Wednesday, April 22, 2015
The Supreme Court ruled this week in Oneok, Inc. v. Learjet, Inc. that the Natural Gas Act did not preempt retail gas purchasers' antitrust lawsuits against sellers (gas pipelines) for manipulating gas indexes used to set contract rates. Our argument review of the case is here.
The case arose when retail, intrastate purchasers of gas sued gas sellers for falsely reporting gas price data to industry journals that buyers and sellers used to set their contract price for gas purchases. The false reporting resulted in higher gas prices than the true market rate, so purchasers overpaid for their gas. Purchasers sued sellers under state antitrust laws. The sellers moved to dismiss, arguing that the state antitrust suits (by then removed to federal court) were preempted by the Natural Gas Act and FERC's authority under the Act.
Under the NGA, FERC has authority to regulate interstate, wholesale gas sales (sometimes called "jurisdictional" sales), but not intrastate, retail sales. Indeed, the NGA "was drawn with meticulous regard for the continued exercise of state power [over retail sales], not to handicap or dilute it in any way."
So the question was whether the price manipulation, which affected the buyers' intrastate purchases but also affected interstate, wholesale gas prices, was preempted by the NGA.
But there was a catch: the sellers (joined by the government, as amicus) only argued field preemption. Everyone agreed that the NGA contained no express preemption provision, and the sellers did not raise a conflict preemption argument.
The Court said that the answer lies in the "target at which the state law aims." In other words, because the state antitrust suits targeted sellers for manipulation of intrastate (non-jurisdictional) rates, it didn't matter that the manipulation also affected interstate, wholesale (jurisdictional) rates (over which FERC has authority). If the state law aims at intrastate sales, there's no field preemption by the NGA.
But the Court expressly withheld judgment on conflict preemption, leaving that question to the lower courts. It also expressly withheld judgment on the question whether FERC's determination that the NGA field preempts the buyers' claim holds any sway. The Court said that neither the sellers nor the government pointed to any FERC determination, so the Court wouldn't rule on it.
The case is a clear victory for gas purchasers who paid higher-than-market prices because of price manipulation by sellers. Those cases now go back to the lower courts to proceed on the merits.
But at the same time the case also suggests a strategy for sellers in the next round of antitrust litigation: Look for a way to argue conflict preemption (if there is such a way), and ask FERC to opine on the scope of NGA's field preemption.
Tuesday, April 21, 2015
The Supreme Court ruled today in Rodriguez v. United States that the Fourth Amendment prohibits a dog sniff that extends the duration of an otherwise lawful traffic stop, as measured by the time it reasonably takes an officer to complete the mission of the stop. But the ruling doesn't end the case: The Court sent the case back to the lower court for determination of whether the dog sniff was nevertheless independently justified under the Fourth Amendment.
The case arose when an officer pulled Rodriguez over for a traffic violation, issued a warning, then engaged in a dog sniff (which revealed drugs, which led to Rodriguez's prosecution). In other words, the dog sniff came after the purpose, or mission, of the traffic stop expired and thus extended the stop beyond the period reasonably required to complete the mission. The Court previously ruled in Illinois v. Caballes that the Fourth Amendment tolerates a dog sniff in the course of an otherwise lawful traffic stop. But this case asked whether the Fourth Amendment also allowed that sniff when it extended the length of the stop.
The Court said no. Justice Ginsburg wrote for the Court, including Chief Justice Roberts and Justices Scalia, Breyer, Sotomayor, and Kagan. She wrote that a dog sniff that extends the length of the stop violates the Fourth Amendment, without some independent justification for it.
So: How to know if a dog sniff extends the length of the stop? Look to the officer's mission in making the stop in the first place: the "time reasonably required to complete [the stop's] mission."
Because the Court refused to draw a bright line at the point when an officer issues a ticket (and instead looked to the total time of the stop, whenever the mission is complete), the rule could mean that some dog sniffs in the course of a traffic stop (upheld under Caballes) would now violate the Fourth Amendment. Again, the touchstone is whether the sniff extends the "time reasonably required to complete [the stop's] mission."
The Court rejected the Eighth Circuit's holding that the sniff was reasonable because it only extended the time of the stop a little bit.
Justice Thomas wrote the principal dissent, joined by Justices Kennedy and Alito. Justice Thomas argued that because the stop was reasonably executed the sniff was OK.
He also argued that there was independent justification for the dog sniff--a point that Justice Alito also made in a separate dissent, but a point that Justice Kennedy did not join. The district court found that there was no independent justification for the sniff, but the Eighth Circuit did not rule on the question.
The case now goes back to the Eighth Circuit for a ruling on this issue. If the lower court finds an independent justification for the sniff (for reasons described by Justices Thomas and Alito, for example), then the evidence (drugs) can come in, and Rodriguez could still be convicted.
Monday, April 13, 2015
The Seventh Circuit today affirmed a lower court ruling granting qualified immunity to a police officer who falsely reported to 911 and then called off another officer before the plaintiff was sexually assaulted. The ruling affirms the dismissal of the plaintiff's civil rights and state-law claims against the officer and ends the case.
The case, Doe v. Village of Arlington Heights, arose when an Arlington Heights police officer, Officer Del Boccio, responded to a 911 call and saw Doe with three young men in an apparently intoxicated state near an apartment building. When Del Boccio arrived, one of the young men was holding up Doe from behind, because she could not stand up by herself. Del Boccio consulted with the apartment manager, who told Del Boccio that the young men were taking Doe home. Del Boccio also rolled down his window to talk to the three young men. But he didn't ask Doe or any of the three young men for identification or otherwise investigate.
Del Boccio then reported to dispatch that he checked the scene and the subjects of the 911 call were gone on arrival. He also called off Officer Spoerry, who had been dispatched to the scnee.
After Del Boccio left the scene, the three young men carried Doe into a laundry room. The apartment manager called 911. Mount Prospect officers responded, entered the laundry room, and caught one of the young men sexually assaulting Doe.
Doe sued Del Boccio and the city for federal civil rights violations and various state law claims. Del Boccio moved to dismiss based on qualified immunity. The district court granted immunity and dismissed the case.
The Seventh Circuit affirmed, ruling that Del Boccio didn't violate a clearly established constitutional right when he falsely reported to dispatch that the subjects of the 911 call were gone on arrival and when he called off Officer Spoerry. The court alternatively held that Doe's case was foreclosed by DeShaney v. Winnebago County:
Here, we can only speculate whether Del Boccio made Doe worse off, whether by calling off Officer Spoerry or falsely reporting to dispatch.
This is not a case in which Doe was safe, or even considerably safer, before Del Boccio acted. His alleged conduct did not turn a potential danger into an actual one; Doe was in actual danger already. Therefore, Del Boccio had no constitutional duty to protect her. But even if calling off Officer Spoerry violated Doe's constitutional rights, it was not clearly established and Del Boccio nonetheless would be entitled to qualified immunity.
Tuesday, April 7, 2015
The Fifth Circuit today affirmed the dismissal of a challenge to the Deferred Action for Childhood Arrivals, or "DACA," program by a group of ICE agents and deportation officers and the State of Mississippi. We previously posted on the suit here.
The plaintiffs lodged several claims against the DACA program, including a separation-of-powers and a violation of the Take Care Clause. They claimed that they had standing because Mississippi incurred expenses for state benefits for "illegal aliens" and because DACA forced the officers to violate the law, change the way they enforced the law, and face job sanctions for not deferring.
The court today rejected these standing claims and affirmed the dismissal of case. As to Mississippi, the court said that any injury was "purely speculative because there was no concrete evidence that Mississippi's costs had increased or will increase as a result of DACA." As to the officers, the court said that a violation of their oath to uphold the laws was not a sufficient injury for standing purposes; that their burden to comply with DACA also wasn't a sufficient injury and that in any event they failed to allege specific facts to support it; and that any threat of employment sanctions for not enforcing DACA was too speculative.
As to this last point, the court emphasized that DACA requires individual officers to "exercise their discretion in deciding to grant deferred action, and this judgment should be exercised on a case-by-case basis." This feature of DACA, of course, also goes to the merits by hard-wiring DACA with prosecutorial discretion and putting the program squarely within executive discretionary authority. As to standing, the court said that this feature makes it unlikely that an officer would be sanctioned for exercising discretion to deport.
Today's ruling says nothing about the merits of DACA. But it does illustrate why it's so hard to bring a challenge to DACA in court.
Wednesday, April 1, 2015
The Supreme Court ruled this week that the Supremacy Clause does not confer a private right of action for injunctive relief against state officers who are allegedly violating the Medicaid Act. The sharply divided ruling (along conventional ideological lines, except for Justices Kennedy and Breyer) is a blow to the courts' equitable powers and access to justice, and, as Justice Sotomayor wrote in dissent, "threatens the vitality of our Ex Parte Young jurisprudence."
More immediately, the Court's ruling is a blow to underpaid Medicaid providers. They now cannot seek an injunction against an under-paying state in federal court; instead, they have to petition the federal government to withhold Medicaid funds from a state that violates the Medicaid Act--a much harder way to get relief.
The case, Armstrong v. Exceptional Child Care, Inc., arose when habilitation service providers sued Idaho for paying them too little under the federal Medicaid program. The providers based their claim on Section 30(A) of the Medicaid Act and the Supremacy Clause. Section 30(A) requires Idaho (and other states) to provide payment for services sufficient "to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan . . . ." The providers argued that this requirement preempted Idaho's low payment rate and sought injunctive relief against state officers who implement Idaho's Medicaid plan.
Justice Scalia wrote for the Court, joined by Chief Justice Roberts and Justices Thomas, Breyer, and Alito. He said that the Supremacy Clause does not confer a right of action for injunctive relief, because the Clause doesn't provide for it, and because to allow it would permit private parties to enforce congressional actions, "significantly curtailing [Congress's] ability to guide the implementation of federal law."
Justice Scalia also wrote that the Court lacked equitable power to enjoin Idaho's unlawful action under the Medicaid Act, because Section 30(A) demonstrates "Congress's 'intent to foreclose' equitable relief." He said that the "sole remedy" for a state's violation of the Medicaid Act is withholding of federal funds, and he said that Section 30(A) is couched in judicially unadministrable terms and standards.
Justice Breyer concurred in all but Part IV of Justice Scalia's majority opinion. (Part IV argued that the Medicaid Act itself didn't provide an express cause of action for the plaintiffs, third-party beneficiaries to Idaho's Medicaid agreement with the federal government.) He argued that administrative agencies are better suited to applying Section 30(A) than federal courts in an action like this.
Justice Sotomayor wrote the dissent, joined by Justices Kennedy, Ginsburg, and Kagan. Justice Sotomayor wrote that there's a long history of suits for equitable protection against a preempted state law, and that "we have characterized 'the availability of prospective relief of the sort awarded in Ex Parte Young' as giving 'life to the Supremacy Clause.'" Justice Sotomayor argued that there's only a single prior decision "in which we have ever discerned . . . congressional intent to foreclose equitable enforcement of a statutory mandate" (as the majority did here), and that was in Seminole Tribe, a case easily distinguished from this one. She wrote that "the Court . . . threatens the vitality our Ex Parte Young jurisprudence."
Monday, March 30, 2015
The Supreme Court today declined to review Coons v. Lew, the Ninth Circuit case holding that the plaintiffs' challenge to the ACA's Independent Payment Advisory Board was not ripe and rejecting the plaintiffs' challenges to the individual mandate. Today's non-action leaves the Ninth Circuit's ruling--and the IPAB and the individual mandate--in place (although it's not a ruling on the merits).
The plaintiffs in Coons challenged IPAB, the so-called "death panel," on the ground that it violated the non-delegation doctrine. IPAB is a 15-member administrative board that will monitor the growth of Medicare spending. If actual growth exceeds expected growth, IPAB will recommend a reduction in the growth rate to the "savings target" set by the Chief Actuary of the Centers for Medicare and Medicaid Services. IPAB's recommendations go to Congress, and Congress must either consider and vote on them, or pass superseding legislation. (If there's no superseding legislation, the Secretary must implement the recommendations as submitted.)
The Ninth Circuit ruled that the plaintiffs' challenge wasn't ripe. In particular, it said that Plaintiff Novack's claims that IPAB would reduce the Medicare payments he receives for treating his patients, and that IPAB would set in motion market displacements that would harm him financially, were speculative.
The Ninth Circuit also rejected the plaintiffs' claims that the individual mandate violated their substantive due process rights (to medical autonomy and informational privacy), and that the ACA did not preempt Arizona's constitutional provision that says that Arizonans can't be forced to buy insurance.
The Supreme Court's decision today is not a ruling on the merits of any of these claims--all of which were far-fetched from the get-go--but it leaves the Ninth Circuit ruling in place.
The decision says nothing about the likely direction the Court will take in King v. Burwell, the case testing whether the IRS exceeded its statutory authority by extending tax credits to individual health insurance purchasers on a federally facilitated exchange.
Sunday, March 29, 2015
The Supreme Court will hear oral arguments tomorrow in Brumfield v. Cain, the case testing how state courts must consider evidence of mental retardation in death penalty sentencing proceedings. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:
1. Is a state post-conviction court’s decision “based on an unreasonable determination of the facts,” when the court relied only on evidence that the petitioner submitted at his sentencing hearing (and refused to allow the petitioner to submit additional evidence of his intellectual disability)?
2. Did a state post-conviction court violate a clearly established constitutional right when it declined to provide funds to the petitioner to help him establish his intellectual disability?
On January 7, 1993, at about 12:10 a.m., Corporal Betty Smothers, a 36-year-old off-duty police officer, escorted Kimen Lee, assistant manager of a Piggly Wiggly grocery store in Baton Rouge, Louisiana, to a bank to make the store’s nightly deposit. As the police car pulled into the night depository lane at the bank, two individuals appeared on opposite sides of the car and fired shots at Smothers and Lee. Smothers was pronounced dead at 12:42 a.m. (Despite being hit four times, Lee managed to drive the car half a mile to a convenience store. She survived.)
Kevan Brumfield initially denied any involvement in the crime. But later, after police interrogation, he confessed to driving the car, and later still, to shooting the victims. A jury convicted Brumfield of first-degree murder, and the state sought the death penalty.
At the sentencing hearing, Brumfield’s mitigation case focused on his abusive childhood and the mental and emotional difficulties he had throughout his life. In addition to family members and Brumfield’s fourth-grade teacher, Brumfield produced two experts. One of those, Dr. Cecile Guin, testified to Brumfield’s developmental issues, literally from birth. She testified that Brumfield weighed only 3.5 pounds at birth, that he “was born with slower responses than normal babies,” and that “there is definitely a[n] indication that when he was born they knew that something was wrong at that point.” She also explained that by the third grade Brumfield’s teachers “knew that there were problems,” and that they referred him for a special education evaluation. Dr. Guin described Brumfield as having “intellectual problems,” and testified that he appeared to have “learning problems” that were misdiagnosed as behavioral problems. She said that “Kevan’s basic problem is that he – he could not process information.”
The other expert, Dr. John Bolter, gave similar testimony about Brumfield’s developmental issues starting at birth. Dr. Bolter also testified that he administered a Wechsler IQ test to Brumfield, and that Brumfield scored 75, which Dr. Bolter described as “borderline general intelligence” and “on the low end of intelligence.” Dr. Bolter explained that Brumfield was “reading at about the fourth grade level, and that’s simple word recognition. That’s not even comprehension . . . .” Dr. Bolter testified that Brumfield’s math and spelling skills were at about a sixth-grade level.
Despite the expert testimony, Brumfield is adamant that “[h]e did not put on a case that he was clinically intellectually disabled.”
The sentencing hearing lasted just one day, and the jury recommended a death sentence. The Louisiana Supreme Court affirmed Brumfield’s conviction on direct appeal, and the United States Supreme Court denied review. On March 25, 2000, Brumfield filed a post-conviction petition in state court. While that petition was pending, the Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibits the execution of intellectually disabled individuals. Soon thereafter, the Louisiana Supreme Court adopted the clinical definition of intellectual disability in Atkins. State v. Williams, 831 So. 2d 835 (La. 2002). Brumfield then amended his state petition to assert that he is intellectually disabled and that his execution would violate the Eighth Amendment. Brumfield submitted the evidence he produced at his sentencing hearing in support of his amended petition. But because he argued that the court could not determine his intellectual disability on this evidence alone, Brumfield also asked for an opportunity to present additional evidence of his intellectual disability and funding to obtain expert assistance in producing this additional evidence.
The state court declined Brumfield’s request for an opportunity to present additional evidence and dismissed Brumfield’s petition. (The court did not specifically address Brumfield’s request for funding.) The court explained that
Dr. Bolter in particular found he [Brumfield] had an IQ of over – or 75. Dr. Jordan [whose report was referenced by Dr. Guin] actually came up with a little bit higher IQ. I do not think that the defendant has demonstrated impairment based on the record in adaptive skills. The doctor testified that he did have an anti-social personality or sociopath, and explained it as someone with no conscience, and the defendant hadn’t carried the burden placing the claim of mental retardation at issue. Therefore, I find he is not entitled to that hearing based on all of those things that I just set out.
Brumfield filed an application for supervisory writs with the Louisiana Supreme Court, but the court denied the application without an opinion.
On November 4, 2004, Brumfield filed a petition for a writ of habeas corpus in federal district court. He argued, among other things, that the state court’s dismissal of his Atkins claim without a hearing and without funding violated federal law. The district court appointed counsel, and the Federal Public Defender Board provided expert funding. In 2007, Brumfield amended his petition to incorporate the expert findings.
A magistrate judge issued a Report and Recommendation, which found that the state court’s refusal to grant an Atkins hearing based only on the evidence that Brumfield submitted to the state court was “reasonable and in accordance with clearly established law.” But the Report also concluded that the state court should consider the additional evidence that Brumfield presented in his amended habeas petition. The magistrate judge concluded that Brumfield had established a prima facie case of intellectual disability such that he was entitled to an Atkins hearing. The district court adopted the magistrate’s Report and Recommendation and held an Atkins evidentiary hearing. On February 22, 2012, the district court granted Brumfield’s petition for a writ of habeas corpus on the ground that he is intellectually disabled and therefore ineligible for execution. The district court issued a permanent injunction, prohibiting the state from executing Brumfield. The state appealed, and the United States Court of Appeals for the Fifth Circuit reversed. The appeals court ruled that the state court did not violate federal law denying Brumfield a hearing and funding to establish his intellectual disability. This appeal followed.
The Antiterrorism and Effective Death Penalty Act (AEDPA) prohibits a federal court from granting a prisoner’s writ of habeas corpus unless the state court’s ruling:
(1)resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2)resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. Sec. 2254(d). In this case, the parties dispute two independent issues. First, the parties dispute whether the state court, in denying Brumfield’s request for an opportunity to present additional evidence of his intellectual disability, and relying only on evidence that Brumfield produced at his sentencing hearing, based its decision on “an unreasonable determination of the facts” in violation of Section 2254(d)(2). Second, they dispute whether the state court’s denial of funding was an “unreasonable application” of federal law, as “determined by the Supreme Court,” in violation of Section 2254(d)(1).
I. State Post-Conviction Court Process and Section 2254(d)(2).
Brumfield argues that the state post-conviction court’s ruling denying him an opportunity to present additional evidence of his intellectual disability was “patently unreasonable” in violation of Section 2254(d)(2). Brumfield says that the state court’s refusal to grant him a hearing was based solely on the court’s review of his sentencing record, which was developed well before Atkins held that the Eighth Amendment prohibits the execution of an intellectually disabled person, and well before the Louisiana Supreme Court adopted its own definition of intellectual disability. In other words, Brumfield claims that he made his mitigation case at sentencing before the Court rejected the death penalty for intellectually disabled persons and before the Louisiana courts defined the clinical standards for intellectual disability—without an eye to his intellectual disability (because his intellectual disability wasn’t determinative at the time). He contends that the state post-conviction court, in relying only on his sentencing record alone, therefore could not have considered whether he was intellectually disabled, because the sentencing record contained no evidence of it.
But even so, Brumfield argues that his sentencing record nevertheless supports a finding of intellectual disability. That’s because the record reflects an IQ score of 75, a score consistent with intellectual disability. He says that other evidence, too, supports a finding of intellectual disability: the expert’s testimony that “something was wrong” with Brumfield at birth, that he was recommended for special education programs, that he could not process information, and that he could read only at a fourth-grade level and do math and spell at only a sixth-grade level. Brumfield argues that this “evidence presented in the State court proceeding” (in the language of Section 2254(d)(2)) should have prompted the state post-conviction court to conduct a hearing. He says that its determination otherwise was “patently unreasonable,” and that the federal district court was justified in conducting such a hearing.
The state argues that the federal courts (the district court and the Fifth Circuit) were right to find that the state post-conviction court reasonably denied Brumfield’s Atkins claim based on the record before it. That evidence, presented by expert witnesses, said that Brumfield had an IQ of at least 75, had adaptive skills inconsistent with intellectual disability (as evidenced by his orchestration of this crime and other crimes), and had not manifested any signs of neuropsychological disorder before the age of 18. The state contends that this evidence was sufficient for the state post-conviction court to reasonably conclude that Brumfield was not intellectually disabled.
The state argues further that Brumfield’s claim that the state post-conviction court should have given him an opportunity to present additional evidence lacks merit. The state points to the plain language of Section 2254(d)(2), which limits the judicial inquiry to the “evidence” that was “presented in the State Court proceeding”—exactly the evidence that the state post-conviction court considered. The state says that the Court’s ruling in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), confirms its reading. The state contends that the Court in Pinholster ruled that a Section 2254(d)(1) challenge is strictly limited to “the record that was before the state court,” and that both the majority and dissent agreed in that case that this reading applies even more forcefully to Section 2254(d)(2) challenges. The state concludes that Brumfield’s argument that the state post-conviction court violated Section 2254(d)(2) by failing to give him an opportunity to develop his claim of intellectual disability simply lacks merit.
II. Denial of Funding and Section 2254(d)(1).
Brumfield argues that the state post-conviction court’s denial of funding to develop his intellectual disability claim was contrary to, and an unreasonable application of, the Court’s clearly established law in violation of Section 2254(d)(1). Brumfield points to two cases. In the first, Ake v. Oklahoma, 470 U.S. 68 (1986), the Court held that, when an indigent capital defendant shows that his mental condition will be a “significant factor” at trial or sentencing, the state must assure access to a mental health expert, given the importance of expert evaluation in evaluating insanity. Brumfield argues that the Ake principle applies here. (Ake itself is not squarely on point. Brumfield relies instead on its animating principle.) He says that because his post-conviction proceeding was his first opportunity to raise his Atkins claim (because Atkins came down only after his sentencing), the Ake principle required the court to assure access to an expert to assess his intellectual disability. Brumfield contends that the state post-conviction court failed this test.
In the second case, Ford v. Wainwright, 477 U.S. 399 (1986), the Court held that capital defendants asserting an insanity defense had a due process right to present expert testimony in opposition to the state’s evidence on insanity. Without that right, he says, the state denies the defendant his constitutionally guaranteed “opportunity to be heard” and “invites arbitrariness and error.” Brumfield contends that the Ford principle applies here, too. He says that the state post-conviction court denied his claim for funding only after it denied his Atkins claim altogether. Brumfield contends that this deprived him of any opportunity to obtain an expert any other way, and thus deprived him of his rights under Ford.
Finally, Brumfield appeals to language in the Court’s latest ruling on the death penalty, Hall v. Florida. 134 S. Ct. 1986 (2014). Brumfield quotes the Hall Court: “The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution.” Brumfield argues that the state post-conviction court’s denial of funding to develop his intellectual disability claim violates that principle.
The state argues that Brumfield’s claim for funding under federal law must fail, because he neglected to exhaust that claim. The state says that Brumfield never actually sought funding from the state post-conviction court or asked for time to find pro bono expert assistance under federal law; his request came only under state law. The state claims that Brumfield’s failure to assert a claim for funding under federal law means that the Court can either decline to reach this question or to reject his claim on the merits.
The state argues next that Brumfield’s Section 2254(d)(1) claim must fail on the merits. The state claims that no decision of the Court clearly establishes a due process right to state-funded expert assistance on state post-conviction review. The state says that Atkins itself did not establish such a right (and instead left it to the states to develop their own procedures); Ake has not been extended to state post-conviction review (Ake applies only at trial); and Ford does not guarantee a right to funding. Without clear support from the Court, the state contends that Brumfield cannot show that the state post-conviction court violated a “clearly established” right.
The state argues that Brumfield’s contention that the state post-conviction court’s simultaneous denial of his funding request and his request for a hearing violated due process is without merit. The state says that this argument presumes that Brumfield had a clearly established right to submit expert testimony “at the threshold stage of his Atkins claim.” But the state contends that Brumfield had no such clearly established right. The state says that neither Atkins nor Ford established such a right. (The state says that the due process rights in Ford arose only after a threshold showing had been made.) In any event, the state argues that this claim is not properly before the Court. The state says such a claim must be decided on direct review, and that Brumfield forfeited that chance when he declined to seek an appeal to the Supreme Court after the Louisiana Supreme Court declined review.
Finally, the state argues that if Brumfield wins on either claim (Section 2254(d)(2) or Section 2254(d)(1)), the Court should remand the case to the Fifth Circuit (and not decide it itself). According to the state, that’s because the Fifth Circuit “has not issued a decision as to whether the district court correctly granted the writ.” But whichever court makes the final decision, the state claims that Brumfield cannot establish that he is intellectually disabled, even with additional evidence.
This case will fill some of the gaps left open by the Court’s two recent principal decisions on the death penalty and intellectual disability. That is, the case will tell us more about how state courts must go about determining whether a person is intellectually disabled and thus exempt from the death penalty.
The Court’s seminal ruling on the issue came in Atkins v. Virginia. As described above, the Court in that case ruled that the Eighth Amendment prohibited the execution of an intellectually disabled person. But Atkins left significant questions open, especially about process. In particular, Atkins left the states to “develop [an] appropriate way to enforce the constitutional restriction upon its execution of [death] sentences” against intellectually disabled persons.
The Court partially answered one of those questions last Term in Hall v. Florida. The Court ruled in that case that a state’s practice of requiring a person to show an IQ score of 70 or below before being able to present additional evidence of an intellectual disability was unconstitutional.
Still, the Court left open significant procedural questions, including the questions in this case. This case may answer some of those procedural questions and may give clues as to how the Court will view others.
But the answers we get might not be entirely clear. That’s because the underlying substantive issues in this case (how a person can show that he is intellectually disabled, and the assistance from the court that he is entitled to) are complicated by the AEDPA standard of deference. In other words, the Court need only determine whether the state post-conviction court’s rulings were reasonable or consistent with clearly established law—and not (necessarily) the precise metes and bounds of Brumfield’s underlying claims (whether the law required that he receive an opportunity to present additional evidence and receive funding).
One final point. Brumfield’s case is highly unusual, in that he apparently fell through the cracks during the time after Atkins came down but when Louisiana was still crafting its Atkins procedures and simultaneously dealing with a crisis in indigent defense. As explained by a retired Chief Justice of Louisiana, the Louisiana Association of Criminal Defense Lawyers, and the Promise of Justice Institute, together as amicus curiae,
In each of the [other eighteen cases of defendants prosecuted prior to Atkins], it is shown that the Atkins claimants were provided an opportunity to present and litigate their claims via [state-funded capital defender offices]. In Louisiana’s chaotic effort to enforce the protections of Atkins, Petitioner Brumfield appears to be the only condemned prisoner who did not receive state resources to develop his claim.
Amicus states further that “[i]t is unquestionable, that if tried today, or even any period after 2004 . . . [Brumfield] would have had access to state funded resources to prepare and present a claim of intellectual disability.”
While this doesn’t necessarily alter the legal landscape of the case, it could be a factor in the Court’s ruling.
Thursday, March 26, 2015
The Fifth Circuit dismissed most of the plaintiff's Family and Medical Leave Act case in Bryant v. Texas Dep't of Aging and Disability Services, holding that most claims were barred by state sovereign immunity and qualified immunity. But the court remanded the question whether the plaintiff's claim for monetary damages against her supervisor is barred by state sovereign immunity.
The plaintiff, Tammy Bryant, sued her employer, Texas Department of Aging and Disability Services, and her direct supervisor, Kim Littleton, for interfering with her self-care FMLA leave and for retaliating against her for taking FMLA leave. She sought reinstatement and monetary damages.
The Fifth Circuit dismissed most of Bryant's case. The court ruled that while Congress validly abrogated states' Eleventh Amendment immunity with respect to the FMLA's family-care provision, Nev. Dep't of Human Resources v. Hibbs, Congress did not validly abrogate with respect to the self-care provision. Coleman v. Court of Appeals of Maryland. As a result, the department had Eleventh Amendment immunity against Brant's self-care claims for monetary damages.
As to Bryant's claim for reinstatement, the court said that the Ex Parte Young exception (allowing plaintiffs to sue a state for prospective relief) did not apply to suits against state agencies; it only applies against state employees acting in their official capacities.
The court ruled further that Littleton enjoyed qualified immunity from Bryant's interference claims, because Bryant failed to show that Littleton violated clearly established law.
Finally, the court remanded Bryant's claim for monetary damages against Littleton. The court recognized that this "depends on the state's being the real party in interest" and left it to the lower court to work that out.
March 26, 2015 in Cases and Case Materials, Congressional Authority, Courts and Judging, Eleventh Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Governor Mike Pence of Indiana in a "private ceremony," signed the controversial Senate Act 101, a state RFRA, into law.
Like the federal RFRA - - - the basis for the majority opinion of the United States Supreme Court in Hobby Lobby v. Burwell finding that the so-called "contraceptive mandate" of "Obamacare" was invalid - - - the Indiana RFRA provides in section 8:
(a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability.
(b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
The Indiana statute makes clear that a if a person's exercise of religion "is likely to be substantially burdened," the person may "assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding."
For many, this signals a religious exemption from anti-discrimination laws protecting LGBTQ persons. (Although Indiana does not include sexuality or gender identity in its discrimination laws, some localities and institutions do.) Governor Pence alluded to this argument, even as he interestingly (and some might say misleadingly) highlighted the "government action" requirement in his signing statement:
“This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved. For more than twenty years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana."
Nevertheless some companies are already reacting to a perception that Indiana has now sanctioned LGBTQ discrimination.
The Ninth Circuit announced today that it would reconsider a three-judge panel's ruling striking San Diego's requirement that a person show "good cause" before obtaining a concealed carry permit. ("Good cause" means something beyond the ordinary concern for safety.)
Recall that a divided three-judge panel ruled last year in Peruta v. County of San Diego that the "good cause" requirement violated the Second Amendment. The court said that the requirement wasn't a mere regulation of the right to bear arms; instead, the requirement destroyed the core of that right. As a result, the court declined to specify a level of scrutiny and simply struck the requirement.
The ruling aligned with the Seventh Circuit, but contrasted with rulings in the Second, Third, and Fourth circuits upholding similar requirements.
Today's announcement suggests that the full Ninth Circuit may reverse the earlier panel ruling and align itself with those courts that have upheld "good cause" and similar requirements.
Wednesday, March 25, 2015
The Supreme Court ruled today (5-4, with Justice Kennedy joining the four progressives in the majority) that the district court erred in its analysis of the plaintiffs' racial gerrymandering claims against the State of Alabama in the wake of the state's redistricting after the 2010 census. The ruling, a victory for the plaintiffs, sends the case back to the district court and allows the parties to introduce additional evidence to support their cases. It also gives the momentum to the plaintiffs on the merits. We previously posted on the case here.
The case now goes back to the district court for reconsideration in light of the four points below. Today's ruling also allows the plaintiffs to submit additional evidence in support of their claims, thus strengthening their district-specific discrimination claims, their claims that race was a predominate factor in drawing certain districts, and their argument that the state's use of race wasn't sufficiently tailored to comply with Section 5 of the Voting Rights Act.
Thus while today's ruling isn't an outright victory for the plaintiffs, it gives them the clear momentum on remand.
The case, Alabama Legislative Black Caucus v. Alabama, arose after Alabama redrew its legislative districts in a way that packed black voters into existing majority-minority districts. The state said it did this in order to avoid retrogression under Section 5 of the Voting Rights Act. (The state was then covered by Section 5, pre-Shelby County.) The plaintiffs challenged the move as a racial gerrymander. The three-judge district court rejected the challenge and ruled in favor of the state.
The Court (by Justice Breyer) vacated that ruling and remanded the case. Justice Breyer wrote that the district court made four legal mistakes:
1. The district court treated the plaintiffs' challenge to the redistricting as a whole, when it should have treated the challenge in specific electoral districts. The Court said that the district court concluded that because racial criteria had not predominated in redrawing some districts, racial criteria did not predominate "with respect to the State as an undifferentiated whole." This was in error. Moreover, the Court held that the plaintiffs didn't pitch their case only against the State as an undifferentiated whole (as the dissent argued); instead, the plaintiffs presented evidence to support a district-specific approach (even if they could have made this case "more clearly")--the approach that the district court should have used.
The Court ordered the district court to consider a district-specific approach on remand and allowed the plaintiffs to produce additional evidence to support their claims.
2. The district court erroneously held that the Alabama Democratic Conference lacked standing to make its claims against redistricting as a whole and as to four individual Senate districts. The district court said that the Conference lacked associational standing, because the record didn't clearly identify the districts where individual Conference members resided. The Court said this was wrong--and that the district court should have given the Conference an opportunity to show standing. The Court held that the recorded supported the fact that the Conference was state-wide, and had members in each of the state's majority-minority districts. The Court ordered the district court on remand to "reconsider the Conference's standing by permitting the Conference to file its list of members and permitting the State to respond, as appropriate."
3. The district court erred by holding in the alternative that the race was not a predominant factor in the creation of any individual district. The Court held that the district court "did not properly calculate 'predominance,'" because it concluded that the state considered race along with other race-neutral factors, so that the other factors outweighed the consideration of race. Justice Breyer explained:
In our view, however, an equal protection goal is not one factor among others to be weighed against the use of race to determine whether race "predominates." Rather, it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator's determination as to how equal population objections will be met."
In other words, the question whether race predominates compares a state's consideration of race with its consideration of race-neutral factors like compactness, contiguity, respect for political subdivisions or communities, incumbency protection, and political affiliation. But that comparison list does not include equal population. Equal population is different, because it's constitutionally required. "It is not a factor to be treated like other nonracial factors when a court determines whether race predominates over other, 'traditional' factors in the drawing of district boundaries." Instead, it's a "background rule against which redistricting takes place." And the district court was wrong to say otherwise.
Treating equal population as a background rule (and not one of the nonracial factors), the Court said that race might well have predominated in the drawing of certain districts. It remanded for reconsideration.
4. The district court wrongly concluded that even if race predominated, the gerrmandering claims failed because the redrawn districts satisfied strict scrutiny--that is, they are drawn to comply with Section 5 of the VRA. The Court said that the district court misperceived Section 5: It "does not require a covered jurisdiction to maintain a particular numerical minority" (as the district court held), but rather "requires the jurisdiction to maintain a minority's ability to elect a preferred candidate of choice."
Justice Scalia wrote the principal dissent, joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Scalia said that the plaintiffs screwed up their case by alleging a state-wide violation--a claim the law doesn't allow--and that the majority wrongly gave them a do-over.
[A]llowing appellants a second bite at the apple invites lower courts similarly to depart from the premise that our is an adversarial system whenever they deem the stakes sufficiently high. Because I do not believe that Article III empowers this Court to act as standby counsel for sympathetic litigants, I dissent.
Justice Thomas wrote a separate dissent for himself alone to say how "our jurisprudence in this area continues to be infected with error." "We have somehow arrived at a place where the parties agree that Alabama's legislative districts should be fine-tuned to achieve some 'optimal' result with respect to black voting power; the only disagreement is about what percentage of blacks should be placed in those optimized districts. This is nothing more than a fight over the 'best' racial quota.'"
Judge Edgardo Ramos (SDNY) dismissed a private defamation case this week after the government moved to intervene and asserted the state secrets privilege. Judge Ramos ruled that moving forward with the case at all (even excluding privileged evidence) would "impose an unjustifiable risk of disclosing state secrets." The ruling thus puts an end to the case, unless and until appealed. It is not a ruling on the merits, however.
The case, Restis v. American Coalition Against Nuclear Iran, involves Greek shipping magnate Victor Restis's defamation claim against the group United Against Nuclear Iran for claiming, as part of its "name and shame" campaign, that Restis was involved in the illegal exportation of Iranian oil in violation of international sanctions. Restis sued UANI, and the government intervened and moved to dismiss on state secrets grounds, filing a classified declaration by the head of the government department that has control over the matter in support. (The government asserted, and the court apparently accepted, that the government couldn't even reveal "the department that has control over the matter" without risking the disclosure of secret information.)
Judge Ramos reviewed the declaration in camera and held two ex parte, in camera meetings with the government before determining that the state secrets privilege applied. "Having carefully reviewed the classified declarations and documents submitted by the Government ex parte, and being cognizant of a district court's obligation to grant 'utmost deference' to the executive's determination of the likely import of disclosure of the information on military or diplomatic security, the Court is satisfied that there is a reasonable danger that disclosure of the facts underlying the Government's assertion would in fact jeopardize national security."
Judge Ramos went on to say that "further litigation of this action would impose an unjustifiable risk of disclosing state secrets" and dismissed the case entirely. (Under the state secrets privilege, Judge Ramos might have allowed the case to move forward without the privileged evidence. But here, he said, any further litigation would risk disclosure.)
Notably absent from the ruling was any discussion of the state secrets privilege as a separation-of-powers principle. (Treating the privilege as a separation-of-powers principle has in the past led to a much more robust privilege, as in the Fourth Circuit's ruling in El-Masri.) Instead, Judge Ramos treated the privilege as it was designed and as the government apparently asserted it--as an evidentiary privilege. Even so, the government's assertion of the privilege resulted in the dismissal of the entire case.
Judge Ramos rejected the plaintiff's arguments that the government shouldn't be able to rely only on ex parte submissions for its assertion and that the case could be litigated in an in camera trial--because the evidence was apparently too secret even to tell the lawyers. Judge Ramos wrote, "The nature of the information here requires that counsel not be granted access."
Judge Ramos gave a hat tip--but only a hat tip--to the plaintiff's interest in access to justice:
The Court recognizes that dismissal is a "harsh sanction." It is particularly so in this case because Plaintiffs not only do not get their day in court, but cannot be told why.
Still, he said that "dismissal is nonetheless appropriate," because "there is no intermediate solution that would allow this litigation to proceed while also safeguarding the secrets at issue."
March 25, 2015 in Cases and Case Materials, Courts and Judging, Executive Privilege, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, State Secrets | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 24, 2015
The Sixth Circuit ruled last week in Sierra Club v. EPA that the Sierra Club had standing to challenge EPA's redesignation of the Ohio and Indiana portions of the Cincinnati area from "nonattainment" to "attainment" of the area's national air quality standards for particulate matter. The court went on to rule that the EPA's redesignation violated the Clean Air Act.
The ruling is notable, because it's the first time the Sixth Circuit had a chance to address a petitioner's burden of production on standing in a direct appeal of a final agency action. The court said that the petitioner bears a burden of production similar to that required at summary judgment (and not like the lower standard required on a motion to dismiss), that is: "the petitioner has to present specific facts supporting standing through citations to the administrative record or 'affidavits or other evidence' attached to its opening brief, unless standing is self-evident." This standard aligns the Sixth Circuit with the Seventh, Eighth, Tenth, and D.C. Circuits.
Here, the Sierra Club attached to its brief a declaration by Sierra Club members who claimed that the redesignation would cause aesthetic, recreational, and physical injuries. As to causation and redressability, the court noted "that many courts have apparently found it so obvious that redesignation would lead to higher emissions that they did not even need to discuss the standing of environmental litigants." Still, the court looked to "reasonable inferences" about redesignation's impact and concluded that "[w]e find it reasonable to infer actual and imminent aesthetic and physical injuries to an identified member of the Club from redesignation of the Cincinnati area."
After concluded that the Sierra Club had standing, the court went on to rule against the EPA on the merits--that the redesignation violated the Clean Air Act.
The Supreme Court on Monday declined to take up Frank v. Walker, the challenge to the Wisconsin's voter ID law. In a dizzying and complicated case, the Seventh Circuit upheld the law, so yesterday's ruling means that Wisconsin's voter ID law stays in place. (Here's our latest post, when the Supreme Court last fall halted the Seventh Circuit's stay of an earlier district court ruling against voter ID, with links to earlier posts.)
Given the timing, the state said that it won't apply voter ID to its upcoming April 7 elections. But it will apply it to all future elections, including any special elections in 2015.
Monday, March 23, 2015
The Ninth Circuit ruled last week that officers who falsely testified against a defendant based on shoddy investigation reports did not enjoy the traditional absolute immunity that witnesses enjoy against a civil suit. The ruling means that the defendant's case against the officers can go forward.
The case, Lisker v. City of Los Angeles, grew out of a wrongful conviction for second-degree murder based upon two police officers' false testimony that was based on shoddy investigation reports. The defendant, Lisker, who served over twenty-six years in custody, sued the officers for civil rights violations under Section 1983. The officers claimed they enjoyed absolute immunity because they were witnesses against him at trial.
But the Ninth Circuit rejected that claim. The court ruled that the officers' testimony was based upon their investigation reports, and, as such, looked more like a non-testimonial act (like "tampering with documentary or physical evidence or preventing witnesses from coming forward," which is not a basis for absolute immunity) than testimony (which is). The court also said that the policy reasons behind absolute immunity didn't apply to the investigative materials here:
Absolute witness immunity is motivated by the recognition that "[a] witness who knows that he might be forced to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence." That immunity extends to conspiracies to testify falsely for practical reasons, as a plaintiff could otherwise easily undermine the interest in witness candor by challenging the conspiracy rather than the testimony itself. But when defendants have "dual roles as witness and fabricator," extending protection from the testimony to the fabricated evidence "would transform the immunity from a shield to ensure" candor into "a sword allowing them to trample the statutory and constitutional rights of others." The detectives' ultimate testimony "does not serve to cloak these actions with absolute testimonial immunity"; if it did, they would be rewarded for "compound[ing] a constitutional wrong."
Friday, March 20, 2015
In a brief filed today in the First Circuit in Conde-Vidal v. Armendariz, the Solicitor General of the Commonwealth of Puerto Rico essentially sided with the appellants and conceded its same-sex marriage ban is unconstitutional.
Recall that several months ago, United States District Judge for the District of Puerto Rico Juan Perez-Gimenez dismissed the constitutional challenge to Puerto Rico's law defining marriage as "man and woman" and refusing recognition to marriages "between persons of the same sex or transexuals." In large part, Judge Perez-Gimenez relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question."
The challengers appealed to the First Circuit and the Commonwealth's brief "concedes that Baker’s rationale that federal courts lack jurisdiction to entertain these claims for lack of a substantial federal question can no longer be deemed good law."
It is not usual for the Executive Branch of the Commonwealth of Puerto Rico to refuse to defend the constitutionality of legally-enacted statutes. It is even less usual to adopt a somewhat different position at the appellate level than the one espoused before the lower court. But this is not a usual case and neither the law nor common sense requires us to treat it as such.
In a constitutional democracy there are some rights that have been reserved to the People directly and which no government may infringe, regardless of individual or personal views on the matter. “Our obligation [like this Court’s] is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).
Article 68 of the Civil Code of Puerto Rico excludes LGBT couples from the legal entitlements and rights attendant to civil marriage. Thus, the Commonwealth of Puerto Rico acknowledges that the statute in controversy raises substantial constitutional questions anent the constitutional guarantees of equal protection of the laws and substantive due process.
Because Puerto Rico’s marriage ban impermissibly burdens Plaintiffs ́ rights to the equal protection of the laws and the fundamental right to marry, we have decided to cease defending its constitutionality based on an independent assessment about its validity under the current state of the law. However, “i[t] is emphatically the province and duty of the judicial department to say what the law is.” Windsor, 133 S.Ct. 2675, at 2688 (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1802)), and, since the District Court entered judgment in this case, it is this particular Court’s duty to review the legal conclusions there reached so that they may be brought up to date in accordance with newer developments in this important area of constitutional law.
If History has taught us anything, it is that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 579 U.S. at 579. This case represents but another attempt from a politically disadvantaged group of our society to be included within the full scope of the legal and constitutional protections that most of us take for granted. Plaintiffs seek no preferential treatment; only equality. The Executive Branch of the Commonwealth recognizes the LGBT community’s right to equality under the law.
Defendants-Appellees request that this Honorable Court reverse the Judgment of the District Court that dismissed Plaintiffs-Appellants’ complaint for lack of a substantial federal question.
Given this concession, the First Circuit - - - which has not had occasion to rule on a challenge to a "state" same-sex marriage ban - - - is sure to find that Puerto Rico's same-sex marriage ban is unconstitutional, assuming it reaches the issue before the United States Supreme Court decides the issue in the cases presently before it.
Recall that the First Circuit did rule that DOMA, the Congressional statute barring federal recognition of same-sex marriage, was unconstitutional in 2012, before the United States Supreme Court held DOMA unconstitutional in United States v. Windsor, but after the United States Attorney General, Eric Holder, announced the Department of Justice would not defend the constitutionality of DOMA.
The Ninth Circuit ruled today in Munns v. Kerry that families of a government contractor taken hostage in Iraq lacked standing to challenge the alleged government policy prohibiting families from offering a reward or negotiating with terrorist kidnappers. The ruling dismisses the case.
The case was brought by former employees of a private firm (and their families) that contracted with the government for security services in Iraq. Former employees of the company claim, through their next of kin, that they were issued substandard military equipment and were ill-prepared for a mission (because of the negligence of their employer, sanctioned by the State Department), that as a result they were taken hostage and held for over a year, and that government policy prohibited the families from negotiating with the kidnappers. Kidnappers brutally executed the employees in 2008.
One plaintiff, Bjorlin, not taken hostage, alleges that he wishes to return to Iraq but wants to be sure that government policies will not prevent his employer from properly equipping him for security missions.
The families of the kidnapped and executed employees argued that an alleged government policy prohibiting them from seeking information on the kidnapped employees, and offering a reward, violated the First Amendment; they sought declaratory and injunctive relief against such a policy. They also argued that the government withheld money that belongs to them as survivors of their deceased contractor relatives, in violation of the Due Process and Takings Clauses; they sought monetary damages.
The Ninth Circuit ruled that the plaintiffs lacked standing for their claims for declaratory and injunctive relief. As to the families of executed employees, the court said that they didn't allege how any government policies would affect them in the future (even if they alleged that those policies affected them in the past). As to Bjorlin, the court said that the chain of events required before he would be affected by any policies was simply too attenuated.
Because the court affirmed the dismissal based on lack of standing, it didn't address the political question doctrine as an alternative basis for dismissal.
The court also rejected the plaintiffs' claims for monetary damages based on sovereign immunity.
Thursday, March 19, 2015
The Ninth Circuit this week upheld a county's decision to reject an ad critical of Israel (and U.S. support for Israel) on the side of a Metro bus against a First Amendment challenge. The ruling says that the bus side is a limited public forum, subject to a lower level of scrutiny--a holding at odds with holdings in other circuits in similar cases--and concluded that the county's rejection of the ad met that lower standard.
We posted just last week on SEPTA's (Southeastern Pennsylvania) rejection of an anti-Muslim ad--and a district judge's ruling that the rejection violated the First Amendment. Here's our post on a federal case out of New York going the same way; and here's our post on the Sixth Circuit, moving in the opposite direction.
King County, Washington, which runs Metro's bus advertising program through a contract with a private company, has a policy that prohibits ads with certain content (ads for alcohol and tobacco, adult movies, video games for mature audiences, and the like). The policy also has two catch-all "civility clauses" that prohibit material that would foreseebly result in disruption of the transportation system or incite a response that threatens public safety.
SeaMAC, a non-profit opposed to U.S. support for Israel, proposed a Metro ad that read:
ISRAELI WAR CRIMES
YOUR TAX DOLLARS AT WORK
The county initially approved the ad. But a local television report on the ad provoked a massive hostile, even threatening, response, which overwhelmed the Metro call center and employees' e-mails and caused many customers to express safety concerns.
Soon after the story ran, but before Metro ran SeaMAC's ad, two pro-Israeli groups submitted their own ads:
PALESTINIAN WAR CRIMES
YOUR TAX DOLLARS AT WORK
And (with a picture of Hitler):
IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE,
SUPPORT THE CIVILIZED MAN
Given the hostile reaction to SeaMAC's ad, the county rejected both groups' ads under one of the civility clauses, and SeaMAC sued.
The Ninth Circuit ruled that the side of Metro buses was a limited public forum (not a public forum or designated public forum), based on the pre-screening process for ads, the county's prior implementation (it had not categorically accepted ads, and it had rejected some), and the nature of the side of a bus (the purpose of which was to raise revenue through ad sales).
The court recognized that this put it at odds with other circuits that have held that bus sides were a designated public forum (subject to strict scrutiny). But it said that those courts made a mistake:
Some of those courts, in our view, mistakenly concluded that if the government opens a forum and is willing to accept political speech, it has necessarily signaled an intent to create a designated public forum. Neither the First Amendment nor the Supreme Court's public forum precedent impose that categorical rule.
The court went on to rule that the county's decision was reasonable and viewpoint neutral, and therefore valid.
The dissent argued that the sides of Metro's buses were a designated public forum, subject to strict scrutiny, that the civility clause gave the county too much discretion, and that the county's decision (in light of the hostile reaction to SeaMAC's ad) raised heckler veto problems. The dissent would have remanded the case for determination whether the county's decision satisfied strict scrutiny.
Akhil Reed Amar writes in this month's Atlantic that the high Court is now packed with Justices that have nearly identical backgrounds--elite educations, prestigious clerkships, and appellate court judgeships--and why that's a problem. Amar argues that the lack of experience in Congress or at high levels in the executive branch is a particular worry:
While a bench overloaded with ex-pols would be unfortunate, the Court would benefit from having at least one or two justices who know how Washington works at the highest levels, and who have seen up close how presidents actually think, how senators truly spend their days, how bills in fact move through Congress, and so on--in short, one or two justices whose resumes resemble those of former Secretary of State John Marshall, Hugo Black, and Robert Jackson.
The Brennan Center just released What Went Wrong with the FISA Court?, a history and analysis of the FISA court, its problems, and some suggested solutions, penned by Elizabeth Goitein and Faiza Patel.
The report walks through the history of FISA to show just how the law, technology, and the FISA court itself changed to create the conditions for the bulk, or programmatic, surveillance programs that we have today. The report argues that current programmatic surveillance programs raise significant Article III and Fourth Amendment problems. In order to solve these, the report suggests the following:
- End programmatic surveillance by prohibiting bulk surveillance under Section 215 and replacing Section 702 with a regime that would require an individualized court order for surveillance.
- Enact additional reforms and processes, including adding an adversarial process (an advocate against the government before the FISA court) and increasing transparency.
- Enact additional Fourth Amendment reforms, including restoring the requirement that the surveillance target is a foreign power or its agent, narrowing the definition of "foreign intelligence information," and restoring the test that requires that obtaining foreign intelligence information is the "primary purpose" of the surveillance.
- Reform programmatic surveillance, if it must continue.