Constitutional Law Prof Blog

Ninth Circuit: Arizona Proof-of-Citizenship for Registration Unconstitutional

The en banc Ninth Circuit this week in Gonzalez v. Arizona overturned Arizona's requirement that prospective voters in Arizona provide proof of U.S. citizenship in order to register.  But the court also upheld the state's requirement that registered voters show ID to cast a ballot at the polls.

The case is the latest ruling on Arizona's many attempts to clamp down on illegal immigration--just a week before the Supreme Court will hear arguments on Wednesday on S.B. 1070.  It's also the latest ruling on the many attempts in the states to tighten registration and voting requirements.  The case suggests that states may face difficulties in tightening registration requirements for federal elections, even if they have flexibility in enacting voter ID laws at the polls.  (The Supreme Court rejected a Fourteenth Amendment Equal Protection challenge to Indiana's voter ID law in 2008 in Crawford v. Marion County.  Under Crawford, voter ID laws are subject merely to a balancing test--at least unless plaintiffs can show that a particular voter ID law creates a much more significant barrier to voting than the plaintiffs demonstrated in Crawford.)

The Ninth Circuit ruled that Arizona's registration provision conflicted with the National Voter Registration Act of 1993, and that the NVRA superceded Arizona's registration provision.  The NVRA prescribes three ways that states can register voters for federal elections: application with an application for a driver's license; mail application using a federal form designed by the Eelection Assistance Commission; and in-person registration.  The NVRA also requires states to create a combined driver's license and voter registration form, and it delegates to the EAC the creation of a nationally uniform Federal Form for mail and in-person registration for federal elections.  (The key language: the NVRA says that states must "accept and use" the Federal Form developed by the EAC.)  States may (but are not required to) create their own forms for federal elections, so long as those forms meet NVRA criteria.  (State forms do not replace the Federal Form; the Federal Form is still required.)

The NVRA says that the Federal Form "may require only such identifying information . . . as is necessary to enable the [state] to assess the eligibility of the applicant."  It also says that the Federal Form must include an "attestation that the applicant meets [citizenship requirements]."  Under the NVRA, the EAC created a Federal Form that asks "Are you a ctiizen of the United States of America?"  The Form says that an applicant should not complete the form if he or she answered no.

While neither the NVRA nor the EAC Federal Form requires proof of citizenship (beyond the attestation), Arizona's Proposition 200 does.  It says that "[t]he county recorder shall reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship."  (Arizona's requirement applies to both the Federal Form and to the state form.  The EAC earlier rejected Arizona's proposal to modify the Federal Form consistent with Prop 200.)  Arizona's Prop 200 thus goes beyond and adds to the requirements of the NVRA and the EAC Federal Form.

The court ruled that the additional ID requirement in Arizona's Prop 200 conflicted with the NVRA and the EAC Federal Form.  It sais that the NVRA doesn't give states room to add to the Federal Form--exactly what Prop 200 sought to do.  And because Congress enacted the NVRA under the Elections Clause, the NVRA trumps Arizona's law.  The Elections Clause says that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."  The court ruled that a valid enactment under the Elections Clause, like the NVRA, preempts conflicting state law, with no presumption against preemption (as in more traditional preemption cases, under the Supremacy Clause, because the Elections Clause does not require the same kind of balancing of federalism concerns). 

But while the court ruled the registration provision unconstitutional, it upheld the voter ID provision against challenges under Section 2 of the Voting Rights Act, the 24th Amendment, and the Fourteenth Amendment Equal Protection Clause.  As to the Section 2 challenge, the court said that the plaintiffs failed to produce evidence showing that "Latinos' ability or inability to obtain or possess identification for voting purposes . . . resulted in Latinos having less opportunity to participate in the political process and to elect representatives of their choice."  As to the constitutional challenges, the court applied a Crawford-like balancing analysis and upheld the law.

Chief Judge Kozinski wrote in concurrence that "this is a difficult and perplexing case," and that the "statutory language we must apply is readily susceptible to the interpretation of the majority, but also that of the dissent."  He concurred in full, even though he dissented in the prior three-judge panel.  (He explains why on page 4196.)

Judge Berzon, joined by Judge Murguia, concurred but suggested that the plaintiffs could make out a Section 2 case against voter ID, but that under the current record they didn't.

Judge Pregerson concurred and wrote that the plaintiffs did make out a Section 2 case against voter ID.

Judge Rawlinson, joined by Judge Smith, concurred on voter ID, but dissented on the registration requirement.

SDS

Court Limits Torture Act to Natural Persons

A unanimous Supreme Court ruled yesterday in Mohamad v. Palestinian Authority that the Torture Victim Protection Act applies only to natural persons, not organizations.  The ruling means that torture victims cannot bring claims under the TVPA against anyone (or anything) other than an individual, natural person--and thus ensures that plaintiffs can use the TVPA in only a very narrow category of cases.  That's because torture victims often cannot identify their individual torturers, although they can identify the organization with which their torturers are affiliated.

Azzam Rahim's relatives filed this claim under the TVPA against the Palestinian Authority, alleging that the Palestinian Authority imprisoned, tortured, and killed Rahim.

Justice Sotomayor wrote for the Court that the term "individual" in the TVPA meant only a natural person, not an organization like the Palestinian Authority.  The TVPA says,

An individual who, under actual or apparent authority, or color of law, of any foreign nation --

(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or

(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.

The Court examined the plain language of the statute and other similar statutory provisions that distinguish between an "individual" (as a natural person) and an organizational entity of some kind and concluded that "individual" means only a natural person.  The Court also rejected the plaintiffs' arguments based on legislative history and the need for a judicial remedy.

The ruling limits TVPA remedies for torture victims, because victims often cannot identify their individual torturers (although they can identify the organization with which their torturers are affiliated).  (The Court cited evidence from the legislative history that suggests Congress intended that the Act apply only narrowly, in few cases.)

Congress, of course, can change the TVPA to cover organizations and corporations.  As the Court noted, "[t]here are no doubt valid arguments for such an extension."

This case is related to another torture case now before the Court, Kiobel v. Royal Dutch Petroleum.  In that case, the plaintiffs filed a claim under the Alien Tort Statute (not the TVPA) against a corporation for human rights abuses in another country.  The original issue was whether the ATS applied against corporations--an issue similar to the question in Mohamad, but under a different statute.  The Court, however, ordered reargument next term on the question whether the ATS applies to actions outside the United States.  The new question adds another layer to the case and provides another basis on which the Court could deny relief to the plaintiffs.  If so, the Court will have interpreted two important human-rights-protecting statutes narrowly and thus significantly limited judicial remedies for torture victims in U.S. courts. 

Again, though: Congress could change all this.

SDS

Private Attorney Retained for Government Investigation May Seek Qualified Immunity

A unanimous Supreme Court ruled on Tuesday in Filarsky v. Delia that a private person temporarily hired by the government to perform an internal investigation may seek qualified immunity from a civil rights suit arising out of his investigation.  The ruling sends the case back to the lower courts to determine whether the private person, Filarsky, is actually immune under qualified immunity principles.

The case arose out of a strangely aggressive investigation of a relatively minor incident.  Delia, a City of Rialto (Cal.) firefighter, missed work after becoming ill on the job.  When the City became suspicious (after someone saw Delia buying building supplies) it initiated an internal investigation and hired Filarsky, a private attorney, to conduct it.  As part of the investigation, Filarsky asked Delia to allow fire department officials to enter Delia's home to take a look at the unused building materials.  When Delia refused, Filarsky ordered him to bring the materials out of his home for the officials to see.

Delia sued the City, the fire department, City officials, and Filarsky for civil rights violations under Section 1983.  The lower courts granted qualified immunity to all individual defendants, but the Ninth Circuit ruled that Filarsky didn't qualify--because he was a private attorney, not a City employee.

Chief Justice Roberts wrote for a unanimous Court.  He applied the familiar test--looking to the general principles at common law in 1871, when Congress passed Section 1983, and the reasons that the Court has extended immunity under Section 1983 suits--and concluded that Filarsky could claim qualified immunity.

Chief Justice Roberts wrote that lines between government employment and private practice weren't so clear for attorneys in 1871, and that private attorneys often performed government functions, and vice versa.  As a result, "it should come as no surprise that the common law did not draw a distinction between public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities."  Op. at 8.  And "[i]ndeed, examples of individuals receiving immunity for actions taken while engaged in public service on a temporary or occasional basis are as varied as the reach of government itself."  Op. at 10.  Moreover, the principal reason for qualified immunity, avoiding "unwanted timidity" in performance of public duties, applied equally to Filarsky.  Thus, Chief Justice Roberts wrote, Filarsky could claim qualified immunity.

Justice Ginsburg wrote a concurrence, emphasizing that the lower courts now have to determine whether Filarsky's conduct violated a "clearly established" right--and therefore whether he's actually immune.  Justice Sotomayor wrote a concurrence, saying that this case doesn't mean that all private individuals working temporarily for the government may claim qualified immunity, or that they all may not.  According to Justice Sotomayor, "[t]he point is simply that such cases should be decided as they arise, as is our longstanding practice in the field of immunity law."

SDS

Arkansas Statute Criminalizing Student-Teacher Sex Held Unconstitutional

Ark. Code Ann. § 5-14-125(a)(6) (Repl. 2009) provides that a person commits sexual assault in the second degree if the person is a teacher in a public school in a grade kindergarten through twelve (K-12) and
engages in sexual contact with another person who is:
        (A) A student enrolled in the public school; and
        (B) Less than twenty-one years of age.

In a 4-3 opinion, the Arkansas Supreme Court in Paschal v. State declared the statute unconstitutional as applied to the criminal conviction of David Paschal, a high school teacher, for a "months-long sexual relationship" with an eighteen-year-old student.  Pashal had been sentenced to ten years’ imprisonment
on each of three sexual-assault convictions and given ten years’ suspended sentence for a fourth sexual-assault conviction.

Pashal relied upon Lawrence v. Texas as well as interpretations of the Arkansas Constitution protecting adult consensual sex.  While the Arkansas court had previously upheld the criminalization of sex by a member of the clergy who is "in the position of trust or authority over the victim and uses the position
of trust or authority to engage in sexual intercourse or deviate sexual activity,"  the court here noted that § 5-14-125(a)(6) was a "strict liability" statute that did not mention trust or authority. 

It was on this interpretation of the statute that the majority and dissent bitterly disagreed.  The majority opinion, footnote 10, stated: "We find appalling the statement from one of the dissenting justices that the majority’s interpretation of the statute condones a teacher’s misuse of trust or authority."  Later in the same footnote the majority writes that the "dissent's manufacturing" of the issue of the teacher's awareness of a position of authority "is both injudicious and irresponsible."

Essentially, the majority found persuasive the fact that the victim was an adult.  The state conceded the sexual relationship was consensual, and without more, the statute was unconstitutional as applied.

RR
[image: "The Schoolmaster" by Charles Green circa 1875 via]

Ontario Court of Appeal on the Constitutionality of Criminalizing Prostitution

 In a much anticipated decision, the Court of Appeal for Ontario has just rendered its opinion in Canada (Attorney General) v. Bedford, 2012 ONCA 186 regarding constitutional challenges to commercial sex.

Note that to a large extent - - - or at least much larger than in most of the U.S. - - - Canada has decriminalized commercial sex.  At issue in Bedford is the constitutionality of three provisions of the Criminal Code which "form the core of Parliament's response to prostitution:" 

1. Section 210, which prohibits the operation of common bawdy- houses. This prevents prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes;

2. Section 212(1)(j), which prohibits living on the avails of prostitution. This prevents anyone, including but not limited to pimps, from profiting from another's prostitution; and

3. Section 213(1)(c), which prohibits communicating for the purpose of prostitution in public. This prevents prostitutes from offering their services in public, and particularly on the streets.

The constitutional challenges were based on the Canadian Charter of Rights and Freedoms.  Specifically, §7 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

and §2(b) provides:

Everyone has the following fundamental freedoms:     ...
                    (b) freedom of ... expression

Section 1 of the Charter is the limiting (or balancing) provision providing that the Charter

guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.....

In a closely reasoned, well-organized, and lengthy opinion, the Court of Appeal for Ontario reached disparate conclusions.

The provincial high court held Section 210 regarding the operation of bawdy houses unconstitutional, but suspended the declaration of invalidity to allow Parliament to redraft the provision. 

The court held that Section 212(1)(j) should be interpreted to save its constitutionality, by including words of limitation so that it applies "only to those who live on the avails of prostitution in circumstances of exploitation."

Over two dissents in an otherwise unanimous opinion, the court upheld the constitutionality of criminalizing "communicating for the purpose of prostitution in public." 

Sure to elicit much commentary (initial reports here, here & here) and perhaps appeal to the Supreme Court of Canada, this opinion is of obvious import to Canadian constitutional scholars, but also merits a great deal of attention from ConLawProfs south of the border.

RR
[image: ceiling in Osgoode Hall, Court of Appeal for Ontario, via]

Saturday Evening Review: What Would Elizabeth Cady Stanton Say?

Feminist icon Elizabeth Cady Stanton (pictured right) is frequently portrayed as an anti-abortion.  For example, bills such as The Susan B. Anthony and Frederick Douglass Act of 2011, H.R. 3541, and The Elizabeth Cady Stanton Pregnant and Parenting Students Services Act of 2005, S.1966, H.R. 4265, co-sponsored by 2012 Republican Presidential candidate Rick Santorum, sought to limit abortion and other reproductive rights in the name of Stanton (as well as anti-slavery hero Frederick Douglas).   Stanton's supposed anti-abortion views are also frequently cited in Supreme Court briefs to defeat an argument that abortion is central to women's rights by noting that early feminists were against the practice.

But was Stanton actually anti-abortion?

Professor Tracy Thomas argues that Stanton is an unlikely - - - and inappropriate - - - poster woman for the contemporary anti-abortion movement in a new paper entitled Misappropriating Women’s History in the Law and Politics of Abortion.   According to Professor Thomas, Stanton "did not talk about abortion per se" and "did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women."   Instead,

Stanton turned this debate to her priority of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law.

Of course, Stanton was not one of the framers of the Fourteenth Amendment and indeed, she refused to support the Amendment given its exclusion of women.  Nevertheless, Stanton's "originalist" views on the rights of women are often invoked and Tracy Thomas has provided vital historical sources, analysis, and arguments regarding Stanton's position. 

Thomas' article is sure to provoke its own analysis and arguments, and equally sure to be an important contribution in contemporary debates regarding the legal regulation of abortion.  It's a must-read for any scholar working on this controversial constitutional area.

RR
[image of Elizabeth Cady Stanton circa 1880 via]

Right to Counsel Applies to Consideration of Plea Offers That Lapse or Are Rejected

In a pair of cases this week, Missouri v. Frye and Lafler v. Cooper, a sharply divided Supreme Court ruled that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected.  The rulings are a victory for defendants in criminal systems where upwards of 97% of all federal convictions and 94% of all state convictions are the result of guilty pleas.

Still, under the rulings, criminal defendants will have no easy time in showing that their attorneys are ineffective.  That's because the Court requires them to show a reasonable probability that they would have accepted a lapsed plea, that the prosecutor wouldn't have revoked it, and that the court would have accepted it.  They also have to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.

And even if a defendant can jump through these hoops, there's still the question of the remedy.  Under Cooper, the trial court could simply reinstate the final conviction and sentence, leaving the defendant no better than he was before the Supreme Court's rulings.

Frye arose out of a defense attorney's failure to tell his client about the prosecution's plea offer.  The defendant went on to enter an open plea and received a higher sentence than the offer.  The Court ruled that the attorney's failure to share the plea offer constituted deficient performance, satisfying the first prong of the Strickland test.  But the Court remanded the case to the state court to determine the state law questions whether there was a reasonable probability that the prosecutor wouldn't have revoked the offer and that the court would have accepted it.  If the defendant can't show a reasonable probability, there's no prejudice under the second prong of the Strickland test.

Cooper arose out of a defendant's rejection of a plea offer based on his attorney's erroneous advice that the prosecution would be unable to convict him of the charged crime.  The defendant was convicted after trial and sentenced to a term 3.5 times longer than the term in the plea offer.  The parties agreed that counsel's performance was deficient under Strickland's first prong, and the Court ruled that the defendant's higher sentence at trial constituted prejudice.  As a remedy, the Court ruled that the state must reoffer the plea.  The trial court can then vacate the convictions and resentence pursuant to the plea, vacate only some of the convictions and resentence accordingly, or leave the convictions and sentences undisturbed.

The Court in both cases emphasized that criminal justice is largely a process of plea, not trial, and that the plea process, including consideration of plea offers, is a critical stage triggering the right to effective assistance of counsel.  The dissent in both cases emphasized that there's no right to a plea offer, and that the defendants in both cases were convicted after a free and fair open plea (in Frye) and a fair trial (in Cooper).

Justice Kennedy wrote for himself and Justices Ginsburg, Breyer, Sotomayor, and Kagan in both cases.  Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented in both.

SDS

Sixth Circuit Upholds Cigarette Warning Requirements

A divided three-judge panel of the Sixth Circuit today rejected the plaintiffs' facial challenge of the warning requirements for cigarette packaging and cigarette advertising in the federal Family Smoking Prevention and Tobacco Control Act.  The court ruled that the warning requirements did not violate the First Amendment on their face.

The case, Discount Tobacco City & Lottery, Inc. v. U.S., involved a facial challenge to the Act's graphic-warning provision, which mandates that the FDA "require color graphics depicting the negative health consequences of smoking" to accompany the textual warnings on cigarette packaging and advertising.

The court applied Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio rational-basis test and wrote,

Faced with the evidence that the current warnings ineffectively convey the risks of tobacco use and that most people do not understand the full risks, the Act's new warnings are reasoanbly related to promoting greater public understanding of the risks.  A warning that is not noticed, read, or understood by consumers does not serve its function.  The new warnings rationally address these problems by being larger and including graphics.

Op. at 76.

The Sixth Circuit's ruling is not directly at odds with the recent D.C. district court decision striking down the FDA's required warning labels under the First Amendment, R.J. Reynolds Tobacco Co. v. FDA.  That's because today's ruling dealt only with a facial challenge to the Act, not to the FDA's rules.  The court explained:

Moreover, the dissent's reliance on the recent D.C. district court opinion actually undercuts the dissent's conclusion that the Act's required warnings are facially unconstitutional.  As the dissent acknowledges, the district court in the D.C. case examined the "government's proposed color graphics images"--namely, the final nine images the FDA settled on when it issued its Final Rule.  The distinction drawn by the D.C. court between the graphic-warning requirements of the FDA's Rule and the graphic-warning requirements of the Act is a crucial one that the dissent's analysis glosses over.  The flaw caused by ignoring this distinction is that the characteristic of the FDA-chosen images that the dissent finds objectionable--namely, that the images provoke a visceral response in the audience--is simply not in the statute.   The dissent reads that characteristic as something required by the face of the statute when the statute on its face requires no such thing.  The Act simply requires "color graphics depicting the negative health consequences of smoking."

Op. at 83.

SDS

Kettling: European Court of Human Rights Upholds the Law Enforcement Practice

The controversial law enforcement practice of kettling - - - confining and cordoning persons, usually during a protest or assembly, often for extended periods of time - - - has been upheld by the European Court of Human Rights (ECHR) in its opinion in Austin & Others v. United Kingdom. 

Kettling has become increasingly popular as US police practice, including in Occupy protests.  There is a lawsuit against the NYPD for the kettling and mass arrest at the Brooklyn Bridge last October.

The ECHR case arose from a 2001 protest in London in which the applicants were held within a police cordon for up to seven hours during the course of the demonstration, although some had no affiliation with the protest.  In the UK proceedings, the judges rejected the applicants' claims of false imprisonment and denial of the right to liberty (interestingly the applicants had dropped their original free speech and free assembly claims), reasoning in large part that law enforcement had to perform their duties of crowd control.   

In the ECHR the applicants contended that they were deprived of their liberty in breach of Article 5 § 1 of the Convention,  provides that "Everyone has the right to liberty and security of person" and that no one "shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

• (a)  the lawful detention of a person after conviction by a competent court;
• (b)  the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
• (c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
• (d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
• (e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
• (f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

The U.K. government argued that there was no denial of liberty, but if there was, it was within the exceptions of (b) or (c).

The Court held that "the use of containment and crowd control techniques could, in particular circumstances, give rise to an unjustified deprivation of liberty in breach of Article 5 § 1. In each case, Article 5 § 1 must be interpreted in a manner which takes into account the specific context in which the techniques are deployed, as well as the responsibilities of the police to fulfil their duties of maintaining order and protecting the public, as they are required to do under both national and Convention law." (¶ 60). 

However, the Court concluded that the facts, as found in the U.K. trial, did not rise to level of a deprivation of liberty:

the Court is unable to identify a moment when the measure changed from what was, at most, a restriction on freedom of movement, to a deprivation of liberty. It is striking that, some five minutes after the absolute cordon was imposed, the police were planning to commence a controlled release towards the north. Thirty minutes later, a second attempt by the police to begin release was begun but suspended, because of the violent behaviour of those within and outside the cordon. Between about 3 p.m. and 6 p.m. the police kept the situation under review, but the arrival of a new group of protesters and the dangerous conditions within the crowds led them to consider that it would not be safe to attempt to release those within the cordon. Controlled release was recommenced at 5.55 p.m., but stopped at 6.15 p.m.; resumed at 7 p.m. and suspended at 7.20 p.m.; begun again at 7.30 p.m., again abandoned; then carried out continuously, by groups of ten, until the entire crowd had been released at 9.45 p.m.  . . .  In these circumstances, where the police kept the situation constantly under close review, but where substantially the same dangerous conditions which necessitated the imposition of the cordon at 2 p.m. continued to exist throughout the afternoon and early evening, the Court does not consider that those within the cordon can be said to have been deprived of their liberty within the meaning of Article 5 § 1. Since there was no deprivation of liberty, it is unnecessary for the Court to examine whether the measure in question was justified in accordance with subparagraphs (b) or (c) of Article 5 § 1.

 (¶67). 

Three judges dissented, contending that "the aim or intention of a measure cannot be taken into account in assessing whether there has been a deprivation of liberty," but are only relevant in assessing whether the deprivation of liberty was justified. 

Indeed, this does seem as if it is the better view, although the outcome might be the same.  A deprivation of liberty for seven hours does not become less a deprivation because of the rationales for the police practices, although those practices might be justifiable.

Journalist Louise Christian of The Guardian has commentary here.

RR
[image: Kettling at the G20 protests in London, 2009, via]

Karlan on Rights and Remedies

Pamela Karlan argues in the Boston Review that the Supreme Court has stepped back from protecting civil rights and civil liberties in recent years by constricting the "remedial machinery" of rights protection (in addition to constricting the very definition of rights in the first place).

Karlan's short piece, What's a Right Without a Remedy?, presents the argument with especial reference to the exclusionary rule and the qualified immunity doctrine in Section 1983 litigitation. She argues that on the one hand the Court has been chipping away at at a principal criminal procedure protection, the exclusionary rule, leaving those harmed without a criminal procdure remedy. But on the other hand the Court has gutted the other principal enforcement mechanism, 18 U.S.C. Sec. 1983, through the doctrine of qualified immunity. The net result: The Court's tightening of the "remedial machinery" is leaving plaintiffs without a remedy.

In its cases cutting back on the exclusionary rule, the Court often points to the availability of alternative mechanisms for enforcing the Fourth Amendment's prohibition of unconstitutional searches and seizures. The Court has repeatedly highlighted the option to seek civil damages under a Reconstruction-era statute (42 U.S.C. Sec. 1983), which authorizes suits against state and local officials and governments that deprive individuals of their constitutional rights. Yet the Court has substantially weakened the section 1983 remedy at precisely the same time that it has weakened the exclusionary rule, engaging in a sort of shell game in which the presence of each remedy serves to justify weakening the protections of the other.

SDS

Court Says FDA Warnings Violate First Amendment

Judge Richard J. Leon (D.D.C) ruled yesterday in R.J. Reynolds Tobacco Co. v. FDA that the FDA's required warning labels on cigarette packs violate free speech and granted summary judgment in favor of the tobacco companies that sued to stop them.  Judge Leon also permanently enjoined the FDA from enforcing these warning labels and enjoined the FDA from enforcing new, constitutional warning labels against the plaintiffs for 15 months after the FDA finalizes those new labels. 

The ruling was hardly a surprise.  Judge Leon issued a temporary injunction last November based in part on the plaintiffs' likelihood of success on their First Amendment claim.  He adopted very similar reasoning yesterday--that the warning labels do not communicate information (instead, they advocate a position), that they are therefore not compelled commercial speech under Zauderer v. Office of Disciplinary Counsel, and, as non-commercial compelled speech, they do not satisfy strict scrutiny. 

Here's Judge Leon on why the labels do not communicate information, but instead advocate a position (taking them out of the Zauderer framework):

To the contrary, the graphic images here were neither designed to protect the consumer from confusion or deception, nor to increase consumer awareness of smoking risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.  Indeed, a report by the Institute of Medicine--an authority chiefly relied upon by the Government--very frankly acknowledges this very purpose. . . .

Further, the graphic images are neither factual nor accurate.  For example, the image of the body on an autopsy table suggests that smoking leads to autopsies; but the Government provides no support to show that autopsies are a common consequence of smoking.  Indeed, it makes no attempt to do so.  Instead, it contends that the image symbolizes that "smoking kills 443,000 Americans each year."

Here's Judge Leon on why the government end is not compelling:

Although an interest in informing or educating the public about the dangers of smoking might be compelling, an interest in simply advocating that the public not purchase a legal product is not.

And finally, here's Judge Leon on narrowly tailoring:

As I noted previously, "the sheer size and display requirements for the graphic images are anything but narrowly tailored." . . .

[W]ith respect to the content of the graphic images, it is curious to note that plaintiffs have offered several alternatives that are easily less restrictive and burdensome for plaintiffs, yet would still allow the Government to educate the public on the health risks of smoking without unconstitutionally compelling speech.

Judge Leon also noted that according to the legislative record Congress didn't consider First Amendment problems with the authorizing act.

SDS

Texas Court Issues New District Maps

The Western District of Texas issued new legislative district maps late yesterday after the Supreme Court sent the case back to the Texas court last month.  (Thanks to txredistricting.org for the maps.)

Recall that the Supreme Court in Perry v. Perez vacated the Texas district court's maps that were drawn while Texas's preclearance case under Section 5 of the Voting Rights Act was pending in the D.C. court.  The per curiam Supreme Court said that the Texas court should defer to the Texas legislature's maps unless they stand a "reasonable probability" of failing Section 5 preclearance.

In response, the Texas court reissued maps late yesterday.  Here's what the Texas AG had to say about it:

The new interim maps issued late today are a substantial improvement from maps previously issued by the San Antonio court.  As a result of the U.S. Supreme Court's unanimous, clear direction to the district court, these new interim maps more accurately reflect the decisions of elected Texas legislators.

In light of the State's legal arguments, the San Antonio court only modified the Legislatively enacted plan in response to alleged Voting Rights Act violations--while leaving virtually all other districts as they were drawn by the Legislature.  In doing so, the court properly rejected the demands by some plaintiffs to draw drastic and overreaching interim maps.

We apparently don't have a written opinion from the Texas court yet, and we can't see exactly how it applied the "reasonable probability" standard--and therefore whether Texas succeeded in forging a new path around Section 5 preclearance.

SDS

D.C. Circuit: No Federal Court Jurisdiction for Alien Detainee Constitutional Torts

The D.C. Circuit ruled today in Al-Zahrani and Al-Salami v. Rodriguez that the Military Commissions Act revoked federal court jurisdiction over Guantanamo alien detainees' damages claims for constitutional torts.  The ruling means that the fathers of two deceased Guantanamo detainees cannot pursue their federal court cases against government officials for their sons' deaths.  They have no judicial remedy in U.S. courts for any violation.

Section 7 of the MCA reads as follows:

(1) 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.

(2) Except as provided in [section 1005(e)(2) and (e)(3) of the Detainee Treatment Act of 2005], 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 detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

28 U.S.C. Secs. 2241(e)(1) and (2).

The court held that subsection (2) revoked federal court jurisdiction over the fathers' claims under the Alien Tort Statute, the Federal Tort Claims Act, and the Fifth and Eighth Amendments to the Constitution. 

The court distinguished Boumediene v. Bush, the 2008 case holding that subsection (1) unconstitutionally revoked the writ of habeas corpus in violation of the Suspension Clause.  The court said that while the Boumediene Court didn't distinguish between subsections (1) and (2), its reasoning, based on the Suspension Clause, only applied to subsection (1), not subsection (2) (which doesn't implicate the Suspension Clause).  So subsection (2) is still valid; and it bars the fathers' suit here.

The court rejected the fathers' argument that subsection (2) unconstitutionally deprived them of a remedy for a violation of a constitutional right.  The court said that the Supreme Court's Bivens jurisprudence, which rejects claims for money damages when certain immunities apply or when "special factors" counsel against such claims, supports the idea that "Not every violation of a right yields a remedy, even when the right is constitutional."  Op. at 7 (quoting Kiyemba v. Obama, 555 F.3d 1022, 1027 (D.C. Cir. 2009)).

Here, it means that Congress can validly revoke jurisdiction for this class of claims, and that the detainees' fathers--and any other alien detained at Guantanamo and claiming a violation of right--are out of luck.

SDS

Court Stays Montana Ruling on Citizens United

The Supreme Court on Friday stayed a Montana Supreme Court's ruling upholding the Montana state PAC requirement for corporate campaign expenditures, even in the face of Citizens United v. FEC.  We posted on the Montana Supreme Court case, American Tradition Partnership, Inc. v. Bullock, here.  Recall that the Montana court distinguished Citizens United, saying that the Montana PAC requirement wasn't onerous, that Montana campaign spending regulations are far less onerous than federal regulations and did not deter the plaintiff-corporations' spending, and that Montana has a unique history of powerful corporations, controlled by outsiders, dominating state politics.  In short, the Montana court said that the state PAC requirement satisfied strict scrutiny and thus met the high bar for restrictions on independent corporate spending set in Citizens United.

Justices Ginsburg and Breyer wrote this on the Court's order:

Montana's experience, and experience elsewhere since this Court's decision in [Citizens United], make it exceedingly difficult to maintain that independent expenditures by corporations "do not give rise to corruption or the appearance of corruption."  [Citizens United.]  A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed by buy candidates' allegiance, Citizens United should continue to hold sway.  Because lower courts are bound to follow this Court's decisions until they are withdrawn or modified, however . . . I vote to grant the stay.

The decision on Friday doesn't mean necessarily that the Court will hear the case, although it makes it likely.  The stay remains in effect if the Court grants cert.; if not, it goes away.

SDS

Ninth Circuit: Pol Immune from Suit for Firing Subordinate for Campaign Speech

A three-judge panel of the Ninth Circuit ruled on Monday in Hunt v. County of Orange that a local sheriff enjoyed qualified immunity against a civil rights suit by his lieutenant after the sheriff fired the lieutenant for campaigning against him.

The case arose after the sheriff's lieutenant campaigned against the sheriff and his "culture of corruption."  The sheriff placed the lieutenant on administrative leave and then demoted him, prompting the lieutenant to sue the sheriff under 42 U.S.C. Sec. 1983 for retaliation for exercising his First Amendment rights.

The district court dismissed the case, holding that the lieutenant fell into the "policymaker" exception to the general First Amendment rule against politically-motivated dismissals.  Alternatively, the court ruled that the sheriff was entitled to qualified immunity.

The Ninth Circuit ruled that the lieutenant was not a policymaker and therefore not within the policymaker exception under Elrod v. Burns.  But the panel ruled that the sheriff shouldn't have reasonably known this--and thus was entitled to qualified immunity:

[The lieutenant's] First Amendment right to be free from demotion for campaigning against [the sheriff] was clearly established as of June 2006. . . .  However, the critical question here is whether a reasonable official in [the sheriff's] position should have known that [the lieutenant] was not a policymaker whose political loyalty was important to the effective performance of his job. . . . 

We conclude, like the district court, that [the sheriff] could have reasonably but mistakenly believed that [the lieutenant's] demotion was not unconstitutional, given the unique nature of his job as Chief of Police Services for the City of San Clemente. . . .  We have carefully analyzed the development of the policymaker exception, its underlying purpose, the high burden on the government to prove that political fidelity was a necessary requirement of [the lieutenant's] job, and balanced the nine-factor [policymaker] analysis that requires a fact-dependent inquiry.  Even if [the sheriff] engaged in the appropriate analysis and wrongly concluded that [the lieutenant] was a policymaker such that demoting him was constitutional, we cannot say that he acted objectively unreasonably in concluding he could demote [the lieutenant] without violating his constitutional rights.

Judge Leavy would have ruled that the lieutenant was a policymaker, fell into the exception, and thus failed to state a First Amendment claim.

SDS

D.C. Circuit Rejects Detainee Habeas Claim

A three-judge panel of the D.C. Circuit rejected Guantanamo detainee Abdul-Rahman Abdo Abulghaith Suleiman's habeas claim earlier this week.  The case is just the latest from the D.C. Circuit on habeas claims of a Guantanamo detainees.

The court applied its familiar "part of" standard and concluded that Suleiman was part of the Taliban.  The panel upheld the district court's findings based on Suleiman's own testimony, an FBI report summarizing an interview, and a DOD record of an interview. 

According to the court,

There is no dispute that Suleiman's travel was initiated at the suggestion of and facilitated by a Taliban recruiter, and that he traveled a well-worn path to Afghanistan frequently used by Taliban recruits. . . .

He lived at the Al-Qa'eity guesthouse for seven months. . . .  His Taliban fighter housemates used it as a base to travel to and from the battlefront during the time Suleiman was there. 

Op. at 5-6.

SDS

Opinion Analysis: Ninth Circuit in Perry v. Brown, the Prop 8 case

As we noted earlier today, the Ninth Circuit panel has affirmed the district judge that Proposition 8 is unconstitutional, in a 2-1 decision.

The panel was unanimous on two points:

First, the proponents had standing.  The standing issue is convoluted in this case, for it is the standing of Hollingsworth and ProtectMarriage.com to appeal as proponents of Proposition 8, given that the state (in the person of defendant Governor Brown, formerly Schwarzenegger) refused to defend the constitutionality of Prop 8.  The panel distinguished Arizonans for Official English v. Arizona, 520 U.S. 43, (1997), stating that unlike that case,

we do know that California law confers on “initiative sponsors” the authority “to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” The California Supreme Court has told us, in a published opinion containing an exhaustive review of the California Constitution and statutes, that it does.

While a state (or other party) cannot confer Article III standing on a federal court, a state, as an "independent sovereign" possesses the prerogative to "decide for themselves who may assert their interests and under what circumstances."  Thus, the California Supreme Court's decision is outcome determinative.

Second, Walker's sexuality was not a reason to vacate his opinion.  More precisely, applying the abuse of discretion standard, District Judge Ware, who replaced Judge Walker Vaughn, was affirmed regarding the denial of a motion to vacate Walker's judgment based on Walker's sexuality. 

The panel divided on the central issue: the constitutionality of Prop 8 itself.  The majority opinion, authored by Reinhardt concluded that Proposition 8 was unconstitutional.  Reinhardt begins the panel majority opinion with an important framing of the issue:

Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right—the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.

Thus, Judge Reinhardt's opinion continued, Prop 8 "therefore could not have been enacted to advance California's interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples."  Additionally it did not "have any effect on religious freedom or on parents' rights to control their children's education; it could not have been enacted to safeguard these liberties."  Instead, all that Prop 8 "accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships."  Later in the opinion, the panel majority provides examples of the cultural significance of "marriage" as a term:

Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, “Will you marry me?”, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see “Will you enter into a registered domestic partnership with me?”. Groucho Marx's one-liner, “Marriage is a wonderful institution ... but who wants to live in an institution?” would lack its punch if the word ‘marriage’ were replaced with the alternative phrase. So too with Shakespeare's “A young man married is a man that's marr'd,” Lincoln's “Marriage is neither heaven nor hell, it is simply purgatory,” and Sinatra's “A man doesn't know what happiness is until he's married. By then it's too late.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for samesex couples is no different. The name ‘marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships. . . . .

Thus, for the panel majority, Prop 8 "serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."  The panel majority stated that the "Constitution simply does not allow for 'laws of this sort,' " quoting and citing  Romer v. Evans, 517 U.S. 620, 633 (1996).

Indeed, Romer v. Evans - - - in which the Supreme Court invalidated Colorado's Amendment Two that had prohibited any policies, ordinances, or laws that allowed claims of discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" - - - is a lynchpin of the panel majority's analysis.   Like Amendment 2, Prop 8 eliminated a pre-existing right:  "as the voters were told," Prop 8 would “eliminate the right of same-sex couples to marry in California.” :

Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.

Applying Romer's heightened rational basis scrutiny with its emphasis on animus as not satisfying a legitimate state interest, the panel majority finds Prop 8 - - - as an initiative that changed the status quo - - - to be unconstitutional.

Judge Smith, dissented as to the constitutionality of Proposition 8, largely arguing that Romer v, Evans was distinguishable.

The majority panel's final footnote forestalls the effect of the decision: "The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate."

The proponents now have to decide whether to seek a rehearing enbanc by the Ninth Circuit or to petition the United States Supreme Court for a writ of certiorari.  Doubtless, they will do one or the other.  And the complex Prop 8 saga will continue.

RR

 

Seventh Circuit Rejects Bar Applicant's Effort to Dodge Rooker-Feldman

The Seventh Circuit ruled last week in Brown v. Bowman that a bar applicant's claim in federal district court for constitutional violations in his bar application and appeal process was barred by the Rooker-Feldman doctrine.  (The Rooker-Feldman doctrine prevents lower federal courts from hearing cases by losers in state court cases that ended before the federal district court case started.  "The reason, quite simply, is that no matter how erroneous or unconstitutional the state court judgment may be, only the Supreme Court of the United States has jurisdiction to review it."  Op. at 9.)  The court said that the applicant's efforts to side-step the doctrine by pleading only constitutional violations, and not seeking a reversal of his ultimate rejection by state courts, failed, because the federal court would still have to review a state court decision.

The applicant, Brown, filed in federal district court after he was rejected by the Indiana Board of Law Examiners, and after his appeals through the Indiana courts and the U.S. Supreme Court all failed.  (The Indiana high court wrote an order stating that the BLE decision should stand; the U.S. Supreme Court denied cert.)  Brown alleged that a psychologist and a psychiatrist who evaluated him as part of his application drew conclusions that violated his speech, religion, and assembly rights under the First Amendment (among others).  The district court dismissed Brown's complaint under the Rooker-Feldman doctrine and ruled that individual defendants were entitled to qualified immunity.

The Seventh Circuit affirmed under the Rooker-Feldman doctrine.  The court ruled that Brown's effort to dodge the doctrine, by pleading only his constitutional claims in federal court and not by seeking to overturn the state courts' ultimate ruling, was insufficient:

Here, appellant's artful pleading cannot get him around Rooker-Feldman when the gravaman of his complaint requires the district court to review the state judicial proceeding. . . .  Though Brown focuses much of his appeal on the allegedly religiously biased JLAP evaluations and the conduct of JLAC members, these actions are intimately connected with the Indiana Supreme Court's adjudication. . . .  Because Brown's claims of religious bias require a federal district court to review the judicial process followed by the Indiana Supreme Court in deciding the merits of Brown's bar admission application, Brown's claims are "inextricably intertwined" and fall squarely under Rooker-Feldman's jurisdictional bar.

Op. at 12-13.

SDS

Ninth Circuit Sets Pleading Standard for Civil Rights Claims Against Municipalities

A three-judge panel of the Ninth Circuit ruled this week in AE v. Tulare that a civil rights plaintiff suing a municipality under Monell v. Department of Social Services has to allege some concrete facts to satisfy the pleading standard under Ashcroft v. Iqbal.  The ruling reiterates that the pleading rule in a Monell case in the Ninth Circuit now requires some concrete factual allegations--more than the pre-Iqbal rule in that Circuit.

Before Iqbal, the Ninth Circuit didn't require much detail at the pleading phase in a municipal liability case--no more than a bare allegation that goernment officials' conduct conformed to some unidentified government policy or custom.  But the government argued here that that should change under Starr v. Baca, the Ninth Circuit's ruling last year in which the court wrestled with the "perplexing" holdings in Swierkiewicz v. Sorema N.A., Dura Pharmaceuticals, Inc. v. Broudo, Bell Atlantic Corp. v. Twombley, Erickson v. Pardus, and Iqbal and set these pleading principles for civil rights claims:

whatever the difference between these cases, we can at least state the following two principles common to all of them.  First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.  Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

AE, at 792 (quoting Starr).  The court in AE said that this standard applies to AE's municipal liability claims and remanded the case to allow AE to amend the complaint to try to meet it.

SDS

First Circuit Rejects NOM's Challenges to Disclosure Laws Redux

In what the First Circuit calls the "second chapter" of challenges to the constitutionality of Maine's registration and disclosure laws regarding election-related advocacy, the court in National Organization for Marriage [NOM] v. McKee, essentially reaffirms its opinion last August in a case by the same name (and now to be known as NOM I).   The cases stem from the hard-fought same-sex marriage ballot initiative in Maine in 2009.  NOM II involves both NOM and American Principles in Action [APIA], although the court expressed doubt regarding APIA's standing as to some of the claims, and the principle arguments revolve around NOM.

The unanimous panel decision, authored by Judge Kermit Lipez, focuses on the "only substantively distinct issue" raised by this appeal as contrasted to NOM I:  the constitutionality of the definition of "contribution" in the "ballot question committee" [BQC] provision, Me. Rev. Stat. tit. 21-A, §1056-B.  The court concludes that the BQC provision, like the PAC provision at issue in NOM I survives the constitutional challenge.

The court quickly disposed of the First Amendment claims, on the basis of NOM I, but paid more attention to the assertion that the term "contribution" was unconstitutionally vague as a matter of due process, and that any reliance on subjective beliefs of a contributor were likewise void for vagueness. At issue were email communications such as:

"You can fight back! Can you help defend marriage in Maine and across the country, by donating $5, $10, or even, if God has given you the means, $100 or $500?"

The panel found that Maine can constitutionally require parties to determine whether or not a "reasonable listener would understand their advocacy as an invitation to contribute to a specific ballot question campaign"- - - such as that in Maine - - - based upon the specific earmarking words of the solicitor, in this case NOM.  

The court engaged in such reasoning after specifically faulting the appellants' attorneys for poor lawyering in terms of the as-applied challenges:

Appellants, however, do not address in their brief the vagueness problem with respect to donations received following any specific communication they distributed or proposed. Rather, they assert in conclusory language that subsections B and C of section 1056-B "are unconstitutionally vague as applied to most of Plaintiffs' speech." They make glancing reference to the content of the emails, noting that "some of NOM's solicitations mentioned Maine," and query whether, as a result of those mentions, donors' knowledge of the Maine ballot measure would be enough to make their donations covered "contributions" and NOM a BQC. They do not explain why they were unable, or would be unable, to link particular contributions received to their advocacy efforts on the Maine referendum, focusing their arguments instead on the language of the statute generally.

Thus, appellants are not only unable to bring a facial vagueness challenge to section 1056-B, but their failure to develop their as-applied challenges also would allow us to reject those claims summarily if we were so inclined. [citations omitted]. Given the importance of the issues raised, however, and the resources expended by all parties in this extensive litigation, we choose to explain why their vagueness contentions would in any event be substantially, if not entirely, unavailing. [citations omitted].

As the panel succinctly stated, it saw "no constitutional problem with expecting entities like appellants to make pragmatic, objective judgments about the nature of the contributions they receive where their own conduct and communications are the primary elements in the determination."

While NOM's attorney has reportedly vowed to take the case to the United States Supreme Court, there seems to be little here that would merit a grant of a writ of certiorari.

However, with the same-sex marriage issuepossibly again on the ballot in Maine in 2012, there may certainly be more litigation.

RR
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