Constitutional Law Prof Blog

Daily Read: The Story Behind The Ninth Circuit's Self-Abortion Opinion

In September, the Ninth Circuit rendered its opinion in McCormack v. Hiedeman regarding the constitutionality of Idaho's "unlawful abortion" statutes that makes it a felony for any woman to undergo an abortion in a manner not authorized by statute.  McCormack had been charged by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet.  The court held that imposing a criminal sanction on a woman poses an undue burden under Casey, but the decision was restricted to McCormack given the absence of class certification.

But who is Jennie Linn McCormack?  And how common is procuring abortion "medications" via the internet?

Journalist Ada Calhoun's cover article in this month's The New Republic, "The Rise of DIY Abortions," paints a vivid portrait of Jennie Linn McCormack, as well as her attorney ("an avid fan of The Girl with the Dragon Tattoo books. He saw the character of dogged reporter Mikael Blomkvist as a good role model for a lawyer. . . ").  

Calhoun also contextualizes McCormack's situation:

Determining how many American women have had home abortions is exceedingly difficult: The Centers for Disease Control and Prevention does not track illegal abortions. There is no blood test for drugs like Cytotec, and so such an abortion is indistinguishable from a natural miscarriage, even to a doctor. However, the proliferation of online dispensers suggests a rising demand. There are thousands of websites selling Cytotec for as little as $45 to $75 (compared with $300 to $800 for a legal medicated abortion in a clinic). Some claim to offer the harder-to-come-by Mifeprex, but may in fact be peddling Cytotec, or aspirin, or nothing at all. (Possible sources for the drugs include Mexico, where Cytotec is available over the counter, or even the United States, since it’s also prescribed here as an ulcer medication.)

The question of how drugs like Mifeprex and Cytotec are sold and administered is emerging as the next major front in the abortion debate.

Calhoun's article is a must-read for anyone teaching, writing, or thinking about abortion and is sure to be discussed at the many conferences devoted to Roe v. Wade's 40th anniversary, such as this one at the NYC Bar.

RR

Federal District Judge: North Carolina's "Choose Life" License Plate Scheme Unconstitutional

Is a specialty license plate government speech permissible under the First Amendment?  In a 21 page opinion and order in ACLU of North Carolina v. Conti, Senior United States District Judge James Fox held that North Carolina's "choose life" specialty license plate scheme was not protected government speech and therefore enjoined the issuance of such license plates.

Judge Fox described the North Carolina scheme as unique in comparison to other state statutory schemes and likewise noted that the legislature rejected offering other specialty plates that would have expressed an opposing view, such as "respect choice."

The central issue in the case, however, was whether the "choose life" specialty license plate could be described as "government speech" and thus protected under First Amendment doctrine as articulated in Rust v. Sullivan and most recently in the Court's unanimous 2009 opinion in Pleasant Grove City v. Summum.

Judge Fox rejected the state's argument that the degree of government control was "the" single factor test.  Instead, Judge Fox relied upon the Fourth Circuit's four factor test:

• the central purpose of the program in which the speech in question occurs
• the degree of editorial control exercised by the government and private parties
• the identity of the literal speaker
• whether the government or private entity bears the ultimate responsibility for the speech

Judge Fox noted that these factors were consistent with Supreme Court precedent and that the Fourth Circuit had employed them recently. 

Applying these factors, Judge Fox found that although the state exercised editorial control (despite the fact that the design and idea originated with a national organization outside the control of the state), the other factors weighed in favor of private, or hybrid private-state speech.

Judge Fox's order closed the case; it is sure to be appealed.  Meanwhile, North Carolina car owners are not relegated to the standard license plate: Judge Fox's opinion states that there are 150 types of specialty license plates available in the state.  More information is available here.

RR
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Court's Ruling on Medicaid Expansion Doesn't Threaten Title IX, Martin Argues

Emily J. Martin, Vice-President and General Counsel at the National Women's Law Center, published an American Constitution Society Issue Brief that argues that the Supreme Court's ruling last summer on the ACA's Medicaid expansion in Nat'l Fed. of Ind. Business v. Sebelius does not threaten Title IX.

Recall that the Court ruled in NFIB that Congress exceeded its authority in enacting the Medicaid expansion component of the ACA.  The Medicaid expansion provision provided generous federal financial assistance for states that expanded their Medicaid programs to reach those up to 133% of the federal poverty level.  Some states balked, arguing that this was way too heavy-handed, given the size of Medicaid and their reliance on it.  In other words, states argued that Congress couldn't force them to choose between expanding their Medicaid programs and foregoing all federal Medicaid funding.

The Supreme Court agreed.  Chief Justice Roberts wrote for a plurality that Medicaid expansion was a new program, not just an addition to the existing Medicaid program, and that the sheer size of Medicaid--and the threat of its entire loss--made the ACA's Medicaid expansion unduly coercive on the states.  At the same time, the plurality wrote that Congress could condition receipt of incremental and additional Medicaid funds under the ACA on a state's expansion of Medicaid.

Some thought that this approach to Congress's spending power threatened other federal spending programs, in particular Title IX.  Title IX prohibits public and private educational institutions that receive federal funds from discriminating on the basis of sex.  Some suggested that under NFIB, Title IX, like Medicaid expansion, might be unduly coercive, because it might require an educational institution to forego all federal funding if it discriminates against women.

Martin says this is wrong.  She writes that NFIB doesn't even apply Title IX and private educational institutions: NFIB's approach--and the Spending Clause approach generally--is concerned about coercion of states, not private actors.  As to states, she argues that unlike the ACA's Medicaid expansion, Title IX operates to limit the termination of federal funds "to the particular program . . . in which . . . noncompliance has been so found."  20 U.S.C. Sec. 1682.  In short, noncompliant state institutions wouldn't stand to lose their entire federal educational budget (as they could stand to lose their entire Medicaid budget under the ACA); instead, they'd lose only that portion tied to the sex discrimination.

Martin says that Title IX is protected from NFIB for another reason: Congress also had authority to enact Title IX under Section 5 of the Fourteenth Amendment.  She argues that this belt on top of the Spending Clause's suspenders ensures that Title IX is well within congressional authority.

SDS

Oklahoma Supreme Court Finds Abortion Statute Unconstitutional

The Oklahoma Supreme Court has held its restrictive abortion statute, HB 2780, unconstitutional in two  opinions yesterday, affirming lower courts: Nova Health Systems v. Pruit and Oklahoma Coalition for Reproductive Justice v. Cline.

The nine supreme court justices, "representing" each of the nine judicial districts of the state,

issued the terse (and nearly identical) opinions, the only difference being a recusal of one of the Justices in Pruit.  The opinion(s) provided in full:

PER CURIUM

¶1 This is an appeal of the trial court's summary judgment which held House Bill 1970, 2011 Okla. Sess. Laws 1276, unconstitutional. Upon review of the record and the briefs of the parties, this Court determines this matter is controlled by the United States Supreme Court decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), which was applied in this Court's recent decision of In re Initiative No. 395, State Question No. 761, 2012 OK 42, cert. den. sub nom. Personhood Okla. v. Barber et al., 81 U.S.L.W. 3065 (U.S. October 29, 2012) (No. 12-145).

¶2 Because the United States Supreme Court has previously determined the dispositive issue presented in this matter, this Court is not free to impose its own view of the law. The Supremacy Clause of the United States Constitution provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Const. Art. VI, cl. 2. The Oklahoma Constitution reaffirms the effect of the Supremacy Clause on Oklahoma law by providing: "The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land." Okla. Const. art. 1, § 1. Thus, this Court is duty bound by the United States and the Oklahoma Constitutions to "follow the mandate of the United States Supreme Court on matters of federal constitutional law" In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, ¶ 1, 838 P.2d 1, 2; In re Petition No. 395, 2012 OK 42, ¶ 2.

¶3 The challenged measure is facially unconstitutional pursuant to Casey, 505 U.S. 833. The mandate of Casey remains binding on this Court until and unless the United States Supreme Court holds to the contrary. The judgment of the trial court holding the enactment unconstitutional is affirmed and the measure is stricken in its entirety.

 

 

Thus, the court rests its decision on the Supreme Court's holding in Casey, and not, as some reports have suggested, state constitutional law.  The matter is thus suitable for a petition for writ of certiorari to the United States Supreme Court.

RR
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Supreme Court Puts Voting Rights in Crosshairs

The Supreme Court on Friday agreed to hear the Shelby County challenge to the preclearance provision of the Voting Rights Act as reauthorized in 2006.  The preclearance provision, Section 5, is the centerpiece of the VRA; it requires covered jurisdictions--those with a particularly ugly history of discrimination in voting--to obtain preclearance from the U.S. Department of Justice or a three-judge federal court in D.C. before making any changes to their voting laws.  The Court criticized Section 5 just three-and-a-half years ago in Northwest Austin Municipal Utility District v. Holder for not keeping up with improvements in covered jurisdictions and for intruding on the states.  The Court wrote that Section 5 raised "serious constitutional questions," but declined to rule on its constitutionality.  Thus Section 5 survived Northwest Austin--but just barely.

The cert. grant in the Shelby County case asks whether Section 5 is unconstitutional in light of Congress's reauthorization of it using pre-existing Section 4(b) coverage.  Section 4(b) sets a formula for which states and counties are covered jurisdictions and therefore must obtain preclearance before changing their voting laws.  The two sections go hand-in-hand, and a ruling overturning Section 5 would render Section 4(b) null.  But a ruling overturning only Section 4(b) could leave Section 5 in place.  Such a ruling would require Congress to go back and determine the covered jurisdictions more carefully--something some say it failed to do when it reauthorized the VRA in 2006 (and hasn't done since).

The way the Court poses the question presented leaves this possibility open--and it's the more restrained option for a Court inclined to overturn something in the 2006 reauthorization.  But it seems highly unlikely.  Section 5 is almost certainly the real target, whatever the coverage formula in Section 4(b).  Here's the QP:

Whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

The QP's references to the Tenth Amendment and Article IV ensure that the case will center on federalism concerns.  Northwest Austin said as much, with its language suggesting that Section 5 unduly intrudes on the states.

The Court took no action on another Section 5 challenge, Nix.  Petitioners in that case filed their cert. petition at the same time that the Shelby County petitioners filed, in late July.

SDS

Daily Read: Amicus Brief of the Family of Heman Sweatt in Fisher v. UT

Of the many amicus briefs filed in Fisher v. University of Texas-Austin, argued last week, the brief on behalf of the family of Heman Sweatt stands out.  Heman Sweatt, of course, was the plaintiff in Sweatt v. Painter, decided by the Supreme Court in 1950.  As the "interest of amicus curiae" section of the brief explains:

Amici curiae are the daughter and nephews of Heman Marion Sweatt, who in 1946 was denied admission to The University of Texas Law School for one reason: “the fact that he is a negro.” Texas law forbade UT from considering any of his other qualities: not his intelligence, not his determination, not the grit he gained living under and fighting Jim Crow.

In 1950 – four years before Brown v. Board of Education – this Court held that Sweatt must be admitted to UT, because the separate law school created to accommodate him was not equal in – among other things – intangibles such as reputation and because Sweatt would be “removed from the interplay of ideas and the exchange of views” with “members of the racial groups which number 85% of the population of the State.”

Today, UT honors the legacy of Heman Sweatt in many ways, none more important than its commitment to creating a genuinely diverse student body. It does so through an admissions policy that considers (to the extent allowed by the Texas Top Ten Percent Law, which depends on secondary-school segregation to increase minority enrollment) all aspects of an applicant’s character – including, in part, how that character has been shaped by race.

The brief not only highlights the "importance of race" but also the "importance of patience," arguing that the "25-year horizon Justice O’Connor envisioned for race-conscious admissions decisions [in Grutter] may have been optimistic." 

More about Sweatt's case in the United States Supreme Court is available at the UT Tarlton Law Library's holding of the papers of Justice Thomas C. Clark. 

RR
[image: Prints & Photographs Collection, Heman Sweatt file, The Center for American History, University of Texas at Austin, via]

 

Supreme Court Refuses to Stay Sixth Circuit's Ruling on Ohio Early Voting

In a very brief Order today, the United States Supreme Court stated in Husted v. Obama for America: "The application for stay presented to Justice Kagan and by her referred to the Court is denied."

Thus, the Court let stand the Sixth Circuit's opinion upholding the district court's finding that the Ohio differential early voting scheme violated the Equal Protection Clause of the Fourteenth Amendment.  Our previous discussion is here.

RR

Rabbis File Complaint Against NYC Regulation Requiring Circumcision Notice

The complaint filed in the Southern District of New York federal court in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene challenges the constitutionality of a recently passed regulation regulating circumcision on the basis of the First Amendment.  This is a much more narrow regulation that the San Francisco proposal to ban all male circumcision.

The NYC regulation, §181.21, goes into effect October 21 and amends the NYC Health Code, by requiring specific consent and a warning for "oral suction" circumcision:

A person may not perform a circumcision that involves direct oral suction on an infant under one year of age, without obtaining, prior to the circumcision, the written signed and dated consent of a parent or legal guardian of the infant being circumcised using a form provided by the Department or a form which shall be labeled “Consent to perform oral suction during circumcision,” and which at a minimum shall include the infant’s date of birth, the full printed name of the infant’s parent(s), the name of the individual performing the circumcision and the following statement: “I understand that direct oral suction will be performed on my child and that the New York City Department of Health and Mental Hygiene advises parents that direct oral suction should not be performed because it exposes an infant to the risk of transmission of herpes simplex virus infection, which may result in brain damage or death.”

The complaint's first count contends that the city may not compel speech absent a satisfaction of strict scrutiny, and that the section requires the person performing the circumcision - - - the mohelim in Orthodox Jewish tradition - - - to disseminate advice that he would not otherwise give, with which he disagrees, and that is a "value-based opinion" rather than a fact.  Interestingly, this is similar to the arguments against abortion consent procedures and warnings, although the complaint also notes that the mohelim are not commercial or professional actors.

The second - - - and perhaps more predictable count - - - sounds under the First Amendment's free exercise clause (and a subsequent count invokes the New York Constitution's similar clause).  The complaint alleges that the regulation was

designed to target the “practice known as metzitzah b’peh,” and the Department’s deputy commissioner for disease control described the regulation as an effort to “regulat[e] how part of a religious procedure is done”

This "targeting," of course, would mean the law would be subject to strict scrutiny under Church of Lukumi Babalu Aye v. City of Hialeah (1993), the case involving the ritual slaughtering of animals as a practice of the Santeria religion.  The ordinance of City of Hialeah had exemptions for other types of slaughter, a problem not only as to the "targeting" inquiry, but also as to the application of strict scrutiny.  

 

RR

Sixth Circuit on Ohio Voting Issues Arising from Poll-Worker Error

In its opinion today in Northeast Ohio Coalition for the Homeless v. Husted, consolidated on appeal with SEUI v. Husted, the Sixth Circuit considered yet another  problem with Ohio's voting regime and as in Obama for America v. Husted decided last week regarding early voting ruled mostly against the state. 

The 35 page per curium opinion considers Ohio’s requirements that provisional ballots be cast in the correct precinct and with completed voter affirmation, making no exception for wrong-precinct and deficient-affirmation ballots caused by poll-worker error.

The Sixth Circuit affirmed the district judge's injunction in SEIU v. Husted regarding wrong precinct voting as a denial of equal protection.  After extension discussion regarding factual nuances of the district court's order, the Sixth Circuit upheld the wrong precinct voting injunction.  However, in a very brief analysis, the panel reversed the injunction against deficient affirmation ballots, finding that the "spotty record" did not support the judge's presumption of poll-worker error.

Yet the panel's own ruling created some equal protection issues:

we note some additional issues our ruling creates that must be resolved. While we have set aside the portion of the preliminary injunction addressing deficient-affirmation provisional ballots, the consent decree continues to mandate that some deficient-affirmation provisional ballots will be counted. This discrepancy appears to create a Bush v. Gore problem. Similarly, the consent decree standing on its own also raises Bush v. Gore issues by virtue of treating some provisional ballots differently than others. This latter concern is not purely academic, as the consent decree will be the only agreement governing these issues for Ohio’s 2013 primary elections.

Thus, the panel remanded the Northeast Ohio Coalition for the Homeless case for the district judge to "expeditiously address" the equal protection issue created by the consent decree’s provision for the counting of deficient-affirmation ballots and the motion to modify the consent decree in light of the equal protection concerns raised by the consent decree’s differential treatment of provisional ballots.

RR
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Fisher v. University of Texas: Oral Argument

The Court's oral argument today in Fisher v. UT contained few surprises for those acquainted with the parties' briefs or our preview yesterday.

Bert Rein, arguing on behalf of petitioner Abigal Fisher opened his argument with a classic issue statement:

The central issue here is whether the University of Texas at Austin can carry its burden approving that its use of race as an admissions-plus factor in the consequent denial of equal treatment, which is the central mandate of the Equal Protection Clause, to Abigail Fisher met the two tests of strict scrutiny which are applicable.

His attempt to expand - - - by stating "first" - - - was quickly interrupted by Justice Ginsburg who raised the issue of standing, an inquiry that Justice Sotomayor joined.  Justice Scalia attempted to provide an answer, referring to Fisher's as being "that she was denied a fair chance in the admission lottery."

Justice Breyer moved to the question of whether Fisher was asking the Court to "overrule Grutter," a question that Rein answered by stating that Fisher "could satisfy Grutter" if the case was "properly read." 

During the rebuttal argument, Sotomayor asked "So you don't want to overrule Grutter, you just want to gut it."

MR. REIN: Excuse me?

JUSTICE SOTOMAYOR: You just want to gut it. You don't want to overrule it, but you just want to gut it.

MR. REIN: Well -­

JUSTICE SOTOMAYOR: Now you want to tell universities that once you reach a certain number, then you can't use race anymore.

MR. REIN: Justice Sotomayor, I don't want to gut it. And the only way one could reach that conclusion is to assume that Grutter is an unlimited mandate without end point to just use race to your own satisfaction and to be deferred to in your use of race. That is unacceptable. That is the invasion of Abigail Fisher's rights to equal protection under the law. Thank you.

During the main argument, however, the Grutter discussion led to an extended discussion of the effect of Texas' "ten percent" program, to which the Grutter type admissions policy was only an augment. 

 Arguing for University of Texas, Gregory Garre also opened with a classic issue articulation - and was also quickly interrupted:

For two overriding reasons, the admissions plan before you is constitutional under this Court's precedents. First, it is indistinguishable in terms of how it operates in taking race into account as only one modest factor among many for the individualized considerations of applicants in their totality from plans that this Court has upheld in Grutter and plans that this Court approved in Bakke and the Harvard plan.

JUSTICE SOTOMAYOR: I -- I put that in the narrow tailoring category, that it is narrowly tailored the way Grutter did, said.

Chief Justice Roberts soon focused on the question of numbers and identity categories:

CHIEF JUSTICE ROBERTS: Counsel, before -- I need to figure out exactly what these numbers mean. Should someone who is one-quarter Hispanic check the Hispanic box or some different box?
MR. GARRE: Your Honor, there is a multiracial box. Students check boxes based on their own determination. This is true under the Common Application -­
CHIEF JUSTICE ROBERTS: Well, I suppose a person who is one-quarter percent Hispanic, his own determination, would be I'm one-quarter percent Hispanic.
MR. GARRE: Then they would check that box, Your Honor, as is true -­
CHIEF JUSTICE ROBERTS: They would check that box. What about one-eighth?

With Justice Kennedy widely considered the "swing vote" on this case, certainly there will be much parsing of Kennedy's queries.  He seemed focused on understanding the facts as well as their implications.  

For Fisher's counsel, Kennedy posed a question that was raised for many readers of Petitioner's brief:

You argue that the University's race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities. And I had trouble with that reading the brief. I said, well, if it's so few, then what's the problem.

In dialogue with Garre, Kennedy seemed particularly troubled by any mention of race, asking at one point "So what you're saying is that what counts is race above all."

And arguing for the federal government, supporting the position of University of Texas, Solicitor General Verrilli referred numerous times to Kennedy's dissent in Grutter and concurring opinion in Parents Involved, ending by stating:

I think it is important, Your Honors, not just to government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle that Justice Kennedy identified in Parents Involved, that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union. That's what the University of Texas is trying to do with its admissions policy, and it should be upheld.

 

RR

Fisher v. University of Texas: Oral Argument Preview

The oral argument in Fisher v. UT - - - this term's "affirmative action" case - - - is scheduled for tomorrow and has been receiving much attention as SCOTUSBlog notes. One of the more interesting pieces is Adam Liptak's personalized NYT article that includes quotes from Abigal Fisher, who believes she "probably would have gotten a better job offer" if she had "gone to U.T.," as well as quotes from students.  There is noteworthy scholarly attention.  And as usual Lyle Denniston over at SCOTUSBlog does an excellent job parsing the issues as well as the possible line-ups of the Justices, asking provocatively "is affirmative action about to end?" Moreover, still one of the best templates of the issues is the "dissental" from en banc review in the Fifth Circuit by controversial Judge Edith Jones.

To the extent constitutional and legal arguments matter - - - and for some, that is a debatable question - - - there are several problematic twists that Fisher v. UT presents.

First, there is the standing of Abigal Fisher and relatedly, her claim for injury.  This is not a case in which she was disabled from competing from any specific seat, unlike Bakke, and this is also a case in which she did attend university, unlike Barbara Grutter who did not attend law school.  Adam Chandler has a terrific explanation of this aspect of the case, that he expanded here. 

Second, there are factual discrepancies, and a problematic concession by Fisher regarding UT's government interest in seeking diversity. 

If the Justices seem focused on the facts of the case during oral argument, this might be an indication that the Court would not render a decision on the merits because of these sorts of problems.

Third, there is a doctrinal issue in the case that bears notice.  As one of its three sub-arguments that the UT plan fails strict scrutiny, Fisher argues that "UT cannot establish a strong basis in evidence that its use of race is necessary to further a compelling interest in student-body diversity."  Sandwiched between the usual first prong of the "compelling interest" requirement and the second prong of the "narrowly tailored" requirement, this argument seeks to introduce a new prong.  Fisher's argument in the main brief is telling:

UT also must demonstrate that its use of race in admissions is “necessary to further” an unmet compelling government interest. Adarand, 515 U.S. at 237. This demonstration of necessity requires a “strong basis in evidence.” Wygant, 476 U.S. at 277; Croson, 488 U.S. at 500; Grutter, 539 U.S. at 387-88 (Kennedy, J., dissenting) (“Our precedents provide a basis for the Court’s acceptance of a university’s considered judgment that racial diversity among students can further its educational task, when supported by empirical evidence.”) (emphasis added).

Recall that Adarand, Wygant, and Croson each involved "remedying past discrimination" as the compelling government interest (not diversity) and note that the citation from the 2003 Grutter v. Bollinger is from Justice Kennedy's dissent.  Kennedy is widely considered the swing vote in Fisher, and much of UT's brief seems addressed to Kennedy.

Nevertheless, this "strong basis in evidence" standard is, of course, directly opposed to the "good faith" standard that Justice O'Connor articulated in Grutter. T he Court could easily "gloss" rather than explicitly overrule Grutter by reading in a high - - - and nearly impossible to meet - - - evidentiary standard.

Thus, at the heart of the matter may be just how much deference the Justices may be willing to pay to a state, including a state university, or how much the "unelected federal judiciary" may substitute its own judgments.

RR
UPDATE: discussion of oral argument here.

Sixth Circuit Affirms Injunction on Ohio Early Voting

In its opinion yesterday in Obama for America v. Husted, the Sixth Circuit has affirmed the district judge's injunction against Ohio's new law that prevented some Ohio voters from casting in-person early ballots during the three days before the November 2012 election on the basis that the statute violates the Equal Protection Clause of the Fourteenth Amendment.

The Sixth Circuit opinion tracks the district judge's explanation of the confusing (and confused) statutory scheme that resulted in different allowances of early in-peson voting to military and overseas voters than to non-military voters.  In its equal protection analysis, the Sixth Circuit panel noted that Ohio had both burdened the right to vote and had classified voters disparately.  It examined Ohio's two asserted governmental interests - - - the burden on local boards of elections and the need to accommodate military voters and their families - - - and found that the State did not demonstrate they were “sufficiently weighty” interests to curtail voting.  While the Sixth Circuit does not explicitly find that the interests were not being served by the means chosen, this usual prong of equal protection analysis is implicit in the analysis.

Importantly, the panel explicitly upheld the district judge's remedy:

The State argues that the district court’s remedy was overbroad because it could be read to affirmatively require the State to mandate early voting hours during the three- day period prior to the election. We do not read the district court’s order in this way. The order clearly restores the status quo ante, returning discretion to local boards of elections to allow all Ohio voters to vote during Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, 2012. Because Ohio Rev. Code § 3509.03 is unconstitutional to the extent that it prohibits non-military voters from voting during this period, the State is enjoined from preventing those voters from participating in early voting. But the State is not affirmatively required to order the boards to be open for early voting. Under the district court’s order, the boards have discretion, just as they had before the enactment of § 3509.03. The district court’s remedy was therefore appropriate.

It was on the question of remedy that Circuit Judge Helene White disagreed, suggesting that she would "remand the matter with instructions to give the Secretary and the General Assembly a short and finite period in which cure the constitutional defects."

RR

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

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

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

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

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

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

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

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

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

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

RR

Daily Read: Segall on O'Connor in Grutter

As the October 10 oral argument in Fisher v. University of Texas approaches, Grutter v. Bollinger (2003) is  center stage.  Consider this critique:

Finally, at the end of Justice O’Connor’s opinion [in Grutter] upholding the law school’s racial preferences, she wrote that, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”  How does Justice O’Connor know what the state of racial affairs know what the state of racial affairs will be in this country in 25 years and what authorizes her to put a sunset provision on the holding of this case?  A legislator voting for an unpopular piece of legislation might wish to place her vote in the context of a statement suggesting that a time may come when her vote will change or become necessary. But given the historical and political complexity of the affirmative action debate, for Justice O’Connor to suggest that she has some special awareness as to when race-bases measures ay no longer be necessary, and to identify that time 25 years in advance, is judicial hubris and an inappropriate and arbitrary exercise of judicial power.  In fact, it is not “judicial” at all.

It's from Eric Segall's book, Supreme Myths: Why the Supreme Court is Not a Court and Its Justices Are Not Judges (2012). 

It is a sentiment with which others, including perhaps the now-retired Justice O'Connor, might agree, albeit in more gentle language.

Segall's chapter on "Affirmative Action" is a good review of the cases and controversies that have led to Fisher.  His critical perspective on affirmative action would counsel the Court to defer to the university's use of racial criteria. 

Segall's overall thesis - - - captured by the book's subtitle - - - provides a somewhat daunting view of the relevance of constitutional litigation in the Supreme Court, but Segall's book is ultimately an optimistic and engaging read.

RR

Daily Read: Reconsidering State Action and Reconstruction

Political Science Prof Alec Ewald reviews Pamela Brandwein's book, Rethinking the Judicial Settlement of Reconstruction in Law & Politics Book Review here. 

Brandwein (pictured), a political science professor, has written a "bold revisionist book, sure to challenge the assumptions of anyone who has written on or taught Reconstruction-era Constitutional history," according to Ewald.

It's Brandwein's focus on the state action doctrine that will most interest conlawprofs.   Here is Ewald's ultimate assessment:

The total disenfranchisement of southern blacks after 1891 had many causes, but “[a] ‘closed’ doctrine of state action, one that shut the door on federal efforts to protect black rights, was not among them” (p.183). When we talk about the state-action doctrine, we are talking about a messy thing rather than a bright line. But the cases themselves, and particularly those all-too-quotable lines from the Civil Rights Cases, can seduce us into thinking the Court of the early 1880s drew a sharp boundary around all non-governmental action and declared it completely off-limits for the federal government. Brandwein shows it wasn’t so.

A good review can tell us whether or not the book is worth our time.  Ewald demonstrates that Brandwein's book is a necessary one for anyone teaching or writing on state action.

RR

Portions of Arizona's SB 1070 Now in Effect

In a one page Order, Judge Susan Bolton has dissolved the preliminary injunction she issued regarding Section 2(B) of S.B. 1070, the so-called "show me your papers" provision.

This was inevitable given her opinion earlier this month ruling that it would be premature to declare the provision unconstitutional, resting her conclusion - - - perhaps erroneously as we discussed - - - on the United States Supreme Court's opinion in Arizona v. United States last June.

RR

 

Tenth Circuit Rejects Challenge to the Kansas Judicial Nominating Commission

A three-judge panel of the Tenth Circuit ruled in Dool v. Burke that the election procedure for attorney members of the Kansas Judicial Nominating Commission did not violate the Equal Protection Clause.  The ruling affirms a lower court decision and means that the procedure remains in place.   We posted on the complaint and motion for preliminary injunction here.

The Judicial Nominating Commission is comprised of nine-members--a chairperson (who is a lawyer licensed and residing in Kansas) and one attorney and one non-attorney from each of the state's four congressional districts.  The attorney members are elected by licensed attorneys residing in the respective congressional districts; the chairperson is elected by Kansas attorneys voting at large.  The non-attorney members are appointed by the governor.

Whenever a state appellate court vacancy arises (including a vacancy in the state supreme court), the Commission generates a short list of candidates based on a competitive application process.  The governor then selects the appointee to fill the vacancy from among those on the short list.  Still, all judges--including those appointed by way of the Commission--are subject to periodic retention elections in which Kansas voters may vote them out.

The plaintiffs, non-attorneys, argued that the election procedure for attorney members of the Commission closed the attorney seats to non-attorneys in violation of the one-person-one-vote principle set out in Reynolds v. Sims. 

The Tenth Circuit disagreed.  In a very brief, per curiam opinion, the court rejected the plaintiffs' claims and upheld the lower court's ruling denying preliminary relief and dismissing the case.

Judge O'Brien concurred, arguing that the Commission didn't possess the kind of general government functions and direct government power that would trigger strict scrutiny analysis of its election procedure under Avery v. Midland Cnty. Tex.--the post-Reynolds case that said that Reynolds applied with equal force to officials of a county government who exercised "general governmental powers over the entire geographic area served by the body."  Judge O'Brien also noted that the Commission serves a separation-of-powers function (insulating the judiciary from threats of control and threats to its integrity by the executive)--that it was created in direct response to an embarrassing episode in which the governor engineered his own appointment as Chief Justice--and that the federal Constitution does not prescribe any particular structure of government on the states.

Judge Matheson went a step further in a separate concurrence, arguing that the Commission satisfied the Salyer/Ball exception to Reynolds: that Reynolds doesn't apply to elections for limited-purpose bodies exercising narrow government functions and operating to the burden or benefit of one group of constituents more than others.  Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.; Ball v. James.

Judge McKay dissented, arguing that the Commission's work is quintessential governmental--the appointment of judges--even if it's indirect and mediated by the governor's independent appointment (from the Commission's short list).

SDS

Daily Read: Sanders on Fisher v. UT

Why should courts deciding constitutional questions give deference to a bunch of professors? 

ConLawProf Steve Sanders (pictured) poses this query with reference to the Court's decisionmaking in Fisher v. University of Texas in his brief essay over at SCOTUSBlog (part of SCOTUSBlog's terrific Fisher Symposium).

The best answer, Sanders tells us, "is that faculty members’ educational judgments are formed by the specialized training, engagement with scholarly disciplines, and daily classroom experience they bring to their work, and judges lack these things."

An interesting take on academic freedom in the context of affirmative action.

RR

Wisconsin State Judge Holds Provisions of Anti-Union Act 10 Unconstitutional

A state judge has declared sections of the controversial 2011 Wisconsin Act 10 unconstitutional as violative of  state constitutional provisions. This follows a federal district judge also declaring portions of Act 10 unconstitutional in March.

In today's 27 page opinion in Madison Teachers Inc. v. Walker by state judge Juan Colas rejected the challenges based on the state constitutional provision limiting special sessions and the takings clause, as well as arguments that the controversy was nonjusticiable. 

However, the judge found Act 10 violated the free speech, free association, and equal protection state constitutional protections, construing them as consistent with federal interpretations of the First and Fourteenth Amendments.  Much of the judge's reasoning stressed that Wisconsin did not come forward with any arguments. The judge also found that there was a violation of the Wisconsin constitutional provision guaranteeing Milwaukee home rule.

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[image: protests of Act 10 via]

Judge Bolton Declines Pre-Enforcement Injunction Against Arizona's SB1070's "show your papers" Provision

Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, including the controversial "show me your papers" provision, section 2(b), has issued a new order and opinion in del Sol v. Whiting, refusing to enjoin section 2(b) in light of the Supreme Court's decision in Arizona v. United States last June. 

Recall that the Court held several sections of SB1070 preempted by federal law (thus essentially affirming Judge Bolton's initial decision, as affirmed by the Ninth Circuit), but found that Section 2(b) could be read to avoid the concerns of conflict.  While section 2(b) requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully, the Court provided several instances where 2(b) might be compatible with federal law and thus refused a pre-enforcement injunction.

Thus, on the preemption challenge, Judge Bolton's opinion is squarely within the dictates of Arizona v. United States.

However, the challengers also raised Equal Protection and Fourth Amendment challenges.  Bolton's opinion subsumes these into the preemption challenge based on the Supremacy Clause.  She quotes the Court in Arizona v. US as stating that its "opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” adding emphasis.  Yet it is unclear how the Court's opinion could possibly foreclose the "other constitutional challenges" even pre-enforcement given that the issue before the Court was solely preemption (a limitation Justice Roberts stressed at the start of the oral arguments). 

Bolton's opinion states that she "will not ignore the clear direction in the Arizona opinion that subsection 2(B) cannot be challenged further on its face before the law takes effect," but certainly the Court could not give direction, clear or otherwise, regarding issues that were not before it.

RR
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