Constitutional Law Prof Blog

CFP: Civil Gideon

The deadline is imminent - -  November 15 at 11.59 pm - - - to submit proposals and papers for the University of District of Columbia School of Law's March Symposium

"Expanding the Civil Right to Counsel: 50 Years After Gideon."

The University of the District of Columbia David A. Clarke School of Law seeks submissions for its 2013 Law Review Symposium on the topic of expanding the civil right to counsel. This symposium seeks to explore the legal and societal implications of creating a civil right to counsel. Submissions may also address the approaches to providing counsel to civil litigants that have been adopted in U.S. and international jurisdictions, and the impact on litigation outcomes in those jurisdictions. 

Symposium submissions may examine the relative merits of creating a right to counsel in civil cases legislatively, through court rules, or pursuant to state constitutions. Participants in the symposium will address the challenges to creation and implementation of a civil right to counsel through these mechanisms, as well as creation of a civil right to counsel through the Fifth and Fourteenth Amendments. The Law Review also seeks articles discussing the history of Lassiter v. Dept. of Social Services and the prospects for a civil right to counsel under the U.S. Constitution. Panels may address discrete issues ranging from creation and implementation challenges to jurisdictional comparisons to constitutional construction of the right to counsel.

More information and submission details here.

Some ideas and resources we previously discussed on ConLawProf Blog are here, here, here, here, here, here, and here.

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[image: Gideon's Petition for Certiorari to the United States Supreme Court, via]

Daily Read: Vikram Amar on Scalia on Originalism

Over at Justia today, ConLawProf Vikram Amar (pictured) responds to Justice Scalia's well-publicized and controversial remarks that originalism makes issues such as "homosexuality" and abortion "easy."

Amar writes:

But to say that originalism is important and helpful does not mean that it is easy. To see this, let us first look at what it would mean to say that all constitutional disputes should be analyzed and resolved by exclusive reference to originalism.  It would mean, among other things, that the Supreme Court’s cases from the 1960s holding that states may not impose poll taxes or property qualifications on the franchise, because under the Equal Protection Clause and other parts of Section One of the Fourteenth Amendment there is an individual right to vote for legislative elections, are flawed.  So too would be the cases holding, again under the Equal Protection Clause, that states cannot draw voter districts of significantly different sizes (thereby discriminating against urban voters); originalism would call into question the idea that the Equal Protection Clause guarantees “one person, one vote” in legislative elections.

 Amar does not add - - - and perhaps he does not need to - - - any discussion of Bush v. Gore. 

Instead, Amar focuses his argument on cases that Scalia himself implicated.  Amar's ultimate conclusion is probably one that almost every law student, and most ConLawProfs, could credit:

My point here is not to disagree with any particular outcome that Justice Scalia supports in these or other areas—in fact, I sometimes agree with his constitutional bottom line, and at other times do not.  But my goal here has simply been to suggest that all of this stuff is a long way from “easy.”

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Eighth Circuit on Due Process Constraints of Punitive Damages (and First Amendment)

In its opinion in Ondrisek v. Hoffman, a panel of the Eighth Circuit held  "Despite the exceptionally reprehensible nature of Alamo’s conduct, it would be unconstitutional to let the punitive damages – and their 10:1 ratio to compensatory damages – stand."

The Defendant, Bernie Hoffman, a/k/a Tony Alamo (pictured right), was the leader of Tony Alamo Christian Ministries (TACM).  The Plaintiffs, Spencer Ondrisek and Seth Calagna were raised in TACM, and suffered extreme brutality until they managed to escape at age 18.  As the panel opinion states:

Spencer Ondrisek and Seth Calagna were raised in TACM. They were forced to work without pay starting at the age of 8. Alamo began threatening to beat Ondrisek when he was 11. Alamo told him that if he disobeyed, he would be enlisted in the military and “shot and killed.” When he was 12, Alamo had an “enforcer” severely beat him because he made a small tunnel while hauling dirt for the church. As Ondrisek received discipline of 15 to 20 blows to his face, Alamo made his father watch. Ondrisek then received 20 to 30 strikes from a paddle that was three feet long, an inch-and-a-half thick, and three or four inches wide. He was unable to sit for several days and not allowed to attend services because the swelling on his face was too visible. Two years later Alamo had Ondrisek beaten again for horseplay. He sustained 15 to 20 hits to his mouth, beginning to bleed after the second blow. He also received 30 to 40 paddles (maybe more), causing severe bruising that did not fully heal for several weeks. He has permanent scarring from the beating. At 15, Ondrisek’s schooling stopped, and he began working on the church’s property 70 hours a week. He was forced to attend services and listen to Alamo’s recordings daily. As punishment for falling asleep as a night watchman, Alamo required him to fast two days, giving him only water. At 16 or 17, Ondrisek was beaten for a third time after being falsely accused of bullying. He was slapped 20 or more times in the face, and paddled 40 times. Ondrisek blacked out, but no one took him to a hospital. His hand was severely injured and still causes him pain.

Calagna’s youth at TACM was similar to Ondrisek’s. When he was 14, Calagna’s parents woke him at 4 a.m. to have him beaten. He was hit so hard he vomited. His face was unrecognizable afterwards; his injuries took weeks to heal. Less than a month later, he witnessed his father get beaten, causing him emotional distress. He was beaten again at 17 for talking about “Harry Potter.” He was struck until the paddle broke and then hit again with a larger board. In addition to physical abuse, both boys experienced verbal abuse. They both contemplated suicide, “unable to imagine that death would be worse.” At 18, Ondrisek and Calagna escaped TACM separately. They still have trouble sleeping, experiencing nightmares and flashbacks. Alamo is currently serving a 175-year sentence for 10 counts of transporting minors across state lines for illicit sex.

A jury awarded each plaintiff $3 million in compensatory damages and $30 million in punitive damages.

The Eighth Circuit quickly rejected Alamo's argument that his actions were protected by the First Amendment free exercise clause.  The panel also rejected Alamo's appeal regarding a denied jury instruction on corporal punishment and regarding compensatory damages.  However, the panel found meritorous Alamo's argument that the $30 million punitive damages award violated the Due Process Clause of the Fourteenth Amendment's prohibition of “grossly excessive” civil punishment under BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996).

The panel reduced the punitive damages to $12 million for each plaintiff, at a ratio of 4:1.  The panel opinion provided an instructive chart of Eighth Circuit cases regarding due process punitive damage decisions in support of its decision.

It does seem, however, that the chart elides the gravity of the case against Alamo.  As the panel admits, the compensatory damages in the various cases are generally less than a million dollars.  Moreover, it does not seem as if any of the charted cases involve such prolonged acts.

Perhaps Tony Alamo's prolonged intentional torts should be considered "off the charts," at least for the "grossly excessive" analysis of punitive damages in a due process analysis.

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Daily Read: Supreme Court Opinions Lack Rigor?

From the SCOTUSBlog same-sex marriage symposium, discussing how the Supreme Court should rule if the Court accepts Perry (the Proposition 8 case) or any of the DOMA cases, including Massachusetts v. United States Department of HHS and Gill v. Office of Personnel Management:

 

The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor.  While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality.  Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.

Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions.  This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden.  However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.

 

The full post is here.

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Ninth Circuit on the Unconstitutionality of Criminalizing Women's Self-Abortion

In its opinion in McCormack v. Hiedeman today, a panel of the Ninth Circuit considered the constitutionality of Idaho's "unlawful abortion" statutes, making it a felony for any woman to undergo an abortion in a manner not authorized by statute.  McCormack had been charged with a felony by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet.  While a state magistrate had dismissed the charge without prejudice, the prosecutor had not determined whether or not to re-file a criminal complaint. McCormack brought an action in the federal district court challenging the constitutionality of the Idaho statutes.  The district judge granted a preliminary injunction against the statutes' enforcement.

At the heart of the constitutional inquiry was whether or not a pregnant woman could be constitutionally held criminally liable under an abortion statute.  The prosecutor essentially argued that criminalizing nonphysicians performing abortions is consistent with Roe v. Wade and Planned Parenthood v. Casey.   

The Ninth Circuit, however, agreed with the district judge that imposing criminal sanctions on a pregnant woman imposes an "undue burden" under Casey.  The "undue burden" resulted because the statute required the woman to police the abortion providers' actions or risk criminal sanctions herself:

If a woman terminates her pregnancy during the first trimester but fails to ask the physician whether the office has made “satisfactory arrangements with one or more acute care hospitals within reasonable proximity thereof providing for the prompt availability of hospital care as may be required due to complications or emergencies that might arise,” she would be subject to a felony charge if the physician has not made such arrangements. Idaho Code § 18-608(1). If a woman finds a doctor who provides abor- tions during the second trimester of a woman’s pregnancy, but the doctor fails to tell the pregnant woman that the abortion will be performed in a clinic as opposed to a hospital, the pregnant woman would be subject to felony charges. Idaho Code § 18-608(2). Or, as is the case here, if a woman elects to take physician prescribed pills obtained over the internet to end her pregnancy, which is not authorized by statute, she is subject to felony charges. Idaho Code §§18-608(1)-18- 608(3).

The court also found McCormack's economic situation and the lack of abortion providers in her area to contribute to the "undue burden."

The Ninth Circuit panel found McCormack had standing, but narrowed the district court's injunctive relief to apply only to McCormack since there had been no class certification.

For pregnant women facing prosecutions under abortion statutes, the Ninth Circuit's opinion is an important and persuasive statement on the unconstitutionality of criminal sanctions.

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[image: The Prisoner, artist unknown, circa 1907, via]

Fordham Discussion of the Constitutionality of "Targeted Killings"

Registration here

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Ninth Circuit Grants Petition for Writ of Habeas Corpus of Death Row Inmate on Equal Protection and Due Process Grounds

In a divided opinion in Ayala v. Wong, the Ninth Circuit today granted a petition for a writ of habeas corpus based on equal protection and due process grounds.  

As the opinion describes, during the

selection of the jury that convicted Ayala and sentenced him to death, the prosecution used its peremptory challenges to strike all of the black and Hispanic jurors available for challenge. The trial judge concluded that Ayala had established a prima facie case of racial discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), but permitted the prosecution to give its justifications for the challenges of these jurors in an in camera hearing from which Ayala and his counsel were excluded. The trial judge then accepted the prosecution’s justifications for its strikes without disclosing them to the defense or permitting it to respond.

The failure to disclose the prosecution's rationales and allow defense counsel to demonstrate they were pretextual violates the process the Court mandated in Batson.  In Alaya's case, this was compounded by what the opinion labels  "the state’s later loss of a large portion of the record."  This portion included juror information and the court concluded that because "the state’s loss of the questionnaires deprived Ayala of the ability to meaningfully appeal the denial of his Batson claim, he was deprived of due process."

In a dissenting opinion as lengthy as the majority, Judge Consuelo M. Callahan accuses the majority of not honoring the procedural obstacles to Alaya's claim, of making unwarranted suppositions, and of opening the floodgates.  She writes:

In essence, the majority holds that because the record does not affirmatively negate the existence of a possible racial bias, the existence of such a bias may be assumed. Under this approach all Batson challenges in federal habeas petitions must be granted because no one can disprove a negative.

Yet the converse would also be true, of course.  If Alaya's petition were not granted, it would allow judges to deny all litigants, including criminal defendants, the ability to refute the proffered race-neutral explanation, and to absolutely insulate a Batson claim from appellate review.

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[image: The Jury by John Morgan, 1861, via]

Ohio Federal District Judge Enjoins Portions of State Provisional Voting Scheme

A federal district judge has enjoined specific provisions of Ohio’s election code that disqualify provisional ballots cast in the wrong precinct or cast with deficiencies in the ballot envelope form, when the ballot’s deficiency is the result of an error by the poll worker.  In the 61 page opinion in the consolidated case, SEIU v. Husted, Judge Algenon Marbley first describes the "turbulent saga of Ohio’s provisional voting regime." The bulk of the opinion is a carefully reasoned application of equal protection principles to the various provisions as part of the likelihood of success on the merits prong for granting a preliminary injunction. 

Marbley's opinion considers four equal protection challenges: the Wrong-Precinct Ballot Prohibition;  Ballot Envelope Deficiencies; Disparate Impact of Poll-Worker Error by County; and Unequal Treatment of Provisional Voters.  The most extensive analysis focuses on the wrong precinct issue, especially given the part that poll workers play in the process resulting in errors.

The Judge does cite Bush v. Gore several times, including quoting the statement that "[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush, 531 U.S. at 104-05.  As expected, the Sixth Circuit case of Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011) (“Hunter I”) is also prominent, not only for its adoption of Bush v. Gore language but because many of the same issues are involved. The opinion is sure to be quickly appealed to the Sixth Circuit, even as a complaint challenging Ohio's early voting regime on the basis of equal protection is also being litigated.

All the documents in the case can be found over at  ElectionLaw@Moritiz blog, as well as an analysis by Prof Edward Foley.

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[image: 1850 map of Ohio via]

Ninth Circuit "Interprets" Constitution of Commonwealth of the Northern Mariana Islands

In a brief opinion, a panel of the Ninth Circuit interpreted the Constitution of the Commonwealth of the Northern Mariana Islands to provide no property interest in continued employment necessary for a due process claim by a Special Assistant to the Governor.  More precisely, the Ninth Circuit deferred to the opinion of the Supreme Court of the Commonwealth of the Northern Mariana Islands, having certified the questions to the Supreme Court and attaching the court's opinion as an appendix to its own.

The Commonwealth Constitution, Article III, section 22, establishes an "Office of Special Assistant to the Governor for Women's Affairs," and provides that the "governor shall appoint a person, who is qualified by virtue of education and experience, to be the special assistant" and the "special assistant may be removed only for cause."

In Peter-Palican v. Government of Commonwealth of Northern Mariana Islands, Ms. Peter-Palican argued that the new governor's termination of her as Special Assistant to the Governor for Women's Affairs violated her due process rights. 

The Ninth Circuit held that the "removal for cause" did not extend beyond the term of the governor who appointed her, adopting the Commonwealth's Supreme Court decision.  Thus, Ms. Peter-Palican did not have the requisite property interest as a threshold for a due process inquiry. 

The Ninth Circuit's determination that the Commonwealth Supreme Court is the final arbiter of its constitution comports with general federalism principles, although the Commonwealth of Northern Mariana Islands is not a state. Indeed, its status is rather unique, governed by the "Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America," approved by Congress, and signed by President Ford in 1976.  The Covenant exempts specific portions of the Constitution as well as specific federal laws (importantly, immigration and minimum wage laws) unless adopted by the Commonwealth. 

The "removal for cause" provision in a constitution would seem to provide some protection from changing elected officials such as governors.  Perhaps if the position were not a "special assistant to the governor" the Commonwealth Supreme Court - - - and the Ninth Circuit - - - would have viewed the matter differently.

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Federal DC Judge Enjoins Small Business Affirmative Action Program as Applied to Military Simulators

In an extensive opinion in DynaLantic Corp. v. United States Department of Defense, Judge Emmet G. Sullivan has enjoined the Small Business Administration and the Department of Defense from awarding procurements for military simulators under the Section 8(a) program without first articulating a strong basis in evidence for doing so.

In a nutshell, the judge found that the constitutionality infirmity resided in the agencies' failure to specifically determine "that it is necessary or appropriate to set aside contracts in the military simulation and training industry."  Relying upon City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion), Judge Sullivan stated that " Croson made clear that the government must provide evidence demonstrating there were eligible minorities in the relevant market - in that case, the Richmond construction industry - that were denied entry or access notwithstanding their eligibility," and thus the agencies' lack of specific studies relating to the military simulation industry was fatal.

Yet Judge Sullivan rejected the facial challenge to Section 8(a) of the Small Business Act which permits the federal government to limit the issuance of certain contracts to socially and economically disadvantaged businesses.  The corporation argued that the Section 8(a) program - - - a program that evolved from Executive Orders issued by Presidents Lyndon B. Johnson and Richard M. Nixon in response to the Kerner Commission - - - violated the Equal Protection component of the Fifth Amendment. Applying the rigorous standard of United States v. Salerno, 481 U.S. 739, 745 (1987). requiring that the "challenger must establish that no set of circumstances exists under which the Act would be valid,” Judge Sullivan carefully considered reams of studies, data, and information, as well as the corporation's arguments attacking the provision for being both overinclusive and underinclusive.

This litigation began in 1995 when the Navy determined it would award its contract for a flight simulator for the Huey helicopter (pictured above) through the Section 8 (a) program.  DynaLantic's lawsuit was dismissed for standing, the D.C. Circuit reversed, and then protracted litigation continued as Congress reauthorized the program and a plethora of studies, evidence, and arguments accumulated.

As the educational affirmative action case of Fisher goes to the United States Supreme Court,  DynaLantic is a reminder of the continued legacy of Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), as well as Croson in the government procurement context. 

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Senior Federal District Judge Rejects Challenge to Hawai'i Opposite-Sex Only Marriage Statute

In in an opinion exceeding 100 pages, Judge Alan Kay, Senior District Judge for the District of Hawai'i, upheld the Hawai'i marriage scheme in Jackson v. Abercrombie.  The plaintiffs had argued that Hawai'i Constitution Article 1, Section 23 stating that “[t]he legislature shall have the power to reserve marriage to opposite- sex couples,” and Hawaii Revised Statutes § 572-1, which states that marriage “shall be only between a man and a woman,” violated the Due Process and Equal Protection Clauses of the United States Constitution.  Governor Abercrombie's Answer agreed with the plaintiffs' constitutional arguments.  However, Defendant Fuddy, Hawai'i Director of Health, and Intervenor Hawai'i Family Forum, opposed the plaintiffs, and the Judge resolved the case on Summary Judgment.

Those conversant with same-sex marriage jurisprudence in the United States will recall that Hawai'i is a landmark in the second-generation litigation: In Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), the Hawai'i Supreme Court found the limitation of marriage to opposite-sex couples violated the state constitution.  This decision prompted the state constitutional amendment, Article I, Section 3, referenced above (and interestingly in terms of judicial review, not prohibiting same-sex marriage but allocating that power only to the legislature and not to the courts).  It also prompted Congress to pass DOMA - - - the Defense of Marriage Act - - - constitutionally suspect at present.

Judge Kay rehearses these histories at length.  However, he rests his rejection of the plaintiffs' constitutional challenges on a "decision" of the first-generation of same-sex marriage litigation:  The United States Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972) (mem.).  For Judge Kay: "Baker is the last word from the Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-sex couples and thus remains binding on this Court."  (Opinion at 46).

Most courts considering the issue have rejected the 1972 summary dismissal in Baker v. Nelson as binding precedent.  Thus, Judge Kay also provides an "alternative analysis"  under the Equal Protection and Due Process Clauses.  He applies rational basis review, concluding that "marriage" can be reserved to opposite-sex couples because the legislature can rationally choose to encourage the stability of relationships that have the ability to "procreate naturally" and choose to promote the raising of children by "a mother and a father."  Judge Kay also credits the legislature's rational choice to "proceed with caution" in an area of social change: 

Hawaii could rationally conclude that by enacting the reciprocal beneficiaries act, followed years later by the civil unions law, and retaining the definition of marriage as a union between a man and woman, it is addressing a highly-debated social issue cautiously. By doing so, it may observe the effect of the reciprocal beneficiaries and civil unions laws before deciding whether or not to extend the title marriage, along with the already conferred legal rights, to same-sex couples.

Yet Judge Kay's ultimate rejection goes further.  He writes that  "to suddenly constitutionalize the issue of same-sex marriage “would short-circuit” the legislative actions that have been taking place in Hawaii."   (Opinion at 118).  Certainly, the judicial restraint arguments are familiar by now, but to write in 2012 that the plaintiffs seek to  "suddenly constitutionalize the issue of same-sex marriage"  is odd.  Indeed, it is undermined by Judge Kay's own opinion with its careful history of second-generation litigation since 1990 and his reliance on a summary dismissal in 1972.

The plaintiffs are doubtless preparing their appeal to the Ninth Circuit.

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HB2036 Update: Ninth Circuit Enjoins Arizona Abortion Law

In a brief Order today, a panel of the Ninth Circuit has issued an emergency stay of Arizona's restrictive abortion law, despite a federal district judge's holding yesterday that the law was constitutional.

In the Isaacson v. Horne order, the Ninth Circuit stated:

The court enjoins enforcement of the provisions of Arizona House Bill 2036 that place restrictions upon and criminalize the performance of abortions from 20 weeks gestational age, pending appeal. 2012 Ariz. Legis. Serv. 250 (H.B. 2036) (West) (to be codified as Ariz. Rev. Stat. § 36-2159);

The Ninth Circuit also expedited the briefing and oral argument schedule.

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Arizona HB 2036: Federal Judge Upholds Restrictive Abortion Law

In a relatively brief opinion in Isaacson v. Horne, federal judge James Teilborg rejected constitutional challenges to  Arizona House Bill 2036 (“H.B. 2036”), signed into law by the Governor in April 2012, restricting all abortions at 20 weeks of pregnancy or later, except in "medical emergency."  The judge evaluated the legislative findings of "the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at [20 weeks] gestational age."

The opinion's reasoning largely rests on two extensive quotations.  First, the judge quotes from Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 879-80 (1992), regarding the definition of “medical emergency,” concluding that the Arizona statute is within the broad definition.  Second, the judge relied on Gonzales v. Carhart, 550 U.S. 124 (2007) and its description of one type of procedure. The judge then credited the legislature's fetal pain rationale, finding that "by 7 weeks gestational age, pain sensors develop in the face of the unborn child and, by 20 weeks, sensory receptors develop all over the child’s body and the children have a full complement of pain receptors."  The judge did add that as an additional legitimate interest, the "instance of complications is highest after twenty weeks of 20  gestation" supported the interest in the pregnant woman's health.

The Center for Reproductive Rights will undoubtedly appeal.

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UPDATE HERE

Eighth Circuit En Banc Upholds Compelled "Suicide Warning" for Abortion Procedures

In a 7-4 en banc opinion today in Planned Parenthood v. Rounds, the Eighth Circuit disagreed with the panel opinion and the district judge and upheld the constitutionality of a South Dakota statutory provision requiring the disclosure to patients seeking abortions of an “[i]ncreased risk of suicide ideation and suicide,” S.D.C.L. § 34-23A- 10.1(1)(e)(ii).

Planned Parenthood contended that requiring a physician to present the suicide advisory imposes an undue burden on abortion rights and violates the free speech rights of the physician.  The court conflated the undue burden (due process) claim and the physician First Amendment claim:  "In short, to succeed on either its undue burden or compelled speech claims, Planned Parenthood must show that the disclosure at issue “is either untruthful, misleading or not relevant to the patient’s decision to have an abortion.”

Judge Gruender's opinion for the majority seemingly acknowledged that there was no evidence that abortion caused suicidal ideation.  Instead, the issue was the "accepted usage of the term 'increased risk' in the relevant medical field."  The opinion found that based on the medical usage, the statutory requirement "does not imply a disclosure of a causal relationship," instead it is merely a disclosure that "the risk of suicide and suicide ideation is higher among women who abort compared to women in other relevant groups, such as women who give birth or do not become pregnant."  

The majority rejected the relevancy of  Planned Parenthood's argument that certain underlying factors, such as pre-existing mental health problems, predispose some women both to have unwanted pregnancies and to have suicidal tendencies, resulting in a misleading correlation between abortion and suicide that has no direct causal component.  Planned Parenthood argued that the required disclosure would be misleading or irrelevant to the decision to have an abortion because the patient’s decision would not alter the underlying factors that actually cause the observed increased risk of suicide.  But the majority found that a correlation - - - seemingly for any reason - - - was sufficient: "the truthful disclosure regarding increased risk cannot be unconstitutionally misleading or irrelevant simply because of some degree of 'medical and scientific uncertainty,' as to whether abortion plays a causal role in the observed correlation between abortion and suicide."

 In contrast, the four dissenting judges, in an opinion by Judge Murphy, stated that the "record clearly demonstrates"  that "suicide is not a known medical risk of abortion and that suicide is caused instead by factors preexisting an abortion such as a history of mental illness, domestic violence, and young age at the time of pregnancy."   The dissenting opinion read the statutory provision to require doctors to tell a pregnant woman that a greater likelihood of suicide and suicide ideation is a "known medical risk[]" to which she "would be subjected" by having an abortion. S.D.C.L. § 34-23A-10.1(1)(e) (2005) (emphasis added).  This causal language troubled the dissenting judges, who concluded that the suicide advisory places an undue burden on a pregnant woman's due process rights and violates a doctor's First Amendment right against compelled speech.

Both opinions rehearse and discuss the social science and psychological studies before the court and both opinions admit the studies are flawed.  However, by rejecting the necessity for causation in a warning about a medical procedure given for informed consent, the majority rests its opinion on correlation even if there is "some degree of 'medical and scientific uncertainty" as to the reasons for any correlation.

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Suit Seeks Damages for Targeted Killing

The ACLU and the Center for Constitutional Rights filed suit in the D.C. District on behalf of relatives of victims of the government's targeted killing program.  The plaintiffs, parents of Samir Khan and Anwar al-Aulaqi and grandfather of Abdulrahman al-Aulaqi (Anwar's son), seek money damages against high-level government officials for authorizing targeted killings in violations of the Fourth and Fifth Amendments and the Bill of Attainder Clause.

The case comes 19 months after Judge Bates (D.D.C.) dismissed an earlier suit by Anwar al-Aulaqi's father, seeking to stop the government from killing his son in the first place.  Judge Bates ruled that al-Aulaqi's father lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions.  (Judge Bates didn't rule on the government's state secrets claim.)

The case also comes on the heels of a couple of dismissed torture suits against high-level officials--Doe v. Rumsfeld (rejected because special factors counseled against a Bivens remedy) and Lebron v. Rumsfeld (same, and cert. denied).

All this is to say that the case faces some hurdles--political question, state secrets, Bivens special factors, and qualified immunity, to name a few.

The plaintiffs in the most recent case argue that the targeted killing were illegal under the laws of war, because the plaintiffs were not engaged in activities that presented a concrete, specific, and imminent threat of death of serious physical injury; because something short of lethal force could have been used to neutralize any threat that they posed; because they were not directly participating in hostilities; because the government failed to take steps to avoid harm to bystanders; and because the killings didn't meet the requirements of distinction and proportionality.

We covered the government's likely justification for targeted killing here, here, here, and here (among other places, linked in these posts).  We still don't have a complete legal justification from the government for the targeted killing program.

SDS

Constitutional Liability for Penn State?

The doctrine of DeShaney v. Winnebago is a harsh one.  As the Fifth Circuit recently noted: "The law yesterday and today is bare and bald: No DeShaney special relationship exists between a public school and its students. Absent a special relationship, any analysis of the defendant’s conduct as deliberately indifferent to the rights of the student is, under DeShaney, irrelevant." 

Yet today's Freeh Group Report may test the limits of DeShaney.  The just released report, available on Larry Cata' Backer's Penn State Faculty Senate Blog, details the events at Penn State that eventually led to the arrest and convicton of coach Jerry Sandusky for sexual abuse of ten children.  The focus would not necessarily be on the university officials "failure to report" but on the "special relationship" that university officials fostered.

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Supreme Court on FCC v. Fox and ABC: Fleeting Expletive and Nudity Rules Violated Due Process

In a relatively brief (and almost unanimous) opinion today - - - a mere 23 pages - - - the Court decided FCC v. Fox Television Stations (together with FCC v. ABC, Inc.) involving fleeting expletives and fleeting nudity. 

Justice Kennedy's opinion for the Court spends the first 11 pages discussing the regulatory scheme and reciting the complicated history of this litigation.  Recall that the precise issue before the Court prompted confusion at oral argument.

The opinion resolves - - - or perhaps sidesteps - - - this disarray by deciding the case on Fifth Amendment Due Process grounds, holding that the FCC regulations were unconstitutionally vague.  As Kennedy wrote, the "void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discrimina­ tory way."   The opinion the added: "When speech is involved, rigorous adher­ence to those requirements is necessary to ensure that ambiguity does not chill protected speech."

Thus, while the Court does not resolve the case on First Amendment grounds, it certainly uses First Amendment concerns to animate the due process analysis.

Yet the analysis itself is truncated and interestingly augmented by a discussion of what the Court did not hold:

• "First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implica­tions of the Commission’s indecency policy."
• "This leads to a second observation. Here, the Court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and sub­ sequent adjudications."
• "Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaves the courts free to review the current policy or any modified policy in light of its content and application."

The decision is not quite unanimous not only because Justice Sotomayor did not participate, but because Justice Ginsburg concurred in the judgment only, writing a brief concurring opinion:

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration. Cf. FCC v. Fox Television Stations, Inc., 556 U. S. 502, 532–535 (2009) (THOMAS, J., concurring).

Thus, it seems that the indeterminate status of fleeting expletives and nudity in regulated media continues.

RR

D.C. Circuit Rejects Torture Suit Against Rumsfeld

A three-judge panel of the D.C. Circuit today rejected a U.S. citizen's Bivens action against former Defense Secretary Donald Rumsfeld for developing, authorizing, and implementing policies that led to his torture while in U.S. custody in Iraq.  The panel, following an earlier similar ruling from the Fourth Circuit, Lebron v. Rumsfeld, held that special factors counseled against a Bivens remedy--special factors "pertaining to military, intelligence, and national security."

The ruling comes on the heels of the Supreme Court's rejection of the plaintiffs' cert. petition in Lebron and while a similar suit is now pending before the en banc Seventh Circuit.  (A three-judge panel of the Seventh Circuit earlier ruled that the plaintiffs in that case did have a Bivens remedy against Rumsfeld.)

The case means that U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials in the D.C. Circuit, even when the violations resulted from torture while in U.S. custody.  With two circuit rulings now on the books--this case, Joe Doe v. Rumsfeld, and Lebron--and with a Seventh Circuit ruling against the plaintiffs now all but certain, and with the Supreme Court's rejection of cert. in Lebron, it now seems all but certain that other circuits faced with the question will follow suit, and that therefore U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials anywhere.

The case also gives extraordinary authority to the executive to evade suits for detention and mistreatment--even torture--of U.S. citizens.  Congress, of course, could change this by authorizing such suits.  But don't look for that to happen anytime soon--or ever.

The D.C. Circuit ruling closely follows the Fourth Circuit's earlier ruling.  That is, the court today ruled that the "special factors" of military, intelligence, and national security foreclose a civil damage remedy for constitutional violations by U.S. citizens.  Here's the court's special factor analysis:

In his complaint, Doe challenges the development and implementation of numerous military policies and decisions.  The complaint would require a court to delve into the military's policies regarding the designation of detainees as "security internees" or "enemy combatants," as well as policies governing interrogation techniques.

Doe's allegations against Secretary Rumsfeld implicate the military chain of command and the discretion Secretary Rumsfeld and other top officials gave to [military] agents to detain and question potential enemy combatants.  The allegations raise questions regarding Secretary Rumsfeld's personal control over the treatment and release of specific detainees.  Litigation of Doe's case would require testimony from top military officials as well as forces on the ground, which would detract focus, resources, and personnel from the mission in Iraq.  And . . . allowing such an action would hinder our troops from acting decisively in our nation's interest for fear of judicial review of every detention and interrogation.

Op. at 10-11.

The court also found persuasive--another "special factor" counseling against a Bivens remedy--that Congress did not authorize such suits under the Detainee Treatment Act, or any other statute.  

Because the court ruled against Doe on Bivens, it did not rule on Rumsfeld's defense of qualified immunity.

SDS

British Columbia Supreme Court Holds Assisted Suicide Ban Unconstitutional

The Supreme Court of British Columbia today issued its lengthy opinion in Carter v. Canada (Attorney General), authored by Justice Lynn Smith, a former dean at the Faculty of Law of the University of British Columbia.  Smith's opinion concluded that the assisted suicide prohibition in the Canadian Criminal Code infringes sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

Section 7 - - -  " Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," and Section 15(1) - - - "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability" are often be analogized to due process and equal protection by those trained in the US constitutional system. 

However, Judge Smith made little use of US constitutional precedent and did not give much credence to the Canadian government's reliance on Washington v. Glucksberg, in which the US Supreme Court rejected a constitutional challenge to an assisted suicide ban. [¶ 1118 of Opinion].  Instead, Judge Smith extensively canvassed the state of assisted suicide laws in US states and other nations, producing a scholarly survey and discussion of the issues.  Insisting that "context is vital," Judge Smith's decision is nuanced and careful.

This care and nuance is evident in the declarations that the Criminal Code provisions unjustifiably infringe sections 15 and 7 of the Charter

to the extent that they prohibit physician-assisted suicide by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult patient who: 

(a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and

(b) is materially physically disabled or is soon to become so, has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person.

[¶ 1393].  For some, this type of decision is reminiscient of legislation, but the declarations are suspended for one year allowing Parliament time to correct the constitutional problems.  Yet defering the opinion's effective date for a year has obvious costs given the court's own discussion.  For plaintiff Gloria Taylor the plaintiffs had sought an "immediate constitutional exemption that would allow her to avail herself of a physician-assisted death at such time and subject to such terms and conditions that the Court allows or requires."  Judge Smith's opinion grants such an exemption and sets out its terms. 

The opinion garnered attention from news outlets including the Vancouver Sun and The Globe and Mail.

RR

Hawai'i Beach Weddings Permitting Scheme Upheld by Ninth Circuit

Wedding ceremonies on Hawai'ian beaches may be the stuff of some fantasies, but they may also require permits from the state as any other commercial activity on state land would.  In its opinion in Kaahumanu v. Hawai'i Department of Land and Natural Resources, the Ninth Circuit upheld Hawai'i's permitting scheme, except to the extent it allowed the state to alter the permits once issued.

The permitting scheme applies to ceremonies all state-owned beaches, even if there are three people at the wedding, if the officiant is receiving compensation.  It prohibits tables, chairs, tents, and strictures demarcating the area, while allowing flowers, leis, chairs for the elderly/infirm, and "unamplified musical instruments including a conch shell."

The Ninth Circuit's unanimous panel opinion easily found that one of the plaintiffs, a wedding and events professional association, had standing, and quickly proceeded to the gravamen of the constitutional claim. 

As the court expressed it, the First Amendment challenge posed three questions:

• First, do wedding ceremonies constitute “speech” protected by the First Amendment?
  Second, what is the nature of the forum?
  Third, are the challenged restrictions on commercial weddings permissible in the forum?

The Hawai'i Department of Land and Natural Resources (DLNR) contended that weddings were not speech at all and thus excluded from First Amendment protection.  Applying the "particularized message" expressive conduct test from Spence v. Washington, 418 U.S. 405 (1974), the court had "no difficulty" concluding that wedding ceremonies were protected expression: "The core of a wedding ceremony’s “particularized message” is easy to discern, even if the message varies from one wedding to another."

The forum issue was not so easily resolved - - - and indeed, remained unresolved.  The panel seemed hesitant to render an opinion that might be used in other contexts.  Moreover, while the DLNR  contended that "all unencumbered state beaches are nonpublic forums" and the plaintiffs contended that "they are all traditional public forums," the court ruled that  Hawai’i’s unencumbered state beaches were not so easily categorized.  Instead, the beaches "vary from heavily trafficked beaches to isolated beaches accessible only by foot or watercraft," and on the present record, it was "difficult to put all of Hawai’i’s unencumbered state beaches into a single forum category."  Thus, the court assumed - - - without deciding - - - that  "unencumbered state beaches in Hawai’i are, as Plaintiffs contend, a traditional public forum."  Thus, the panel stated it would assess the validity of all regulations "that we uphold under the most exacting test for restrictions on forum access."  On the contrary, the panel assessed the particular provisions of the regulation that it did not uphold under the most lenient standard.  The panel summarized its First Amendment holding thusly:

In sum, we hold that DLNR’s regulation requiring a person to obtain a permit for commercial weddings on unencumbered state beaches is narrowly tailored to a significant governmental interest, is content-neutral, leaves ample alternative spaces for hosting a wedding, and does not vest too much discretion in the government official when issuing the permits. We hold that the limitation on accessories, insurance requirement, and the indemnification/hold-harmless clause also satisfy the tra- ditional public forum standard. However, we hold invalid the grant of discretion to DLNR to revoke, or add terms to, a per- mit under the least exacting standard of review for a nonpublic forum.

The panel opinion also briefly referred to the plaintiffs' freedom of religion arguments, rejecting them because that while the regulation may have an incidental effect on specific religious "implements or physical symbols," this does not "render it impermissible."  Seemingly, a more specific as-applied challenge, perhaps also stating a RLUIPA claim, might be taken more seriously. 

Additionally, the court rejected the Equal Protection and Due Process claims: while recognizing that the "right to marry" is a fundamental right, the DLNR’s "regulation of commercial weddings on unencum- bered state beaches does not impinge on the right to marry."

RR