Wednesday, February 15, 2012
The Wild Free-Roaming Horses and Burros Act gives the Bureau of Land Management (BLM) authority over wild horses on federal lands. The BLM controls overpopulation by conducting horse gathers, also known as roundups, and although the BLM "allows the public to observe horse gathers" it "restricts the viewing locations to protect the public from wild horses, helicopters, and vehicles."
Laura Leigh is a photojournalist and wild horse advocate who sought access to a gather at Silver King (in Nevada) but was limited to a designated viewing area. She sought a preliminary injunction, arguing a violation of her First Amendment rights, which the district judge denied on grounds of mootness and unlikelihood to prevail on the merits. In its opinion in Leigh v. Salazar, the Ninth Circuit reversed and remanded.
On the mootness issue, the panel found that Leigh's complaint was not limited to the 2010 gather, but all gathers at Silver King, and given the fact that the BLM did not capture all the horses, there was a "real possibility" of another gather at Silver King pursuant to the BLM's responsibility to "“immediately remove” "excess horses from overpopulated federal lands."
On the substantive First Amendment claim, a majority of the panel held that the district judge needed to conduct the rigorous scrutiny demanded by Press-Enterprise Co. v. Superior Court, generally known as “Press-Enterprise II” (1986). the Ninth Circuit rejected any limitation of Press-Enterprise II to criminal trials, and found the proper standard to be:
First, the court must determine whether a right of access attaches to the government
proceeding or activity by considering 1) “whether the place and process have historically been open to the press and general public” and 2) “whether public access plays a significant positive role in the functioning of the particular process in question.”
Second, if the court determines that a qualified right applies, the government may overcome that right only by demonstrating “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”
Judge Wallace concurring and dissenting in part, agreeing as to the Free Enterprise II standard, but finding that Leigh did not show the gathers were "historically open to the press and public." On that basis, Judge Wallace argued that the remand should be to decide the permanent rather than preliminary injunction.
[image via, used with permission of Laura Leigh].
Wednesday, January 11, 2012
The Supreme Court heard oral argument yesterday in Knox v. SEIU, the case testing whether a union had to issue a special opt-out notice to nonmembers when it increased its assessment mid-year. The case comes to the Court on nonmembers' First Amendment challenge--whether the failure to provide a special opt-out notice violates their speech and associational rights not to support the union's political (i.e., non-bargaining) activities. But as the argument yesterday suggests, it could turn on something much more practical: how to craft a rule that would give a union enough flexibility to adjust its assessments mid-year, while still respecting nonmembers' rights to opt-out of supporting the union's political agenda. Or it could turn on something else entirely: standing.
In the ordinary course of things, the union collects dues once a year and issues a notice--a Hudson notice, after Chicago Teachers Union v. Hudson (1986)--that allows nonmembers to opt-out of dues that would go to the union's political expenditures (but not dues that would go to the union's collective bargaining expenditures). The union here regularly anticipated dues for the next year based on audited prior year expenditures and issues a Hudson notice that reflected that. This was a practical solution, designed to estimate the union's coming year expenditures while protecting nonmembers from supporting the union's political activities that nonmembers may not wish to support. No party challenged this basic procedure.
But in 2005, shortly after the union issued its 2005 Hudson notice, the union increased its assessment slightly to fund its opposition to anti-union ballot initiatives. The union did not issue a separate Hudson notice for this increase, although nonmembers could have objected under the 2005 Hudson notice and the 2006 Hudson notice. (The 2005 Hudson notice did not include the mid-year increase, but it did say that dues and fees were subject to change. The 2006 Hudson notice did include the mid-year increase, because, as above, the estimate in each year's Hudson notice is based on last year's actual audited expenditures.)
Nonmembers claimed that this violated their First Amendment rights to not support causes they don't agree with. Again: They didn't challenge the fundamental Hudson process, just the lack of a Hudson notice for the 2005 mid-year increase.
The district court granted summary judgment for the plaintiffs, but the Ninth Circuit reversed. After the Court granted cert., the union sent all nonmembers a notice that permitted them to obtain a refund of the increased assessment and a $1 bill, representing nominal damages. The union claimed that this satisfied the district court order and argued that it mooted the case.
The argument yesterday focused a good deal on mootness. The plaintiffs tried to persuade the Court that the union's mid-year increase without a separate Hudson notice was capable of repetition but evading review, while the union argued that its eleventh-hour notice gave the plaintiffs all the relief they could possible get even under the district court's order. There were skeptics on the bench on both sides. For example, Justices Ginsburg and Kagan both suggested that the capable-of-repetition exception usually applies to cases involving injunctive relief, and this case doesn't. On the other side, Chief Justice Roberts and Justice Kagan both suggested that the plaintiffs said that the union's notice didn't satisfy the district court's order--a live dispute--and that the union can't say that there is no standing at the Supreme Court, while there is standing at the district court (even if only on the question whether the union's notice satisfied its order).
Despite the significant focus on mootness, however, Chief Justice Roberts also moved both parties along to the merits. On the merits, the Court treated the question as a choice between (1) a forced loan by the nonmembers to the union to support political causes they don't wish to support and (2) a practical solution that gives the union flexibility to adjust assessments mid-year while still respecting nonmembers' right to opt-out.
The plaintiffs pressed for a rule that would require a Hudson notice each time there was a "material alteration in the obligations that are imposed upon nonmembers," without regard to the reason for the assessment. But it's not clear that that rule is workable, or that it is efficient, or that it would benefit (and not hurt) nonmembers. Justice Breyer put it this way:
It's peculiar, because in the circumstances where the extra assessment is all going to go to chargeable [non-political] activities, in fact that means economically speaking the following year the objector will be better off, not worse off, because there is a higher pecentage of the total fee that's being paid to chargeable activities.
Response: "Justice Breyer, the reason for the notice is these people may not trust the union. They -- they may choose to challenge the amount of the fee."
This may not be enough, though. The plaintiffs also conceded that the union could shift funds mid-year to use more than anticipated on political activities--without a separate Hudson notice. This practice would be even less transparent than the practice that the union followed here. This point did not go unnoticed, particularly by Justices Breyer and Kagan. Justice Sotomayor added that she didn't see how the mid-year increase amount to a loan, especially when nonmembers could object with the next Hudson notice and when in any event they ultimately benefit from it (for the reasons that Justice Breyer said).
On the other side, Justice Alito described the practice here as a forced loan, without interest, for activities that nonmembers may not support. He said that the stakes could be quite different for nonmembers, if the percent of nonchargeable and chargeable costs are reversed, and asked "why should [nonmembers] not be given a notice at that time and given the opportunity not to give what would be at a minimum an interest-free loan for the purpose of influencing an election campaign?"
Justices Breyer and Sotomayor returned to the practical: they wanted to know from the union how much of a hassle it would be to provide a special notice with each mid-year increase. Answer: the magnitude of the hassle may be high, but the union's attorney didn't know how often unions would have to do this.
Justice Kennedy reminded the union that there are significant First Amendment interests at issue here:
And the point there was that you're taking someone's money contrary to that person's conscience. And that's what the First Amendment stands against.
Justice Kennedy also threw a bit of a curve ball toward the end of the union's argument, suggesting that "even collective bargaining involves a core political judgment." This position would erase the distinction between chargeable and nonchargeable costs and could undo even the routine Hudson practice that the union employs. No party went so far, and no other Justice picked up on this point, however. It's not even clear that Justice Kennedy intended much by it: he prefaced this line of questioning with "just in the way of background."
If the Court avoids fully wrestling with Justice Kennedy's larger question and thus avoids potentially upsetting a routine practice that nobody seems to object to (as seems nearly certain), and if the Court gets past mootness (as seems far less certain), the case will likely come down to the practical: How best to allow the union some flexibility, while respecting nonmembers' rights to opt-out. But Justice Kennedy's point is a reminder of the stakes; and even in a very practical calculus, for this Court it could mean a thumb on the scale of the nonmembers.
Thursday, September 29, 2011
The Ninth Circuit issued a per curium opinion today in Log Cabin Republicans v. United States dismissing the case as moot. This is absolutely predictable.
Despite extensive litigation which we last mentioned here, with the repeal of 10 U.S.C. § 654(b) effective September 20, 2011, the policy known as DADT, "don't ask, don't tell," regarding sexual minorities in the military was no longer law. Thus, a challenge to the statute's constitutionality is no longer a live "cae or controversy" under Article III.
The Ninth Circuit opinion, however, is no so simple. The panel considered and rejected two arguments by Log Cabin Republicans that the case should not be dismissed as moot.
First, the panel rebuffed the argument that while the injunctive relief might be moot, the declaratory relief might not be. The speculation that "a future Congress whose composition, agenda, and circumstances we cannot know—will reenact Don’t Ask, Don’t Tell," or that the same Congress that enacted the Repeal Act could change course, was mere speculation and "our speculation cannot breathe life into this case."
Second, the panel strongly repudiated the claim of “collateral consequences” from a challenged statute even when the statute is repealed. The panel resolved this issue by simply stating that any missed benefits discharged service members may have lost as a result of their separation pursuant to DADT were not legal penalties from past conduct, they did not fall within collateral consequences exception. However, the panel went farther:
Because Log Cabin has stated its intention to use the district court’s judgment [holding DADT unconstitutional] collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings—to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect. The repeal of Don’t Ask, Don’t Tell provides Log Cabin with all it sought and may have had standing to obtain.
Judge Diarmuid O'Scannlain wrote a specially concurring opinion, as lengthy as the per curium decision, devoted not to the question of mootness, but to share his thoughts about Lawrence v. Texas: "I write separately because our inability to reach the merits may leave uncertainty about the role Lawrence v. Texas, 539 U.S. 558 (2003), may have in substantive due process challenges. Although Congress spared us the need to reach the merits in this case, other such challenges will come to the courts."
Judge O'Scannlain, widely regarded as exceedingly conservative, thus wrote an essentially advisory opinion, violating the basic premise of the Article III case and controversy requirement. It seems a bit paradoxical that he wrote this in a case in which the panel dismissed the claim as moot, lest the court render an advisory opinion in contravention of the Article III case and controversy requirement.
September 29, 2011 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Mootness, Opinion Analysis, Sexual Orientation, Sexuality, Standing | Permalink | Comments (1) | TrackBack (0)
Wednesday, September 28, 2011
UPDATE: ELEVENTH CIRCUIT INJUNCTION PENDING APPEAL HERE.
Judge Sharon Lovelace Blackburn, Chief Judge of the Northern District of Alabama, has issued a 115 page Memorandum Opinion enjoining portions of HB 56 in United States v. Alabama. [UPDATE: Other portions of HB56 are enjoined in a separate opinion in Hispanic Interest Coalition of Alabama v. Bentley]
Days before the law was scheduled to go into effect on September 1, Judge Blackburn issued a temporary injunction which made it clear it did not address the merits.
The judge has now rendered her opinion on the various provisions that the United States claims are pre-empted. Her opinion thus allows a few of the more controversial portions of HB56 to become effective.
Here's the result of her detailed analysis, with the provisions the Judge has declared enjoined as preempted in bold:
H.B. 56 § 10, which creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and is unlawfully present in the United States.
H.B. 56 § 11(a), which makes it a misdemeanor crime for an unauthorized alien to apply for, solicit, or perform work.
H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.
H.B. 56 § 13, which makes it unlawful for a person to 1) conceal, harbor or shield an alien unlawfully present in the United States, or attempt or conspire to do so; 2) encourage an unlawful alien to come to the State of Alabama; or 3) to transport (or attempt or conspire to transport) an unlawful alien.
H.B. 56 § 16, which forbids employers from claiming as business tax deductions any wages paid to an unauthorized alien.
H.B. 56 § 17, which establishes a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized to work while hiring, or retaining, an unauthorized alien.
H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.
H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.
H.B. 56 § 28, which requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.
H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.
In her analysis, the Judge relied heavily on the Third Circuit case of Lozano, regarding the Hazelton ordinance, which has been vacated and remanded, and the Ninth Circuit case of United States v. Arizona, on the notorious SB1070, as might be expected. However, less predictable is Judge Blackburn's rejection of the Ninth Circuit's opinion in Arizona regarding "unlawful presence," (§10 of HB56). In part, Judge Blackburn factually distinguishes the Arizona and Alabama statutes. However, Blackburn also makes it clear she thinks Arizona is incorrect and extensively quotes the dissenting opinion.
Judge Blackburn found one of the most controversial sections of HB56 - - - §13, the haboring transporting provision - - - subject to injunction as pre-empted. Blackburn's analysis here, especially distinguishing §10, is worth a look:
H.B. 56 § 13 thus represents a significant departure from homogeneity, which “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Section 13 creates an Alabama-specific harboring scheme that “remove[s] any federal discretion and impermissibly places the entire operation – from arrest to incarceration – squarely in the State’s purview.” Unlike Section 10, which constrains the Alabama courts to the line of federal precedent interpreting 8 U.S.C. §§ 1304 and 1306, Section 13 imposes no obligation on Alabama courts to take guidance from federal courts and agencies in interpreting the word “harboring” as H.B. 56 § 13 is state law. For all these reasons, the court finds the United States is likely to succeed in showing that Section 13 is preempted.
[Op. at 84, citations omitted].
Given her conclusion on §13, the Judge ruled that the "Clergy Complaint" objection to the same section was moot; She also denied the Clergy motion seeking to enjoing §27 in accordance with her conclusion in US v. Alabama.
Sure to be appealed to the Eleventh Circuit, by either the United States or Alabama or both, Judge Blackburn's opinions might not be affirmed in all respects, but its careful analysis is sure to be accorded respect.
Sunday, July 24, 2011
A three-judge panel of the D.C. Circuit ruled on Friday that former Guantanamo detainees' habeas claims are moot. The ruling means that the former detainees cannot challenge their continued designation as "enemy combatants" and are stuck with that label, and all its baggage, even though the government released them from Guantanamo and returned them to their home countries.
The case, Gul v. Obama, follows a ruling in the Federal District Court for D.C. last year that dismissed over 100 then-pending habeas claims of former Guantanamo detainees. Fifteen of those former detainees appealed to the D.C. Circuit; this case involves two. (The D.C. Circuit consolidated the two and held the other thirteen in abeyance pending this ruling.)
When the government released the detainees, it notified them that they were "approved to leave Guantanamo," but that this approval "does not equate to a determination that [they were not enemy combatants], nor is it a determination that [they do] not pose a threat to the United States."
The detainees claimed that their designation as "enemy combatants" means that their home countries imposed travel restrictions upon them, that they are prohibited from entering the U.S., that they are subject to the recapture and even killing under the laws of war, and that their reputations have been damaged.
The court said that these "collateral consequences" didn't satisfy justiciability requirements under Article III. It wrote that its ruling could not force a non-party, here a foreign government, to relax travel restrictions upon them. It ruled that the appellants didn't even say they'd like to visit the U.S., and that any court order forcing the government to allow them to visit would run up against the various federal statutes excluding them. It held that the appellants had no basis for believing they'd be targets for recapture or killing under the laws of war. And it wrote that stigma alone isn't enough to establish their petitions as not moot.
The ruling means that these detainees are stuck with the designation "enemy combatant," even after the U.S. government released them from Guantanamo. As they alleged, the designation is a significant burden and puts them at continued risk of recapture or even targeted killing. The ruling applies not just to the two appellants here, but also to the thirteen other former detainees with pending habeas petitions who appealed last year's district court ruling.
This isn't the first time that a court ruled that detention policies overlapped with the law in a way to leave detainees in limbo. Recall the case of the Uighur detainees--a group that everyone agreed was wrongly detained, but had no place to go other than Guantanamo.
And the appellants' worry about recapture or killing isn't so far-fetched. Recall the ordered targeted killing of Anwar al-Aulaqi.
Thursday, May 26, 2011
The Supreme Court ruled on Thursday in Camreta v. Greene that a prevailing official in a federal civil rights action can appeal the constitutional ruling of the lower court, but that the appeal was moot in this case.
The case involved state child protective service officers' interviews of a 9-year-old girl, S.G., about allegations that her father had sexually abused her. S.G.'s mother sued under 42 U.S.C. Sec. 1983, claiming that the warrantless and permission-less interviews violated the Fourth Amendment's proscription on unreasonable searches and seizures.
The Ninth Circuit followed the two-step approach in Saucier v. Katz (2001) and Pearson v. Callahan (2009). Under Saucier, a court asks two questions: (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right (the constitutional question), and (2) if so, whether that right was "clearly established" at the time of the defendant's alleged misconduct (the qualified immunity question). Qualified immunity applies and protects an official unless the official's conduct violated such a right.
Pearson held that the sequence of the two-step process is flexible--that lower courts could, e.g., ask the second question first. If so, under Pearson, a lower court could also rule on the constitutional question, thus providing guidance to officials in their behavior and actions and advancing (not dodging) constitutional law in the area. Strictly speaking, the ruling on the constitutional question would be dicta (and under the avoidance principle, really shouldn't be at all--thus the "Pearson permission" that lower courts possess to rule on the constitutional question). But it would nevertheless be binding on officials, because it would reflect the lower court's judgment on the constitutional question--telling officials what is constitutional and what is not, and thus guiding their behavior.
This is exactly what the Ninth Circuit did. That court ruled that the officials enjoyed qualified immunity (because their interview did not violate clearly established Fourth Amendment rights). But it also ruled that the interviews violated the Fourth Amendment. Thus the officials won on immunity but lost (sort of) on the constitutional question. The officers appealed; S.G.'s mother did not.
The Supreme Court, by Justice Kagan (joined by Chief Justice Roberts and Justices Scalia, Ginsburg, and Alito) ruled that the officers could appeal, even though they won on qualified immunity. The appeal satisfied the federal statute conferring on the Court unqualified power to grant cert. on the petition "of any party." 28 U.S.C. Sec. 1254(1). And it satisfied the case-or-controversy requirement of Article III.
Moreover, the Court ruled that the constitutional question had now become moot: S.G. moved out of state and approached age 18, thus making a repeat of the interview unlikely in the extreme. And "[b]ecause mootness has frustrated [the officer's] ability to challenge the Court of Appeal's ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school," op. at 18, the Court vacated the Ninth Circuit's constitutional ruling.
Justice Scalia concurred but wrote that he'd be willing to reconsider in an appropriate case whether "to end the extraordinary practice of ruling upon constitutional questions unnecessarily when the defendant possesses qualified immunity."
Justice Sotomayor, joined by Justice Breyer, concurred, but would have avoided the question whether the officers could appeal. Instead, they would simply have vacated the case in light of its mootness.
Justice Kennedy, joined by Justice Thomas, dissented. Justice Kennedy argued that the Court's ruling wrongly treated dicta (the Ninth Circuit's constitutional ruling) as precedent, and he argued that an officer who won on qualified immunity could not appeal.
Four Justices thus joined an opinion to maintain the Pearson permission of lower courts to rule on the constitutional question, even if they ruled that an officer enjoyed qualified immunity. One of those, Justice Scalia, suggested that he would reconsider it in an appropriate case. Two others, Justices Sotomayor and Breyer, were silent on the question, but gave no suggestion whatsoever that they would reassess Pearson. Two others, Justices Kennedy and Thomas, objected that the Court wrongly treated the Pearson constitutional ruling as binding precedent in this case and suggested more generally that Pearson constitutional rulings raised difficulties, because they "could come to resemble declaratory judgments or injunctions" (and not just the obiter dicta they are).
The case likely leaves Pearson permission on solid ground, even if as many as three Justices may be willing to reconsider it, and even if it suggested that in some narrow class of cases (like this one) the constitutional question could become moot, thus undermining it.
May 26, 2011 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis, Recent Cases | Permalink | Comments (0) | TrackBack (0)
Sunday, May 1, 2011
The D.C. Circuit ruled on Friday that the Chamber of Commerce and the National Automobile Dealers Association (NADA) lacked associational standing to sue the Environmental Protection Agency to block its waiver of greenhouse gas emissions standards to California and other states. The court thus dismissed the case.
The plaintiffs' petition challenged the EPA's waiver, which allowed California and other states to adopt and enforce greenhouse gas emissions standards that exceeded the EPA's own standards. (The Clean Air Act prohibits states from adopting more restrictive standards but allows the EPA to grant waivers.)
But last April, the EPA and the National Highway Transportation Safety Administration jointly issued a national program of greenhouse gas emissions and fuel economy standards for marketing years 2012 through 2016. The standards grew out of an agreement with the agencies, the State of California, and major automobile manufacturers. Under the agreement, California amended its regulations to deem compliance with the national standards compliance with its own standards for these years. (For years 2009 through 2011, California adjusted its standards to make compliance somewhat easier.)
As a condition of the agreement, major auto manufacturers and their trade associations agreed not to sue to contest the new national standards or the California waiver.
But that agreement (alone) didn't stop the Chamber of Commerce and NADA to challenge the regs and waiver on behalf of auto dealers.
The D.C. Circuit nevertheless ruled that they lacked standing. (The Chamber failed to allege that one of its members was affected and therefore lacked associational standing. NADA, however, identified allegedly injured members.) As to the years 2009 through 2011, the court ruled that the NADA failed to alleged with sufficient determinacy that manufacturers would adjust the "mix" of vehicles offered to dealers in waived states (thus affecting the dealers' sales) and that manufacturers would necessarily raise the price of vehicles (also affecting sales). Part of NADA's problem was that Ford planned to raise its emissions standards on its own, even before the EPA granted California's waiver, thus undercutting any causation and redressibility. (The two dealers that provided affidavits in support of standing sold Ford cars.)
As to years 2012 through 2016, the court wrote that Ford planned to up its own standards, independent of federal regulation, and that the case was moot. Why moot? Because starting in 2012, manufacturers will have to comply with federal standards, and compliance with those standards will also satisfy California under the 2010 agreement. In other words, manufacturers will have to meet the federal standards, anyway, and their meeting the exact same California standards cannot possible harm dealers.
Tuesday, December 8, 2009
The Supreme Court yesterday ruled that the plaintiffs' procedural due process claim in Alvarez v. Smith was moot, after the parties resolved their property disputes during the course of the litigation.
The case involved the Illinois Drug Asset Forfeiture Procedure Act ("DAFPA"), which authorizes local law enforcement to seize vehicles, aircraft, vessels, and money involved in certain drug crimes. Under DAFPA, authorities can hold property worth more than $20,000 for up to 97 days after the seizure and before the state's attorney files judicial forfeiture proceedings. Authorities can hold property worth less than $20,000 for up to 187 days before the state's attorney files forfeiture proceedings.
Six plaintiffs who had cars and cash seized under the DAFPA sued the Cook County State's Attorney under 42 U.S.C. Sec. 1983, arguing that the DAFPA violated, on its face, the three-part procedural due process balancing test in U.S. v. James Daniel Good Real Property and Mathews v. Eldridge. The Seventh Circuit ruled for the plaintiffs.
The Supreme Court asked the parties to brief mootness, and, at oral argument, learned that the parties resolved the property dispute: the state returned all seized cars, and individual property owners either forfeited the cash or accepted the state's partial return as final. A unanimous Court rejected the plaintiffs' argument that they sought certification as a class (because plaintiffs did not appeal the denial of class certification) and the argument that the practice was "capable of repetition" while "evading review" (because the plaintiffs failed to show that they were likely again to be subject to the DAFPA, citing Los Angeles v. Lyons) and ruled the claim moot.
Justice Stevens filed a partial dissent in the case, arguing that the Court should not have vacated the Seventh Circuit's judgment.
Saturday, December 6, 2008
The Supreme Court announced on Friday that it will review the Fourth Circuit ruling in Al-Marri v. Pucciarelli upholding the president's authority under the AUMF to indefinitely detain a lawful U.S. resident who was both captured and detained in the U.S. as an enemy combatant, without criminal charges. I've posted before on the case here, here, here, and here; the NYT reports here; SCOTUSblog reports here.
Briefs won't be due until after President-Elect Obama's inauguration. Between his inauguration and briefing, Obama could (1) do nothing (and maintain the Bush administration position, supported by the Fourth Circuit, before the Supreme Court); (2) charge Al-Marri in an Article III court under federal criminal law, thus (maybe) mooting the case at the Supreme Court; (3) same as (2), but charge Al-Marri in a military tribunal; (4) reverse the Bush administration position in full and release Al-Marri, (maybe) mooting the case.
(Why "(maybe)" moot? Because it's a classic case of "capable of repitition but evading review." The last time something like this happened--Padilla v. Hanft--the Court denied cert. after Padilla was transferred to civilian custody after an adminsitration-favorable Fourth Circuit decision, rebuffing Padilla's claim that the controversey was capable of repitition but evading review. (Kennedy's opinion here; Ginsburg's here.) Here, the Court has already granted cert., knowing well that it won't hear the case until Obama is president; this could change things.)
(Another interesting issue: How much should--and how much will--the Bush administration defer to Obama's position in formulating strategy at the Court?)
Any of the first three options probably ensure that Al-Marri will remain in detention, at least until the case is decided or until he's served a sentence.
This is a significant--and tough--test for Obama. His decision will signal his position on executive authority in the war on terror in a deeply troubling and far-reaching case. It would be difficult for Obama to maintain the Bush administration's vast claims of executive authority here: The implications of the administration's position--and the Fourth Circuit's ruling--are staggering. But if he backtracks (and if this moots the case at the Supreme Court), the Fourth Circuit ruling stands, and he could be seen as weak on executive authority and weak on terror.
I'll update as we get more.
Thursday, October 9, 2008
The Court heard oral arguments yesterday in Summers v. Earth Island Institute, a case dealing with standing, ripeness, and mootness in a facial challenge to agency procedural rules. The plaintiffs originally brought two types of claims: Plaintiffs challenged the Forest Service's Burnt Ridge Project, a proposed timber sale in the Sequoia National Forest; and they challenged the validity of Forest Service regulations that exempt certain Forest Service actions, including the Burnt Ridge Project, from administrative notice, comment, and appeal procedures.
The parties settled the first set of claims, dealing with the Burnt Ridge Project. But the government then argued that plaintiffs' facial challenge of the Forest Service regulations was nonjusticiable: the plaintiffs lacked standing, claimed the government, because they merely alleged an inability to participate in governmental decisionmaking (and not a sufficient cognizable injury); and the claim was not ripe, because plaintiffs didn't wait for the Forest Service to apply the regulations in a concrete setting--that the case was a preenforcement challenge. Plaintiffs argued that they had standing and that their claim was ripe when filed (because of the their harm from the Burnt Ridge Project), and that it is ripe now (because the Forest Service continued to apply the regulations to other projects).
The argument transcript is here; check out pages 26 to 52 (the plaintiff-respondents' argument) for nice exchanges on standing. Several law professors filed an amicus, which puts the justiciability issues into particularly good focus.