Constitutional Law Prof Blog

Ninth Circuit: No Civil Rights Claim for Death at Group Home

A divided three-judge panel of the Ninth Circuit ruled earlier this week in Campbell v. State of Washington Dep't of Soc. and Health Serv. that the mother of a 33-year-old developmentally disabled adult who drowned while in a state-operated assisted-living home did not present a genuine issue of material fact as to her civil rights claim against home employees, because she did not proffer evidence that the state owned her daughter an affirmative duty of care.

The case arose out of Justine Booth's drowning in a bathtub while in the care of the Washington State Operated Living Alternative program, or SOLA.  Justine drowned after SOLA employees ordered her to take a bath, but failed to monitor her.

The majority, citing DeShaney v. Winnebago County Dep't of Soc. Serv. throughout, concluded that Campbell, Justine's mom, did not present a genuine issue of material fact as to her 42 U.S.C. Sec. 1983 claim, because she did not proffer evidence that the state owned Justine an affirmative duty of care.  The majority said that Justine had no special relationship with SOLA, because her admission into the program was voluntary.  Op. at 20033, quoting DeShaney (the "special relationship exception" is created when "the State takes a person into its custody and holds him there against his will") (emphasis added).  And the majority wrote that the SOLA employees did not create the danger, because "none of them acted affirmatively to place Justine in the way of danger they had created."  Op. at 20041.  The majority noted that taking a long bath was one of Justine's favorite activities.

Judge Fletcher dissented, arguing that Campbell raised at least triable allegations on the special relationship and the creation of danger.  As to the special relationship, Judge Fletcher argued that the right question is whether at the time of the events in question the individual was free to leave state custody.  As to creation of danger, Judge Fletcher argued that the state only has to increase the plaintiff's risks to dangers already present.  Under these standards, Campbell alleged sufficient facts to move to trial.

SDS

The End of DADT: Litigation Moot but Still Worth Discussing?

The Ninth Circuit issued a per curium opinion today in Log Cabin Republicans v. United States dismissing the case as moot.  This is absolutely predictable. 

Despite extensive litigation which we last mentioned here, with the repeal of 10 U.S.C. § 654(b) effective September 20, 2011, the policy known as DADT, "don't ask, don't tell,"  regarding sexual minorities in the military was no longer law.  Thus, a challenge to the statute's constitutionality is no longer a live "cae or controversy" under Article III.

[image: President Obama certifying the conditions of the Repeal Act, July 22, 2011, repealing DADT, via]

 

The Ninth Circuit opinion, however, is no so simple.  The panel considered and rejected two arguments by Log Cabin Republicans that the case should not be dismissed as moot.  

First, the panel rebuffed the argument that while the injunctive relief might be moot, the declaratory relief might not be.  The speculation that "a future Congress whose composition, agenda, and circumstances we cannot know—will reenact Don’t Ask, Don’t Tell," or that the same Congress that enacted the Repeal Act could change course, was mere speculation and "our speculation cannot breathe life into this case."

Second, the panel strongly repudiated the claim of “collateral consequences” from a challenged statute even when the statute is repealed.  The panel resolved this issue by simply stating that any missed benefits discharged service members may have lost as a result of their separation pursuant to DADT were not legal penalties from past conduct, they did not fall within collateral consequences exception.  However, the panel went farther:

Because Log Cabin has stated its intention to use the district court’s judgment [holding DADT unconstitutional] collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings—to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect. The repeal of Don’t Ask, Don’t Tell provides Log Cabin with all it sought and may have had standing to obtain.

Judge Diarmuid O'Scannlain wrote a specially concurring opinion, as lengthy as the per curium decision, devoted not to the question of mootness, but to share his thoughts about Lawrence v. Texas:  "I write separately because our inability to reach the merits may leave uncertainty about the role Lawrence v. Texas, 539 U.S. 558 (2003), may have in substantive due process challenges. Although Congress spared us the need to reach the merits in this case, other such challenges will come to the courts."  

Judge O'Scannlain, widely regarded as exceedingly conservative, thus wrote an essentially advisory opinion, violating the basic premise of the Article III case and controversy requirement.  It seems a bit paradoxical that he wrote this in a case in which the panel dismissed the claim as moot, lest the court render an advisory opinion in contravention of the Article III case and controversy requirement.

RR

Equal Protection Problem?: California's Prison Release Program

The CDCR - - - California Department of Corrections and Rehabilitation - - -has anounced its plan "aimed at reuniting low-level offenders with their families and providing inmates with rehabilitative services within the community."   

As the LA Times notes, the plan is not simply motivated by rehabilitative motives.  The United States Supreme Court last May in Brown v. Plata upheld the court-ordered release of prisoners to remedy unconstitutional conditions at California prisons. 

SB 1266, signed by then-Governor Schwarzenegger, as originally drafted was applicable only to female inmates.  However, as the LA Times noted, this "could not be done because of a constitutional ban against gender-based discrimination. So the phrase "primary caregiver" was added to the bill."  The law establishes:

a program under which female inmates, pregnant inmates, or inmates who, immediately prior to incarceration, were primary caregivers of dependent children, as defined, who are committed to state prison may be allowed to participate in a voluntary alternative custody program in lieu of confinement in state prison.

Yet the current policy of the CDCR, as announced, reinstates the gender classification:

"Initially, the program will be offered to qualifying female inmates.

Participation may be offered at a later date to male inmates,

at the discretion of the Secretary of CDCR."

Moreover, the "primary caregivers of dependent children" may render the law gender-neutral, but it may impact upon other equal protection concerns.  Preferring parents or primary caregivers over those who are not warrants rational basis scrutiny.  There may also be due process concerns.  Pregnancy, likewise, might raise constitutional concerns.

For ConLawProfs, this could be an excellent equal protection in-class problem, discussion, extra assignment, or even an examination.

For California, this could mean more litigation.

RR
[image: The Prisoner by Evelyn deMorgan via]

Third Circuit: Prolonged Immigration Detention Unconstitutional

A three-judge panel of the Third Circuit ruled last week in Diop v. ICE that the government's nearly 3-year detention of a person who was removable from the country while his case worked its way through the immigration system violated the Due Process Clause.

The case involved the government's detention authority under 8 U.S.C. Sec. 1226(c), which permits the government to detain and hold an alien without bond when the alien "is deportable by reason of having committed," among other crimes, a crime "involving moral turpitude" or one "relating to a controlled substance."  This means that the federal government could hold a deportable alien indefinitely and without bond while the case is pending in the immigration and federal courts.  (In the ordinary case--one involving an alien who did not commit a crime that would make him or her deportable--an alien gets a bond hearing and may be released on bond while his or her case moves forward.)

Diop was detained under the provision, without a bond hearing, for nearly three years while his case worked through the immigration courts and the federal courts.  He was finally released after 1,072 days in detention--after four rulings by an immigration judge, three rulings by the Board of Immigration Appeals, a state court ruling on his 1995 conviction and a subsequent appeal to the state intermediate appellate court, a ruling by a federal district judge, and an appeal to the Third Circuit.

The Third Circuit said this violated due process.  It drew on Justice Kennedy's concurrence in Demore v. Kim:

Justice Kennedy's opinion provides helpful guidance on how to interpret the Demore opinion.  Under the Supreme Court's holding, Congress did not violate the Constitution when it authorized mandatory detention without a bond hearing for certain criminal aliens under Section 1226(c).  This means that the Executive Branch must detain an alien at the beginning of removal proceedings, without a bond hearing--and may do so consistent with the Due Process Clause--so long as the alien is given some sort of hearing when initially detained at which he may challenge the basis of the detention.  However, the constitutionality of this practice is a function of the length of detention.  At a certain point, continued detention becomes unreasonable and the Executive Branch's implementation of Section 1226(c) becomes unconstitutional unless the Government has justified its actions at a hearing inquiring into whether continued detention is consistent with the law's purposes of preventing flight and dangers to the community.

Op. at 18.  In other words, Section 1226(c) is facially constitutional, but, as applied, detention under its authority might run up against the Due Process Clause when that detention fails to serve the purposes of the law.  And the courts owe the Executive little deference in determining that point: "courts reviewing petitions for writ of habeas corpus must exercise their independent judgment as to what is reasonable."  Op. at 21.

The court also ruled that Diop had standing, despite his release, because his detention was capable of repetition yet evading review.

SDS

Federal Judge Enjoins Portions of Texas Abortion Statute

Federal District Judge Sam Sparks has enjoined portions of HB 15, an Act “relating to informed consent to an abortion.” H.B. 15, 82nd Leg., Reg. Sess. (Tex. 2011) in his Order in Texas Medical Providers Performing Abortion Services v. Lakey.

Judge Sparks certified both a plaintiff class of medical providers and a defendant class of state actors, then proceeded to consider the plaintiffs' constitutional objections one by one.  In his 55 page opinion, Judge Sparks had little complimentary to say about the lawyering on both sides; indeed, he leveled sharp criticisms. 

Judge Sparks also made clear his disapproval of the intent behind the Act that amended Texas' already restrictive abortion laws, stating in footnote 2:  "It is ironic that many of the same people who zealously defend the state’s righteous duty to become intimately involved in a woman’s decision to get an abortion are also positively scandalized at the government’s gross overreaching in the area of health care."  Yet this footnote was in the context of his rejection of Plaintiffs' equal protection arguments, which he found meritless: "In short, if the Texas Legislature wishes to prioritize an ideological agenda over the health and safety of women, the Equal Protection Clause does not prevent it from doing so under these circumstances."

Criticizing the "litany" of vagueness challenges by Plaintiffs and agreeing with the "Defendants’ characterization that 'plaintiffs have chosen to throw everything at the wall and hope something sticks,' ” Judge Sparks nevertheless found that three provisions of the Act were unconstitutionally vague:

• First, the phrase “the physician who is to perform the abortion,” a phrase used in section 171.012(a)(4), is unclear as it relates to both multi-physician procedures and unplanned physician substitutions.
• Second, the conflict between sections 171.012(a)(4) and 171.0122 creates unconstitutionally impermissible uncertainty regarding what will, and what will not, subject a physician or a pregnant woman to liability.
• Finally, section 171.0123 is unconstitutionally vague regarding the scope of a physician’s duty to provide paternity and child support information to women who choose not to get abortions.

In finding these sections unconstitutionally vague, Judge Sparks emphasized that the lack of clarity was balanced against the serious penalities, so that neither physicians nor women should have to trust Defendants’ representations about the meaning of the provisions or otherwise guess.

Most seriously, Judge Sparks found several provisions of the Act constitutionally infirm under the compelled speech doctrine of the First Amendment.  Sparks distinguished Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), on which the Defendants largely relied, by noting that

the Pennsylvania statute in Casey simply required physicians to inform pregnant women about the risks of an abortion, the potential alternatives thereto, and the availability of additional informational materials related to those alternatives. By contrast, the Act under consideration here requires physicians to provide, in addition to those legitimate disclosures, additional information such as descriptions of “the presence of cardiac activity,” and “the presence of external members and internal organs” in the fetus or embryo. The Court does not think the disclosures required by the Act are particularly relevant to any compelling government interest, but whatever relevance they may have is greatly diminished by the disclosures already required under Texas law, which are more directly pertinent to those interests.

Judge Sparks also found troubling under compelled speech doctrine Section 171.012(a)(5) that requires a pregnant woman to complete and sign a specified election form that certifies her understanding of many of the Act’s various requirements.  "The Court need not belabor the obvious by explaining why, for instance, women who are pregnant as a result of sexual assault or incest may not wish to certify that fact in writing, particularly if they are too afraid of retaliation to even report the matter to police. There is no sufficiently powerful government interest to justify compelling speech of this sort, nor is the Act sufficiently tailored to advance such an interest."  Compounding this compelled speech was the section that required the patient's certification be placed in the woman's medical records and maintained by the facility for seven years - - - making it "difficult to avoid the troubling conclusion   the Texas Legislature either wants to permanently brand women who choose to get abortions, or views these certifications as potential evidence to be used against physicians and women."

The Judge gave the severability clause of the Act effect, although he also enjoined "enforcement of any portion of the Act that conflicts with any of the above relief. This includes, but is not limited to, any penalty provision of the Act or any other statute that would impose a penalty for a person acting in compliance with this opinion." 

"The Court is bound to respect legislative intent, but not at the expense of the Constitution," Judge Sparks concluded.  Presumably, the preliminary injunction order will be appealed to the Fifth Circuit.

RR
[image: Exterior Sculpture from The Women's Museum of Texas, via]

Alabama Immigration Law HB56 Enjoined by Federal Judge

UPDATE HERE

In a very brief Order issued late today, Judge Sharon Lovelace Blackburn, Chief Judge of the Norther District of Alabama, enjoined the enforcement of HB56:

 

Act 2011-535 [H.B. 56] is TEMPORARILY ENJOINED, and may not be executed or enforced. In entering this order the court specifically notes that it is in no way addressing the merits of the motions. The court will issue detailed Memorandum Opinions and Orders ruling on the merits of the pending Motions for Preliminary Injunction no later than September 28, 2011. This temporary injunction shall remain in effect until September 29, 2011, or until the court enters its rulings, whichever comes first.

The Order comes in the consolidated cases of Hispanic Interest Coalition of Alabama v. Bentley; Parsley v. Bentley, and United States v. Bentley.   We've previously discussed each of these three lawsuits have been brought against the controversial HB 56. 

The Hispanic Interest Coalition case began with a 118 page complaint filed early in July raises eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause;  First Amendment claims including speech, assembly, and petition clauses, the Contracts Clause, and two Sixth Amendment claims. 

Parlsey v. Bentley is the clergy complaint centering on the First Amendment Free Exercise Clause. 

United States v. Bentley marks the DOJ's entry into the controversy, raising Supremacy Clause arguments as might be expected.

The law was scheduled to go into effect September 1. 

RR
[image: Map of Alabama, circa 1832, via]

Second Circuit Upholds "Protective" Measures Against Student

A three-judge panel of the Second Circuit ruled last week in Cox v. Warwick Valley Central School District that a school principal did not violate the First Amendment or substantive due process rights of a student or his parents when the principal sequestered the student and reported his parents to Child and Family Services after the student wrote a violent and disturbing essay as a class project.

The project required the student to write on what he would do if he only had 24 hours to live.  The student's essay, titled "Racing Time," described getting drunk, smoking, taking drugs, and breaking the law.  It ended with the student shooting himself in front of his friends.

The student's teacher reported the essay to Principal Kolesar, and Kolesar immediately removed the student from class and sequestered him in a separate room for the rest of the afternoon.  Kolesar released the student at the end of the school day, after he determined that the student did not pose a threat.  But Kolesar later reported his concern that the student's parents neglected him to CFS.  The student's parents brought a civil rights claim against the district for violating free speech and substantive due process.

The unanimous panel rejected the claims.  It said that Kolesar's sequestration of the student was "protective," not retaliation or punishment for the student's speech.  As such, the panel didn't even reach the question whether the student's essay constituted protected speech; instead, it simply ruled that Kolesar took no action to violate free speech. 

As to the parent's substantive due process claim (for interfering with their parental rights), the panel ruled that Kolesar's action--calling CFS--was similarly designed to protect, not to punish.  In fact, Kolesar had a legal duty to report suspected child neglect to CFS.  The panel noted that if it found CFS reports generally to be retaliatory, such a finding would seriously undermine school administrators' ability to protect the children in their charge.

Because the panel found no constitutional violation, the panel didn't rule on Kolesar's qualified immunity.

SDS

[Image: Cartoon of Students Receiving the Cane (for drawing "Old Mr. Kerr" on the chalkboard), wikimedia commons]

What's Rational About Rational Basis Review?: Same-Sex Marriage Litigation in Perspective

This is from SCOTUSblog's  same-sex marriage symposium featuring discussions about the Proposition 8 litigation and DOMA litigation, both of which may be heading for the United States Supreme Court.

My contribution focuses on the rational basis standard of review:

The federal Defense of Marriage Act (DOMA) and California’s Proposition 8 are both subject to judicial review under a standard at least as rigorous as rational basis.

There are serious and worthwhile arguments that courts should employ a more rigorous standard of review than rational basis in same-sex marriage litigation.  However, federal district judges in two important decisions that may be heading to the United States Supreme Court have concluded that DOMA and Proposition 8 cannot survive even the low standard of rational basis.  Considering DOMA Section 3, federal district judge Joseph Tauro in Gill v. Office of Personnel Management declined to decide whether the federal statute should be subject to strict scrutiny “because DOMA fails to pass constitutional muster even under the highly deferential rational basis test.”   Similarly, ruling on Proposition 8 in Perry v. Schwarzenegger, federal district judge Vaughn Walker held that although the “trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,” the application of “strict scrutiny is unnecessary,” because “Proposition 8 fails to survive even rational basis review.”

Judge Tauro’s decision is on appeal to the First Circuit, while Judge Walker’s decision is awaiting resolution of the important issue of whether the proponent/intervenors have standing to appeal to the Ninth Circuit, with a certified question presently before the California Supreme Court.   Whether the rational basis standard of review should be used to evaluate DOMA is also before Judge Barbara Jones of the Southern District of New York in Windsor v. United States. The Department of Justice is not defending the constitutionality of DOMA in Windsor, having concluded that DOMA fails to meet the heightened level of scrutiny it has determined should be used for sexual orientation classifications.   The Bipartisan Legal Advisory Group of The United States House of Representatives (BLAG), defending DOMA in Windsor, filed its Memorandum on August 1, vigorously asserting that rational basis is the correct standard and that DOMA easily satisfies it.

 

It’s most likely that the Supreme Court will use rationality review, or some form of it, when reviewing the exclusion of same-sex couples from marriage.   The classic formulation of the rational basis test is an ends/means test requiring that the government interest must be “legitimate” and the means chosen to effectuate that interest must be “reasonably” related to that interest.  This is the formulation for review under the equal protection and due process challenges at issue in same-sex marriage cases.  Rational basis is also operative when courts review challenges to laws based upon the First Amendment and the Fifth Amendment’s Takings Clause. A rational basis test is also used when the Court reviews whether Congress has exceeded its enumerated powers under the Commerce Clause (United States v. Lopez),  the Necessary and Proper Clause (United States v. Comstock), or the Copyright Clause (Eldred v. Ashcroft).

Even when there is agreement on the articulation of the rational basis test, which is not as consistent as one might hope, its application might be characterized as irrational.   In Ysursa v. Pocatello Educ. Ass’n, the Court deemed legitimate a state interest in avoiding the appearance of state involvement in partisan politics, and found that this interest was reasonably related to a prohibition of payroll deductions for union dues by public  – and by private – employers.   In Railway Express Agency, Inc. v. New York, the Court deemed legitimate a government interest in traffic safety, but held the city could reasonably believe that drivers would be less distracted by owner-advertising on vehicles and more distracted by the same advertising if the vehicle was owned by someone else.   In the 1896 case of Plessy v. Ferguson the Court held that the Louisiana legislature’s mandate of separation of the races on railways was “reasonable”; the approved purpose was conforming to the “established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.”

In the context of laws that limit legally recognized marriages to opposite-sex couples, the proffered legitimate goal telescopes into an interest in maintaining heterosexual hegemony.   For example, in seeking to “defend” marriage against attack by non-heterosexuals, Congress specifically articulated its purposes of encouraging responsible [heterosexual] procreation and child-bearing; defending and nurturing the institution of traditional heterosexual marriage; defending traditional [heterosexual] notions of morality, and preserving scarce resources [for heterosexuals].

Yet whether or not one considers these interests “legitimate” is not an inquiry solved by logic.  Instead, it rests upon whether one believes that heterosexuality is the preferred form of human sexuality ­and whether one believes the government, federal or state, should act to guarantee heterosexuality.   Moreover, these interests raise the specter that they are not legitimate because they are based on animus or the desire to harm a politically unpopular group of gay men and lesbians.  In United States Department of Agriculture v Moreno, the Court found a congressional definition of “household” was not legitimate because the legislative history indicated the purpose of the definition was to exclude “hippies” from receiving food stamps.

This purpose prong of the rational basis test applied to DOMA and Proposition 8 also raises the problem of the governmental entity itself.   Congress explicitly stated its interests in DOMA, although in Gill v. Office of Personnel Management the Obama Administration, then defending DOMA, sought to update the congressional interests.  As Judge Tauro noted, the United States was arguing that “the Constitution permitted Congress to enact DOMA as a means to preserve the ‘status quo,’ pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage.”  Judge Tauro rejected such an interest as legitimate given the federal government’s exceedingly limited role in matters of marriage and family law, a subject within the province of the states under the Tenth Amendment.   Judge Tauro might also have analogized to the gender classification case of United States v. Virginia (VMI) in which the Court repudiated governmental justifications that were “invented post hoc in response to litigation,” albeit under a higher standard than rational basis review.

Because Proposition 8 was a state-wide voter referendum, the government interests are not articulated with specificity.  If discerning legislative intent is difficult, certainly discovering intent of voters is even more difficult.  Moreover, because the state of California refused to defend Proposition 8 in the federal challenge, it was left to the proponents in Perry v. Schwarzenegger to articulate the interests of the “government.”  According to pleadings and quoted by Judge Walker, these interests were reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; proceeding with caution when implementing social changes; promoting opposite- sex parenting over same-sex parenting; protecting the freedom of those who oppose marriage for same-sex couples; treating same-sex couples differently from opposite-sex couples; and “any other conceivable interest.” Presenting only two witnesses, both experts, the proponents focused on the interest of heterosexual marriage as producing offspring who were biologically related to both partners in the marriage.

Assuming there is a legitimate interest, applications of the rational basis test proceed to determine whether the means chosen can be said to reasonably (or rationally) serve that interest. For example, if one accepts as a legitimate governmental goal the encouragement of heterosexual procreation and child-rearing, then the extension of marriage to opposite-sex couples who do not (or cannot) have children becomes subject to different notions of what is “reasonable.”  The denial of marriage to same-sex couples who do have children also becomes subject to different notions of reasonableness, especially as it connects to heterosexual procreation and marriage.  For Judge Walker in Perry v. Schwarzenegger, the logical link was non-existent: “Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.”  In other words, the denial of marriage to some people will not affect the actions of other people.

Yet another court found that that the inducement of marriage could rationally be reserved for opposite-sex couples because they needed it more.  In 2006, New York’s highest court in Hernandez v. Robles contended that because heterosexual relationships lead to children and that because “such relationships are all too often casual or temporary,” the legislature could “choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.”  The court reasoned that this inducement rationale “does not apply with comparable force to same-sex couples” who can become “parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse.”  Thus, the New York Legislature “could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more.”  This past June, the New York Legislature apparently changed its sense of the inducement rationale and passed the Marriage Equality Act. The New York State Attorney General has filed an amicus brief in Windsor advocating the unconstitutionality of DOMA Section 3 because New York has “consistently expressed and implemented its commitment to equal treatment for same-sex couples.”  Interestingly, the brief does not mention Hernandez v. Robles.

The existence of a reasonable relationship (or any relationship at all) and the legitimacy of the purpose are not simple logical deductions accomplished at the level of proof theory mathematics.  The Proposition 8 proponents’ motion to vacate the judgment in Perry after Judge Walker revealed his sexual minority status expresses this reality.  In denying the motion, the new district judge assigned to the case now known as Perry v. Brown stated a judge could be impartial and was “capable of rising above any personal predisposition.”   However, there is also a larger problem.  If Judge Walker is disqualified for “bias,” then all judges must be.  While bias allegations are more likely to be leveled against minorities, including women, as the judge ruling upon the motion to vacate noted, no decision-maker is immune.  Indeed, the purposes and reasonable relationships argued by the proponents of Proposition 8 and the BLAG now defending DOMA implicate everyone.  If one is married or not married, if one is a parent or not, if one is a parent who is married or not, if one was a child of parents who were married to each other throughout one’s childhood or not, one has particular experiences and interpretations of those experiences that would influence one’s assessment of “rational basis.”

This does not mean that there is unbridled discretion and the absence of any standards.  However, it does mean that the interests one is willing to recognize as legitimate for governmental action and the inferences one is willing to make are not purely rational.  Marriage, family, and sexuality are not susceptible to scientific calculations.   Neither is law.

 

RR

The Limits of DeShaney: Fifth Circuit Finds Special Relationship

Over a vigorous dissent from Judge Carolyn Dineen King, the two other judges on the panel in Doe v. Covington County School District, found the special relationship test of DeShaney v. Winnebago County, 489 U.S. 189 (1989) was met.

In its opinion earlier this month, the Fifth Circuit recognized that DeShaney made clear that as a general matter, a State’s failure to protect an individual against private violence is not a violation of the Fourteenth Amendment's Due Process Clause, with the only exception being when the State has a "special relationship” with the person.  In DeShaney, the Court found that no such "special relationship existed even when state social workers investigated a case of child abuse, repeatedly, but returned the child to the father's custody and the father beat the child into a comatose state.

As the Fifth Circuit majority phrased the issue in Doe, it was considering whether there are "circumstances under which a compulsory-attendance, elementary public school has a “special relationship” with its nine year-old students such that it has a constitutional “duty to protect” their personal security."

The Fifth Circuit found that such circumstances do exist in the allegations of Doe's complaint, which the trial court had dismissed under DeShaney.   The fact that she was nine years old was indeed important to the court, for it "made Jane wholly dependent on the School for her safety," and the school, according to the court, "thus assumed the duty to protect her."

However, the other circumstances, as alleged in the complaint, also contributed to the court's finding of special circumstances.  The school allowed a man to "check out" Jane Doe from school and return her later in the day on six separate occassions, simply signing her out as her father, and once as her mother.  The man was not on the "permission list," was not related to Jane Doe, and the school employees did not ask for any idenitification or check the "permission list."  The man took Jane from school, sexually molested her, and then returned her to school.

On the majority's view, the school was not passive, but "affirmatively forced" Jane Doe into the sole custody of a man from whom she could not protect herself.  Thus, it distinguished Jane Doe's situation from the passivity of the caseworkers in DeShaney.

Judge King's dissent argues that Jane Doe's age is irrelevant and disputes the majority's characterization of Jane Doe being "forced" to leave with a "stranger."  While there may have been negilgence, Judge King notes, this does not rise to the level of a constitutional matter.

The "special relationship" requirement to escape DeShaney's harsh rule has generally only been extended to persons who are imprisoned or in foster care, based on the state's complete control over the person.  A majority of the Fifth Circuit has found that during the school day, under laws requiring complusory education, a school also has complete control - - - or sufficient control to not allow unauthorized persons to remove children from school during the school day.

RR
[image: "Schoolboy" by Albert Anker - Schulknabe, 1881, via]

Seventh Circuit Allows Torture Suit Against Rumsfeld to Move Forward

A divided three-judge panel of the Seventh Circuit ruled on Monday in Vance v. Rumsfeld that a Bivens suit by two Americans alleging that former Secretary of Defense Donald Rumsfeld authorized their torture can move forward.

If the case sounds familiar, that's because it is: Just last week, Judge Gwin (D.D.C.) ruled in Doe v. Rumsfeld that a nearly identical suit can move forward.  (The plaintiffs in the suits alleged similar torture at the same site, Camp Cropper, the U.S. military prison in Iraq.)  The key difference between these cases and the D.C. Circuit's rejection of a torture claim against Rumsfeld in June: The plaintiffs here are U.S. citizens; the plaintiffs in the D.C. Circuit case, Arkan v. Rumsfeld, were aliens.  (The D.C. Circuit ruled that it wasn't clearly established in 2004, the time of the actions there, that the Fifth and Eighth Amendments applied to aliens detained abroad; Rumsfeld thus had qualified immunity.)

Judge Hamilton's opinion in Vance, joined by Judge Evans, tracked Judge Gwin's reasoning, but with over 80 pages of detail.  The meaty opinion seems carefully tailored to withstand any appeal.

In short, the court ruled that the plaintiffs sufficiently pleaded their allegations that Secretary Rumsfeld authorized treatment that violated the Fifth Amendment's Due Process Clause (substantive due process)--and that he reasonably should have known it.  The court thus ruled that the plaintiffs pleaded facts sufficient to satisfy the pleading standard in Ashcroft v. Iqbal and that Rumsfeld did not qualify for immunity.  The court also ruled that there was no reasonable alternative way for the plaintiffs to bring their claims and that there were no special factors counselling against a Bivens remedy.  In particular, the court rejected the defendants' separation-of-powers arguments--like those in Doe--that courts don't have any business in cases dealing with national security and foreign affairs, especially in times of war.  Here's a flavor of what the court said on that point:

The unprecedented breadth of defendants' argument should not be overlooked.  The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone.  The defendants' theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom.  We disagree and conclude that the plaintiffs may proceed with their Bivens claims.

Op. at 43.

Judge Minion wrote in dissent that the court improperly extended Bivens to this case--a case in which "United States citizens alleg[ed] torture while held in an American military prison in an active war zone."  Op. at 81.

This makes two cases in two weeks--one district court, one circuit court--allowing very similar torture suits to move forward against Rumsfeld.  We'll watch for appeals.

SDS

[Image: Anonymous, Execution, Wikimedia Commons]

Court Rules Torture Claim Against Rumsfeld Can Move Forward

Judge James S. Gwin (D.D.C.) ruled this week in Doe v. Rumsfeld that a U.S. citizen's Bivens suit against former Secretary of Defense Donald Rumsfeld can move forward beyond the pleadings.  In so ruling, Judge Gwin also flatly rejected some of the kinds of claims we've grown accustomed to by the government in cases arising out of its anti-terrorism programs--most especially a separation-of-powers claim that the courts have no business poking their noses in foreign affairs and national security. 

The ruling comes on Rumsfeld's motion to dismiss the plaintiff's complaint.  The plaintiff, a U.S. citizen and civilian employee once deployed with a Marine intelligence unit in Iraq, alleged that Rumsfeld authorized his torture at overseas prisons operated by the United States and denied him fair process to challenge his designation and detention.  He brought a Bivens claim for violations of substantive due process, procedural due process, and access to the courts and sought monetary damages.

Rumsfeld argued that the plaintiff's claim amounted to an unwarranted expansion of Bivens--that Bivens did not contemplate this kind of monetary damages claim, and that special factors counseled against recognizing the plaintiff's Bivens claim here--in particular, the separation-of-powers argument that this case raised foreign affairs, national security, and war-time issues uniquely within the bailiwick of the political branches, and that the courts have no expertise in these areas.

The court disagreed.  Judge Gwin cited the Supreme Court's relatively recent and not-so-recent forays into foreign affairs, national security, and war-time issues--cases in which the government made arguments very similar to those Rumsfeld made here--and ruled that courts do, in fact, sometimes get involved in these issues.  Moreover, Judge Gwin noted that the plaintiff was detained on his way out of Iraq, after he left the field of battle, when he could no longer offer low-level aid to insurgents (as the government alleged).  Judge Gwin also rejected Rusmfeld's related "real world consequences" of allowing a Bivens remedy here, that the threat of liability would impede military decisionmaking; that proceeding with the case would involve sensitive information, distracting discovery, and testimony by soldiers that would disrupt the military's efforts; and that the action would "embroil the judiciary in war-related decisions" that are complicated to litigate.

Judge Gwin also rejected Rumsfeld's qualified immunity defense.  Judge Gwin wrote that the plaintiff pleaded sufficient facts to show that Rumsfeld approved of policies that led to his torture, in violation of substantive due process.  (He was careful to write that this was not a respondeat superior claim in violation of Ashcroft v. Iqbal.  Instead, it was a direct claim for authorizing torture.)  But Judge Gwin wrote that the plaintiff did not plead sufficient facts to show that Rumsfeld directed his shoddy process in violation of procedural due process and the right of access to the judiciary.  He thus dismissed these two claims.

The ruling means that the plaintiff jumped one of his most significant hurdles--getting past the pleadings on his torture claim against Rumsfeld--especially after the Supreme Court clarified the high pleading standard in Iqbal and especially given a very recent ruling by the D.C. Circuit in a very similar case.  Just over a month ago, the D.C. Circuit dismissed a Bivens claim against Rumsfeld for torture by an alien detained overseas.  Key to the D.C. Circuit's ruling in Arkan v. Rumsfeld was that it wasn't clearly established at the time that the Fifth and Eighth Amendments applied to aliens detained abroad (not our case).  But maybe just as key--and more relevant to Doe--the court ruled that prudential considerations--that cases like this against military officials would disrupt the war effort, just like Rumsfeld's argument in Doe--counselled against extending a Bivens remedy. 

If the D.C. Circuit applies this same prudential considerations analysis to Doe, this case won't go far.

SDS

Federal Judge Declares Florida Drug Statute Lacking Intent Requirement Unconstitutional

In Criminal Law courses throughout the common law world, students learn that a criminal law offense generally requires an actus reus and a mens rea, an act and an intent.  In 2002, however, the Florida legislature amended its Drug Abuse Prevention and Control Law, Fla. Stat. §893.101, to seriously curtail the mens rea requirement for drug crimes.

In her opinion and order granting a petition for habeas corpus in Shelton v. Secretary Department of Corrections, Florida District Court Judge for the Middle District of Florida, Judge Mary S Scriven, declared  Fla. Stat. § 893.13, as amended by Fla. Stat. § 893.101, unconstitutional.

Judge Scriven found that although a government may fashion some criminal laws that do not have a mens rea requirement, this ability is limited by the constitutional contraints of the due process clause. The judge credited the amicus brief filed by Amici Curiae that included 38 law professors (and listed the signatories in footnote 7) that elimination of mens rea is "atavistic and repugnant to the common law."  

{Update by request: Amicus Brief here, via}

The judge applied the tripartite analysis for evaluating strict liability crimes by considering the penalty imposed; the stigma associated with conviction; and the type of conduct purportedly regulated.  On the first prong, the judge found that sentences of fifteen years, thirty years, and life imprisonment under the Florida Statute are too severe to pass constitutional muster.  On the second prong, the judge concluded that a felony conviction certainly carries a stigma, especially given felony disenfranchisement, exclusion from juries, gun licenses, and student loan assistance.  Regarding the last prong considering the type of conduct regulated, the judge noted that without knowledge of the substance one possessed, one could be engaging in behavior that would be innocuous. 

This last point is the most difficult to grasp.  Judge Scriven provided this analysis:

          the State argues that FLA. STAT. § 893.13 does not regulate innocuous conduct since “the possession of cocaine is never legal,” and the imposition of harsh penalties without proof of mens rea is simply a risk drug dealers undertake for selling or delivering cocaine. (Id. at 18) By this assertion, the State confirms Professor Sanford H. Kadish’s hypothesis that the basis for strict liability crimes is often simply a backhanded retort - - “tough luck” to those who engage in criminal activity. Sanford H. Kadish, Excusing Crime, 75 Cal. L. Rev. 257, 267-68 (1987).

But, in this suggestion, the State ignores that Florida’s statute is not a “drug dealer beware” statute but a “citizen beware statute.” Consider the student in whose book bag a classmate hastily stashes his drugs to avoid imminent detection. The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statute: delivery (actual, constructive, or attempted) and the illicit nature of the substance. See FLA. STAT. §§ 893.02(6), 893.13(1)(a). The victim would be faced with the Hobson’s choice of pleading guilty or going to trial where he is presumed guilty because he is in fact guilty of the two elements. He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposes that he does in fact have guilty knowledge.

The judge noted that the Florida Statute is unique amongst all the drug laws in the United States.  Now, it has been declared unconstitutional.

RR
[image via]

Polygamy Challenge: Complaint Claiming Utah's Statute Unconstitutional

The "Sister Wives" family, made popular by a reality television show, have filed a complaint in federal district court in Utah challenging the constitutionality of Utah's polygamy statute. 

Represented by Jonathan Turley (h/t for complaint), the case garnered press including from NPR even before the lawsuit was filed.

Standing seems easily established.  Before the show, there was little attention paid to the group, but that was not the case after the reality showed aired. 

 

 

The complaint characterizes the Brown Family (they all have the same surname) as a plural "family" rather than using the term plural marriage.  Indeed, Corey Brown, the sole male, is legally married to only one of the women.  This arguably runs afoul of Utah Stat. 76-7-101(1), which defines bigamy broadly: 

(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

Section 2 of the statute provides that bigamy is a felony of the third degree.

 The complaint alleges the Utah statute is unconstitutional based on six claims: due process and equal protection under the Fourteenth Amendment, and free exercise of religion, free speech, freedom of association, and anti-establishment of religion under the First Amendment.

Perhaps most controversially, the complaint relies upon Lawrence v. Texas in which the Court declared Texas' sodomy statute unconstitutional under the due process clause.  For some, this type of "slippery slope" argument is uncomfortable, and made more uncomfortable because, as the TMZ entertainment site phrases it, "The Mormons and the gays -- they don't always get along." 

Certainly, although bigamy has a colonial history, for Americans the notion of plural marriage - - - and plural families - - - is inextricably intertwined with the Mormon religion as it appeared in the antebellum nation. 

One of the best histories of this period is Sarah Barringer Gordon's The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (2002).   Gordon's history is essential reading for anyone interested in pursuing scholarship on polygamy.

Gordon discusses the history behind the case of  Reynolds v.  United States, 98 U.S. 145 (1878), a “test case” in which Mormon leaders had a “reasonable hope” of their First Amendment claims being vindicated.  But of course, in Reynolds the Court rejected those claims, in part because polygamy was not "American."

On the African context of polygamy, some of the best writing is by my colleague Peneleope Andrews, including her discussions of South African President Zuma's multiple marriages.

As for the analogies between same-sex marriage and plural marriages, there has been much scholarship on this issue, including my own piece in Temple Law Review.

RR

Federal Judge Enjoins NYC Local Law 17 Regulating Deceptive "Pregnancy Service Centers"

New York City passed Local Law 17 earlier this year, set to become effective tomorrow, July 14, 2011, based on its finding that some so-called

pregnancy services centers in New York City engage in deceptive practices, which include misleading consumers about the types of goods and services they provide on-site, misleading consumers about the types of goods and services for which they will provide referrals to third parties, and misleading consumers about the availability of licensed medical providers that provide or oversee services on-site. Such deceptive practices are used in advertisements for pregnancy services centers, which are misleading as to the services the centers do or do not provide.

Plaintiffs, a group of pregnancy services center that oppose abortion and emergency contraception, sought a preliminary injunction based upon Local Law 17's infringement of their First Amendment rights.  In a 32 page opinion today, District Judge William Pauley enjoined Local Law 17 in Evergreen Association (d/b/a EMC Frontline Pregnancy Centers) v. City of New York. 

There was disagreement over the type of speech regulated by Local Law 17, and thus the level of scrutiny the court should apply.  The City argued that Local Law 17 regulated commercial speech, and moreover the law was aimed only at preventing deception and requiring purely factual disclosures.  The City characterized the pregnancy centers speech as commercial because (1) they advertise goods and services—e.g., diapers, clothing, counseling, pregnancy testing, and ultrasounds—that have commercial value; and (2) they receive something of value in return for those goods and services, namely, “the opportunity to advocate against abortion and either delay or prevent the decision to terminate a pregnancy.” 

The judge found neither argument persuasive.  The judge reasoned that the pregnancy services centers do not act out of commercial motives, instead, their "missions and by extension their charitable work—are grounded in their opposition to abortion and emergency contraception," and while it may be true that increase their “fundraising prowess” by attracting clients, as the City suggested, they do not advertise “solely” for that purpose.  Rather, their "speech on reproductive rights concerns an issue prevalent in the public discourse," citing  Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011).

The judge therefore aplied strict scrutiny.  As to a compelling governmental interest, the judge essentially found this prong of the analysis unneccesary because of his conclusion regarding the lack of narrow tailoring.  However, the judge did write that he

recognizes that the prevention of deception related to reproductive health care is of paramount importance. Lack of transparency and delay in prenatal care can gravely impact a woman’s health. [citation omitted].  Unlicensed ultrasound technicians operating in pseudo-medical settings can spawn significant harms to pregnant, at-risk women who believe they are receiving medical care. Plaintiffs’ categorical denial of the existence of any such deception—and refusal to acknowledge the potential misleading nature of certain conduct—feigns ignorance of the obvious.

The judge found that the disclosure requirements were "over-inclusive": the advertisement need not be deceptive for Local Law 17 to apply, any advertisement offering pregnancy related services had to include disclosures regarding the (non)availaibility of medical personnel.  The judge also noted that the City had other avenues to achieve its purpose other than mandating disclosure by the pregnancy centers themselves: the City controls the right-of-way and could erect a sign on public property outside each pregnancy service center encouraging pregnant women to consult with a licensed medical provider; the  City is also perfectly capable of conveying its message through a public service advertising campaign; the City could prosecute those centers that have engaged in deceptive practices.  Additionally,

this Court notes that the City could impose licensing  requirements on ultrasound technicians (or lobby the New York State legislature to impose state licensing requirements). Of all of the services provided by Plaintiffs, ultrasounds are the most potentially deceptive: a woman visiting a facility that perfonns and/or interprets ultrasounds could reasonably form the impression that she has received medical treatment. However, by permitting ultrasound examinations to be performed only by licensed professionals, the City could regulate the manner in which those examinations are conducted and curb any manipulative use. Such licensing schemes are not unprecedented; two states already require ultrasounds to be performed by a licensed professional. N.M. Stat, Anno. §S 61-14E-l to 14E-12; Or. Rev. Stat. § 688.405, 688.415.

Indeed, the fact that the persons who staff the pregnancy service centers are not "professionals," led the judge to conclude that their speech is not "professional speech" that could be more easily regulated.

Finally, Local Law 17's definition of a “pregnancy services center” that has the “appearance of a licensed medical facility” (and would therefore have to disclose it was not),  was unconstitutionally vague.  While Local Law enumerates factors, the "fundamental flaw is that its enumerated factors are only “among” those to be considered by the Commissioner in determining whether a facility has the appearanceof a licensed medical center."  This is especially problematic for the judge given "the fact that Local Law 17 relates to the provision of emergency contraception and abortion—among the most controversial issues in our public discourse—the risk of discriminatory enforcement is high."

RR
(H/T Jen Hogg)
(image: ultasound machine via)

Parental Fourteenth Amendment Right Overrides Claims of CoParent's Child Custody

Relying on the "constitutionally protected due process right" of parents to "make decisions concerning the care, custody, and control of their children" and the principle that the "parents’ right to custody of their children is paramount to any custodial interest in the children asserted by nonparents," citing Troxel v. Granville, 530 U.S. 57, 66 (2000), as well as Ohio cases, the Ohio Supreme Court grappled witha lesbian co-parenting issue in its opinion in In re Mullen, decided July 12. (h/t How Appealing).

In a closely divided 4-3 opinion, the majority nevertheless recognized that "a parent may voluntarily share with a nonparent the care, custody, and control of his or her child through a valid shared-custody agreement."  Yet proving the existence of the terms of such an agreement, even when there are written documents, seems execeedingly difficult.  There was contradictory evidence, but the court affirmed the lower courts' conclusions that there was no agreement for shared custody.  The court rejected the argument that “coparent," as used in documents, equaled “shared legal custody” and rejceted the claim "that because the parties’ statements and various documents used the “coparent” terminology, the parties therefore clearly agreed to “shared legal custody.”

“Coparenting” is not synonymous with an agreement by the biological parent to permanently relinquish sole custody in favor of shared legal parenting. “Coparenting” can have many different meanings and can refer to many different arrangements and degrees of permanency. The parties’ use ofthe term, together with other evidence, however, may indicate that the parties shared the same understanding of its meaning and may be considered by the trial court in weighing all the  evidence.

 

The dissent cited In re Custody of H.S.K.-H.  (Holtzman v.  Knott), 533 N.W.2d 419 (WI. 1995).  The court in Holtzman had articulated the influential four part functional coparenting test sufficient to overcome an absolutist version of the biological parent's Fourteenth Amendment right:  1) the legal parent fostered and consented to development of a parent-like relationship between the petitioner and the child; 2) the petitioner and child lived together in the same household; 3) the petitioner assumed the obligations of parenthood by taking responsibility for the child’s care, education, and development, including but not limited to financial contribution, and did not expect financial compensation; 4) the petitioner has been in a parent-like relationship a sufficient amount of time to have a bonded relationship.

In New York, the court in Alison D.  v.  Virginia M., 572 N.E.2d 27, 29 (N.Y. 1991), held that a co-parent is a non-legal “parent” and no “parent” with any claim to visitation or shared custody under state law: the biological parent's Fourteenth Amendment right is inviolate.  New York's same-sex marriage statute, which goes into effect later this month, will certainly have an effect on Alison D.

RR
[image: The Cholmondeley sisters and their swaddled babies, circa 1600, via]

Alabama HB56: Constitutional Challenge to Alabama Immigration Law

Alabama's HB56, signed into law in June, and being touted as the "nations' toughest immigration law," has been challenged in federal court. 

The Alabama statute, slated to become effective September 1, joins other state statutes such as Arizona's SB1070, partially enjoined with the injunction upheld on appeal;  Indiana's statute enjoined last month; and Georgia's statute also enjoined last month.

Alabama's statute shares many of the constitutional problems of the Arizona, Indiana, and Georgia statutes.

One of the more controversial requirements includes "record-keeping" by public schools: 

Every public elementary and secondary school in this state, at the time of enrollment in kindergarten or any grade in such school, shall determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States and qualifies for assignment to an English as Second Language class or other remedial program.

Other provisions criminalize harboring or transporting an "alien," a provision that could criminalize citizens assisting non-citizen family members, mandatory use of E-verify by employers, and criminal solicitation provisions.

The 118 page complaint in  Hispanic Interest Coalition of Alabama v. Bentley, filed on behalf of several organizations, represented by organizations including the Southern Poverty Law Center, has eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause;  First amendment claims including speech, assembly, and petition clauses, and the Contracts Clause.  The Complaint also includes two interesting Sixth Amendment claims:

HB 56 violates the Confrontation Clause because a defendant would be prohibited from confronting the witness who prepared the federal government verification, and the state court is prohibited from considering any evidence except for the federal government verification.

HB 56’s criminal provisions violate the Compulsory Process Clause (as well as the Due Process Clause) because a defendant would be prohibited from presenting a defense on the issue of whether he or she possesses lawful immigration status.

Whether or not the Alabama statute is enjoined as similar statutes have been, the issue of the ability of states to pass immigration measures - - - and the scope of any measures - - - is sure to reach the United States Supreme Court, yet again.

RR
[image: flag map of Alabama via]

 

Kansas Abortion Law (SB 36) Challenged in Federal Court

[Update: Judge Carlos Murguia issued a preliminary injunction from the bench on July 1, 2011].

The controversial law passed by the Kansas legislature, SB36 (or more precisely, the House Substitute for SB 36) and signed by Governor Sam Brownback, imposes stringent new regulations on health care facilities that perform abortions. 

Some would categorize it as a TRAP law - - - a Targeted Regulation of Abortion Providers law - - - but almost everyone agrees that the law is part of a sustained effort in Kansas to eliminate abortion services in the state.  The law mandates specific licensing requirements, including miles from hospital, gender of physician or observer, and medication to be taken in the presence of physician.  The law provided for Temporary Regulations to be issued.

A complaint has been filed on behalf of two physicians represented by the Center for Reproductive Rights in federal court.  The complaint alleges the law and the regulations are unconstitutional as

 

• violating the patients' right of privacy because the law has the purpose and the effect of imposing an undue burden on Plaintiffs’ patients who seek abortions presently or in the future, in violation of the Fourteenth Amendment to the United States Constitution;
• violating Plaintiffs’ right to procedural due process under the Fourteenth Amendment to the United States Constitution because they deprive Plaintiffs of protected property and liberty interests without providing Plaintiffs with any form of pre-deprivation hearing, including any opportunity to comment on theregulations or request waivers;
• violating Plaintiffs’ right to due process of law under the Fourteenth Amendment to the United States Constitution by: depriving them of property (including lost income and future patients) and liberty (including their ability to practice their profession) without serving any compelling, substantial, or legitimate state interest;
• violating Plaintiffs’ right to due process of law under the Fourteenth Amendment to the United States Constitution by failing to give Plaintiffs fair notice of the requirements they must meet under the Temporary Regulations and encouraging arbitrary and discriminatory enforcement of those regulations;
• depriving Plaintiffs of equal protection of the laws, as guaranteed by the Fourteenth Amendment to the United States Constitution, by subjecting them to unique burdens not imposed on medical practices that provide comparable services, with no basis for the differential treatment other than animus.

The complaint seeks a preliminary injunction; no date has been set for the hearing.

RR

 

Indiana Immigration Law (SEA 590) Enjoined by Federal Judge

Indiana has joined several other states, most notably Arizona, in passing statutes intended to regulate immigration.  The Indiana statute, SEA 590 set to become effective July 1, has been partially enjoined by a federal district judge in a 39 page Order

The judge enjoined both provisions challenged by plaintiffs:

• Section 19 of SEA 590, which amends Indiana Code § 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies.
• Section 18 of SEA 590, to be codified as Indiana Code § 34-28-8.2, which creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose.

The opinion considers standing issues, as well at the standards for preliminary injunction, but found both sections 19 and 18 unconstitutional and enjoined their enforcement.

As to section 19, the judge found it troubling under both pre-emption and Fourth Amendment principles.  On pre-emption, the judge stated that :

Clearly, it is not the intent or purpose of federal immigration policy to arrest individuals merely because they have at some point had contact with an administrative agency about an immigration matter and received notice to that effect. Authorizing an arrest for nothing more than the receipt of an administrative notification plainly interferes with the federal government’s purpose of keeping those involved in immigration matters apprised of the status of their cases, but not arresting them.

As to the Fourth Amendment issue, the judge noted that the State conceded that "nothing under Indiana law makes criminal the receipt of a removal order, a notice of action or detainer, or a person’s having been indicted for or convicted of an aggravated felony."   Section 19 expressly provides that state and local enforcement officers 'may arrest' individuals for conduct that all parties stipulate and agree is not criminal."   While the State argued that the statute would only be enforced in circumstances in which the officer had a "separate, lawful reason for the arrest," the judge found that construction "fanciful" and would " in effect, read the statute out of existence."  The judge thus found the statute violative of the Fourth Amendment.

On section 18, the judge similarly considered pre-emption, but also an equal protection and due process challenge.   On pre-emption, the treaty power was also implicated, and planitiffs argued that the provision interferes with rights bestowed on foreign nations by treaty as well as with the federal government’s responsibilities for the conduct of foreign relations.  The State rejoined that the statute does not directly conflict with any treaty nor does it impede the federal government’s ability to manage foreign affairs, because Section 18 is merely an "internal regulation outlining acceptable forms of identification within the State of Indiana that does not single out or conflict with any identifiable immigration policy or regulation."  The judge reasoned that the provision targeted "only one form of identification – CIDs issued by foreign governments" and moreover, regulated CIDs "in the broadest possible terms, restricting not just what state agencies may accept as valid identification but prohibiting what identification may be shown and accepted for purely private transactions."   With regard to equal protection, the judge cited United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), noting that this "targeting" was a "bare desire to harm a politically unpopular group."  Thus, the judge found this provision unconstitutional as well.

The District Court Judge, Sarah Evans Parker (pictured above) was appointed to the bench by president Ronald Regan in 1984; an interesting profile of the judge, with video interviews, appeared earlier this year from Indiana Business Journal. 

RR

D.C. Circuit Rejects Omar's "Refashioned" Habeas Claim

A three-judge panel of the D.C. Circuit ruled Tuesday in Omar v. McHugh that an American citizen held in military custody in Iraq has no right to judicial review of conditions in Iraq, the country where he is to be transferred.  The majority thus rejected his habeas petition; Judge Griffith, in concurrence, would have reached the merits and rejected them.

Petitioner Omar is the same Omar who was part of Munaf v. Geren, the 2008 Supreme Court case holding that federal courts may not exercise habeas jurisdiction to enjoin the government from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign for criminal prosecution.  In Munaf, Omar argued that he would be tortured if transferred to Iraqi authorities, that he therefore had a right under "the substantive component of the Due Process Clause" against transfer, and that the courts had the authority and duty to enforce that right by inquiring into his likely treatment if transferred.  The Court rejected these arguments.

Omar came back with new statutory and constitutional arguments, but the D.C. Circuit rejected them, as well.  Omar argued the Foreign Affairs Reform and Restructing Act of 1998 (FARR), which implements Article 3 of the Convention Against Torture, granted him a right to judicial review.  But the court ruled that the FARR provides judicial review of conditions in the receiving country only in the immigration context, for aliens seeking judicial review of removal, and not for military transferees like Omar.  (The REAL ID Act of 2005 made the limited scope of judicial review even clearer.)  The majority thus ruled that neither the FARR nor the REAL ID Act provided for judicial review here.

As to the Constitution, Omar argued that habeas alone gave him the right to judicial review (whereas the Munaf Court held only that he had no right under habeas and due process), and that he has a substantive due process right to judicial review (whereas the Munaf Court held only that he had no procedural due process right), among other arguments.  The court rejected them all, writing that his attempts to distinguish Munaf failed, that his attempts to craft a right out of constitutional and statutory combinations failed, and that the tradition of habeas in like circumstances cut against him.  ("Those facing extradition traditionally have not been able to block transfer based on conditions in the receiving country. . . .  Similarly, military transferees traditionally have not been able to raise habeas claims to prevent transfer based on conditions in the receiving country."  Op. at 11.)  The majority thus rejected Omar's habeas claim (although it reminded us that Congress could extend habeas and craft judicial review of conditions in a receiving country for military transferees (in addition to the already existing right for alien transferees), if it wanted).

Judge Griffith would have granted habeas and heard the merits, because "the FARR Act 'trigger[s] constitutional habeas' by giving Omar a colorable claim that his transfer to Iraqi authorities would be unlawful.  When an American citizen is in U.S. custody, the Constitution's guarantee of habeas corpus entitles him to assert any claim that his detention or transfer is unlawful."  Griffith, concurring, at 1.  But Judge Griffith nevertheless would have denied relief:

Omar cannot be "return[ed]" to Iraq for a simple reason: "he is already there."  The U.S. military arrested him in Iraq, and he was subsequently convicted in an Iraqi court for violating Iraqi law.  He now seeks to use the FARR Act to prevent the Iraqi authorities from bringing him to justice, which would effectively "defeat the criminal jurisdiction of a foreign sovereign."  Because there is nothing in the FARR Act to suggest that Congress could have intended such a result, I concur in the majority's judgment.

Griffith, concurring, at 8 (citations to Munaf omitted).

SDS

Magna Carta Day

June 15th is the anniversary of the signing of the Magna Carta, in 1215 at Runneymeade, England.

The British Library site on the Magna Carta has a terrific "Magna Carta Viewer" with the original text, a Latin transcription, and an English translation. 

The most famous (and still in effect) provision is the ancestor of the US Constitution's due process clause:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

RR
[image: Magna Carta from the United States National Archives via]