Thursday, February 27, 2014

How Can States Measure Mental Retardation when Imposing the Death Penalty?

The Supreme Court will hear oral arguments on Monday in Hall v. Florida, the case testing whether Florida's method of determining mental retardation solely by reference to an IQ number (at or below 70) violates the Court's ruling in Atkins that states may not impose the death penalty on the mentally retarded.  Here's a portion of my preview of the case, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

Freddie Lee Hall was tried and convicted for the 1978 murder of Karol Hurst. He was sentenced to death. (Hall’s co-defendant, Mack Ruffin, also convicted of murder in a separate trial, was sentenced to life in prison.) Hall’s conviction and sentence were upheld on direct appeal by the Florida Supreme Court.

Hall later filed a motion in the Florida courts to vacate his sentence based on mitigating evidence of his mental retardation and the brutal abuse he suffered as a child. (Hall filed this motion after the Supreme Court ruled in 1987 in Hitchcock v. Dugger, 481 U.S. 393, that capital defendants must be permitted to present non-statutory mitigating evidence in the penalty phase of a capital trial.) The Florida Supreme Court vacated Hall’s death sentence and remanded for a new sentencing proceeding.

At the resentencing hearing in December 1990, Hall presented uncontroverted evidence of his mental retardation. Hall’s family members testified to his childhood mental disabilities, including difficulties understanding, thinking, and communicating. His school records indicated that his teachers repeatedly identified him as “mentally retarded.” Hall’s former attorneys testified that because of his mental disabilities and problems with communications, Hall could not even assist with his own defense. And evidence from clinicians concluded that Hall was “extremely impaired psychiatrically, neurologically and intellectually,” that he showed signs of “serious brain impairment,” and that he “is probably incapable of even the most . . . basic living skills which incorporate math and reading.” One test, the Wechsler Adult Intelligence Scale—Revised, or “WAIS-R,” administered by a graduate student, put Hall’s IQ at 80. Another test, the Revised Beta Examination, scored Hall at 60 (the lowest possible score), in the range of mental retardation. (Earlier tests, a Beta Test and a Kent Test, put Hall’s IQ at 76 and 79, respectively. But these tests are not considered as reliable as the Wechsler test. Indeed, Florida does not permit the use of the Kent or Beta tests to determine mental retardation at sentencing in capital cases.) Based on this last test and other evaluations, one doctor concluded that Hall was “mentally retarded” and that the mental retardation was “longstanding.”

The trial court nevertheless again condemned Hall to death, and the Florida Supreme Court affirmed. He later sought postconviction relief. This was denied, and the Florida Supreme Court affirmed.

In 2001, Florida enacted a statute, § 921.137, that prohibited the execution of persons with mental retardation. The law defined mental retardation as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” The law further defined “significantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the [relevant Florida] rules.”

The next year, the Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304 (2002), that the “mentally retarded should be categorically excluded from execution.” The Court explained that the “diminished capacities” of persons with mental retardation “to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others” undermined the traditional justifications for the death penalty and made it more likely that persons with mental retardation would be wrongfully convicted and executed.

In 2004, Hall filed a claim under Florida Rule of Criminal Procedure 3.203, which established a process for Atkins claims, arguing that his death sentence violated Atkins. A hearing was held on Hall’s motion in 2009. Hall presented evidence similar to that in his previous case. In particular, Dr. Greg Pritchard testified that he administered the Wechsler Adult Intelligence Scale-III, or “WAIS-III,” on which Hall scored 71. Dr. Pritchard also considered the results of a WAIS-IV test administered by Dr. Joseph Sesta in 2008, on which Hall scored 72, and a WAIS-III test administered by Dr. Bill Mosman in 2001, on which Hall scored 69. The trial court excluded Dr. Mosman’s report, however, because Dr. Mosman died, and Hall’s attorney was unable to provide the state with the raw data underlying the report. Dr. Harry Krop testified that Hall’s IQ was 73 on the WAIS-R.

The trial court denied Hall’s motion on the ground that Hall was unable to demonstrate “an I.Q. score of 70 or lower.” The trial court set that particular threshold because the Florida Supreme Court interpreted § 921.127 two years earlier, in Cherry v. State, 959 So.2d 702 (Fla. 2007), to mean that only persons with an IQ of 70 or under qualified as mentally retarded. (The condemned prisoner in Cherry had an IQ of 72. The Florida Supreme Court denied relief.)  The Florida Supreme Court, relying on its holding in Cherry, affirmed. This appeal followed.

CASE ANALYSIS

The Supreme Court ruled in Atkins that a state violates the Eighth Amendment’s ban on cruel and unusual punishment when it executes a mentally retarded person. But the case did not define mental retardation. As a result, states have developed their own approaches to defining mental retardation. Florida’s approach, under the state Supreme Court ruling in Cherry, defines mental retardation rigidly, as an IQ test score of 70 or below.

The parties in this case argue whether Florida’s approach violates Atkins. More particularly, they argue whether executing a person, like Hall, who has IQ test scores above 70 but nevertheless has severe and well documented deficiencies in his intellectual functioning and adaptive behavior, violates the Supreme Court’s prohibition on executing the mentally retarded.

Hall argues first that Atkins forbids the execution of persons meeting the clinical definition of mental retardation. According to Hall, that definition does not set a rigid cutoff; instead, it incorporates three prongs: (1) “significantly subaverage” intellectual functioning; (2) limitations in adaptive functioning; and (3) onset before age 18. Hall says that the Court in Atkins recognized this, because it cited two clinical sources that contained definitions that incorporated these three prongs, and because it repeatedly described IQ, again citing these and other clinical sources, as only a rough measure of mental retardation. (Hall, and the Court, refer to the definitions of mental retardation promulgated by the American Association on Mental Retardation, or the AAMR, now the American Association on Intellectual and Developmental Disabilities, or the AAIDD, and the American Psychiatric Association, or APA.) Hall contends that Florida’s rigid cutoff for mental retardation impermissibly redefines the clinical definition of mental retardation under Atkins. (Hall notes that the plain language of § 921.137 can be squared with Atkins. It is the Florida Supreme Court’s rigid interpretation of § 921.137 that violates Atkins.)

Next, Hall argues that Florida’s rigid approach does not comport with the commonly accepted clinical definition of mental retardation. In particular, Hall claims that Florida’s rigid approach fails to take into account the standard error of measurement, or SEM. As Hall explains, “in Florida, an obtained IQ test score of 71—notwithstanding that it is clinically indistinguishable from a score of 70, in light of the inherent measurement error in the test—bars a defendant from presenting any evidence of limitations in adaptive functioning.” This is so, even though that evidence may be compelling, and even though psychiatrists may have diagnosed the defendant as having mental retardation. Hall points (again) to the nearly identical definitions promulgated by the AAIDD and the APA, both of which account for measurement error within a range of plus- or minus-five points. Hall says that an obtained IQ score plus or minus one SEM yields a confidence interval equating to a 66 percent probability that a person’s true IQ test score falls within that range. (If a person’s score is 70, with a SEM of 2.5 points, there is about a two-thirds chance that the person’s actual IQ is between 67.5 and 72.5.) He claims that the definitions promulgated by the AAIDD and the APA both account for the SEM and the resulting confidence interval. He says that they also look to guidelines on intellectual functioning and adaptive behavior, in addition to IQ scores, and require clinical judgment to determine mental retardation. Hall contends that both the AAIDD and the APA reject a specific cutoff score as the measure for mental retardation.

Hall says that Florida’s rigid approach is inconsistent with these commonly accepted clinical definitions. Moreover, he contends that other death-penalty states have rejected Florida’s rigid approach, and that Florida is in a small minority of states that have adopted a rigid cutoff without consideration of the SEM. He claims that Florida’s rigid approach will result in an unacceptable risk of executions of individuals who are mentally retarded.

Finally, Hall argues that there is no genuine dispute that under accepted clinical standards, he is mentally retarded. Hall says that all of his scores, save his score of 80, an outlier, are in the 95 percent confidence interval for a “true” score of 70, or two standard deviations below the mean IQ score. He contends that while those scores alone are insufficient to yield a diagnosis of mental retardation, they would prompt any competent clinician to investigate his adaptive behavior. And based upon that investigation—through all the evidence of his poor intellectual functioning and adaptive behavior submitted at earlier hearings—Hall says that he is mentally retarded.

The state argues first that Atkins left states substantial leeway in enforcing the ban on executing the mentally retarded. The state says that Atkins did not prescribe any particular diagnostic criteria or definition of mental retardation and, in particular, did not hold that states must apply the AAMR or APA definitions. Indeed, the state claims that Atkins relied on a national consensus against executing the mentally retarded that included Florida’s § 921.137 and other states with varied definitions of mental retardation. In other words, the state says that Atkins recognized a national consensus against executing the mentally retarded, but not a national consensus around a definition of mental retardation. Florida claims that the Court in Atkins relied on its own judgment about the mentally retarded and why they cannot be executed, not on a particular medical definition of mental retardation; instead, it left that to the states.

The state argues next that the Court should not eliminate the states’ roles in enforcing Atkins. The state claims that the Court has traditionally deferred to the states in defining mental conditions for the purposes of criminal law. Moreover, the state says that deference is particularly appropriate here, where diagnostic criteria for mental retardation (including criteria for evaluating intellectual functioning, adaptive functioning, and even the age of onset) have changed so much over time and are constantly evolving. In particular, the state points to the changing ways that authorities have relied on IQ. Given these differences, the state says that a person could be labeled mentally retarded under one definition but not under another. The state claims that it would be particularly inappropriate for the Court to force the states to agree with any one particular authority under these circumstances. The state also suggests that the APA, the AAIDD, and similar groups seek to limit the application of the death penalty. According to the state, if the Court requires states to adhere to (evolving) clinical criteria developed by these groups, then these groups “would have unavoidable incentives to adopt even more expansive definitions of mental retardation” in order to serve their political purpose, to limit the application of the death penalty.

Third, the state argues that its approach is appropriate under Atkins. The state says that its definition generally conforms to the clinical definitions. It claims that its approach requires a finding on all three prongs (intellectual functioning, adaptive functioning, and age-of-onset), and that its IQ threshold is a long-settled way of determining mental retardation. It contends that consideration of the SEM is appropriate for some purposes (like education, or determining eligibility for services), but not here, where Hall introduced numerous and varying test scores that fell above 70. The state says that a defendant can still introduce other mitigating evidence that satisfies some non-statutory definitions of mental retardation.

The state contends that there is no national consensus on how to use the SEM, or how to consider clinical criteria. Still, it says that its approach is consistent with other states. It claims that Hall’s approach would undermine its important interests in finality (because Hall’s approach would necessarily lead to subsequent challenges based on constantly evolving clinical definitions) and an objective determination of mental retardation.

Finally, the state argues that Hall is not mentally retarded. The state says that Hall’s crime—involving a multi-step plan that was cold, calculated, and premeditated—shows that he was not mentally retarded when he committed the crime. It also says that Hall’s medical evidence (including the results of his IQ tests) fail to show that his mental state was attributable to mental retardation. Instead, it says, Hall’s evidence suggests that his mental state was attributable to his difficult childhood, abusive mother, and poverty.

SIGNIFICANCE

According to an amicus brief filed by nine other states in support of Florida, ten states use “an obtained IQ test score above 70 [as] a conclusive, bright-line cutoff (without using the SEM) in evaluating the intellectual function prong of mental retardation.” Two other states have adopted bright-line cutoffs above 75. A number of other states either do not use a rigid cutoff, or allow application of the SEM in evaluating IQ scores. A number of other states have not firmly determined their approaches. (Thirty-two states in all still have the death penalty, according to deathpenaltyinfo.org. The amicus brief for Arizona and eight other states contains an appendix with a summary of state laws and rulings on determining mental retardation and another appendix with each state’s burden of proof.)

As a result, Hall potentially directly affects ten, or maybe twelve, states—those with rigid cutoffs for determining mental retardation. If the Court rules for Hall, those states will have to adjust their determination criteria to take into account the SEM, and possibly other factors. (The Question Presented asks only whether a state must consider the SEM. Still, there is nothing preventing the Court from saying more about the definition of mental retardation. It seems unlikely that the Court will prescribe a particular comprehensive definition or approach, though. Instead, if it rules for Hall, it will likely continue to give the states substantial room to craft their own definitions, within the broad boundaries of its ruling.)

On the other hand, if the Court rules for Florida, those states may obviously retain their rigid definitions. In that case, there is a possibility, although it seems quite slim, that other states that currently consider the SEM or other factors may simplify their own definitions and follow Florida’s approach.

 

February 27, 2014 in Cases and Case Materials, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Saturday, February 22, 2014

Same-Sex Marriage in Chicago, but not all of Illinois until June 1

In her very brief opinion and order in Lee v. Orr, United States District Judge Sharon Johnson Coleman found that Illinois' same-sex marriage ban - - - already changed by the legislature but not effective until June 1, 2014 because of state constitutional requirements  - - - was unconstitutional.  

The judge's reasoning was understandably scanty: Not only did the parties' agree that summary judgment was appropriate because there was no disputed issues of fact, but they essentially agreed that there were not disputed issues of law:

There is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs’ fundamental right to marry. Indeed, the defendant and intervenor have joined in plaintiffs’ motion, with the caveat the defendant David Orr is bound to follow the law in Illinois.

The sticking points were the remedies.

First, and less sticky, was the timing.  The judge quoted Martin Luther King for her reasoning to extend previous rulings:

the focus in this case shifts from the “we can’t wait” for terminally ill individuals to “why should we wait” for all gay and lesbian couples that want to marry. To paraphrase Dr. Martin Luther King, Jr.: the time is always ripe to do right. MARTIN LUTHER KING JR., WHY WE CAN’T WAIT 74 (1964).

Chicago map 1871

 

Second, and stickier, was the place:

The plaintiffs are asking this Court to strike down a state statute, although they have brought suit solely against the Cook County Clerk. . . . Although this Court finds that the marriage ban for same-sex couples violates the Fourteenth Amendment’s Equal Protection Clause on its face, this finding can only apply to Cook County based upon the posture of the lawsuit.

Absent additional litigation - - - and different lawyering - - - same-sex marriage in Illinois is available in Chicago now and the rest of the state starting June 1.

[image: map of Chicago, circa 1871, via]

February 22, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Fundamental Rights, Sexual Orientation, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Sunday, February 16, 2014

Ninth Circuit Strikes "Good Cause" Requirement for Concealed Carry

A divided three-judge panel of the Ninth Circuit ruled last week in Peruta v. County of San Diego that the city's "good cause" requirement for a concealed carry permit, enacted under California's general ban on concealed carry, violated the Second Amendment.

The ruling deepens a split in the circuits on concealed carry.  As the court wrote, "Indeed, we are the fifth circuit court to opine expressly on the issue, joining an existent circuit split. . . .  Our reading of the Second Amendment is akin to the Seventh Circuit's interpretation in Moore . . . and at odds with the aproach of the Second, Third, and Fourth Circuits . . . ."

The case involves California's and San Diego's concealed carry permitting requirements.  California law generally bans concealed carry, but allows a person to apply for a concealed carry permit where he or she lives, provided that the person shows "good moral character," completes a training course, and establishes "good cause."  San Diego enacted a policy that defines "good cause" as "a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm's way."  Concern for "one's personal safety alone is not considered good cause."

The court surveyed the history and concluded that "the carrying of an operable handgun outside the home for the lawful purpose of self-defense, though subject to traditional restrictions, constitutes 'bear[ing] Arms' within the meaning of the Second Amendment."

As to the "good cause" requirement: the court ruled that California's scheme--which bans open carry, and restricts concealed carry to all but those who can show a particularized "good cause"--amounts to a destruction of the core right to bear arms for self-defense (as opposed to a mere burden on the right).  The court thus struck the permitting scheme, without specifying a level of scrutiny.  "Heller teaches that a near-total prohibition on keeping arms (Heller) is hardly better than a near-total prohibition on bearing them (this case), and vice versa.  Both go too far."  Op. at 57.

Judge Thomas dissented, arguing that the majority "not only strikes down San Diego County's concealed carry policy, but upends the entire California firearm regulatory scheme."

February 16, 2014 in Cases and Case Materials, Fundamental Rights, News, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

Gitmo Detainees May Assert Mistreatment Claims

A divided panel of the D.C. Circuit ruled today in Aamer v. Obama that Guantanamo detainees may bring a habeas corpus claim in federal court challenging their forced-feeding by the government, but that that claim is not likely to succeed.

The ruling is notable, because it's the first time a federal appellate court ruled that Guantanamo detainees could bring a habeas claim to challenge their conditions of confinement (as opposed to the fact of their confinement).

The ruling is likely to bring  a host of new habeas claims from detainees at Guantanamo--challenging not just the fact of their detention (the kind we've already seen) but also the conditions of their confinement.  It may also bring a congressional response--to foreclose those claims.

The court also ruled that the detainees' challenge to their forced-feeding was not likely to succeed.

Some background: Congress enacted two provisions in the MCA designed to strip federal courts of jurisdiction over Guantanamo detainees' claims.  The first, at 28 U.S.C. Sec. 2241(e)(1), purports to strip federal courts of jurisdiction over Guantanamo detainees' habeas claims challenging the fact of their detention:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The Supreme Court struck the provision in Boumediene v. Bush (2008), holding that Congress couldn't eliminate habeas jurisdiction over Guantanamo detainees without complying with the requirements of the Suspension Clause (which it had not).

The second provision, at 28 U.S.C. Sec. 2241(e)(2), purports to strip courts of jurisdiction over Guantanamo detainees' "other" claims challenging the conditions of their confinement:

Except as provided [in section 1005(e) of the DTA], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The D.C. Circuit previously confirmed that this latter section continued in force after Boumediene (because Boumediene dealt only with the habeas-stripping Section 2241(e)(1)), and lower court judges have ruled that it bars Guantanamo detainees from bringing habeas claims challenging their conditions of confinement (because those habeas claims were "other" claims challenging the conditions of confinement).

The D.C. Circuit ruled that it does not bar detainees' habeas claims, and that detainees may bring statutory habeas claims challenging the conditions of their confinement.

In answering the question, the court said that the two different parts of Section 2241(e) meant that Congress attempted in the MCA to bar (1) habeas claims and (2) "other" claims (i.e., non-habeas claims).  It said that Section 2241(e)(2), in barring "other" claims, had no impact on habeas claims.  And it said that Boumediene struck Section 2241(e)(1). 

So, if the detainees brought a habeas claim, it would have been covered by Section 2241(e)(1), and because that provision was struck, their habeas claim survives.

The core question, then, is whether habeas (any habeas, at Guantanamo or not) extends not only to the fact of confinement (everyone agrees it does) but also to the conditions of confinement (that's where the parties disagreed).  The court said that the Supreme Court left this question open, and that there is a split among the circuits.  Still, it said that in the D.C. Circuit habeas extends both to fact-of-confinement and to treatment claims:

The availability of habeas for both types of challenges simply reflects the extension of the basic principle that "[h]abeas is at its core a remedy for unlawful executive detention."  Munaf v. Geren.  The illegality of a petitioner's custody may flow from the fact of detention . . . the duration of detention . . . the place of detention . . . or the conditions of detention.  In all such cases, the habeas petitioner's essential claim is that his custody in some way violates the law, and he may employ the writ to remedy such illegality.

Because the detainees' claim was a habeas claim that would have fallen under Section 2241(e)(1), and because Section 2241(e)(2) bars only with "other" (non-habeas) claims and therefore doesn't affect the detainees' habeas claim at all, and because the Supreme Court struck Section 2241(e)(1), the detainees' habeas claim can go forward.

The court noted that Congress has been entirely silent on this--and has not acted to strip courts of jurisdiction over this kind of claim.

Judge Williams dissented, arguing that the detainees' claim does not sound in habeas and therefore is barred under Section 2241(e)(2).

The court also ruled that the detainees failed to show a likelihood of success on the merits of their force-feeding claims.  The court said that there were valid penological interests in force-feeding hunger-striking detainees that outweighed the detainees' liberty interest.  The court also said that the Religious Freedom Restoration Act does not extend to Guantanamo detainees, who, as nonresident aliens, do not qualify as protected "person[s]" under the RFRA. 

The court affirmed the lower court's denial of a preliminary injunction, sending the case back for more on the merits.

February 11, 2014 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Aftermath of Windsor in the Federal Government: AG Holder's Memo

Citing United States v. Windsor, declaring DOMA's section 3 unconstitutional, in a Memorandum issued on Monday February 10, Attorney General Eric Holder has announced that it is the policy of the federal government to "recognize same-sex marriages as broadly as possible."  Holder discussed the forthcoming memo in a speech delivered the previous weekend.

Memo DOJ

In the memo, Holder specifies that marriage recognition will extend to "same-sex marriages, valid in the jurisdiction where the marriage was celebrated to the extent consistent with the law."  This shifts the marriage validity question away from domicile or residence. 

Importantly, in footnote 1 of the Memo, Holder notes that the policy is limited to marriage and "does not apply to individuals who have entered into another similar relationship such as a domestic partnership or civil union, recognized under state law that is not denominated as a marriage under the laws of that state."

Holder also expresses pride in the DOJ's role in the litigation challenging DOMA, citing his 2011 letter concluding that sexual orientation classifications should be subject to strict scrutiny and that DOMA failed this constitutional test.

One of the more interesting aspects of Holder's Memo is the discussion of marital testimonial privileges.  Holder directs prosecutors to apply the memo "prospectively" - - - to conduct that occurred on or after the date of the Windsor decision (and not the date of the 2011 Holder memo or the present memo).

February 11, 2014 in Current Affairs, Executive Authority, Family, Fundamental Rights, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Sunday, February 9, 2014

Daily Read: Sara Rankin's Homeless Bill of Rights

Given that the extant constitutional rights have proven ills-suited toward recognizing the rights of homeless persons (even to have a blanket or to be fed), Professor Sara Rankin's article, "A Homeless Bill of Rights (Revolution)," available in draft on ssrn, is an important look at state constitional efforts.  Rankin surveys current efforts to advance homeless bills of rights in nine states and Puerto Rico, concluding that such efforts are likely to have more of an incremental social impact than any immediate legal impact.

RankinsRankin (pictured right)  highlights the aspirational aspects of such bills, arguing

Homeless bills of rights present an important opportunity to impact American rights consciousness. The emergence of these new laws may encourage housed Americans to confront—and perhaps one day, overcome—our persistent, deeply-rooted biases against the homeless. Regardless of whether homeless advocates’ ideal provisions are enacted, enforced, or implemented in the near future, even modest versions of these new laws can stake an important claim in the movement building process. After all, the U.S. Declaration of Independence and the Bill of Rights remained dormant and aspirational for years after their enactment, but like all declarations of fundamental rights, these documents set crucial goals for society to achieve over time.

Certainly, however, such laws would counteract the increasing "ciminalization" of homelessness that she discusses:

Of 234 cities surveyed by the National Law Center on Homelessness and Poverty (NLCHP), 53 percent prohibited begging or panhandling in public places, 40 percent prohibited camping in public places, and 33 percent prohibited sitting or lying down in public places. These laws authorize police to perform “sweeps” to clear public areas of homeless people. Police sweeps often result in the confiscation and destruction of personal belongings, including identification, documentation, medications, and other property of sentimental value.

Rankin's article is an important read for anyone considering the constitutional parameters of addressing homelessness.

 

February 9, 2014 in Fundamental Rights, Scholarship, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 4, 2014

Fourth Circuit Strikes Proof-of-Religion Requirement in Prison


The Fourth Circuit ruled in Wall v. Wade that a Virginia prison's requirement that inmates show physical indicia of their faith before participating in Ramadan violated the Free Exercise Clause.

The case arose when Wall, an inmate at the Red Onion State Prison, or ROSP, in Pound, Virginia, sought a religious accommodation to participate in Ramadan--special meals served before sunrise and after sunset.  But ROSP policy required prisoners to show "physical indicia" of their faith--such as a Quran, Kufi, prayer rug, or written religious materials obtains from the prison Chaplain's office--before receiving the accommodation.  Wall had none of these, because his "physical indicia" were lost when he was transferred to ROSP from another facility.  So officials denied his accommodation.

Wall nevertheless skipped breakfast and concealed a portion of his meal in his cell to save until after sunset.  ROSP staff discovered the food and threatened to charge Wall with possessing contraband.  As the court wrote, "Faced with choosing between starvation and sanctions, Wall ate during the day and violated his religious beliefs."

Wall filed formal complaints and later sued, arguing that ROSP policy as applied to him violated RLUIPA and the Free Exercise Clause.  The district court dismissed the case, but the Fourth Circuit reversed.

The court held that the policy violated the four-part test in Turner v. Safley:

First, demanding specific physical items as proof of faith will rarely be an acceptable means of achieving the prison's stated interest in reducing costs.  Strict application of such a rule fails even a rational connection requirement. . . .

[Second, i]t is clear that Wall was absolutely precluded from observing Ramadan because of the defendants' actions. . . .

[Third, w]e are not satisfied that the defendants have sufficiently explained how a less restrictive policy would have imposed a significant burden on prison resources. . . .

Finally, we are satisfied that there existed "easy[] [and] obvious alternatives" to the challenged regulation.

The court ruled that Wall's rights were "clearly established," and that ROSP officials therefore did not enjoy qualified immunity.

The court also rejected the claim that Wall's case was moot in light of the Prison's changed policy.  Applying the "voluntary cessation" doctrine, the court wrote,  "We have no difficulty concluding that the defendants failed to meet their "heavy burden" of establishing that it is not "absolutely clear" the 2010 Ramadan policy will not be reinstated." 

February 4, 2014 in Cases and Case Materials, Free Exercise Clause, Fundamental Rights, News, Religion | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 21, 2014

Public-Sector Fair Share Appears to be Safe

 The Supreme Court heard oral arguments today in Harris v. Quinn, the case testing whether fair-share fees for non-union in-home care providers in the Illinois Medicaid program violate the First Amendment.  (Our argument preview is here.)  The Court in Abood v. Detroit Board of Education previously upheld public-sector fair-share fees to support a union's collective bargaining activities in the interests of preventing free-riders on a union's activities and promoting workplace peace.  But this case put Abood directly in the Court's cross-hairs, as the petitioners argued to overturn the decades-old case.

If today's arguments are any indication, that seems an unlikely result.

Still, it's not entirely clear what the Court will do with the case.  For one thing, there was just a lot of confusion about it.  For example, on the question whether the union's work here (in the state's Medicaid program) represented advocacy on a public matter (thus strengthening the non-members' claims), no clear position emerged.  Here's an exchange between Justice Kagan and the attorney for the petitioners (the home-care workers):

Justice Kagan: But you're not objecting, I think, to the union as a whole.  What you're objecting to is an individual employee having to support that activity.  The scale is no different.  It's an individual employee.

Mr. Messenger: Yes, it's an individual employee being forced to support that expressive activity.  So the question becomes: What expressive activity are they being forced to support?  And when you're speaking of changing an entire government program, for example, Medicaid rates across the board, that is a matter of public concern.  That is a matter of lobbying or political --

Justice Kagan: But that's exactly what the individual employee in Justice Scalia's hypothetical is arguing for.  He wants wage rates to be changed across the board.  He knows they're not going to be changed just for him.  He wants higher wage rates.

Mr. Messenger: But, again, under this Court's private--under the public conern test, an individual simply speaking to that usually does not rise to a matter of public concern.

Chief Justice Roberts jumped in during the respondents' argument to underscore the problem.  He made a point that under the state's position one union's advocacy for increased Medicaid rates might be an issue of public concern (as in a teacher's union), but another union's advocacy for the same incrased Medicaid rates is a private employment issue (as here), suggesting that that can't be. 

Justice Breyer quickly rescued the respondents and outlined the opposite position--"Collective bargaining with any employer, meat packers, hours, safety depends on hours, always can involve public interest questions"--arguing that the Court shouldn't be in the business of this kind of line-drawing.

The one to watch here may be Justice Kennedy.  He suggested at one point that nearly all of this union's activities were public matters, but at a different point that the Court's jurisprudence provides (at least) a partial solution: non-members can be compelled to pay fair-share fees for those activities that might involve free-riding, but not for other activities for which they don't receive a benefit.  (Justice Scalia piped in to remind us that under the Court's jurisprudence non-members can opt-out of fees for benefits that they don't enjoy.)  The problem here may be sorting out which kind of benefit is which.

Justice Alito underscored this problem when he pressed the state on a hypothetical non-union teacher who has to pay a fair-share fee to support the union's advocacy of the tenure system.  But the teacher disagrees with the union's position on this, so has to pay another organization an equal amount to represent his or her views--just to counteract the advocacy supported by his or her compelled fair-share fee.  Justice Kennedy posed a similar hypo.  The state responded that here the fair-share fee supports union activity that benefits all workers, but it's not clear that a majority bought it, or, if they did, that they weren't also thinking beyond the narrow facts of this case.

The case also involved several puzzles, both practical and jurisprudential, that seem to put the petitioners' positions at odds with common sense and doctrine.  Here's Justice Sotomayor raising one with the petitioners:

Justice Sotomayor: Is there a problem for the State to say--the union, to organize has a certain amount of costs.  So putting aside fair representation laws, could the State say, this is what we're going to pay police officers, 100 dollars, but we're going to pay union members 110 to reimburse them for the cost of negotiation.  Would that be OK?

Mr. Messenger: Yes.

 Here's Justice Kagan raising another:

Justice Kagan: Because here's the thing: That in the workplace we've given the government a very wide degree of latitude and there's much that the government can do.  It can fire people.  It can demote people for things that they say in the workplace, not for things that they say as a citizen . . . .

So you're saying, well, the government can punish somebody for saying something, but the government in the exact same position cannot compel somebody to say something they disagree with.  And I want to know what's the basis for that distinction, which it seems to me is just as hard as -- as if you were answering under the petition clause.

There was also significant confusion about whether the state's flexibility in negotiating wages--and therefore why the union's participation is necessary.  (If the wages are set--by the Medicaid program, for example--what benefit does the union bring?) 

Justices Scalia and Alito both expressed some skepticism over the state's intent in requiring fair-share, Justice Alito suggesting that it was Governor Blagojevich's reward to the union for a huge campaign contribution.

In rebuttal, Justice Scalia pressed the petitioners about free-riding and what their position could do to unions; Justice Kagan pressed them about what their position would do to "thousands and thousands" of public contracts that include fair-share provisions.  Justice Kagan earlier put a finer point on the case's significance and with the help of respondents' counsel told us just what's at stake:

Justice Kagan: So, Mr. Messeenger, even on the compulsory fees, I mean, what strikes me is that this is -- I'm just going to use the word here, it is a radical argument.  It would radically restructure the way any workplaces across this country are -- are run.

And let me just put it to you this way and ask if you agree with this -- with this statement.  Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State and people have disagreed.  Some States say yes, some States say no.  It raises considerable heat and passion and tension, as we recently saw in Wisconsin.  And -- but, you know, these are public policy choices that States make.

And is it fair to say that what you're suggesting here, your argument, is essentially to say that for 65 years, people have been debating the wrong question when they've been debating that, because, in fact, a right-to-work law is constitutionally compelled?

Mr. Messenger: In the public sector, yes . . . .

January 21, 2014 in Association, Cases and Case Materials, First Amendment, Fundamental Rights, News, Oral Argument Analysis | Permalink | Comments (1) | TrackBack (0)

Monday, January 13, 2014

Daily Read: Understanding Zablocki v. Redhail and "Marriage Equality"

The United States Supreme Court in Zablocki v. Redhail (1978) held unconstitutional a Wisconsin state statute requiring judicial permission for a marriage license for any person who had a support order for a minor. 

The opinion, authored by Justice Marshall, considers the case as one of equal protection and opines that

our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that "critical examination" of the state interests advanced in support of the classification is required.

 The Court also states that more recent decisions "have established that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause," citing Griswold v. Connecticut.

Thus, although not as famous as Loving v. Virginia, Zablocki v. Redhail is also frequently cited in any argument that marriage is a fundamental right, notwithstanding the Court's qualification in Zablocki that "not every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny," but only ones that interfere directly and substantially with the right to marry.

In a new essay, Chronicle of a Debt Foretold: Zablocki v. Red Hail, by Tonya L. Brito, R. Kirk Anderson and Monica Wedgewood, forthcoming in The Poverty Law Canon and available on ssrn, the authors revive the importance of the wealth inequality relevance of the case and also reveal a racial aspect.  Redhail, whose name is actually Roger Red Hail, is a Native American man, now in his late 50s, who still owes child support for the child he fathered when he was 16.  Although the "child" is now in her 40s, he owes the money to state (with interest) and the state continues to garnish his wages.

Tribal

There is a possibility that Red Hail's pending child support cases now under the jurisdiction of Milwaukee County would be transferred to the Oneida Tribal Judicial System.

The essay is a must-read for anyone considering the constitutional ramifications of equality or marriage.

January 13, 2014 in Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, History, Reproductive Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 7, 2014

District Judge Says Chicago's Gun-Sales Ban Violates Second Amendment

Judge Edmond E. Chang (N.D. Ill.) ruled yesterday in Illinois Association of Firearms Retailers v. City of Chicago that Chicago's ban on gun sales violates the Second Amendment. 

Chicago Municipal Code Section 8-20-100 says, in relevant part, that "no firearm may be sold, acquired or otherwise transferred wtihin the city, except through inheritance of the firearm."  Firearms dealers and would-be gun buyers sued, arguing that it violated the Second Amendment.  Judge Chang agreed, granting summary judgment in their favor.

The court used the two-step process sanctioned by the Seventh Circuit: first, the court determined whether the ban fell within the Second Amendment as it was understood in 1791 (when the Bill of Rights was ratified) or in 1868 (when the Fourteenth Amendment was ratified); second, the court determined whether the ban satisfies a varying, but heightened, level of scrutiny.

As to step one, the court concluded that "[t]he City's proffered historical evidence fails to establish that governments banned gun sales and transfers at the time of the Second Amendment's enactment," and therefore the Second Amendment applies.  As to step two, the court applied "not quite strict scrutiny" (because the ban "prevents Chicagoans from fulfilling, within the limits of Chicago, the most fundamental prerequisite of legal gun ownership--that of simple acquisition") and that the ban didn't sufficiently serve the city's interests in reducing criminals' access to guns, restricting gun acquisition in the illegal market, or eliminating dangerous gun stores from Chicago.

Judge Chang gave the city "limited time, before the judgment becomes effective, to consider and enact other sales-and-transfer restrictions short of a complete ban," and invited the city to move for a stay pending appeal.

January 7, 2014 in Cases and Case Materials, Fundamental Rights, News, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Friday, December 20, 2013

Supreme Court of Canada Finds Prostitution Laws Unconstitutional

SCTCANADA
In its highly anticipated judgment in Canada v. Bedford, the Supreme Court of Canada has unanimously declared several provisions of Canada's criminal code regulating prostitution and sex work to be inconsistent with the Canadian Constitution's Charter of Rights and thus unconstitutional, although it suspended the declaration of invalidity for one year to allow Parliament to act. 

The provisions of the criminal code at issue were:

  • § 210 making it an offence to keep or be in a bawdy‑house;
  • § 212(1)(j) prohibiting living on the avails of prostitution; and,
  • §213(1)(c) prohibiting communicating in public for the purposes of prostitution. 

All there were declared inconsistent with §7 of the Charter which provides "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."  The Court was clear that it was security - - - and not liberty - - - that was the animating principle for its decision.

Importantly, prostitution itself is legal in Canada, an important underpinning of the Court's decision.  The Court reasoned that the criminal code provisions at issue heightened the risks prostitutes face, by not merely "imposing conditions" but also going "a critical step further by imposing dangerous conditions on prostitution" and prevent "people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks."  

The Court rejected the notion that the created danger was "negated by the actions of third‑party johns and pimps, or prostitutes’ so‑called choice to engage in prostitution."   

The Court then engaged in a type of purpose, means, and balancing analysis familiar in constitutional law. Gal-hall-1Quoting from the Court's handy summary of its reasoning and holding in this lengthy and scholarly opinion,

[First], the negative impact of the bawdy‑house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance.  The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption.  Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. 

Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage.  The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards.  It also includes anyone involved in business with a prostitute, such as accountants or receptionists.  In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes.  The living on the avails provision is consequently overbroad. 

Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause.  The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.

 The Supreme Court of Canada's unanimous opinion affirms a judgment by the Court of Appeal for Ontario and one might believe that Canada's remaining criminalization of sex work have been vanquished.  However, the Court recognized that the "regulation of prostitution is a complex and delicate matter," and that Parliament "should it choose to do so" could "devise a new approach, reflecting different elements of the existing regime."   The Court suspended its declaration of invalidity for one year.  And one might say that the "ball" is now in Parliament's "court." 

[image: Canada Supreme Court building's Grand Entrance Hall via]

December 20, 2013 in Comparative Constitutionalism, Fundamental Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Thursday, December 19, 2013

New Mexico Supreme Court Declares Same-Sex Marriage Cannot Constitutionally be Barred

In its unanimous opinion in Griego v. Oliver, the New Mexico Supreme Court has declared that the state must recognize same sex marriages.  The court found that

barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution. We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.

Justices
Justices of the New Mexico Supreme Court: 

From left to right: Richard C. Bosson; Charles W. Daniels; Chief Justice Petra Jimenez Maes (seated in middle);  Barbara J. Vigil;  Edward L. Chavez (author of opinion).     


Interestingly, the court concluded that any prohibition of same-sex marriage raised a classification based on sexual orientation (and not sex), although its rationale raised the specter of the kind of formal equality at issue in Plessy v. Ferguson:

We do not agree that the marriage statutes at issue create a classification based on sex. Plaintiffs have conflated sex and sexual orientation. The distinction between same- gender and opposite-gender couples in the challenged legislation does not result in the unequal treatment of men and women. On the contrary, persons of either gender are treated equally in that they are each permitted to marry only a person of the opposite gender. The classification at issue is more properly analyzed as differential treatment based upon a person’s sexual orientation.

Nevertheless, the court found that the appropriate level of scrutiny was intermediate:

 because the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination. . . .  the class adversely affected by the legislation does not need to be “completely politically powerless, but must be limited in its political power or ability to advocate within the political system.”  Nor does intermediate scrutiny require the same level of extraordinary protection from the majoritarian political process that strict scrutiny demands. It is appropriate for our courts to apply intermediate scrutiny, “even though the darkest period of discrimination may have passed for a historically maligned group.” 

The court notes that its "decision to apply intermediate scrutiny is consistent with many jurisdictions which have considered the issue," citing the Second Circuit in Windsor, as well as the same-sex marriage cases from Iowa and Connecticut.

The court found that the same-sex marriage ban did not survive intermediate scrutiny.  It considered three  governmental interests advanced for prohibiting same-gender couples from marrying in the State of New Mexico:

  • promoting responsible procreation
  • responsible child-rearing
  • preventing the deinstitutionalization of marriage

As to the last interest, the court noted that the defendants conceded there was no evidence that same-sex marriages would result in the deinstitutionalization of marriage, and the court implied this interest was "intended to inject into the analysis moral disapprobation of homosexual activity and tradition" and flatly rejected it. 

As to procreation and child-rearing, the court rejected these interests as the governmental interests underlying New Mexico's marriage laws: "It is the marriage partners’ exclusive and permanent commitment to one another and the State’s interest in their stable relationship that are indispensable requisites of a civil marriage."  But the court also found that neither interest would be substantially served by the prohibition of mariage to same-sex partners.

Thus, by a relatively brief opinion (approximately 30 pages) the New Mexico Supreme Court has unanimously ruled that same-sex marriages must be allowed in the state.  Because the decision rests on the state constitution, it is not subject to review by the United States Supreme Court and   New Mexico becomes the 17th state to allow same-sex marriages on the same terms as other marriages.

 

December 19, 2013 in Courts and Judging, Current Affairs, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 18, 2013

Recommendations from President's NSA Surveillance Review Group

The anticipated report  from a panel of presidential advisors - - - Richard Clarke, Michael Morell, Peter Swire, and ConLawProfs Geoffrey Stone and Cass Sunstein - - -  has just been released from The White House.  It contains 46 recommendations, detailed in the Executive Summary and later discussed in the report.

Occuring amidst significant problems, such as the recent federal district judge's opinion casting doubt on the constitutionality of the  collection of metadata from Verizon and the Edward Snowden revelations, the report concludes that the "current storage by the government of bulk meta-data creates potential risks to public trust, personal privacy, and civil liberty."  But the report recognizes that government might need such metadata, and therefore recommends that it be held by "private providers or by a private third party."   The report also recommends a series of changes at NSA, including having the Director be a "Senate-confirmed position" and suggesting that the Director be a civilian (at least next time). 

There is some interesting constitutional analysis and rhetoric in the report.  For example, under "Principles," the first one is "The United States Government must protect, at once, two different forms of security: national security and personal privacy."  How should these interests be balanced?  The report, quite interestingly, says this:

It is tempting to suggest that the underlying goal is to achieve the right “balance” between the two forms of security. The suggestion has an important element of truth. Some tradeoffs are inevitable; we shall explore the question of balance in some detail. But in critical respects, the suggestion is inadequate and misleading.

Some safeguards are not subject to balancing at all. In a free society, public officials should never engage in surveillance in order to punish their political enemies; to restrict freedom of speech or religion; to suppress legitimate criticism and dissent; to help their preferred companies or industries; to provide domestic companies with an unfair competitive advantage; or to benefit or burden members of groups defined in terms of religion, ethnicity, race, or gender. These prohibitions are foundational, and they apply both inside and outside our territorial borders.

The purposes of surveillance must be legitimate. If they are not, no amount of “balancing” can justify surveillance. For this reason, it is exceptionally important to create explicit prohibitions and safeguards, designed to reduce the risk that surveillance will ever be undertaken for illegitimate ends.

Certainly, there is much more to glean and analyze from the 300 plus page report, but some of the reasoning already seems noteworthy.

December 18, 2013 in Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Fundamental Rights, Privacy, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Saturday, December 14, 2013

Federal District Judge Finds Portions of Utah's Criminalization of Polygamy Unconstitutional

In a 91 page  opinion  in Brown v. Buhman,  federal district judge Clark Waddoups has concluded that Utah's anti-bigamy statute is partially unconstitutional. 

Sister wivesThe 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.

The challengers to the statute, the Browns, are famous from the reality program Sister Wives and the accompanying book ) and are represented by Professor  Jonathan Turley,  who blogs about the case here.


The judge's scholarly opinion includes a discussion of Edward Said's groundbreaking book Orientalism as a critique of the well-known passage in the United States Supreme Court’s 1879 decision in Reynolds v. United States upholding the criminalization of polygamy by reasoning, in part, that "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people."

Judge Waddoups considers both the due process challenge (applying Washington v. Glucksberg) and the free exercise challenge (applying Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah). 

In the due process analysis, the judge specifically found

 there is no “fundamental right” to polygamy under Glucksberg. To phrase it with a “careful description” of the asserted right [citations omitted],  no “fundamental right” exists to have official State recognition or legitimation of individuals’ “purported” polygamous marriages—relationships entered into knowing that one of the parties to such a plural marriage is already legally married in the eyes of the State. The fundamental right or liberty interest that was under consideration in Glucksberg is instructive for the analysis of whether the asserted right to polygamy is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”

The judge also found that the criminalization of what it called the "religious cohabitation" portion of the statute did not rise to the level of a fundamental right, extensively discussing Lawrence v. Texas and the Tenth Circuit's limiting interpretation of Lawrence. 

However, the judge did find that "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.

Complementing this conclusion regarding discriminatory enforcement, the judge's free exercise of religion analysis concludes that while the Utah statute may be facially neutral, the cohabitation prong is not "operationally neutral" and not of general applicability.  The judge therefore applied strict scrutiny to the cohabitation prong and easily concluded the statute failed.

As an alternative free exercise analysis, the judge reasoned that the cohabitation prong also merited strict scrutiny because it involved a "hybrid rights" analysis under Employment Division, Department of Human Resources of Oregon v. Smith (1990), given the claims of due process, but also claims that the judge did not extensively analyzes such as free association, free speech, establishment, and equal protection.  

Thus, the judge concluded the cohabitation prong of the statute is "unconstitutional on numerous grounds."  However, the court explicitly narrowed the constructions of  “marry” and “purports to marry" in the statute, so that the Utah statute continues to "remain in force as prohibiting bigamy in the literal sense—the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage."  Not surprisingly then, the judge's opinion does not cite the Supreme Court's opinion last term in United States v. Windsor involving DOMA and same-sex marriage, in which Justice Scalia, dissenting, invoked the effect the decision would have on polygamy. [I've previously discussed the similarities of same-sex marriage and polygamy claims here].

Given the district judge's narrowing construction and the clear constitutional issues with the Utah statute's breadth, it might be possible that the state does not appeal.

 

[video via]

December 14, 2013 in Books, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 11, 2013

Supreme Court of India Upholds Constitutionality of Criminalization of Sodomy

In its long-awaited opinion in Koushal v. NAZ Foundation, the Supreme Court of India has reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional.

Thumb-9

The Supreme Court decision noted that India's sodomy law was pre-constitutional - - - and derived from British rule - - - and also that the Court certainly had the power to declare the law unconstitutional as inconsistent with several provisions of the India Constitution, including

  • Article 13 (Laws inconsistent with or in derogation of the fundamental rights)
  • Article 14 (Equality before law)
  • Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth)
  • Article 19 (Protection of certain rights regarding freedom of speech etc.)
  • Article 21 (Protection of life and personal liberty)

Nevertheless, the Court stated that there is a presumption of constitutionality given the "importance of separation of powers and out of a sense of deference to the value of democracy that parliamentary acts embody."  

The Court's 98 page opinion authored by Justice Singhvi (who is interestingly scheduled to retire tomorrow, the day after the opinion was rendered), and without a dissenting opinion, criticizes the Dehli Court's reliance on non-national sources:

 In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.

(para 52).

For United States scholars, such concern for nationalism certainly echoes the dissenting opinion in Lawrence v. Texas, in which the United States Supreme Court held unconstitutional a state law criminalizing sodomy.  Yet in the India context, the fact that its constitutionalism is linked to British rule as well as the fact that the sodomy law is a product of colonialism (and is a law that the colonial power has since repudiated as former Australian High Court Judge Michael Kirby has analyzed as England's "least lovely" export) are distinguishing features.

Certainly, however, the problematizing of judicial review in the context of sexuality occurs in the United States cases as well as those from South Africa, an issue extensively discussed here.

And certainly, advocacy on behalf of "the so-called rights of LGBT persons" will be moving to India's Parliament.

[image of Supreme Court of India via]

December 11, 2013 in Comparative Constitutionalism, Courts and Judging, Fundamental Rights, Opinion Analysis, Privacy, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Sunday, October 27, 2013

Government Notifies Defendant of Warrantless Wiretap, Tees Up Challenge

The Department of Justice for the first time notified a criminal defendant that evidence against him was obtained through a warrantless wiretap, according to the New York Times.  The move gives the criminal defendant the standing to challenge warrantless wiretapes that the plaintiffs in Clapper v. Amnesty International lacked and invites his challenge of warrantless wiretaps.  Our previous post on the issue is here.

The defendant, Jamshid Muhtorov, is charged with "provid[ing] and attempt[ing] to provide material support and resources, to wit: personnel . . . to a foreign terrorist organization, specifically the Islamic Jihad Union . . . knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States" in violation of 18 U.S.C. Sec. 2339B.  The notice says that the government

hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. Secs. 1806(c) and 1881e(a), that the government intends to offer into evidence or otherwise use or disclose from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 . . . .

The Supreme Court held that the plaintiffs in Clapper lacked standing to challenge warrantless wiretaps, because they couldn't show that they'd been, or would be, wiretapped under the specific statutory authority they sought to challenge.  Now that the government has disclosed that its evidence resulted from warrantless wiretaps, Muhtorov has clear standing to challenge the wiretaps. 

This merely puts the legality of the wiretaps before the courts; it doesn't answer the underlying question.  For that, we'll have to await the ruling and appeals.

October 27, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Criminal Procedure, Fourth Amendment, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

Human Rights Watch Urges Changes to Draft Vietnamese Constitution

Human Rights Watch penned a letter to the Chairman of the Vietnamese National Assembly this week, urging the body to protect the rights and liberties of all people in Vietnam as the Assmebly moves forward with the country's new constitution.  Here's the press release.

The National Assembly has authority to revise the constitution; it is considering amendments during a session from October 21 to November 30, 2013.  The government opened the draft constitution up for public and official comment on January 2, 2013, and received tens of thousands of submissions.  But as HRW points out, some who campaigned for changes found themselves targets of government reprisal.

The letter urges the assembly to "ensure that the amendment process brings the constitution into conformity with Vietnam's obligations under international law so that it fully protects the rights and liberties of all people in Vietnam, which will contribute to the country's development."  In particular, the group is concerned about these:

-Weakened protections against arbitrary arrest;

-Expansion of the one-party state;

-Extension of control over the armed forces by the Communist Party

-Broad limitations on rights, broader than limitations recognized under international law;

-A weak judiciary and Constitutional Council.

The group also recognized some positive developments, including the more frequent references to human rights, and extension to both citizens and non-citizens; explicit reference to the right to life; a new ban on discrimination on political, economic, cultural, and social grounds; a new prohibition on gender discrimination; new criminal procedure rights; bans on forced labor and child labor; the establishment of a Constitutional Council; and the creation of a National Election Commission.

October 23, 2013 in Comparative Constitutionalism, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Friday, October 18, 2013

Arizona, Kansas to Use Two-Tier Voter Registration in Response to Inter Tribal Council

The states of Arizona and Kansas have announced that they will require voters to register separately for state and federal elections--using the standard federal form for federal elections, but using more stringent requirements for state registration.

The moves are a response to the Supreme Court's ruling this summer in Arizona v. Inter Tribal Council of Arizona.  That case held that the federal requirement under the National Voter Registration Act that states "accept and use" an approved and uniform federal form for registering voters preempted Arizona's requirement that voters present evidence of citizenship at registration.  (Under this system, state voters could register for federal and state elections all at once, using the same standardized federal form, with the same requirements.)  The result: the Court struck Arizona's proof-of-citizenship add-on to the standardized federal form. 

So the states sought a work-around, so that they could retain a proof-of-citizenship requirement for some voter registration.  And they came up with the only voter registration that they now seem to have control over: registration for state elections.

The states say that Inter Tribal applies only to federal elections, that they can design and use their own forms for state elections, and that voters who register using only the federal form are qualified only to vote in federal elections (and not state and local elections).  To the states, this all means that a two-tiered system makes sense.

Under the two-tiered system, voters in those states could register for federal elections using the NVRA standardized federal form.  But voters would have to show additional proof of citizenship--of the kind struck in Inter Tribal--in order to register to vote in state elections.

The moves harken back to practices in the Jim Crow South and stand as a barrier to voter registration.  Ari Berman argues over at The Nation:

In the Jim Crow South, citizens often had to register multiple times, with different clerks, to be able to vote in state and federal elections.  It was hard enough to register once in states like Mississippi, were only 6.7 percent of African-Americans were registered to vote before the passage of the Voting Rights Act of 1965.  And when the federal courts struck down a literacy test or a poll tax before 1965, states like Mississippi still retained them for state and local elections, thereby preventing African-American voters from replacing those officials most responsible for upholding voter disenfranchisement laws. . . .

Over 300,000 voters were prevented from registering in Arizona after its proof-of-citizenship law passed in 2004.  In Kansas, 17,000 voters have been blocked from registering this year, a third of all registered applicants, because the DMV doesn't transfer citizenship documents to election officials. 

At the very least, the two-tiered systems promise to complicate voter registration and maintenance of voter lists for the states.

Still: there's little or no evidence of voter fraud.

 

October 18, 2013 in Cases and Case Materials, Elections and Voting, Federalism, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Thursday, October 17, 2013

Government to Disclose Eavesdropping, Sets up Challenge to FISA

The Department of Justice will tell a criminal defendant in coming weeks that evidence used against him derived from eavesdropping, The New York Times reports.  The disclosure--the first in a criminal case--will give the defendant standing to challenge the government's authority under the Foreign Intelligence Surveillance Act to conduct surveillance against non-U.S. persons outside the United States, even when they're communicating with people within the United States.

Recall that the Court ruled earlier this year in Clapper v. Amnesty International that human rights and media organizations and attorneys lacked standing to challenge Section 702 of the FISA, which authorizes the surveillance, because they couldn't show that they had been, or would be, targets of surveillance.  Solicitor General Donald Verrilli represented to the Court in the case that prosecutors tell defendants when they're using evidence derived from FISA surveillance.  In particular, he wrote in the government's opening brief in the case,

If the government intends to use or disclose any information obtained or derived from its acquisition of a person's communications under [FISA Section 702] in judicial or administrative proceedings against that person, it must provide advance notice of its intent to the tribunal and the person, whether or not the person was targeted for surveillance . . . .  That person may then challenge the use of that information in district court by challenging the lawfulness of the . . . acquisition.

Government's Opening Brief at 8 (emphasis added).

But this turns out to be false, according to the NYT.  The Times reports that SG Verrilli discovered that prosecutors weren't telling defendants, after all.  

The discovery came in the fallout of a speech by Senator Dianne Feinstein.  That speech, touting FISA, suggested that the government used FISA-derived communications successfully in several cases.  But when defendants in two of those cases pressed prosecutors, the prosecutors said that they didn't have to say whether they used FISA-derived communications.  

This prompted SG Verrilli to ask national security lawyers why nobody told him before he filed his brief (and made similar comments at oral argument).  Government lawyers then argued over whether they had to disclose, with SG Verrilli taking the position that do.  Verrilli's position apparently prevailed, and the government will disclose to a defendant in coming weeks.

The move will give standing to the defendant to challenge Section 702, notwithstanding Clapper.  That's because the defendant will be able to show, with certainty, that he was subject to FISA surveillance--something the Court said that the Clapper challengers couldn't do.  

But it's not clear whether prosecutors will disclose to already-convicted defendants who were convicted on FISA-derived communications, and, if so, what will happen in those cases.  It's not even clear how many of those defendants there are.

October 17, 2013 in Cases and Case Materials, Criminal Procedure, Fundamental Rights, News, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, October 3, 2013

Idaho Court Rules Denial of Motions Violates State Constitutional "Open Courts"

The Idaho Supreme Court ruled today that a magistrate judge's order dismissing a party's motions because the party had been found guilty of contempt for for failing to pay child support violated the party's right to access the courts.

The case is notable because it invokes the Idaho Constitution's "Open Courts" provision--a common provision in state constitutions, but one that's relatively rarely litigated and has spawned a notoriously confused jurisprudence in the state courts.  More: the court apparently reached out for the issue.

The case, State of Idaho Department of Health and Welfare v. Slane, involved a father's motions for child custody and modification of child support.  The father had been previously judged in contempt of court for failing to pay court-ordered child support, and he was unable to purge the contempt when he filed his motions.  A magistrate judge then dismissed the motions because of the father's inability to purge the contempt and pay back child support.  A lower court upheld the magistrate's ruling.

The Idaho Supreme Court reversed for reasons dealing with the details of the contempt and the details of the magistrate's order.  But then it added an alternative basis for its ruling: the magistrate's order violated the state constitutional open courts provision.

Article I, Section 18 of the Idaho Constitution says that "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice."  

This kind of "open courts" provision is common in state constitutions.  Open courts provisions first appeared in early state constitutions (borrowing from language in Magna Carta), and later state constitutional drafters appear to have simply lifted the text--sometimes modifying it slightly, but without any real thought about what it means.

That's led to a notoriously confused jurisprudence among state courts in interpreting state constitutional open courts provisions.  In short, many states have an open courts provision, but courts across states can't seem to agree on exactly what "open courts" means.

So the Idaho Supreme Court's ruling is notable for dealing with open courts--for giving it some dimension and definition, at least in this context.  But it's notable for a couple other reasons, too.  For one, the court seems to have reached for the issue.  Neither party seems to have argued it (based on the briefs, at least), and it's dicta.  (The court could have hung its hat on its analysis of the details of the contempt and the magistrate's order, but it added this alternative reason for striking the magistrate's order.)  Moreover, in ruling the way that it did, the court overruled three of its own opinions (from the mid-twentieth century) "to the extent that they are inconsistent with this opinion."

The upshot of all this is that the father gets his motions reinstated.  

October 3, 2013 in Cases and Case Materials, Comparative Constitutionalism, Fundamental Rights, News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)