Saturday, May 7, 2016
The continuing saga of the controversial Chief Justice of the Alabama Supreme Court, Justice Roy S. Moore, has taken another turn with a complaint against him filed by the Judicial Inquiry Commission of the State of Alabama, in the special Court of the Judiciary. [While the entire complaint is almost 300 pages, more than 250 pages are devoted to the 17 appendixes of supporting documents including opinions and letters].
As the complaint notes, this is not the first time that Justice Roy Moore has been before the Court of the Judiciary: the court removed him from office in 2003 for violation of the Alabama Canons of Judicial Ethics for failure to obey an injunction from a federal district court. (He was re-elected in 2013.) While that earlier controversy revolved around the placement of the Ten Commandments in the courthouse, the present one concerns Justice Moore's actions on same-sex marriage. As the complaint summarizes it, Chief Justice Moore's pertinent conduct "involves the interplay of four cases":
- Searcy v. Strange, before the federal district court, finding Alabama's same-sex marriage ban unconstitutional in January 2015;
- Strawser v. Strange, before the federal district court, reiterating the previous finding and making a direct order in February 2015, after the United States Supreme Court had refused to grant a stay of the earlier Order.
- Obergefell v. Hodges, decided by the United States Supreme Court and requiring states to grant same-sex marriages;
- Ex parte State ex rel Alabama Policy Institute (API) (March 2015), and the certificate of judgment and dismissal of petitions on March 4, 2016.
The complaint gives a good chronology of the various events which have been contentious. As we previously noted, the Southern Poverty Law Center filed a judicial ethics complaint after Chief Justice Moore penned a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order on same-sex marriage.
One of the more interesting aspects of the ethics charges is this:
On January 6, 2016—despite the United States Supreme Court's ruling in Obergefell, despite the United States District Court's injunction against all Alabama probate judges that specifically enjoined them from obeying any contrary order of the Alabama Supreme Court, and despite the Eleventh Circuit's October 20, 2015 order recognizing the abrogation of API by Obergefell—Chief Justice Moore, under the guise of his administrative authority as Chief Justice, unilaterally issued an Administrative Order to all probate judges that they continue to have a ministerial duty under API to enforce the Alabama marriage laws against same-sex couples. His Administrative Order states in part:
IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.
[paragraph 38]. In paragraph 3, the complaint stated "Significant to the context of this matter is that the vast majority of probate judges in this state are not licensed to practice law." However, the probate judges would be bound by the Canons of Judicial Ethics; the complaint alleges that Moore "flagrantly disregarded and abused his authority as chief administrative officer of Alabama's judicial branch by "ordering or appearing to order" the probate judges not to obey the federal district court's injunction and thus ordering the probate judges to commit violations of the Canons of Judicial Ethics "knowingly subjecting them to potential prosecution and removal from office."
Thus, it is not only Moore's own refusal to abide by federal interpretations of the United States Constitution, but his ordering of subordinates to do so that are included in the six specific charges against him, all of which involve alleged violations of Canons 1, 2, and 3 of the Alabama Canons of Judicial Ethics, which, broadly stated are:
- Canon 1. A judge should uphold the integrity and independence of the judiciary.
- Canon 2. A judge should avoid impropriety and the appearance of impropriety in all his activities.
- Canon 3. A judge should perform the duties of his office impartially and diligently.
Chief Justice Moore has reportedly been suspended, pending the decision of the Alabama Court of the Judiciary, which is composed of judges, lawyers, and lay persons, and has the power to remove the Justice. Interestingly, appeal from the Alabama Court of the Judiciary is to Supreme Court of Alabama.
May 7, 2016 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, State Constitutional Law, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)
Friday, April 22, 2016
Divided Second Circuit Upholds New York's "Maintain an Office" Requirement for Nonresident Attorneys
In the divided panel opinion in Schoenefeld v. Schneiderman, a Second Circuit panel majority upheld the constitutionality of a requirement that attorneys who practice law in New York but do not reside within the state be required to maintain an office in New York.
The statute, N.Y. Judiciary Law §470, provides:
A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.
Schoenefeld, admitted to practice in New York but who lived in New Jersey and maintained her main office in New Jersey, wished to practice law in New York without having the expense of a separate office in New York. She challenged §470 on several constitutional grounds. The district judge found that the statute violated the Privileges and Immunities Clause, Art. IV, §2, cl.1. The lack of clarity in the statute caused the Second Circuit on appeal to certify the question of the "minimum requirements" to satisfy §470 to New York's highest court. The New York Court of Appeals answered the certified question: §470 "requires nonresident attorneys to maintain a physical office in New York."
Writing for the Second Circuit panel majority, Judge Reena Raggi, who was joined by Judge Susan Carney, concluded that §470 had no discriminatory or protectionist purpose. Instead, §470 - - - with "its origins in an 1862 predecessor law" - - - was actually enacted to reverse a court ruling that had barred a nonresident attorney from practicing law at all given the difficulties of service of process. Despite changes and recodifications, the majority concluded that there was no showing that the current §470 was "being maintained for a protectionist purpose." Again, the majority found that §470 was enacted for "the nonprotectionist purpose of affording such attorneys a means to establish a physical presence in the state akin to that of resident attorneys, thereby eliminating a court‐identified service‐of‐process concern."
The majority relied in large part on the Supreme Court's unanimous 2013 decision in McBurney v. Young holding that a state can restrict its own freedom of information law, FOIA, to its own citizens without violating the Privileges and Immunities Clause.
In his vigorous dissenting opinion, Judge Peter Hall argued that the real import of §470 is that resident attorneys need not maintain an office while nonresident attorneys must maintain an office, thus discriminating. The next step in the analysis, Judge Hall contended, should be to consider the state's justification for such discrimination. Judge Hall distinguished McBurney based on the "simple reason that the Virginia FOIA is not an economic regulation, nor does it directly regulate the right to pursue a common calling." Hall's dissent criticized the majority for imposing a requirement of discriminatory intent as part of a prima facie case that would be appropriate under the Equal Protection Clause but is not under the Privileges and Immunities Clause. Moreover, Judge Hall concluded that New York's "proffered justifications for the in‐state office requirement— effectuating service of legal papers, facilitating regulatory oversight of nonresident attorneys’ fiduciary obligations, and making attorneys more accessible to New York’s courts—are plainly not sufficient."
Thus, New York can constitutionally compel attorneys who do not reside in New York to maintain a physical office in New York.
April 22, 2016 in Courts and Judging, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Recent Cases, Supreme Court (US) | Permalink | Comments (0)
Wednesday, April 20, 2016
A unanimous Supreme Court today upheld a redistricting plan drawn by the Arizona Independent Redistricting Commission that included an 8.8% population deviation in order to comply with nonretrogression under the Voting Rights Act.
The ruling in Harris v. Arizona Independent Redistricting Commission is a win for the controversial Independent Commission and its state legislative map. It's also a mark in favor of allowing relatively greater population deviations (up to 10%) to comply with the VRA. And the case reaffirms the 10% threshold for allowable population deviations under the one-person-one-vote principle.
This is the case where the Redistricting Commission took an initial cut at a state legislative map by drawing cookie-cutter boundaries that yielded a 4.07% population deviation. The Commission then tinkered with the boundaries in order to comply with nonretrogression (that is, to ensure that there was no diminution in the number of districts in which minority groups could elect their preferred candidate of choice) under Section 5 of the VRA (when that Section still had force, pre-Shelby County). The result was a second-draft map that complied with the VRA, but also yielded an 8% population deviation (increased over the 4.07% deviation in the first cut), and put in play a previously solid Republican district. The Commission voted 3-2 in favor of the revised plan, with the two Republican members dissenting.
A group of Arizona voters sued, arguing that the plan violated the one-person-one-vote rule, because the Commission increased the population deviation for partisan purposes.
The Court disagreed. Justice Breyer wrote for the unanimous Court that the plan didn't violate equal protection. Justice Breyer wrote that the plan fell within the presumptively allowable 10% population deviation for the one-person-one-vote rule, and that the plaintiffs therefore had to show that the deviation reflected the predominance of illegitimate reapportionment factors. But the plaintiffs couldn't meet their burden here. In particular, Justice Breyer wrote that the record reflected that the deviation was the result of the Commission's efforts to comply with the VRA by retaining the number of ability-to-elect districts in the state--a legitimate reapportionment factor.
Justice Breyer wrote that Shelby County had no bearing on this case, because it came down after the Commission issued its plan.
Tuesday, April 12, 2016
The Tenth Circuit has ruled that the Browns - - - of Sister Wives reality television fame - - - cannot challenge Utah's ban on polygamous cohabitation and marriage under Article III judicial power constraints. In its opinion in Brown v. Buhman, the unanimous three judge panel found that the matter was moot.
Recall that federal district judge Clark Waddoups finalized his conclusion from his previous opinion that Utah's anti-bigamy statute is partially unconstitutional. The statute, Utah Code Ann. § 76-7-101, provides:
- (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.
- (2) Bigamy is a felony of the third degree.
- (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
[emphasis added]. Judge Waddoups concluded that the "the cohabitation prong does not survive rational basis review under the substantive due process analysis." This analysis implicitly imported a type of equal protection analysis, with the judge concluding:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
On appeal, the Tenth Circuit panel held that the district judge should not have addressed the constitutional claims because the case was moot. Even assuming the Browns had standing when the complaint was filed, any credible threat of prosecution was made moot by a Utah County Attorney's Office (UCAO) 2012 policy which stated that "the UCAO will prosecute only those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse." The opinion stated that nothing "in the record" suggested that Browns fit into this category and additionally, there was an affirmation from the defendant that "the UCAO had 'determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration. ' ”
The opinion found that the "voluntary cessation" exception to mootness was not applicable because that was intended to prevent gamesmanship: a government actor could simply reenact the challenged policy after the litigation is dismissed.
Yet the problem, of course, is that the statute remains "on the books" and the policy is simply not to enforce it except in limited cases. The court rejected all of the Browns' arguments that the UCAO statement did not moot the challenge to the constitutionality of the statute including a precedential one; the possibility that a new Utah County Attorney could enforce the statute; the failure of defendant, the present Utah County Attorney, to renounce the statute's constitutionality; and the tactical motives of the defendant, the present Utah County Attorney, in adopting the policy. The court stated:
The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Buhman’s credibility as a public official and might even expose him to prosecution for perjury and contempt of federal court for violating his declaration. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.
Thus, like other criminal statutes that are said to have fallen into "desuetude," the statute seems immune from constitutional challenge.
In a very brief section, the court does note that the plaintiffs no longer live in Utah, but have moved to Nevada, another rationale supporting mootness. The Nevada move is discussed in the video below featuring some of the children involved.
April 12, 2016 in Courts and Judging, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Mootness, Opinion Analysis, Religion, Sexuality, Standing, Television | Permalink | Comments (0)
Friday, April 8, 2016
In a brief per curiam opinion, a panel of the First Circuit essentially reversed the ruling of Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez that denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.
The panel stated:
The district court's ruling errs in so many respects that it is hard to know where to begin. The constitutional rights at issue here are the rights to due process and equal protection, as protected by both the Fourteenth and Fifth Amendments to the United States Constitution. Obergefell v. Hodges; United States v. Windsor. Those rights have already been incorporated as to Puerto Rico. Examining Bd. Of Eng'rs, Architects & Surveyors v. Flores de Otero (1976). And even if they had not, then the district court would have been able to decide whether they should be. See Flores de Otero.
In any event, for present purposes we need not gild the lily. Our prior mandate was clear . . .
[citations and footnote omitted].
After quoting its previous opinion, the panel then addressed the procedural posture of the case, noting that the district court "compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course." Both parties therefore sought a writ of mandamus, which the court granted and additionally "remitted" the case to the district court "to be assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly, and to conduct any further proceedings necessary in this action."
The First Circuit did not explicitly discuss the district judge's conclusions regarding Puerto Rico's status and his argument that under The Insular Cases (1901), territorial incorporation of specific rights is questionable. But the First Circuit did cite contrary authority and made clear its disagreement. The intensity of the disagreement is also made evident by the First Circuit's somewhat unusual instruction that Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez be removed from the case.
April 8, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Opinion Analysis, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)
Friday, April 1, 2016
In his opinion in Campaign for Southern Equality v. Mississippi Department of Human Services (DHS), United States District Judge Daniel Jordan III found that Mississippi Code §93-17-3(5) prohibiting "adoption by couples of the same gender" violates the Equal Protection Clause and ordered that the Executive Director of DHS is preliminarily enjoined from enforcing the statute.
The majority of the 28 page opinion is devoted to matters of standing and the Eleventh Amendment relevant to the multiple plaintiffs and multiple defendants, including judges. However, Judge Jordan did find that the individual plaintiffs had standing and DHS was an appropriate defendant.
On his discussion of likelihood to prevail on the merits, Judge Jordan wrote in full:
Obergefell [v. Hodges] held that bans on gay marriage violate the due-process and equal-protection clauses. It is the equal-protection component of the opinion that is relevant in the present dispute over Mississippi’s ban on gay adoptions. Under traditional equal-protection analysis, a law that does not “target[ ] a suspect class” or involve a fundamental right will be upheld, “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). Conversely, “if a classification does target a suspect class or impact a fundamental right, it will be strictly scrutinized and upheld only if it is precisely tailored to further a compelling government interest.” Sonnier v. Quarterman, 476 F.3d 349, 368 (5th Cir. 2007) (citation omitted).
In this case, Defendants argue that rational-basis review applies. But Obergefell made no reference to that or any other test in its equal-protection analysis. That omission must have been consciously made given the Chief Justice’s full-throated dissent. 135 S. Ct. at 2623 (Roberts, C.J., dissenting) (“Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases . . . .”).
While the majority’s approach could cause confusion if applied in lower courts to future cases involving marriage-related benefits, it evidences the majority’s intent for sweeping change. For example, the majority clearly holds that marriage itself is a fundamental right when addressing the due-process issue. Id. at 2602. In the equal-protection context, that would require strict scrutiny. But the opinion also addresses the benefits of marriage, noting that marriage and those varied rights associated with it are recognized as a “unified whole.” Id. at 2600. And it further states that “the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.” Id. at 2604 (emphasis added).
Of course the Court did not state whether these other benefits are fundamental rights or whether gays are a suspect class. Had the classification not been suspect and the benefits not fundamental, then rational-basis review would have followed. It did not. Instead, it seems clear the Court applied something greater than rational-basis review. Indeed, the majority never discusses the states’ reasons for adopting their bans on gay marriage and never mentions the word “rational.”
While it may be hard to discern a precise test, the Court extended its holding to marriage- related benefits—which includes the right to adopt. And it did so despite those who urged restraint while marriage-related-benefits cases worked their way through the lower courts. According to the majority, “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.” Id. at 2606 (emphasis added).
The full impact of that statement was not lost on the minority. Chief Justice Roberts first took issue with the majority’s failure to “note with precision which laws petitioners have challenged.” Id. at 2623 (Roberts, C.J., dissenting). He then criticized the majority for jumping the gun on marriage-related cases that might otherwise develop:
Although [the majority] discuss[es] some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. . . . Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.
Id. at 2623–24 (Roberts, C.J., dissenting) (emphasis added).
In sum, the majority opinion foreclosed litigation over laws interfering with the right to marry and “rights and responsibilities intertwined with marriage.” Id. at 2606. It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits—expressly including the right to adopt—would then conclude that married gay couples can be denied that very same benefit.
Obergefell obviously reflects conflicting judicial philosophies. While an understanding of those positions is necessary for this ruling, it is not this Court’s place nor intent to criticize either approach. The majority of the United States Supreme Court dictates the law of the land, and lower courts are bound to follow it. In this case, that means that section 93-17-3(5) violates the Equal Protection Clause of the United States Constitution.
The judge's interpretation of Obergefell v. Hodges interestingly focuses on the dissent of Chief Justice Roberts to explain the doctrine of Kennedy's opinion for the Court, a phenomenon familiar from the use of Justice Scalia's dissents in the same-sex marriage litigation.
Wednesday, March 9, 2016
In a 10 page opinion, Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.
Recall that in October 2104, Judge Juan Perez-Gimenez had largely relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question" to find that there was no constitutional right to same-sex marriage. In the appeal to the First Circuit, the Solicitor General of Puerto Rico decided that it would not defend the same-sex marriage ban. And then the United States Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.
The First Circuit thus remanded Conde-Vidal v. Garcia-Padilla to Judge Juan Perez-Gimenez "for further consideration in light of Obergefell v. Hodges" and specifically stated "We agree with the parties' joint position that the ban is unconstitutional." The parties submitted a Joint Motion for Entry of Judgment with a proposed order.
In rejecting the parties' joint motion, Judge Juan Perez-Gimenez contended that because Puerto Rico was a "stranger to the proceedings" in Obergefell which involved same-sex marriage bans in the Sixth Circuit (Michigan, Kentucky, Ohio, and Tennessee), it was not bound by the decision. This reasoning is similar to some of the arguments most recently raised by some Justices on the Supreme Court of Alabama.
Additionally - - - and perhaps with more legal grounding - - - he concluded that Obergefell does not apply to Puerto Rico because it is not a "state":
the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico.
The judge based this "juridical reality" on his conclusion that the doctrine of selective incorporation only applies to states and not Puerto Rico, or perhaps more correctly, that the Fourteenth Amendment itself is not applicable to Puerto Rico "insofar as it is not a federated state."
Additionally, Judge Perez-Gimenez asks "does the Constitution follow the flag?" and concludes that under The Insular Cases (1901), territorial incorporation of specific rights is questionable:
Notwithstanding the intense political, judicial and academic debate the island’s territorial status has generated over the years, the fact is that, to date, Puerto Rico remains an unincorporated territory subject to the plenary powers of Congress over the island under the Territorial Clause.More importantly, jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment. As explained by the Supreme Court, “noting the inherent practical difficulties of enforcing all constitutional provisions ‘always and everywhere,’ the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed.” Boumedine v. Bush.
Thus, this court believes that the right to same-sex marriage in Puerto Rico requires: further judicial expression by the U.S. Supreme Court; or the Supreme Court of Puerto Rico, see e.g. Pueblo v. Duarte, 109 D.P.R. 59 (1980)(following Roe v. Wade, 410 U.S. 113 (1973) and declaring a woman’s right to have an abortion as part of the fundamental right to privacy guaranteed under the Fourteenth Amendment); incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause, see Const. amend. Art. IV, § 3; or by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68 [prohibiting same-sex marriage].
In staking out a position regarding Puerto Rico's status, Judge Perez-Gimenez's opinion reverberates with the two cases regarding Puerto Rico presently before the United States Supreme Court even as it looks back to his earlier opinion hostile to the right of same-sex marriage.
[updated: March 11, 2016: Further discussion of these issues available here].
March 9, 2016 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)
Friday, March 4, 2016
The Court issued an Order today in June Medical Services v. Gee involving Louisiana's abortion statute "The Unsafe Abortion Protection Act, HB 388. The district judge had found the Louisiana's statute's admitting privilege provision was unconstitutional and issued a preliminary injunction. The Fifth Circuit in a 15 page opinion granted the state's emergency motion to stay the district judge's preliminary injunction. Thus, the Court's Order essential reinstates the injunction against the Louisiana statute.
The Louisiana statute is similar to Texas's HB 2 at issue in Whole Woman's Health v. Hellerstdet (previously Cole), argued before the Court on Wednesday. In today's Order regarding the Louisiana statute, the Court referenced Whole Woman's Health:
Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole, No. 14A1288 (June 29, 2015), the application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on February 24, 2016, presented to Justice Thomas and by him referred to the Court, is granted and the Fifth Circuit’s stay of the district court’s injunction is vacated.
Justice Thomas would deny the application.
In the Whole Woman's Health oral argument, Justice Alito mentioned the Louisiana litigation twice, both times in regarding to the evidence in the case about the precise number of abortions that were being performed. But on the constitutional issues, it does seem as if the decision in Whole Woman's Health will be determinative regarding the Louisiana statute's constitutionality.
Friday, January 22, 2016
Kansas Appellate Court Affirms Finding That Kansas's "Dismemberment Abortion Act" is Unconstitutional under State Constitution
The Kansas Court of Appeals, the intermediate appellate court, has found that the Kansas Constitution includes a due process right applicable to abortion and that the Kansas Unborn Child Protection from Dismemberment Abortion Act (SB95) violates that right in its opinion by Judge Steve Leben in Hodes & Nauser v. Schmidt.
Before the discussion of the constitutionality of the Act, there were some preliminary - - - and unusual - - - issues, including some noteworthy matters of procedure. Unusually, the Court of Appeals heard the case en banc rather in a panel of three. And presumably also unusual, the judges were "equally divided, seven voting to affirm the district court and seven voting to reverse." Thus, the trial court's ruling granting a preliminary injunction against the Act was affirmed.
Additionally, there were some state constitutional law issues. Importantly, the plaintiffs' argument that the Act is unconstitutional rests solely on the state constitution. As the Leben opinion stated, this was a case of first impression and a "plaintiff has the procedural right to choose the legal theories he or she will pursue; we cannot force the plaintiffs here to choose another legal avenue.") But the Kansas State Constitution does not include a due process clause - - - or even the words "due process" - - - unlike the United States Constitution's Fifth and Fourteenth Amendments, in which the right to an abortion has been anchored. Instead, plaintiffs argued, and the court found, that §1 and §2 of the Kansas Constitution Bill of Rights include a due process right despite their explicit language:
§ 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.
§ 2. Political power; privileges. All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.
Judge Leben's finding was based in large part on previous decisions of the Kansas Supreme Court. Where the dissent differed was not on the matter of due process as a general matter but on the specific inclusion of "abortion." Indeed, as Judge Leben's opinion admitted "What the Kansas Supreme Court has not yet done is apply substantive-due-process principles in a case involving personal or fundamental rights, like the right to contraception, the right to marry, or the right to abortion." But as Judge Leben's opinion noted, "the Kansas Supreme Court has explicitly recognized a substantive-due- process right under the Kansas Constitution and has applied a substantive-due-process legal standard equivalent to the one applicable under the Fourteenth Amendment at the time of these Kansas decisions." This past practice was an embrace of the present, and Judge Leben's opinion interestingly quotes the Court's recent opinion by Justice Kennedy Obergefell as well as opinions from the Kansas Supreme Court. Judge Leben nicely sums up the position:
The rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state's constitution in 1859.
Having decided that the Kansas constitutional text merits a co-extensive interpretation with the federal constitution, Judge Leben's opinion for the Kansas Court of Appeal does not rest on "adequate and independent state grounds" under Michigan v. Long. Judge Gordon Atcheson's extensive and scholarly concurring opinion makes the case that §1 of the Kansas Bill of Rights provides "entirely separate constitutional protection without direct federal counterpart" for abortion and that such protection is greater under the Kansas state constitution than under the Fourteenth Amendment.
Under the co-extensive interpretation, Judge Leben's opinion thus confronted the constitutionality of the Kansas Act under the substantive due process "undue burden" standard. This entailed an application of the disparate Carhart cases: Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007). In Stenberg, the Court concluded Nebraska's so-called "partial-birth abortion" statute was unconstitutional; in Gonzales, the Court concluded that the federal so-called "partial-birth abortion" statute was constitutional.
The Judge Leben opinion distinguished Gonzales:
But the circumstances here are quite unlike Gonzales. There, the Court considered a ban on an uncommon procedure and noted that the most common and generally safest abortion method remained available. Here, the State has done the opposite, banning the most common, safest procedure and leaving only uncommon and often unstudied options available.
Interestingly, Judge Atcheson's concurring opinion responded to the Justice Kennedy's language in Gonzales and the language of the Kansas Act:
The State's remaining argument rests on the unaesthetic description of a D &E abortion contained in Senate Bill 95 and in Gonzales v. Carhart (2007). But aesthetics really cannot justify legislative limitations on safe medical procedures. The lack of justification is even more pronounced when the procedure is integral to a woman's constitutional right to self-determination and reproductive freedom. The government cannot impose upon an essential right because some exercise of the right may be unaesthetic or even repulsive to some people. That's all the more true when those people needn't see or participate in the protected activity.
The dissenting opinion concludes that there is "nothing in the text or history of §§1 and 2 of the Kansas Constitution Bill of Rights to lead this court to conclude that these provisions were intended to guarantee a right to abortion."
This matter is surely going to the Kansas Supreme Court, as Judge Leben's opinion for the Kansas Court of Appeals acknowledged. Rendered on the 43rd anniversary of the United States Supreme Court's decision in Roe v. Wade and as the Court prepares to consider its first abortion case in 8 years, Whole Woman's Health v. Cole, the Kansas Court of Appeals evenly split decision exemplifies how divided opinion on this issue can be.
January 22, 2016 in Abortion, Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Gender, International, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1)
Thursday, January 7, 2016
The amicus brief of Anice MacAvoy, Janie Schulman, and Over 110 Other Women in the Legal Profession Who Have Exercised their Constitutional Right to an Abortion filed in Whole Woman's Health v. Cole, the abortion case before the United States Supreme Court regarding Texas's controversial HB2 statute, puts the emotions and stories of legal professionals whose abortions have played a positive role in their lives and careers.
Although the amicus does not cite the Court's most recent abortion decision, Gonzales v. Carhart (Carhart II), the import of the amicus is a challenge to some of the reasoning in that case. Specifically, Justice Kennedy writing for the majority in Carhart II stated that:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. Casey, supra, at 852–853 (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05–380, pp. 22–24. Severe depression and loss of esteem can follow. See ibid.
The dissenting opinion of four Justices, authored by Justice Ginsburg, responded to this passage at length:
Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Ante, at 29. Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28–29. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.
This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, 208 U. S. 412, 422–423 (1908) (“protective” legislation imposing hours-of-work limitations on women only held permissible in view of women’s “physical structure and a proper discharge of her maternal funct[ion]”); Bradwell v. State, 16Wall. 130, 141 (1873) (Bradley, J., concurring) (“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.”), with United States v. Virginia, 518 U. S. 515 , n. 12 (1996) (State may not rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women; “[s]uch judgments have … impeded … women’s progress toward full citizenship stature throughout our Nation’s history”); Califano v. Goldfarb, 430 U. S. 199, 207 (1977) (gender-based Social Security classification rejected because it rested on “archaic and overbroad generalizations” “such as assumptions as to [women’s] dependency” (internal quotation marks omitted)).
Though today’s majority may regard women’s feelings on the matter as “self-evident,” ante, at 29, this Court has repeatedly confirmed that “[t]he destiny of the woman must be shaped … on her own conception of her spiritual imperatives and her place in society.” Casey, 505 U. S., at 852. See also id., at 877 (plurality opinion) (“[M]eans chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”); supra, at 3–4.
The brief of the attorneys who have had abortions and are legal professionals clearly supports the view that women must be able to exercise reproductive free choice. The stories of the women attorneys gathered in the amicus brief is a testament to the positive aspects of abortions - - - rather than the regrets - - - that women attorneys have experienced.
January 7, 2016 in Abortion, Courts and Judging, Current Affairs, Equal Protection, Family, Fourteenth Amendment, Gender, Medical Decisions, Privacy, Recent Cases, Reproductive Rights, Scholarship | Permalink | Comments (0)
Wednesday, January 6, 2016
Despite the United States Supreme Court's holding last Term in Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, the controversial Chief Judge of the Alabama Supreme Court Roy Moore issued an " Adminstrative Order" forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect."
Today's administrative opinion is part of Moore's ongoing reaction to constitutional issues surrounding same-sex marriage. After an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Judge Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue. Recall that the United States Supreme Court declined to stay the federal judge's judgment. Despite these direct orders, seemingly Moore's current argument in today's Administrative Order is that Obergfell does not apply to Alabama but only the states involved in the Sixth Circuit opinion to which the Court granted certiorari.
Judge Moore's "interesting" construction of constitutional law is not limited to the precedential value of United States Supreme Court opinions. Several months ago - - - in a lesbian second-parent adoption case, E.L. - - - the Alabama Supreme held that Alabama need not accord full faith and credit to a Georgia decision because of a dissenting opinion. The United States Supreme Court stayed the decision in E.L. pending a decision on the petition for certiorari.
January 6, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0)
Wednesday, December 9, 2015
Today the Court heard oral arguments in Fisher v. University of Texas - - - Fisher II - - - (again) raising the constitutionality of the admissions plan at the University of Texas that includes a consideration of race. How much a consideration of race is included in the plan as well as the effect of any considerations surfaced in today's argument which demonstrated the deep divide amongst the Justices on issues of race.
This deep divide was apparent, despite the fact that Fisher I was a 7-1 opinion as Justice Breyer noted today. (Only Justice Ginsburg dissented in Fisher I; Justice Kagan was recused). Breyer stated that the Court "promised in Fisher I" that strict scrutiny would not be "fatal in fact" as applied in university affirmative action. Justice Breyer had previously stressed in a colloquy with Bert Rein, representing Fisher, that it must be possible to use race, actually "spelling it out" to counsel. After Breyer asked for an example of using race and Rein replied "you could give more emphasis to socio-economic factors," Breyer stated:
That's not to use race. I'm saying r-a-c-e, race. I want to know which are the things they could do that, in your view, would be okay. Because I'm really trying to find out. Not fatal in fact, we've said. Okay? Not fatal in fact. Fine.
Yet the problem of the requirement of narrowly tailored proved difficult. Perhaps Solicitor General Verrilli, supporting the University of Texas, expressed the problem best by calling it a "Catch-22." Indeed, it seemed that the university's plan was problematic both because it was and was not effective. Nevertheless, one recurring argument was whether the University of Texas plan was as good as - - - if not better - - - than the plans upheld in Grutter and Bakke.
The arguments were not limited to the means chosen, however, for the continued validity of diversity as a compelling interest in higher education surfaced repeatedly. While General Verrilli did not mention George Washington, he did aver to the continued importance of diversity in higher education and for the nation. Moreover, there were references to the hope expressed by the Court in Grutter v. University of Michigan that affirmative action would not be necessary in 25 years. Chief Justice Roberts asked counsel for University of Texas, Gregory Garre, whether we were going to "hit the deadline" in 12 more years. Justice Scalia asked Solicitor General Verrilli if he thought we could "stop disadvantaging some applicants because of their race" in another 13 years.
Scalia made it clear that he thought the time for any type of racial affirmative action was long past, if there ever was such a time. Indeed, in what was probably the most controversial commentary in the argument, Scalia advanced what might be called a separate-but-unequal argument:
There are there are those who contend that it does not benefit African-Americans to to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a less a slower track school where they do well. One of one of the briefs pointed out that that most of the most of the black scientists in this country don't come from schools like the University of Texas.
. . . . They come from lesser schools where they do not feel that they're that they're being pushed ahead in in classes that are too too fast for them.
Will it all devolve to Justice Kennedy?
Recall that the Fifth Circuit in Fisher on remand from the United States Supreme Court did not remand to the district court, but decided the case. But just what that evidence might possibly be adduced at a trial was also a controversial subject at the oral argument.
Still, this might be the only compromise available for such a divided Court.
Wednesday, November 18, 2015
In an opinion denying a motion to dismiss in Love v. Johnson, United States District Judge for the Eastern District of Michigan Nancy Edmunds has concluded there is a fundamental privacy right in one's transgender status under the Fourteenth Amendment's Due Process Clause. The constitutional challenge is to Michigan's policy for changing the sex designation on state-issued identification, including drivers licenses. Under the policy, the only document that is accepted as a proof of sex designation is a certified birth certificate. Thus, transgendered individuals would need an amended certified birth certificate - - - for which the procurement process is described as "onerous" - - - and could not use passports, which are specifically excluded by the Michigan policy.
In finding a fundamental right, the judge considered Sixth Circuit precedent that there were two types of fundamental rights protected “by the right to privacy that is rooted in substantive due process”: the interest in “independence in making certain kinds of important decisions,” and the “interest in avoiding disclosure of personal matters.” The court found that the latter - - - the "informational privacy" interest - - - was implicated. This right must not only relate to a "fundamental liberty interest" but must satisfy either of two conditions: "the release of personal information could lead to bodily harm" or "the information released was of a sexual, personal, and humiliating nature." The judge found that both 'the potential for harm' and 'the personal nature' conditions were satisfied. The judge rejected the State's argument that the plaintiffs had not satisfied the harm prong because they had not shown sufficiently specific danger to themselves; it recognized "hostility and intolerance" and cited supporting Second Circuit caselaw.
The judge then applied strict scrutiny, writing that when
state action infringes upon a fundamental right, “such action will be upheld under the substantive due process component of the Fourteenth Amendment only where the governmental action furthers a compelling state interest, and is narrowly drawn to further that state interest.” Defendant vaguely identifies two purported interests–albeit not in the context of a fundamental right–in support of the Policy: (1) “maintaining accurate state identification documents” to “promote effective law enforcement” and, (2) ensuring “that the information on the license is consistent with other state records describing the individual.”
[citations and footnote omitted]. The judge found that the means chosen - - - the restrictive policy - - - bears "little, if any, connection" to the "purported interests." The judge considered two facts especially salient. First, the Michigan policy applied only to those wishing to change the sex designation on a drivers license, not to procure an original drivers license (in which case a passport would be acceptable identification). Second, Michigan's policy was especially restrictive: the majority of other states, as well as the federal government, did not require a certified birth certificate and thus the judge stated she was "unable to conclude at this juncture that the Policy narrowly serves the state’s interest in maintaining “accurate” identification documents or promoting effective law enforcement."
While the complaint raised other constitutional claims, including an equal protection claim, the judge found the motion to dismiss need not be considered as to those claims given the conclusion that there is a valid substantive due process claim which will move forward.
Tuesday, November 17, 2015
Considering a complaint regarding an arrest during the 2011 Occupy Wall Street protests, United States District Judge Jed Rakoff has allowed the Equal Protection Clause claim to proceed in his opinion in Adkins v. City of New York.
The judge based his opinion on the Second Circuit's 2012 decision in United States v. Windsor (affirmed on other grounds by the United States Supreme Court):
[The Second Circuit in] Windsor held that gay people were a quasi-suspect class on the basis of four factors: gay people have suffered a history of persecution; sexual orientation has no relation to ability to contribute to society; gay people are a discernible group; and gay people remain politically weakened. While transgender people and gay people are not identical, they are similarly situated with respect to each of Windsor’s four factors.
Judge Rakoff then applied each of the factors (derived from Carolene Products' footnote four) to hold that transgender people are a quasi-suspect class. Indeed, Judge Rakoff decides that in each of the factors, transgender people more easily meet the factor than "gay people" did at the time of the Second Circuit's decision in Windsor. For example, on the political weakness factor, Judge Rakoff reasoned:
Fourth, transgender people are a politically powerless minority. “The question is whether they have the strength to politically protect themselves from wrongful discrimination.” Windsor, 699 F.3d at 184. Particularly in comparison to gay people at the time of Windsor, transgender people lack the political strength to protect themselves. For example, transgender people cannot serve openly in the military, see Department of Defense Instruction 6130.03 at 48 (incorporating changes as of September 13, 2011), as gay people could when Windsor was decided. See Don’t Ask, Don’t Tell Repeal Act of 2010, Pub.L. No. 111–321, 124 Stat. 3515. Moreover, like gay people, it is difficult to assess the degree of underrepresentation of transgender people in positions of authority without knowing their number relative to the cisgender population. However, in at least one way this underrepresentation inquiry is easier with respect to transgender people: for, although there are and were gay members of the United States Congress (since Windsor, in both houses), as well as gay federal judges, there is no indication that there have ever been any transgender members of the United States Congress or the federal judiciary.
In applying intermediate scrutiny, the judge rejected the government's argument that there was an important safety interest by concluding that there were no actual safety concerns according to the allegations of the complaint (taken as true in the procedural posture of the motion to dismiss). Judge Rakoff continued:
Moreover, defendants cannot argue their actions were substantially related to ensuring plaintiff’s safety when they removed him from an allegedly safe place and caused him injury, albeit minimal injury, by handcuffing him to a wall next to the sole bathroom in the precinct.
The judge found that the individual defendants were entitled to qualified immunity, especially given that the Second Circuit's decision in Windsor occurred after the October 2011 Occupy Wall Street protest. However, the judge found that the City of New York could be held liable under a specific pattern on conduct in the unequal treatment of transgender persons.
Thus, the case moves to settlement as so many of the Occupy arrest cases have done - - - unless New York City chooses to appeal the decision that transgendered individuals merit intermediate scrutiny under the Fourteenth Amendment's Equal Protection Clause.
Friday, November 13, 2015
The United States Supreme Court today granted certiorari in Whole Woman's Health v. Cole to the Fifth Circuit's decision essentially upholding the bulk of the controversial HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis). Recall that a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.
The Fifth Circuit's most recent opinion, reversing the district judge, held that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements, did not impose an "undue burden" on women and were thus constitutional under the Fourteenth Amendment's Due Process Clause.
The Fifth Circuit did find that HB2 was unconstitutional as applied to the Whole Woman's Health facility in McAllen, Texas, but not as to the the Reproductive Services Facility in El Paso, Texas. The facility in McAllen is the only one in the "Rio Grande Valley." However, there is another facility close to the closed facility in El Paso - - - a mere 12 miles away - - - but importantly across the state line in New Mexico. The Fifth Circuit distinguished its own opinion in Jackson Women's Health Organization v. Currier regarding Mississippi's restrictive abortion law which had the effect of closing all the clinics in the state, by emphasizing the fact that even before HB2 "half of the patients at the St. Teresa [New Mexico] clinic came from El Paso which is in the same 'cross-border' metropolitan area as St. Teresa," and including a footnote that the court's analysis would be different "in the context of an international border." Thus, the court found it irrelevant that the nearest in-state facility was 550 miles away.
The United States Supreme Court's grant of certiorari means that the Court will consider direct abortion regulations - - - and thus the continuing precedential value of Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - - - for the first time since Carhart v. Gonzales in 2007 in which the Court upheld the controversial federal so-called partial birth abortion ban. The Court's most recent foray into the abortion controversy was its 2014 opinion in McCullen v. Coakley finding Massachusetts' buffer-zone legislation protecting abortion clinics violative of the First Amendment.
Monday, November 2, 2015
The Court heard oral arguments today in Foster v. Humphrey regarding a challenge to a 1987 conviction and death sentence by an all-white Georgia jury based on Batson v. Kentucky (1986) applying equal protection principles to peremptory challenges in jury selection.
A seemingly new issue on the case involved whether or not the United States Supreme Court should be hearing the case at all. While the Court granted certiorari to the Georgia Supreme Court (as we discussed and as the petition requested), the problem is that the Georgia Supreme Court had denied review . . . . for reasons that are unclear. Was it discretionary? Was that discretion bounded? Did the Georgia Supreme Court's denial of review for lack of a meritorous claim constitute a decision on the merits? And even more complexly, did the Georgia state courts have an adequate and independent state ground - - - res judicata - - - under Michigan v. Long (1983)? (Beth Burton, the attorney for Georgia seemed to concede this was not the case.) And to add yet another layer of complexity, even if the United States Supreme Court decided it should review the matter, what exactly should it review? As Chief Justice Roberts asked, "In other words, are we addressing just whether there's arguable merit to the claim or are we addressing the claim on its own merits?"
On the merits of the Batson claim, the problem arises from the "smoking gun" of prosecutorial notes singling out the Black potential jurors in the case. Although Steve Bright, attorney for Foster suggested that there was "an arsenal of smoking guns" here, Justice Scalia suggested that Foster had to "establish [in order ] to reverse the Georgia courts is that the new smoking gun, assuming that all the rest were not enough to demonstrate a Batson violation the new smoking guns would tip the scale." Justice Kagan seemed to see it differently, suggesting to Beth Burton, the Georgia Deputy Attorney, that this was a clear Batson violation:
You have a lot of new information here from these files that suggests that what the prosecutors were doing was looking at the African-American prospective jurors as a group, that they had basically said, we don't want any of these people. Here is the one we want if we really have to take one. But that there all the evidence suggests a kind of singling out, which is the very antithesis of the Batson rule.
Burton initially suggested that the prosecutors' notes highlighting Black jurors was that the prosecutor was preparing for a Batson challenge. Justice Breyer expressed some incredulity at this based on the fact that prosecutors never previously advanced such a reason. Justice Breyer also seemingly expressed incredulity at the prosecutors' argument that there were "40 different reasons" - - - other than race - - - meant that one was truly valid, rather than drawing an inference from the sheer number of reasons that they were invalid.
Justice Kennedy, perhaps the decisive vote, seemed convinced the prosecutors committed a Batson violation: "They've - - - they've made a mistake - - - they've made a mistake of - - - in Batson." But Justice Kennedy was also quite vocal in pressing the attorneys on the procedural issue, which could be an escape hatch for the Court in what could prove to be a difficult case.
Tuesday, October 27, 2015
A divided Ninth Circuit panel has affirmed the district judge in granting habeas corpus and vacating a death sentence in its opinion in Crittenden v. Chappell.
Crittenden's claimed the prosecutor at trial excluded an African-American prospective juror on account of her race, in violation of the Equal Protection Clause of the Fourteenth Amendment, as interpreted in Batson v. Kentucky (1986). The Ninth Circuit had previously clarified that the peremptory challenge at issue need not be motivated solely by race, but only “motivated in substantial part” by race, “regardless of whether the strike would have issued if race had played no role.” On remand, the district judge found that the prosecutor was substantially motivated by race.
While there are several issues in the case, including deference, appellate procedure, and retroactivity, the issue of "intent" under equal protection doctrine in the Batson context was central. The district judge's opinion engaged in specific comparisons regarding jurors and also stated "[t]he [side-by-side juror] comparisons demonstrate that . . . [the prosecutor] was motivated, consciously or unconsciously, in substantial part by race." The relevance of "unconsciously" was a division among the Circuit judges. For the majority, this was a "passing comment" in the district judge's opinion, and "all the court meant was, whatever the explanation for the prosecutor’s racial motive, that motive was a substantial reason for his use of a peremptory strike." (emphasis in original). The majority added, "In other words, why the prosecutor had a conscious racial motive to strike [the potential juror] Casey in the first place – whether or not 'unconscious racism' partly explained that motive – was simply irrelevant to the Batson inquiry." It interestingly added this footnote:
It was relevant, of course, to the prosecutor’s reputation. The district court’s reference to “unconscious racism” spared him from being found a racist. By suggesting the prosecutor may have had more benign racial motives for the strike, or that his racial motive may have been influenced by unconscious racism, the court hoped to shield the prosecutor from possible disrepute. As the court made clear, however, this effort was not designed to – and did not – detract from the court’s key finding that the strike was consciously motivated by race.
Thus, because the majority upheld the district court’s finding of a conscious racial motive, "we do not – and need not – address whether unconscious bias can establish a Batson violation."
Judge Margaret McKeown dissented from the opinion authored by Judge Raymond Fisher and joined by Judge Marsha Berzon, arguing that there needed to be a clearer indication of discriminatory purpose:
The remaining question is whether, in striking [the potential juror] Casey, the prosecutor had a discriminatory purpose. “‘Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected . . . a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Hernandez v. New York (1991) (plurality) (quoting Person. Admin. of Mass. v. Feeney, (1979)). The touchstone, as described in our caselaw, is whether race was a “substantial motivating factor” in the prosecutor’s decision to strike Casey.
(ellipses in original). For dissenting judge McKeown, the burden was on the defendant to prove purposeful discrimination and he failed to do so. She added,
This case calls to mind Justice Breyer’s observation that the Batson inquiry can be an “awkward, sometime hopeless, task of second-guessing a prosecutor’s instinctive judgment—the underlying basis for which may be invisible even to the prosecutor exercising the challenge.” Miller-El v. Dretke (2005) (Breyer, J., concurring). In view of the record of what actually happened, the trial judge’s findings and the ultimate composition of the jury, our retrospective parsing simply cannot elevate ambiguous, speculative foundation to proof that the prosecutor was motivated in substantial part by racism.
The problem of the degree of proof of intent in equal protection claims generally and Batson specifically has vexed the courts. Recall that the United States Supreme Court will be taking another look at equal protection doctrine under Batson this term in Foster v. Humphrey; the lower court had held that merely because the prosecutor's notes and records revealed "that the race" - - - meaning Black - - - "of prospective jurors was either circled, highlighted or otherwise noted on various lists" did not establish purposeful discrimination.
Tuesday, October 13, 2015
The Third Circuit's 60 page opinion today in Hassan v. City of New York reverses and remands the terse dismissal of the complaint in February 2014 by United States District Judge William Martini. The original complaint alleged that the New York City Police Department’s surveillance program targeted New Jersey Muslims solely on the basis of religion, thereby violating their First and Fourteenth Amendment rights. The district judge found that there was no standing - - - in part because the plaintiffs did not know about their surveillance until it was revealed by the press and thus had no injury - - - and that the complaint did not state a plausible claim - - - in part because the "police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself."
The unanimous opinion by Judge Thomas Ambro, joined by Julio Fuentes, and with a very brief concurrence by Jane Roth regarding the standard of equal protection scrutiny to be applied, comes complete with a Table of Contents. (Query whether opinions are increasingly availing themselves of a brief-like TOC: compare District Judge Shira Scheindlin's opinion in the NYC stop and frisk lawsuit, although her opinion is more than 3 times as long with many more footnotes. Or perhaps there is something about NYC police practices that calls for a TOC?).
After a rehearsal of the NYC surveillance program and its disclosure, the court considers the problem of Article III standing. For the Third Circuit, the "injury in fact" requirement of standing is satisfied by the plaintiffs' allegation of the denial of equal treatment on the basis of their religion under the Equal Protection Clause, as well as the First Amendment. The court rejected NYC's arguments that there needed to be a tangible benefit denied, that there needed to be an overt condemnation (interestingly contrasting Plessy v. Ferguson and Brown v. Board of Education); and that the injuries were not sufficiently particularized. As to the "fairly traceable" causation requirement, the court soundly rejected the contention that it was the only disclosure of the surveillance by the press rather than the surveillance itself that caused the injury. Finally, in its brief discussion of "redressability," the court, quoting an Eleventh Circuit case, noted that "While we cannot predict 'the exact nature of the possible relief . . . without a full development of the facts, an order enjoining the policy and requiring non-discriminatory investigation and enforcement would redress the injury.'"
On the equal protection issue, the Third Circuit held that the complaint plausibly alleged that the NYC surveillance program made a facial religious classification. It further held that this religious classification does not require an "invidious motive.":
While the absence of a legitimate motive may bear on whether the challenged surveillance survives the appropriate level of equal-protection scrutiny, “intentional discrimination” need not be motivated by “ill will, enmity, or hostility” to contravene the Equal Protection Clause.
The court here interestingly cites the district judge's decision in the NYC stop and frisk case.
The Third Circuit thus finds that the NYC surveillance program was facially religious, but then discussed the tier of scrutiny that religious classifications should merit:
Perhaps surprisingly, neither our Court nor the Supreme Court has considered whether classifications based on religious affiliation trigger heightened scrutiny under the Equal Protection Clause. . . .
Although the answer to this question is not found in binding precedent, we hardly write on a clean slate. To start, it has long been implicit in the Supreme Court’s decisions that religious classifications are treated like others traditionally subject to heightened scrutiny, such as those based on race. [Citations omitted]
This line of comment can be traced back to the famous footnote four of the Supreme Court’s 1938 decision in Carolene Products, where the Court suggested that discriminatory legislation should “be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment” if “directed at particular religious, or national, or racial minorities.”
After discussing a number of appellate court decisions, the Third Circuit panel held:
Today we join these courts and hold that intentional discrimination based on religious affiliation must survive heightened equal-protection review. Before turning more fully to our reasoning, however, we pause to reiterate that the term “heightened scrutiny,” as we use it, encompasses both “intermediate scrutiny” and “strict scrutiny.”
The panel stated that it need not - - - and should not - - - "determine in connection with its motion to dismiss which of the two applies, and we leave that question for the District Court in the first instance when and if it becomes necessary to decide it." However, the court does engage in a Carolene Products-type of analysis to substantiate its conclusion, devoting some discussion to the "immutability" factor (which of course was not in the Carolene Products footnote). It also noted that the "history of religious discrimination in the United States is intertwined with that based on other protected characteristics, including national origin and race," and that the allegations of the complaint reflected this intertwinement.
It is on this point that Judge Roth differs, arguing in her concurrence that intermediate scrutiny should apply and providing a somewhat personal explanation:
In my opinion, “intermediate scrutiny” is appropriate here. I say this because “intermediate scrutiny” is the level applied in gender discrimination cases. I have the immutable characteristic of being a woman. I am happy with this condition, but during my 80 years on this earth, it has caused me at times to suffer gender discrimination. My remedy now for any future gender discrimination would be reviewed with “intermediate scrutiny.” For that reason, I cannot endorse a level of scrutiny in other types of discrimination cases that would be stricter than the level which would apply to discrimination against me as a woman.
The Third Circuit did acknowledge the national security interest, but added that "it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights," explicitly invoking Korematsu and Hirabayashi.
The court's relatively brief First Amendment conclusion similarly rejects NYC's claim that animus must be proven.
The court concludes:
What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that “[l]oyalty is a matter of the heart and mind[,] not race, creed, or color.” [citation omitted].
Monday, September 28, 2015
Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage. Recall that the complaint challenged the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.
The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine. The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce." Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:
We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.
The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause. The Ninth Circuit panel concluded:
[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.
The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously. The Ninth Circuit applied the lowest form of rational basis scrutiny - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.
The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech" was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."
Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.
The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors. But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.
Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility. Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.
September 28, 2015 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US), Teaching Tips | Permalink | Comments (0)
Wednesday, September 2, 2015
The D.C. Circuit today denied attorneys' fees to Shelby County growing out of its successful challenge to the coverage formula for preclearance in the Voting Rights Act. But more importantly: A majority on the panel rejected Shelby County's states' rights interpretation of the VRA.
The case arose out of Shelby County's motion for attorneys' fees after the Supreme Court struck Section 4 of the VRA, the coverage formula for preclearance, in Shelby County v. Holder. The VRA fee-shifting provision says,
In any action or proceeding to enforce the voting guarantees of the [F]ourteenth or [F]ifteenth [A]mendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable [attorneys'] fee, reasonable expert fees, and other reasonable litigation expenses as part of the costs.
But to win attorneys' fees, Shelby County had to show (1) that it was eligible for fees under the provision and (2) that it was entitled to them under Newman v. Piggie Park.
All three on the panel agreed that Shelby County wasn't entitled under Piggie Park. That's because "Shelby County's lawsuit did not facilitate enforcement of the VRA; it made enforcing the VRA's preclearance regime impossible." "Shelby County's argument boils down to the proposition that Congress introduced the fee-shifting provision into the VRA in 1975 with the express goal of inducing a private party to bring a lawsuit to neuter the Act's central tool. But that makes no sense." (Emphasis in original.) That was enough to deny attorneys' fees.
But that's also where the case gets interesting. On the eligibility prong, Shelby County argued that it was eligible for fees under the statute, because it prevailed in an action to enforce the voting guarantees of the Fourteenth and Fifteenth Amendments, and that these guarantees include "the structural rights of the states." That last part is a bold departure from the plain language of the amendments and any cases interpreting them; it assumes that the amendments contain some (unenumerated) version of states' rights, which, in turn, could limit the amendments' protection of individual voting rights.
The court left that question open. Judge Griffith, writing for the court, dodged it by relying only on the Piggie Park prong. Judge Silberman, in concurrence, seemed (more or less) to agree (at least on this point). Only Judge Tatel specifically took on Shelby County's reading. Judge Tatel wrote that the question was simple: "Obviously, neither of these [amendments] includes any guarantees of state autonomy over voting. . . . The two Amendments thus 'guarantee' not state autonomy, but rather the right of citizens to vote, and they expressly guarantee that right against state interference."
The upshot is that the court appears to have left Shelby County's states' rights interpretation of the Fourteenth and Fifteenth Amendments on the table, an open question. This means that the Supreme Court could step in and answer it--it Shelby County's favor. (And given the Court's states' rights approach in the original case, this seems like a possibility.)
Still, the court's reasoning on Piggie Park is extremely thorough, and seems written to insulate the ruling against Supreme Court reversal.