Credit Clause, Article IV, guarantee a state will recognize another state's marriage?  Justice Scalia noted he was "glad" to be able to quote Article IV, "a portion of the Constitution that actually seems to be relevant," although there remained a lack of clarity in its applications.  Is a marriage a public act?  record?  judgment? 

The open question is whether the Court's opinion will be as predictable as the questions.

April 28, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Oral Argument Analysis, Religion | Permalink | Comments (0) | TrackBack (0)