Wednesday, July 22, 2015

Eighth Circuit Finds North Dakota's "Heartbeat" Abortion Prohibition Unconstitutional

A unanimous panel of the Eighth Circuit, affirming the district judge, found that North Dakota's abortion regulation based on a "detectable heartbeat" is unconstitutional in its opinion in MKB Management Corp. v. Stenehjem. 

North Dakota's 2013 House Bill 1456, codified at N.D. Cent. Code § 14-02.1, mandates physicians determine whether the "unborn child" has a "detectable heartbeat," and if so, makes it a felony for a physician to perform an abortion.  The medical evidence submitted was that a "detectable heartbeat" occurs when a woman is about six weeks pregnant.

LogoThe court held that a woman's constitutional right to terminate a pregnancy before fetal viability is binding United States Supreme Court precedent, quoting language from Gonzales v. Carhart (2007): "Before viability, a State 'may not prohibit any woman from making the ultimate decision to terminate her pregnancy.'” 

However, the Eighth Circuit opinion noted that while it could not depart from the current state of protection of the right to abortion, the United States Supreme Court should reconsider the issue.  Essentially, the Eighth Circuit opinion argues that "developments in the unborn" should shift the balance to the ability of the states - - - and not the courts - - - to protect the unborn and assert the interest in "potential life."  The court's opinion also discussed the controversial findings that women who have had abortions suffer from emotional ills including regret, as well as repeating evidence that "some studies support a connection between abortion and breast cancer."  The court thus concludes, "the continued application of the Supreme Court’s viability standard discounts the legislative branch’s recognized interest in protecting unborn children."

Nevertheless, the opinion clearly finds the North Dakota law unconstitutional.

July 22, 2015 in Abortion, Courts and Judging, Due Process (Substantive), Family, Fundamental Rights, Gender, Opinion Analysis, Reproductive Rights | Permalink | Comments (0)

Wednesday, July 8, 2015

DC Circuit Upholds Federal Employment Application Limited to DC Area

As most law students learn, a state or locality cannot limit applicants for employment to its own residents because of a "right to travel."  But can the federal government limit applicants to those currently residing in the District of Columbia area?  In its opinion in Pollack v. Duff, the DC Court of Appeals has stated that the federal government can do so.

The case began with a 2009 job posting from the Administrative Office (AO) of the United States Courts for an attorney-advisor for a job in DC.  The posting provided that the AO would consider applications from any employee of the federal judiciary and from any other person who lived within the "Washington Metropolitan Area." 

Map_DC_metro_lgMalla Pollack, who represented herself in this litigation, is a former DC Court of Appeals clerk and accomplished legal scholar.  She applied for the position when she no longer worked for the judiciary and was living in Kentucky.  The  AO rejected her application because of her residency.  She protested based on residency, but was referred to the Fair Employment Practices System; she was then told that such complaints were limited to allegations of discrimination based on race, and other categories that did not include residency.  The DC Court of Appeals opinion notes that the AO's actions of referral and then dismissal essentially "played upon" Pollack.  The court might also have characterized the AO's argument of judicial review preclusion - - - because the Fair Employment Practices System is the exclusive means for deciding a claim of discrimination - - - as attempting to "play upon" the court.  Instead, the court merely gives the argument the brief discussion it merited.  

The court also notes that this is the second time the litigation reached the DC Court of Appeals.  In late 2012, the court reversed the dismissal of the complaint based on sovereign immunity, concluding that sovereign immunity does not bar a suit seeking specific relief for officers acting outside the bounds of constitutional authority.

On the merits of the right to travel argument, the court's opinion - - - authored by Senior Judge Douglas Ginsburg - - - untangles the various strands of the constitutional right to travel as might be applied to actions by the federal government.  The court first looks at Article IV §2, the privileges and immunities clause, but finds it protects state citizens against actions by other states, not by the federal government.  The court engages with the erudite originalist argument centered on James Iredell but nevertheless rejects it, noting that although the historical record is not "pellucid," reasoning in part that the

location of the Privileges and Immunities Clause in § 2 of Article IV supports the conclusion that it is directed at the states and not at the national government. Article IV is the “so-called States’ Relations Article.”  Section 2 of Article IV, in addition to the Privileges and Immunities Clause, included the Interstate Rendition Clause and the Fugitive Slave Clause, both of which were concerned with comity among the states.

The court's rejection of the equal protection claim does not rest on its inapplicability to the federal government, which "indisputably" applies to the federal government through the Fifth Amendment, including in its right to travel aspects.  Instead, the court essentially finds Pollack's claimed right too speculative:

If the AO had reviewed her application, then it might have offered her a job, which might have prompted her to move to the Washington area. Thus, Pollack might have been marginally more likely to travel to the Washington area but for the geographical limitation she is challenging. This effect upon Pollack’s willingness to travel, i.e., to exercise her right to travel, is “negligible” and does not warrant scrutiny under the Constitution.

Additionally, and more remarkably, the court rejects the argument that the AO created a classification that serves to penalize the right to travel by reasoning that the AO classification actually incentivizes the right to travel.  Distinguishing the AO classification from the durational residency requirement at issue in the landmark right to travel case of  Shapiro v. Thompson (1969), the court reasoned:

The AO’s geographical limitation is quite different, however, because it would not penalize Pollack if she decided to travel from Kentucky to the Washington area. To the contrary, the geographical limitation gives Pollack an incentive to travel to Washington in order to apply for a job with the AO that is open only to residents of the area. In other words, the geographical limitation burdens only Pollack’s decision not to travel interstate.

[emphasis in original].  The court thus did not consider what level of scrutiny should apply or whether any level would be satisfied, but simply held that the classification did not actually implicate the right to travel.  On the court's read, Pollack's only viable claim would be if she had been in DC and discouraged from leaving because she wanted to apply for the AO position; a claim the court notes that she did not make and would not have standing to raise on behalf of another person.

After a brief consideration of structural arguments, the court concludes by questioning the wisdom of the AO policy:

We agree with Pollack that it is difficult to comprehend why the AO refused to consider applicants who did not live in the Washington area but were willing to move there if they received an offer of employment. The AO points out that it receives applications from many qualified attorneys and it must limit the total number of applicants for certain positions so that it may focus upon those it is most interested in hiring. It is unclear, however, why the agency would use a geographical limitation to control the size of its applicant pool rather than criteria that are likely to be more closely correlated with job performance.

But the court decides that the AO did not violate Pollack's constitutional rights.  And given this decision - - - and the AO's protracted litigation on the issue - - - one can only assume that the AO will limit applicants by geography in future job postings.

July 8, 2015 in Cases and Case Materials, Due Process (Substantive), Equal Protection, Federalism, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Travel | Permalink | Comments (0)

Tuesday, July 7, 2015

Ninth Circuit Finds Constitutional Problems with Arizona's Anti-Ethnic Studies Law

In its opinion in Arce v. Douglas, a panel of the Ninth Circuit has found that Arizona's so-called anti-ethnic studies statute suffers from constitutional infirmities.

Recall that Arizona's HB 2281, which we noted when it was passed in 2010, codified as Arizona Revised Statute §15-112, provides:

A.  A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:

1. Promote the overthrow of the United States government.
2. Promote resentment toward a race or class of people
3. Are designed primarily for pupils of a particular ethnic group.
4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.

 In 2013, Judge Wallace  Tashima, who was sitting by designation as district judge, ruled on the First Amendment and Fourteenth Amendment challenges to the statute, substantially upholding the statute but finding subsection (3) was unconstitutional under the First Amendment, but severable from the remainder of the statute.

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image: Paisaje con el Iztaccíhuatl — obra de Gerardo Murillo, 1932, via

Today's Ninth Circuit opinion - - - authored by New York District Judge Jed Rakoff sitting by designation, and joined in full by Judge Noonan, with a partial concurrence and dissent by Judge Richard Clifton - - - affirmed the district court’s rulings that § 15- 112(A)(3) is unconstitutional in violation of the First Amendment but severable from the rest of the statute; that §§ 15-112(A)(2) and (A)(4) are not overbroad in violation of the First Amendment; and that §§ 15-112(A)(2) and (A)(4) are not vague in violation of the Due Process Clause.  However, the appellate panel found fault with the sua sponte grants of summary judgment - - - both on the equal protection claim and on a First Amendment viewpoint discrimination claim.

As to the equal protection claim, the Ninth Circuit concluded that subsections (3) and (4), while not facially discriminatory, raised constitutional issues because of evidence of their discriminatory purpose in enactment or enforcement.  The Ninth Circuit remanded the issue to be considered by the district court in light of the Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997) factors:

  • (1) the impact of the official action and whether it bears more heavily on one race than another;
  • (2) the historical background of the decision;
  • (3) the specific sequence of events leading to the challenged action;
  • (4) the defendant’s departures from normal procedures or substantive conclusions; and
  • (5) the relevant legislative or administrative history.

The majority discussed the factors and the evidence, finding that there was sufficient evidence to raise a genuine issue of material fact.  Judge Clifton dissented on the procedural posture of the remand, arguing that the district court should be able to fully consider summary judgment.

On the other remanded issue - - - the First Amendment viewpoint discrimination claim - - - the Ninth Circuit did not preclude summary judgment, noting that the district judge "did not even review the evidence" on this issue.

As to the unconstitutionality of subsection (3) as violative of the First Amendment,  the Ninth Circuit affirmed the district court.  Interestingly, the Ninth Circuit stated:

The very danger we perceive was corroborated, at oral argument, when we asked counsel for defendants whether the statute could be found to prohibit a public school course in San Francisco on the topic of Chinese history that was open to all students but was designed in consideration of the substantial Chinese and Chinese American student population there that might benefit from a greater understanding of its history. Defendants asserted that the course could be found in violation. As indicated by this example, subsection (A)(3) threatens to chill the teaching of ethnic studies courses that may offer great value to students— yet it does so without furthering the legitimate pedagogical purpose of reducing racism.

However, the Ninth Circuit affirmed the district court's finding that the other sections of the statute survived the First Amendment challenges rooted in curricular decisions.

Thus, on remand, the state will need to show that its so-called anti-ethnic studies statute was not actually anti-people of certain ethnic identities.

July 7, 2015 in Due Process (Substantive), Equal Protection, First Amendment, Opinion Analysis, Race | Permalink | Comments (0)

Tuesday, June 30, 2015

Daily Read: Corey Robin on Dignity (and Whitney Houston)

Over at his eponymous blog, CUNY-Brooklyn Political Science professor Corey Robin has an interesting take on the controversial passage from Justice Thomas's dissent in Obergefell criticizing the "dignity" rationale of Kennedy's opinion for the Court by stating in part that slaves" did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. " 

Robins's post, "From Whitney Houston to Obergefell: Clarence Thomas on Human Dignity," is worth a read, and even worth a listen if you are so inclined.

 

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June 30, 2015 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fundamental Rights, Race, Reconstruction Era Amendments, Sexual Orientation, Sexuality, Thirteenth Amendment, Web/Tech | Permalink | Comments (0)

Friday, June 26, 2015

Court Decides Fourteenth Amendment Requires States to License Same-Sex Marriage

In a closely-divided opinion, with the majority written by Justice Kennedy, the Court has decided that the Fourteenth Amendment requires states to license same-sex marriages in Obergefell v. Hodges.   The opinion rests on both due process and equal protection grounds.  The majority opinion joined by Ginsburg, Breyer, Sotomayor, and Kagan - - - there are no concurring opinions - - - is less than 30 pages, plus 2 appendices including the citations of same-sex marriage opinions.  Each of the four dissenting Justices - - - Chief Justice Roberts and Justices Scalia, Thomas, and Alito - - - wrote a separate dissenting opinion, with some joinders by other Justices. 

The decision that the Fourteenth Amendment requires states to license same-sex marriages renders the second certified question regarding recognition irrelevant, as the discussion during oral arguments made clear.

Recall that 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.

 

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[image Donkey Hotey]

On the due process issue, Kennedy's opinion for the Court concludes that the right to marry is fundamental because:

  • the right to personal choice regarding marriage is inherent in the concept of individual autonomy, relying on Loving and Lawrence;
  • it supports a two-person union unlike any other in its importance to the committed individuals, relying on Grsiwold, Rurner v. Safely, and Lawrence;
  • to safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education, relying on Pierce v. Society of Sisters and Windsor;
  • Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order, relying on Maynard v. Hill (1888).
Regarding equal protection, The Court does not articulate a standard for sexual orientation, but discusses the interlocking nature of the constitutional safeguards, relying on Loving, Zablocki v. Redhail, as well as the Lawrence.
 
The Court's opinion does address the "religious liberty" conflict of rights argument:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same- sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

In dissent, Chief Justice Roberts - - - who some thought might join the majority and in a rare performance read from his dissent on the bench - - - emphasized that limited nature of judicial review and the power of the Court, concluding that the majority's opinion is an "extraordinary step" and predicting that because it is a decision of "five lawyers" this will make the "dramatic social change that much more difficult to accept."
 
The majority bases its conclusion that same-sex marriage is a fundamental right on "four principles and traditions": (1) right to person choice in marriage is "inherent in the concept of individual autonomy"; (2) "two-person union unlike any other in its importance to the committed individuals"; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order. - See more at: http://live.scotusblog.com/Event/Live_blog_of_opinions__June_26_2015#sthash.OLg4SIRd.dpuf

June 26, 2015 in Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (1)

Wednesday, June 17, 2015

Second Circuit Gives Detainee Case Against Ashcroft, Mueller the Go-Ahead

The Second Circuit ruled today that a civil rights case by former alien detainees against former AG John Ashcroft, former FBI Director Robert Mueller, former INS Commissioner James Zigler, and officials at the Metropolitan Detention Center can move forward.

The ruling is not a decision on the merits, but instead says that the bulk of the plaintiffs' case against the officials is not dismissed and can proceed to discovery.

Still, the ruling is significant, to say the least. It means that officials at the highest level of the DOJ will have to answer in court for their actions that led directly to the wrongful detention and mistreatment of aliens who were mistakenly swept up in the 9/11 investigation, even though, as the court said, "they were unquestionably never involved in terrorist activity."

The case, Turkmen v. Ashcroft, over thirteen years old, challenges the defendants' moves that resulted in the detention and mistreatment of aliens in the post-9/11 investigation, even though they had nothing to do with the 9/11 attacks or terrorist activities. In particular, the plaintiffs claimed that they were detained between three and eight months, without individualized suspicion and because of their race, religion, ethnicity, or national origin, and subjected to various forms of mistreatment.

The plaintiffs alleged that the DOJ defendants took certain actions that resulted in their detention and unlawful treatment, with knowledge that the plaintiffs were wrongfully detained and mistreated. They also alleged that the MDC defendants took official actions that led to their abuse and knew about certain "unofficial abuse."

The defendants moved to dismiss for failure to state a claim, on qualified immunity grounds, and, for some claims, that Bivens did not extend a cause of action. The district court dismissed all claims against the DOJ defendants and some claims against the MDC defendants.

The Second Circuit (mostly) reversed and allowed the case to move forward. The court said that the plaintiffs adequately pleaded their constitutional claims (and met the Iqbal pleading standard) that the DOJ and MDC defendants acted directly to violate the plaintiffs' constitutional rights. Key to the ruling was the plaintiffs' carefully pleaded complaint, which incorporated most of two reports of the DOJ's Office of Inspector General, helping plaintiffs to meet the plausibility test. Also key was the plaintiffs' allegations that the DOJ defendants received regular information on the post-9/11 investigation, including detainees, and that they ordered and implemented certain policies and took certain actions that resulted directly in the plaintiffs' wrongful detention.

Along the way, the court ruled that the plaintiffs had Bivens claims (except for their free exercise claim), even though the DOJ defendants didn't argue Bivens on appeal. The court also ruled that the defendants weren't entitled to qualified immunity, because the law on pretrial detention and mistreatment was clear at the time.

The court concluded:

The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.

Holding individuals in solitary confinement twenty-three hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by al Qaeda violated the detainees' constitutional rights. To use such a broad and general basis for such severe confinement without any further particularization of a reason to suspect an individual's connection to terrorist activities requires certain assumptions about the "targeted group" not offered by Defendants nor supported in the record. It assumes that members of the group were already allied with or would be easily converted to the terrorist cause, until proven otherwise. Why else would no further particularization of a connection to terrorism be required? Perceived membership in the "targeted group" was seemingly enough to justify extended confinement in the most restrictive conditions available.

Judge Reena Raggi dissented.

June 17, 2015 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Fifth Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases | Permalink | Comments (0)

Monday, June 15, 2015

Does Immigration Marriage Case Foreshadow Same-Sex Marriage Case?

In United States Supreme Court's fragmented and closely divided decision in Kerry v. Din, the majority rejected the procedural due process argument of a naturalized American citizen to an explanation of the reasons supporting a denial of a visa to her noncitizen husband.  Justice Scalia, writing for the plurality and joined by Thomas and Chief Justice Roberts, concluded that she had no cognizable liberty interest attributable to her marriage.  Justice Kennedy, joined by Alito, would not reach the liberty interest issue because the process here was all that was due.  Justice Breyer, dissenting, and joined by Ginsburg, Sotomayor, and Kagan, would affirm the Ninth Circuit and find that she had a cognizable liberty interest and that more process was due in the form of a more precise and factual explanation.

So what might this mean for Obergefell?  Most obviously, the dissenting opinion by Breyer, and joined by Ginsburg, Sotomayor, and Kagan, articulates an expansive liberty interest in marriage under the Due Process Clause that could be easily imported into Obergefell.  On Justice Kennedy's concurrence, joined by Alito, the clear signal is that Justice Scalia's refusal to recognize a liberty interest in marriage is not one to which they are subscribing - - - in this case.  Given that Justice Kennedy, as author of the Court's opinions Windsor, Lawrence, and Romer v. Evans, is being closely watched as potential author of an opinion in favor of Obergefell, there is nothing in Din that would mitigate that judgment. As for the plurality, Justice Scalia's derogation of substantive due process has a familiar ring that might be echoed in his opinion in Obergefell, with an emphasis on history.  While Justice Thomas is widely expected to agree with Scalia's position, does the Chief Justice's joining of Scalia's opinion in Kerry v. Din signal a disapproval of recognizing any liberty interest in marriage?  Perhaps.  But perhaps not.  Consider this:

Unlike the States in Loving v. Virginia, 388 U. S. 1 (1967), Zablocki v. Redhail, 434 U. S. 374 (1978), and Turner v. Safley, 482 U. S. 78 (1987), the Federal Govern­ment here has not attempted to forbid a marriage. Although Din and the dissent borrow language from those cases invoking a fundamental right to marriage, they both implicitly concede that no such right has been infringed in this case. Din relies on the “associational interests in marriage that necessarily are protected by the right to marry,” and that are “presuppose[d]” by later cases estab­lishing a right to marital privacy.

Indeed, under this view, as the Court made clear in Zablocki, there must be a "direct and substantial" interference with marriage in order for there to be a liberty interest.  The Court in Zablocki distinguished Califano v. Jobst, 434 U.S. 47 (1977) - - - which the Court in Din does not cite - - - which found no constitutional infirmity with altering social security benefits upon marriage.  In short, the marriage was not "forbidden," it was simply subject to certain regulations in another the complex social security scheme, not unlike the complex immigration scheme.

So for those who might attempt to predict the various positions of the Justices in Obergefell based on Kerry v. Din, there is certainly much "play."

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Henri Rousseau, "The Wedding Party," circa 1905, via

June 15, 2015 in Courts and Judging, Current Affairs, Due Process (Substantive), Family, Gender, Recent Cases, Sexual Orientation, Sexuality, Supreme Court (US), Theory | Permalink | Comments (0)

The Supreme Court on Marriage, Procedural Due Process, Terrorism, and Immigration: Kerry v. Din

The Court today issued its closely divided opinion in Kerry v. DinOn this 800th anniversary of Magna Carta, both the plurality opinion by Justice Scalia and the dissenting opinion by Justice Breyer referenced the great charter's protection of what the Constitution's Fifth Amendment termed "due process of law." In Din, the due process rights of a citizen who obtained preferred immigration status for her spouse are at stake. Certainly the case is important in the immigration context, but how important might it be as a harbinger of the Court's impending decision in the consolidated same-sex marriage cases, Obergefell v. Hodges, argued in late April?  What Kerry v. Din might say about Obergefell is discussed here.

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Charles Hawthorne, "Young man and woman in a dark, moody landscape," 1915, via 

In Kerry v. Din, a naturalized citizen, petitioned to have her husband, Berashk, classified as an “immediate relative” entitled to priority immigration status, and although this was approved, Berashk’s visa application was denied under §1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the consular officer provided no further information. Unable to obtain a more detailed explanation for Berashk’s visa denial, Din filed a complaint in federal court which was dismissed.  The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons.

In the plurality opinion joined by Chief Justice Roberts and Justice Thomas, Justice Scalia has harsh words for Din's claim of any right of "life, liberty, or property" to which due process would attach.  It is "absurd" and nothing in the caselaw "establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection."  He characterizes her right as one to live in the United States with one's spouse, and concludes that such a right fails the Washington v. Glucksberg test requiring that any implicit right be "deeply rooted in this Nation's history and tradition."  Indeed, he argues that the history is exactly the opposite and discusses laws that mandated women "take the nationality of her husband on marriage."  While noting that modern " equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order," nevertheless, he concludes that "this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is 'deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.'"

Justice Kennedy, joined by Justice Alito, firmly rejects Justice Scalia's conclusion: "Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse." Instead, Kennedy concludes that the "Court need not decide that issue," for "even assuming she has such an interest, the Government satisfied due process when it notified Din’s husband that his visa was denied under the immigration statute's terrorism bar."  For Kennedy and Alito, the citation of the statute seemingly satisfies all the process that is due.

Dissenting, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, argues that there is a liberty interest flowing from the Due Process Clause itself and from the statutory scheme establishing immigration preferences.  In his critique of the plurality opinion, Breyer reminds readers that it "is not controlling."  He discusses a number of cases in which the Court has recognized liberty interests, perhaps most compellingly Goss v. Lopez (1975), involving students' interest in attending school and not being suspended, and which the plurality opinion seeks to distinguish. Regarding the "process due," Breyer notes that a statement of the reasons for a government action is an essential part of due process and one that a recitation of the statute in this case cannot satisfy given that it contains "dozens" of reasons.  Moreover, the government offered no factual basis. He argues:

The generality of the statutory provision cited and the lack of factual support mean that here, the reason given is analogous to telling a criminal defendant only that he is accused of “breaking the law”; telling a property owner only that he cannot build because environmental rules forbid it; or telling a driver only that police pulled him over because he violated traffic laws. As such, the reason given cannot serve its procedural purpose. It does not permit Ms. Din to assess the correctness of the State Department’s conclusion; it does not permit her to determine what kinds of facts she might provide in response; and it does not permit her to learn whether, or what kind of, defenses might be available. In short, any “reason” that Ms. Din received is not constitutionally adequate.

Thus, the dissenters would recognize both the liberty interest of a spouse in her partner's visa denial and that procedural due process requires something more than the recital of a statute; Kennedy and Alito find that the statutory referral is sufficient process; and the plurality finds that there is no liberty interest of a spouse in her partner's visa denial.  It's a fragmented set of conclusions and its predictive value for the same-sex marriage cases raises some interesting possibilities.

June 15, 2015 in Due Process (Substantive), Opinion Analysis, Procedural Due Process, Supreme Court (US), Travel | 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)

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. 

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"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)

Wednesday, May 27, 2015

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.

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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)

Monday, May 11, 2015

Second Circuit Upholds Admissibility of Rap Video and Tattoos Against First Amendment Challenge

In its opinion in United States v. Pierce,  the Second Circuit considered the arguments of co-defendant/appellant Melvin Colon regarding the admissibility of a rap video and images of tattoos in the criminal trial. The unanimous opinion, authored by Judge Denny Chin, affirmed the convictions of Colon and his co-defendants for conspiracy, racketeering, murder, narcotics trafficking, and firearms offenses largely related to their activities as members of a "violent street gang, dubbed the Courtlandt Avenue Crew (ʺCACʺ) by the government,"  as well as a gang known as Godʹs Favorite Children, or ʺGFC.ʺ

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Mozart Graffiti via

Colon contended that his First Amendment rights were violated when the district court permitted the government to present as evidence a rap video and images of his tattoos, some of which he had posted to his Facebook page.  The "rap video" portrayed Colon as rapping: ʺYG to OG / Somebody make somebody nose bleed/ Iʹm OG shoot the Ruger / Iʹm a shooter.ʺ A witness, also seen in the video, testified for the prosecution that the Young Gunnaz crew, or YG, was feuding with the OG (formerly the GFC). The images of the tattoos introduced at trial were explained by the Second Circuit as including:

a close‐up of Colonʹs hand, showing his ʺY.G.K.ʺ tattoo, which stands for ʺYoung Gunnaz Killer.ʺ In some of the photographs Colon is pointing a gun at his Y.G.K. tattoo, indicating, according to the government, his desire to harm members of the Young Gunnaz. Other tattoos depicted in the photographs introduced at trial included one on his right arm that read ʺCourtlandtʺ; tattoos on his left arm that referenced [co-defendant] Meregildoʹs nicknames (ʺYoungʺ and ʺKillaʺ); and one stating ʺM.I.P. [Mac In Peace] T‐Money,ʺ referring to Harrison, the former leader of CAC.

The Second Circuit panel rejected the First Amendment challenges to the introduction of the evidence. First, the court noted that the conviction did not rest on the expression: "here, the speech is not 'itself the proscribed conduct,'" interestingly citing United States v. Caronia, the 2012 Second Circuit case reversing a conviction for promoting the off-label use of prescription drugs. Additionally, the Second Circuit considered Colon's argument that the rap lyrics were merely "fictional artistic expressions," and discussed the New Jersey Supreme Court decision last year in State v. Skinner, noting that the court there observed that ʺ[o]ne would not presume that Bob Marley, who wrote the well‐known song ʹI Shot the Sheriff,ʹ actually shot a sheriff.ʺ  However, the Second Circuit distinguished Skinner in which the court reversed the conviction (although not explicitly on the basis of the First Amendment), by concluding that here the rap lyrics and tattoos were properly admitted, because they were relevant and their probative value was not substantially outweighed by the danger of unfair prejudice.  Specifically - - - if cursorily - - - the Second Circuit reasoned:

The government proffered the rap video to show Colonʹs animosity toward the Young Gunnaz, as well as his association with CAC. The government similarly offered the tattoo evidence to help establish his motive for violence against the Young Gunnaz, and to show his loyalty to Harrison and Meregildo ‐‐ indeed other members of CAC had similar tattoos. Hence, the rap video and tattoos were relevant, their probative value was not outweighed by the danger of unfair prejudice, and Colonʹs First Amendment rights were not implicated when the district court admitted the evidence from his social media account.

As in other cases raising First Amendment challenges to the introduction of expressive evidence, the First Amendment issues are subsumed into the evidentiary one.

Colon also challenged a portion of the Stored Communications Act (SCA), 18 U.S.C. § 2703(c)(1), regarding the subpoenaing of Facebook for page content.  Appellant Colon, however, is not challenging the Government's acquisition of his own Facebook content, however, but argued that SCA's prohibition of his subpoena of Facebook content from a witness, denied him his Fifth Amendment due process right to present evidence and his Sixth Amendment right to confront adverse witnesses.  Colon managed to obtain some of the Facebook postings through the work of a private investigator and his attorney used it in cross-examination and introduced portions of it.  The Second Circuit declined to reach the constitutional question, given that "Colon possessed the very contents he claims the SCA prevented him from obtaining, and his suggestion that there could have been additional relevant exculpatory material in the Parsons Account is purely speculative."

The court's opinion resolves the issues before it (including a sentencing issue which earned a remand), but does little to elucidate the important First Amendment concerns that remain regarding the admissibility of rap lyrics and tattoos in criminal trials.

May 11, 2015 in Criminal Procedure, Due Process (Substantive), First Amendment, Music, Opinion Analysis, Race, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 29, 2015

Federal Judge Finds Pennsylvania's "Revictimization Act" Unconstitutional

In a well-crafted but hardly surprising opinion in Abu-Jamal v. Kane, Chief Judge Christopher Conner of the Middle District of Pennsylvania concluded that Pennsylvania's "Revictimization Relief Act" is unconstitutional.

Recall that Act provided:

In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonable attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.

At the time of signing, it was clear that the Act was primarily directed at Mumia Abu-Jamal; Abu-Jamal brought suit soon after the Act was passed; another challenge was brought by Prison Legal News and consolidated.

Judge Conner began his opinion by noting that the First Amendment does not "evanesce" at the prison gate, and ended it by stating that the First Amendment does not "evanesce at any gate." (emphasis in original).   In applying well-settled First Amendment doctrine, Judge Conner focused on both  Simon & Schuster v. Crime Victims Board (1991) (holding unconstitutional the so-called "Son of Sam" law) and Snyder v. Phelps (2011) (essentially holding that free speech trumped the tort of intentional infliction of emotional distress).  Judge Conner easily rejected the State's argument that the statute regulated "conduct" - - - which is, after all, the word in the statute and which would merit lower scrutiny - - - noting that:

throughout its brief legislative gestation, the law was championed primarily as a device for suppressing offender speech.  The Act's sponsor extolled its capacity to silence Abu-Jamal in particular.  The chairman of the house judiciary committee opined that the Act would end the "extreme distress" suffered by victims when offenders achieve celebrity, admonishing Goddard College for providing a "cold blooded murderer" [Abu-Jamal] with a speaking forum.

 (emphasis in original; citations to Stipulation omitted).  As a content-regulation, the Act "instantly fails" the exacting scrutiny standard according to Judge Conner.

In addition to the content-restriction fatality, Judge Conner found that the Act was impermissibly vague and substantially overbroad as those doctrines are derived from due process.  The Act's "central limitation" turns on the unknowable emotive response of victims, which a person cannot determine "short of clairvoyance."   Moreover, the Act applies to "offenders," a term the statute does not define, and which could presumably apply to a wide swath of persons, including non-offender third parties who publish statements by offenders.  Relatedly, the overbreadth defect of the Act concerned the judge:

[T]he Act ostensibly affects protected - - - and critically important - - - speech, including: pardon applications, clemency petitions, and any testimony given in connections with those filings; public expressions of innocence, confessions, or apologies; legislative testimony in support of improved prison conditions and reformed juvenile justice systems; programs encouraging at-risk youth to avoid lives of crime; or any public speech or written work whatsoever, regardless of the speaker's intention or the work's relation to the offense.

In other words, if the victim can demonstrate "mental anguish," the statute would be satisfied.  And, combined with the broad notion of "offender," taken to its "logical conclusion," the Act would "limit an accused person's right to profess his innocence before proven guilty."

Pennsylvania would be wise not to appeal this judgment.  It would have even been more wise if the legislature had not passed - - - and the Governor had not signed - - - such a patently unconstitutional statute last year.

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Would the PA Act have covered MLK's famous publication?

 

April 29, 2015 in Books, Criminal Procedure, Current Affairs, Due Process (Substantive), First Amendment, Fourteenth Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

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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image via

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.

 

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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)

Monday, March 30, 2015

Court Declines to Hear IPAB, "Death Panel" Case

The Supreme Court today declined to review Coons v. Lew, the Ninth Circuit case holding that the plaintiffs' challenge to the ACA's Independent Payment Advisory Board was not ripe and rejecting the plaintiffs' challenges to the individual mandate. Today's non-action leaves the Ninth Circuit's ruling--and the IPAB and the individual mandate--in place (although it's not a ruling on the merits).

The plaintiffs in Coons challenged IPAB, the so-called "death panel," on the ground that it violated the non-delegation doctrine. IPAB is a 15-member administrative board that will monitor the growth of Medicare spending. If actual growth exceeds expected growth, IPAB will recommend a reduction in the growth rate to the "savings target" set by the Chief Actuary of the Centers for Medicare and Medicaid Services. IPAB's recommendations go to Congress, and Congress must either consider and vote on them, or pass superseding legislation. (If there's no superseding legislation, the Secretary must implement the recommendations as submitted.)

The Ninth Circuit ruled that the plaintiffs' challenge wasn't ripe. In particular, it said that Plaintiff Novack's claims that IPAB would reduce the Medicare payments he receives for treating his patients, and that IPAB would set in motion market displacements that would harm him financially, were speculative.

The Ninth Circuit also rejected the plaintiffs' claims that the individual mandate violated their substantive due process rights (to medical autonomy and informational privacy), and that the ACA did not preempt Arizona's constitutional provision that says that Arizonans can't be forced to buy insurance.

The Supreme Court's decision today is not a ruling on the merits of any of these claims--all of which were far-fetched from the get-go--but it leaves the Ninth Circuit ruling in place.

The decision says nothing about the likely direction the Court will take in King v. Burwell, the case testing whether the IRS exceeded its statutory authority by extending tax credits to individual health insurance purchasers on a federally facilitated exchange.

March 30, 2015 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), News, Nondelegation Doctrine | Permalink | Comments (2) | TrackBack (0)

Friday, March 20, 2015

Puerto Rico Decides Not to Contest Constitutional Challenge to Same-Sex Marriage Ban

In a brief filed today in the First Circuit in Conde-Vidal v. Armendariz, the Solicitor General of the Commonwealth of Puerto Rico essentially sided with the appellants and conceded its same-sex marriage ban is unconstitutional.

Recall that several months ago, United States District Judge for the District of Puerto Rico Juan Perez-Gimenez  dismissed the constitutional challenge to Puerto Rico's law defining marriage as "man and woman" and refusing recognition to marriages "between persons of the same sex or transexuals." In large part, Judge Perez-Gimenez relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question."

The challengers appealed to the First Circuit and the Commonwealth's brief "concedes that Baker’s rationale that federal courts lack jurisdiction to entertain these claims for lack of a substantial federal question can no longer be deemed good law." 

800px-Flag_of_Puerto_Rico_(Light_Blue).svgIndeed, the Commonwealth's brief concedes that the appellants should prevail.  The brief concludes:

It is not usual for the Executive Branch of the Commonwealth of Puerto Rico to refuse to defend the constitutionality of legally-enacted statutes. It is even less usual to adopt a somewhat different position at the appellate level than the one espoused before the lower court. But this is not a usual case and neither the law nor common sense requires us to treat it as such.

In a constitutional democracy there are some rights that have been reserved to the People directly and which no government may infringe, regardless of individual or personal views on the matter. “Our obligation [like this Court’s] is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).

Article 68 of the Civil Code of Puerto Rico excludes LGBT couples from the legal entitlements and rights attendant to civil marriage. Thus, the Commonwealth of Puerto Rico acknowledges that the statute in controversy raises substantial constitutional questions anent the constitutional guarantees of equal protection of the laws and substantive due process.

Because Puerto Rico’s marriage ban impermissibly burdens Plaintiffs ́ rights to the equal protection of the laws and the fundamental right to marry, we have decided to cease defending its constitutionality based on an independent assessment about its validity under the current state of the law. However, “i[t] is emphatically the province and duty of the judicial department to say what the law is.” Windsor, 133 S.Ct. 2675, at 2688 (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1802)), and, since the District Court entered judgment in this case, it is this particular Court’s duty to review the legal conclusions there reached so that they may be brought up to date in accordance with newer developments in this important area of constitutional law.

If History has taught us anything, it is that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 579 U.S. at 579. This case represents but another attempt from a politically disadvantaged group of our society to be included within the full scope of the legal and constitutional protections that most of us take for granted. Plaintiffs seek no preferential treatment; only equality. The Executive Branch of the Commonwealth recognizes the LGBT community’s right to equality under the law.

Defendants-Appellees request that this Honorable Court reverse the Judgment of the District Court that dismissed Plaintiffs-Appellants’ complaint for lack of a substantial federal question.

Given this concession, the First Circuit - - - which has not had occasion to rule on a challenge to a "state" same-sex marriage ban - - - is sure to find that Puerto Rico's same-sex marriage ban is unconstitutional, assuming it reaches the issue before the United States Supreme Court decides the issue in the cases presently before it. 

Recall that the First Circuit did rule that DOMA, the Congressional statute barring federal recognition of same-sex marriage, was unconstitutional in 2012, before the  United States Supreme Court held DOMA unconstitutional in United States v. Windsor, but after the United States Attorney General, Eric Holder, announced the Department of Justice would not defend the constitutionality of DOMA. 

March 20, 2015 in Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Interpretation, News, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 18, 2015

New Jersey Supreme Court Finds Portion of Bias Intimidation Statute Unconstitutional

The Supreme Court of New Jersey has found a section of the state's "bias intimidation" statute, NJ 2C:16-1, unconstitutional in its opinion in State v. Pomianeck.  Subsection a (3) of the statute provides that bias intimidation includes an offense committed:

under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

Justices
New Jersey Supreme Court Justices

The defendant was convicted of violating subsection 3.  He and another public employee, both white, tricked another employee, who was black, into going into a wide steel storage cage, then locked the door, made a "banana" remark and laughed, and after a few minutes opened the cage door.  The defendant was convicted of official misconduct as well as petty disorderly persons’ offenses of harassment by alarming conduct and harassment by communication, in addition to subsection (a)(3) of the bias intimidation statute.

On appeal challenging the constitutionality of subsection (a)(3) , the New Jersey appellate court found that the subsection's focus on the victim's reasonable belief - - - rather than the defendant's actual state of mind - - - was a violation of the First Amendment, relying on cases such as Virginia v. Black and R.A.V. v. St. Paul.  The appellate court therefore found the statute should be construed to include a mens rea and remanded the case.

New Jersey's highest court unanimously found that the appellate court exceeded its bounds by interpreting the statute to include a mens rea.  It then proceeded to the constitutional issues, noting that the first inquiry was "whether the line separating lawful from criminal conduct in subsection (a)(3) is so vague that a reasonable person would not have fair notice when that line is crossed," and thus would not meet the "due process demands of the Fourteenth Amendment.":

The answer raises interrelated First Amendment concerns. Nevertheless, only if subsection (a)(3) can survive due process scrutiny is it necessary to engage in a First Amendment analysis.

The New Jersey Supreme Court concluded that subsection (a)(3) could not survive due process because it hinged on the victim's reasonable belief:

Of course, a victim’s reasonable belief about whether he has been subjected to bias may well depend on the victim’s personal experiences, cultural or religious upbringing and heritage, and reaction to language that is a flashpoint to persons of his race, religion, or nationality. A tone-deaf defendant may intend no bias in the use of crude or insensitive language, and yet a victim may reasonably perceive animus. The defendant may be wholly unaware of the victim’s perspective, due to a lack of understanding of the emotional triggers to which a reasonable person of that race, religion, or nationality would react. Nothing in the history of the bias-intimidation statute suggests that the Legislature intended to criminalize conduct through the imposition of an amorphous code of civility or criminalize speech that was not intended to intimidate on the basis of bias. It bears repeating that no other bias-intimidation statute in the nation imposes criminal liability based on the victim’s reasonable perceptions.

The court thus found subsection (a)(3) unconstitutional under due process doctrine requiring adequate notice and lack of vagueness:  the defendant "was convicted not based on what he was thinking but rather on his failure to appreciate what the victim was thinking"  The court therefore did not reach the First Amendment issue.  The court emphasized that the "twin pillars of the bias- intimidation statute -- subsections (a)(1) and (a)(2) of N.J.S.A. 2C:16-1 -- still stand."

The ruling could also be relevant to a more famous New Jersey bias intimidation conviction of Dharun Ravi of the victim, his Rutgers roommate Tyler Clementi, as the NYT reports.

March 18, 2015 in Courts and Judging, Due Process (Substantive), First Amendment, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)

Monday, March 2, 2015

Nebraska Federal Judge Declares Same-Sex Marriage Ban Unconstitutional

Senior United States District Judge Joseph Bataillon has enjoined Nebraska's same-sex marriage ban in its state constitution and found it violates the Fourteenth Amendment in his  Memorandum and Order today in Waters v. Ricketts.

Recall that the United States Supreme Court will be hearing the issue this Term, having granted certiorari to the Sixth Circuit's divided opinion in the consolidated cases of DeBoer v. Snyder. The Court previously denied certiorari to opinions from the Fourth, Seventh, and Tenth Circuits all finding that same-sex marriage bans were unconstitutional, and the Ninth Circuit has ruled similarly.  The Eighth Circuit, in which Nebraska is located, has not issued a definitive opinion on the constitutionality of same-sex marriage. 

NebraskaJudge Joseph Bataillon's ruling sounds in both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He finds that marriage is a "fundamental liberty" and that the same-sex marriage ban is a facial classification based on gender. He also finds that Nebraska's state interests, including opposite sex parenting  and protecting tradition, are insufficient.  Throughout his analysis, he relies heavily on the Seventh Circuit's opinion in Baskin and the Ninth Circuit's opinion in Latta. 

 Interestingly, Judge Bataillon offers a prediction of the Court's conclusion:

The court finds the plaintiffs have demonstrated they will likely prevail on the merits of their claim. The court is persuaded that the Supreme Court will ultimately endorse, for one reason or another, the results obtained in the Fourth, Seventh, Ninth and Tenth Circuit challenges to same sex marriage bans.

Judge Bataillon supports this statement with an interesting footnote [15]:

This conclusion is supported by the Supreme Court's recent denial of a stay of an Alabama district court decision invalidating a same-sex marriage ban. See Strange v. Searcy, 2015 WL 505563 (U.S. Feb. 9, 2015) (denying of application for stay of an injunction preventing Attorney General of Alabama from enforcing Alabama laws as defining marriage as a legal union of one man and one woman) (Justice Thomas noting in dissent that the failure to stay the injunction “may well be seen as a signal of the Court's intended resolution [of the constitutional question it left open in Windsor]."); see also Armstrong v. Brenner, No. 14A650, 2014 WL 7210190 (U.S. Dec. 19, 2014) (denying stay of preliminary injunction barring enforcement of Florida’s marriage exclusion); Wilson v. Condon, 14A533, 2014 WL 6474220 (U.S. Nov. 20, 2014) (denying stay of judgment finding South Carolina’s marriage exclusion laws unconstitutional); Moser v. Marie, 14A503, 2014 WL 5847590 (U.S. Nov. 12, 2014) (denying stay of preliminary injunction preventing enforcement of Kansas’ marriage exclusion); Parnell v. Hamby, No 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014) (denying stay of district court decision declaring Alaska’s marriage exclusion unconstitutional); Otter v. Latta, No. 14A374, 2014 WL 5094190 (U.S. Oct. 10, 2014) (denying application for stay of Ninth Circuit’s judgment finding Idaho’s marriage exclusion laws unconstitutional)

Also, the Supreme Court itself has telegraphed its leanings. See Lawrence [v. Texas] 539 U.S. at 605 (Scalia, J., dissenting) (stating that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage); see also United States v. Windsor, 133 S. Ct. 2675, 2709 (2013) (Scalia, J., dissenting) (essentially stating that the majority opinion in Windsor makes a finding of unconstitutionality regarding state same-sex marriage bans "inevitable.")

The use of Scalia's dissenting opinions is yet another example of the Scalia's "petard" phenomenon.

Also interesting is Judge Bataillon's rejection of injury to Nebraska should there be a preliminary injunction: 

All but one of the plaintiff couples are married in a state that recognizes same-sex marriage. All of the couples have been in committed relationships for many years. Those that have resided in Nebraska have not caused damage to society at large or to the institution of marriage.

The preliminary injunction is effective March 9, at 8:00 am.  Nebraska is reportedly appealing and seeking an emergency stay.

 

March 2, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Gender, Interpretation, Opinion Analysis, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, February 12, 2015

Federal Judge Orders Alabama Probate Judges to Issue Same-Sex Marriage Licenses

Federal District Judge Callie V. S. Granade has issued her 8 page  Order  in Strawser v. Strange regarding the applicability of her previous decision finding Alabama's same-sex marriage ban unconstitutional.

The Order concludes:

Accordingly, the Court once again makes the following declaration: It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage. This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.

 (emphasis added)

Now the situation really is like Cooper v. Aaron: there is a direct order to state officials.

February 12, 2015 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism | Permalink | Comments (0) | TrackBack (0)