Wednesday, May 6, 2015
The D.C. Circuit last week dismissed a case challenging the Consumer Financial Protection Bureau under separation of powers. The ruling in Morgan Drexen, Inc. v. CFPB held that the plaintiffs lacked standing and should pursue their constitutional claims against the CFPB in a CFPB enforcement action pending in another federal district court.
The ruling ends this particular challenge to the CFPB (for now), but allows the plaintiff to pursue its challenge in the enforcement action.
Morgan Drexen filed the claim after the CFPB threatened enforcement action against the firm for violations of the Consumer Financial Protection Act and the Telemarketing Sales Rule in its bankruptcy and debt-relief services. Kimberly Pisinski, an attorney who contracts with Morgan Drexen for paralegal services, joined the suit on the theory that the CFPB's enforcement action against Morgan Drexen would affect her own law practice.
Morgan Drexen and Pisinski sought declaratory and injunctive relief, arguing that the CFPB is unconstitutional because its powers are overbroad, it's headed by a single director who is removable only for cause, it is funded outside the ordinary appropriations process, and judicial review of its actions is limited.
But soon after Morgan Drexen and Pisinski sued in the D.C. District, the CFPB filed an enforcement action against Morgan Drexen in the Central District of California. Pisinski, who apparently really, really wanted to be a part of the action, moved to intervene in that suit, too. (The court denied her motion. The court also recently granted the CFPB's motion for sanction and default judgment against Morgan Drexen, finding that "[d]efendants willfully and in bad faith engaged in a coordinated and extensive effort to deceive the Court and opposing counsel" and having "blatantly falsified evidence . . . concealing this fact from the Court, opposing counsel, and even their own counsel at every turn.")
The D.C. Circuit ruled that Morgan Drexen could lodge its constitutional claims against the CFPB in the enforcement case in the Central District of California instead of in its case in the D.C. District. The court said that Morgan Drexen wouldn't suffer any harm in harm in doing so, and that it'd support judicial economy.
The court also ruled that Pisinski lacked standing. That's because she didn't allege a CFPB enforcement action would harm her practice, or that she engaged in any illegal conduct as a Morgan Drexen contractor:
In sum, Pisinski has failed to proffer evidence in support of any of her theories of standing: that she was responsible for Morgan Drexen's allegedly illegal conduct, that her practice is or will be economically harmed by the Bureau's enforcement action against Morgan Drexen, or that implicit accusations by the Bureau that she exercised too little control over Morgan Drexen or engaged in illegal conduct herself could damage her professional standing. The record evidence does not show that she used Morgan Drexen's allegedly illegal services or that there is a substantial risk that the Bureau's enforcement action will cause harms to her practice or professional reputation that she has asserted.
Judge Kavanaugh dissented, arguing that Pisinsky had standing, and that the majority's approach is "more complicated than it needs to be."
Wednesday, April 29, 2015
Florida Governor Rick Scott filed suit yesterday against the federal government arguing that its move to take away the state's Low Income Pool money compels the state to expand Medicaid under the Affordable Care Act--all in violation of the anti-commandeering principle and the "gun to the head" principle in NFIB v. Sebelius.
We posted on Florida's LIP and the constitutional issues here. The Center for Budget and Policy Priorities just put out a very helpful backgrounder here.
In short, LIP is a federal program that pays health-care providers for uncompensated care for the poor. Medicaid, and the ACA's Medicaid expansion, pays directly for health care for that same population.
The lawsuit argues that the federal government threatened to take away the state's LIP money unless the state expands Medicaid under the ACA--and that this amounts to unconstitutional coercion in violation of federalism principles and the Tenth Amendment under NFIB.
But the case is a sham. The federal government doesn't appear to be strong-arming Florida into expanding Medicaid as much as it appears to prefer to spend money directly on health insurance for the poor instead of paying for uncompensated care for them. That's a policy choice that the federal government can make. States have no entitlement to LIP money, or to any particular federal approach to providing health care for the poor. And when the feds take away LIP funds, Florida's choice is clear: figure out a way to cover care for the poor, or don't.
Governor Scott claims that this isn't a real choice, because the state can't afford to let the poor go without health insurance. If that's right, he can implement his own program, or he can expand Medicaid. This hardly seems like compulsion.
The case is obviously politically, and not constitutionally, motivated, and probably has little chance of success on the merits. "Probably," because so many thought the same thing about NFIB, before the Court got a hold of it.
There's another commonality with NFIB: Governor Scott hired Paul Clement to represent him.
The case centers around Oklahoma's use of midazolam as the first drug in the cocktail. In particular the case asks whether midazolam, a sedative, reliably induces a sufficiently pain-free state so that the condemned prisoner wouldn't feel the intense pain associated with the second drug, potassium chloride. (Everyone agrees that potassium chloride alone causes intense pain and suffering. The pain is described as burning alive, or burning from the inside out.) If so, there's probably no constitutional problem with midazolam. (Under Baze, the Court upheld a different lethal injection protocol on the assumption, supported in the record, that the first drug reliably produced a deep, coma-like unconsciousness.) If not, however, Oklahoma's protocol may violate the Eighth Amendment.
But there's a problem: Nobody seems to know for sure. More: the state's expert's testimony at trial on a key point about how midazolam works was wrong--so much so that the state itself backed away from that testimony. That means that the district court's ruling, based on its conclusion that midazolam sufficiently protects against pain, based on the state's expert's testimony, is seriously flawed. (Justice Kagan described it as "gobbledygook." That seems about right.)
The Court focused principally on two questions today. The first, whether the state's use of midazolam reliably induces a sufficiently pain-free state so that the condemned prisoner wouldn't suffer from potassium chloride, seemed to divide the Court along conventional ideological lines. The progressive wing went with the condemned (against the use of midazolam), and the conservatives went with the state. The second question--whether the petitioners bear the burden to show that midazolam does not induce the state (and to identify a constitutional alternative for the state), or whether the state bears the burden to show that its use of midazolam does not cause intense pain and suffering--divided the Court the same way.
Justice Kennedy is probably the swing vote, but he was relatively quiet today. He only piped up when the arguments turned to whether the petitioners contributed to the problem in the first place. (Oklahoma started using midazolam because it couldn't gain access to the barbiturate drugs that more reliably protect against pain--and that the Court upheld in Baze. Oklahoma can't gain access to the barbiturate drugs because manufacturers have stopped supplying them, for ethical reasons, for use in lethal injections. Justice Alito suggested that opponents of the death penalty contributed to that situation, and that the Court shouldn't be complicit in this "guerrilla war" against the death penalty.) Justice Kennedy simply asked what relevance this all had to the case. Answer from the petitioners: none.
On one level, the case asks pretty narrow and technical questions about a particular drug and the burdens in proving an Eighth Amendment violation under Baze.
But on another level, the case potentially strikes a serious blow against the death penalty itself. That's because if the Court strikes Oklahoma's use of midazolam (whatever it does with the burden), Oklahoma and other lethal-injection states will have to look to a much less attractive alternative--something like electrocution, the gas chamber, or even a firing squad. (That's "much less attractive" on the barbarity scale, not the constitutional one (alas).) Some states have already moved in this direction. If that happens across the board, moves like this could erode public support for the death penalty. And if that's true, a ruling for the petitioners could be much more than a narrow, technical ruling on lethal injections: it could strike a serious practical blow against the death penalty itself.
Tuesday, April 28, 2015
The Supreme Court will hear a challenge to Oklahoma's three-drug lethal injection protocol tomorrow, the last day of scheduled oral arguments for the Term. Here's an excerpt from my preview of the case, Glossip v. Gross, for the ABA Preview of United States Supreme Court Cases, with permission:
For many years, Oklahoma administered the death penalty using a three-drug lethal-injection protocol that included sodium thiopental, pancuronium bromide, and potassium chloride. The first drug, sodium thiopental, is a fast-acting barbiturate sedative that is designed to induce a deep, coma-like state of unconsciousness in the condemned. The second drug, pancuronium bromide, is a paralytic agent that is designed to inhibit all muscular-skeletal movements, thus paralyzing the diaphragm and stopping respiration. The third drug, potassium chloride, interferes with the electrical signals that stimulate heart contractions and thus induces cardiac arrest.
Since 2010, however, Oklahoma has been unable to obtain the first drug, sodium thiopental, for use in executions. Oklahoma used an alternative barbiturate, pentobarbital, for a brief period, but that drug, too, became unavailable for use in executions. (Oklahoma was not alone. Other states that used sodium thiopental in executions also saw their sources dry up. Those states, too, turned to pentobarbital or a similar barbiturate capable of producing a deep coma. But soon enough, the sources for pentobarbital also dried up.)
So in early 2014, Oklahoma substituted midazolam hydrochloride (midazolam) for sodium thiopental and pentobarbital as the first drug in its protocol. (Oklahoma retained pancuronium bromide and potassium chloride as the second and third drugs, respectively.) Midazolam is a sedative in the benzodiazepine family of drugs. Midazolam and other benzodiazepines are prescribed to treat anxiety disorders and insomnia, to reduce anxiety before general anesthesia, and for conscious sedation in minor outpatient procedures. Unlike barbiturates, midazolam does not reliably produce a deep, coma-like state that would render a person insensate to severe pain; and it is not used as the sole drug to maintain general anesthesia during a painful procedure. (There is some dispute on this point. The state’s expert testified at trial that 500 milligrams would induce and maintain coma-like unconsciousness between its administration and death. The petitioners, however, take issue with the expert’s methodology, as described more below.) Indeed, studies show that although midazolam can cause unconsciousness, a person on midazolam can be “jolted into consciousness” by the infliction of pain. (Midazolam itself does not reduce or relieve pain.) Moreover, midazolam has a “ceiling effect.” This means that beyond a certain dosage, an additional increase in dosage does not produce a corresponding increase in effect.
Oklahoma first used midazolam on April 29, 2014, in its execution of Clayton Lockett. The state administered 100 milligrams of midazolam, and Lockett was declared unconscious seven minutes later. But during the administration of the second and third drugs, Lockett awoke. He writhed in the gurney, bucked his head, and said, “This shit is fucking with my mind,” “Something is wrong,” and “The drugs aren’t working.” Lockett died 24 minutes later. While a subsequent investigation found that a catheter failure caused the drugs to infiltrate Lockett’s tissue instead of directly entering his bloodstream (as they should have), this would not have significantly impacted midazolam’s effectiveness, because it has a rapid absorption rate even when not administered intravenously.
Lockett’s experience was not unique. Ohio and Arizona both used a mixture of midazolam and hydromorphone in executions with similar results. In January 2014, Ohio used 10 milligrams of midazolam and 40 milligrams of hyodromorphone to execute Dennis McGuire. McGuire gasped for nearly ten minutes before his death. In July 2014, Arizona used more of each drug, 750 milligrams of each, to execute Joseph Wood. Wood gasped for nearly two hours before dying.
After its investigation into Lockett’s execution, Oklahoma adopted a new execution protocol, effective September 30, 2014. The new protocol gives the Director of Oklahoma’s Department of Corrections sole discretion to select among four alternative drugs or drug combinations to be used in lethal injection executions. The first alternative calls for the administration of 5,000 milligrams of pentobarbital in a one-drug procedure. The second alternative provides for the administration of 5,000 milligrams of sodium pentothal in a one-drug procedure. The third alternative calls for the administration of 500 milligrams of midazolam and 500 milligrams of hydromorphone. The fourth alternative calls for the administration of 500 milligrams of midazolam, 100 milligrams of vecoronium bromide, and 240 milliequivalents of potassium chloride. The new protocol requires the Director to inform the condemned of his or her decision in writing ten calendar days before the scheduled execution.
Richard Glossip and other death-row prisoners, including Charles Warner, sued Oklahoma and moved for a preliminary injunction to stop the state from carrying out executions in an unconstitutional manner, including through the use of midazolam in a three-drug protocol. The district court denied relief. The United States Court of Appeals for the Tenth Circuit affirmed.
On January 13, 2015, petitioners filed a petition for writ of certiorari to the Supreme Court along with an application to stay their scheduled executions. On January 15, 2015, the Court denied the stay application. Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, dissented.
That same evening, Oklahoma used its fourth alternative drug combination, which includes midazolam as the first of three drugs, to execute Charles Warner. (This combination is the same combination that the state used to execute Lockett, but with a much higher dose of midazolam.) After Warner was injected with midazolam, but before he was sedated past the point of speech, his last words were reported as “my body is on fire.”
A week later, on January 23, 2015, the Court agreed to hear the appeal. The state then applied for a stay of execution for the remaining three petitioners, asking the Court to stay the executions “until final disposition in Oklahoma’s favor . . . or, alternatively, until [the state] has in its possession a viable alternative to midazolam for use in its executions.” The Court granted the stay on January 28, 2015, ordering that the state’s “executions using midazolam are stayed pending final disposition of this case.”
The Supreme Court upheld a three-drug protocol like Oklahoma’s old protocol, including sodium thiopental as the first drug, seven years ago in Baze v. Rees, 553 U.S 35 (2008). In that case, the challengers conceded that an execution under the protocol would be humane and constitutional if performed correctly. But they argued that there was a significant risk that the procedures would not be performed correctly. In particular, they claimed that the sodium thiopental would not be properly administered to achieve its intended effect, thus resulting in severe pain upon the administration of the second and third drugs. The challengers argued that a different protocol—a one-drug protocol using a single dose of sodium thiopental or another barbiturate—would solve this problem.
The Court rejected this argument. A plurality of the Court ruled that the challengers failed to show that the three-drug protocol would create a “substantial risk of serious harm,” an “objectively intolerable risk of harm” that would prevent prison officials from pleading that they were “subjectively blameless for purposes of the Eighth Amendment.” The plurality also held that the challengers failed to show that their proposed alternative effectively addressed a “substantial risk of serious harm.” The plurality wrote,
To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment.
The Court in Baze thus articulated the standard for an Eighth Amendment violation. It also set a standard for when a condemned prisoner challenges the administration of a protocol and suggests an alternative.
But this case is different than Baze for two reasons. First, the first drug in Oklahoma’s protocol is midazolam, a sedative, and not sodium thiopental or another barbiturate. As a result, this case raises a new question: whether a lethal injection protocol that includes midazolam as the first drug violates the Eighth Amendment. Next, Glossip and the other challengers (together, Glossip) do not merely take on the administration of the protocol; they challenge the protocol itself. In particular, Glossip does not concede (as the Baze challengers did) that the protocol, if properly administered, is constitutional. Instead, Glossip challenges the protocol itself (even if properly administered). Given these differences, this case asks whether and how the courts should apply the Baze standards to challenges that are meaningfully different than those in Baze itself.
Glossip argues first that Oklahoma’s use of midazolam violates the Eighth Amendment because it creates a “substantial risk of serious harm” or an “objectively intolerable risk of harm” in violation of Baze. Glossip says that unlike properly administered sodium thiopental, midazolam does not reliably induce a deep, coma-like unconsciousness that would render a person insensate to pain, and that, indeed, clinical studies show that when midazolam was used in surgery, patients felt pain. Moreover, he claims that there is no substantial practice among the states of using midazolam for lethal injections (again, in contrast to the widespread use of sodium thiopental, at least when it was available). Glossip says that only four states have used midazolam in an execution, and only two have used it as anesthesia.
Glossip contends that the lower court’s decision to credit the state’s expert that a 500-milligram dose of midazolam would induce a deep unconsciousness was clear error. Glossip claims that the expert supported his opinion with only undisclosed or unreliable sources and mathematical error, and that the expert’s supposition about how the drug works “has no acceptance in the scientific community.” Instead, Glossip says that midazolam’s properties, including its ceiling effect, mean that it cannot reliably induce a deep, coma-like unconsciousness.
On the second issue, Glossip argues that the Tenth Circuit erred in setting a higher standard for a stay of execution than the one set by the plurality’s decision in Baze. Glossip says that the traditional standard for obtaining a stay requires, among other things, “a significant possibility of success on the merits.” Hill v. McDonough, 547 U.S. 573 (2006). He says that the Baze plurality did not modify or overrule that standard. Yet he claims that the Tenth Circuit and other courts have construed Baze to set a new and higher standard, one that all but forecloses a stay. He contends that this is wrong. Glossip claims that, if anything, a higher standard should apply only to cases like Baze, where a death-row prisoner challenges a concededly valid method of execution but seeks to show a step that “the State could take as a failsafe for other, independently adequate measures.” But where, as here, a person lodges a claim that the state’s method itself violates the Eighth Amendment, Glossip contends that the traditional stay standard should apply.
Finally, on the third issue, Glossip argues that the Tenth Circuit also erred in requiring the petitioners to propose a commercially available alternative drug for their executions. Glossip claims that the Eighth Amendment prohibits certain punishments, independent of whether market forces prevent a state from adopting its preferred alternative. Glossip says that Hill supports this principle, and Baze did not overrule it. Glossip writes, “The vitality of a core constitutional guarantee does not vary with the marketing decisions or supply constraints of private corporations.”
Oklahoma argues first that the Court should dismiss the appeal as improvidently granted. The state says that Glossip is challenging the lower courts’ fact-finding, and that the fact-finding at issue was not even necessary to the courts’ judgments. Oklahoma claims that this kind of fact-based dispute is ill-suited to Supreme Court review.
Oklahoma argues next that its use of midazolam does not create a “substantial risk of serious harm.” The state says, contrary to Glossip’s assertion, a 500-milligram dose of midazolam can induce a deep, coma-like unconsciousness. Indeed, the state claims that the record evidence indicates that a large dose of midazolam produces unconsciousness sufficiently deep to render a person insensate “to even extremely painful stimuli.” Oklahoma says that midazolam’s lack of analgesic properties is irrelevant, because it induces deep unconsciousness. It claims that the risk of paradoxical reactions is extremely low. And it contends that any ceiling effect has not been sufficiently established. Oklahoma also claims that its other “robust procedural safeguards” “will eliminate” the risk of severe pain.
Oklahoma argues that the district court did not err in admitting the opinions of its expert. The state says that Glossip’s challenges to the expert’s methodology lack merit and that the district court properly relied on the expert’s testimony. Oklahoma claims that the Tenth Circuit gave Glossip “every benefit of the doubt” and still ruled that none of Glossip’s challenges undermined the scientific reliability of the state’s evidence at trial.
Oklahoma argues on the second issue that the Tenth Circuit properly applied the standard that Glossip seeks here. Oklahoma says that the Tenth Circuit explicitly applied the proper standard for a preliminary injunction, and that the Supreme Court cannot assume that the Tenth Circuit applied a higher standard without saying so. Moreover, the state claims that the district court ruled that Glossip failed to meet the burden under an even more relaxed standard. And Oklahoma contends that in any event the Baze standard should apply to Glossip’s claim. The state says that the Baze plurality was clear when it wrote, “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain * * * [that] is substantial when compared to the known and available alternatives.”
Finally, on the third issue, Oklahoma argues that Glossip did not show that an alternative execution method is available that will substantially lower the risk of severe pain, which Oklahoma says is the Tenth Circuit’s alternative (not principal) holding. The state says that the Baze plurality’s requirement that a challenger identify an alternative was a “broadly applicable standard” designed to provide adequate guidance in method-of-execution cases. Oklahoma claims that all courts of appeals so far have applied Baze this (broader) way. The state says that this makes sense: Because the death penalty itself is constitutional (even if some pain results), any challenge to a method of execution that fails to identify a feasible alternative method that would result in substantially less pain amounts to a challenge to the death penalty itself. And this, the state claims, is already foreclosed by the Constitution.
Thirty-two states plus the federal government currently have a death penalty. All of these jurisdictions use lethal injection as the primary method of execution, but many have a back-up (electrocution, gas chamber, and even hanging and firing squad) in case lethal injection drugs become unavailable. (Check out deathpenaltyinfo.org for more information on state-by-state approaches to the death penalty.)
States started using lethal injection in the 1980s as a more humane method of execution, theoretically free of unnecessary pain, in reaction to the risks associated with other methods of execution. When states first adopted lethal injection, the vast majority left their statutes purposefully vague on the procedure and delegated the development of a protocol to prison officials. Historically, most states and the federal government used a three-drug protocol like Oklahoma’s earlier protocol, which included sodium thiopental or another barbiturate as the first drug. (For an excellent and critical history, check out the amicus curiae brief filed by The Louis Stein Center for Law and Ethics at Fordham University School of Law. Amicus argues, like Glossip, that states developed and modified their drug protocols not with the kind of medical or scientific rigor that we might expect, but in reaction to court decisions and out of expedience.)
But in the 7 years since Baze came down, states have moved away from the original three-drug protocol. This is at least in part because states’ sources for sodium thiopental and alternative barbiturates for use in executions have largely dried up, as international drug suppliers have refused to sell drugs for use in executions. As a result, some states have turned to compounding pharmacies to obtain lethal drugs, others have altered their protocols, and yet others have authorized alternative methods of execution when lethal drugs are not available. (For example, Utah’s governor signed a bill on March 23, 2015, allowing the use of firing squads in executions if the state is unable to obtain lethal injection drugs.)
Against this backdrop, Glossip is important because it will give states additional guidance on when a particular drug protocol violates the Eighth Amendment, and what challengers must show to prove it.
If Baze is any indication (and, indeed, if the complicated route to the Court in Glossip is any indication), the Court is deeply divided on how to evaluate these claims. While the Court upheld the protocol in Baze by a 7-2 vote, the case produced seven different opinions. Since Baze came down, Justice Sotomayor replaced Justice Souter (who dissented in Baze), and Justice Kagan replaced Justice Stevens (who wrote a separate concurrence arguing that the death penalty is unconstitutional but ultimately deferring to precedents). While these changes may not alter the head-count in this case, they may add yet another dimension to the reasoning.
Just to be clear: This case does not test the constitutionality of the death penalty itself, but instead tests the constitutionality of a particular drug protocol in administering the death penalty. It also tests the standards by which courts should evaluate challenges to a particular method of execution.
But as states continue to have problems obtaining sodium thiopental and similar barbiturates, and as they therefore increasingly look to alternative drug protocols and other methods of execution, these standards will become increasingly important in death penalty challenges. In this way, even though Glossip does not test the death penalty itself, the Court’s ruling will, as a practical matter, put a heavy thumb on the scale either for or against the death penalty.
Monday, April 27, 2015
A divided panel of the Seventh Circuit today upheld a local ordinance banning assault weapons and large-capacity magazines against a Second Amendment challenge. The ruling in Friedman v. City of Highland Park means that the ordinance, by Highland Park, a Chicago suburb, stays in place for now. But this case is a good candidate for en banc and even Supreme Court review, so we likely haven't seen the end of it.
The case is full of turns. For example, Judge Easterbrook, for the majority, used history against the plaintiffs, even though opponents of gun regulation have so often used history in support of their points. He also used federalism against the plaintiffs, even though opponents of gun regulation so often look to "states' rights" in this and other areas. He turned the preservation or efficiency of a well regulated militia into a point about the states' ability to decide what weapons should be available to civilians. And finally he turned the gun-rights victories at the Supreme Court against the plaintiffs: If the plaintiffs can already possess handguns and long-guns for self-defense (as the Court has ruled, why do they also need semi-automatic weapons?
The case is also full of both social science and common sense. For example, "That laws similar to Highland Park's reduce the share of gun crimes involving assault weapons is established by the data." And, "But assault weapons with large-capacity magazines can fire more shots, faster, and thus can be more dangerous in the aggregate. Why else are they the weapons of choice in mass shootings?"
But aside from the turns, the social science, and the common sense, the case is notable for the Second Amendment rule it uses. Judge Easterbrook declined to apply any particular tier of scrutiny and instead applied this test:
[W]hether a regulation bans weapons that were common at the time of ratification or those that have "some reasonable relationship to the preservation or efficiency of a well regulated militia," and whether law-abiding citizens retain adequate means of self-defense.
Judge Easterbrook essentially said that this is the best a lower court can do when the Supreme Court has declined to set a particular level of scrutiny (or other test).
As to the requirement of a reasonable relationship to the preservation or efficiency of a well regulated militia, the court said that "states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms, so as to have them available when the militia is called to duty." As to whether the law allows other means of self-defense, the court noted that Highland Park residents can still use handguns and long-guns for self-defense, and that the Court said that was enough.
He even at one point went so far as to say that if Highland Park's ban only "reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that's a substantial benefit."
In wrapping up, Judge Easterbrook went even more deferential:
The best way to evaluate the relation among assault weapons, crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court's opinions. The central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process.
And he went more on federalism:
Another constitutional principle is relevant: the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim. Whether those limits should be extended is in the end a question for the Justices.
Judge Manion dissented, arguing that the "ordinance infringes upon the rights of . . . citizens to keep weapons in their homes for the purpose of defending themselves, their families, and their property."
The Fifth Circuit on Friday dismissed a case challenging both the individual and employer mandates in the Affordable Care Act under the Origination Clause. The court said that the individual plaintiff challenging the individual mandate lacked standing, and that the corporation challenging the employer mandate was barred by the Anti-Injunction Act. The ruling dismisses the case, with little or no chance of a successful appeal.
The case, Hotze v. Burwell, was brought by a medical doctor, Steven Hotze, and his employer, Braidwood Management. The plaintiffs argued that the ACA's individual and employer mandates violated the Origination Clause, because they are "bills for raising Revenue" that did not "originate in the House." Their theory: The ACA was a Senate amendment to a shell of a House bill that already passed, so that in fact the ACA really originated in the Senate. If so--and if the individual mandate is authorized by the Taxing Clause (and not the Commerce Clause), as the Court held--then, they claimed, the whole ACA should have started in the House. Because it really didn't, it violated the Origination Clause.
But there was a problem even before the court got to the merits: Hotze already had health insurance through Braidwood, and so would not have to purchase insurance or pay the tax penalty. This meant that he didn't suffer a harm.
Hotze neglected to say in his complaint that his insurance wasn't up to ACA snuff (and that he'd have to drop it and buy new insurance or pay the tax penalty), so all he had for an injury was that the ACA forced him to make hard health-insurance choices. The court said that this wasn't enough for standing.
Hotze also argued that when the employer mandate takes effect, Braidwood would have to offer him less desirable insurance. The court said that this theory wasn't tightly enough tied (or at all tied) to the individual mandate, however, so this didn't support standing, either.
Finally, Hotze said that the ACA forced his insurance premiums up. The court rejected this theory, too, saying that it amounts to a generalized grievance.
The court also dismissed Braidwood's challenge to the employer mandate, but this time under the Anti-Injunction Act. The AIA bars courts from hearing any challenge to restrain the assessment or collection of any tax.
Even if the court had addressed the merits, however, this case didn't appear to be going anywhere. That's because the ACA did originate in the House, even if in a shell bill later amended by the Senate to include the full ACA. The plaintiffs argued that the Senate amendment wasn't germane to the House bill (and was thus an unconstitutional end-run around the Origination Clause), but the government argued that the Origination Clause didn't contain a germane-ness requirement--a point the district court found convincing.
The district court dismissed the case on the merits, ruling that the ACA didn't violate the Origination Clause. Good bet the Fifth Circuit would have, too.
Friday, April 24, 2015
The D.C. Circuit ruled today that plaintiffs lacked standing to challenge EPA and NHTSA's standards for greenhouse gas emissions from cars and trucks. The ruling means that the case is dismissed, and the standards stay in place.
The case, Delta Construction v. EPA, tests a joint effort by the EPA and NHTSA to regulate greenhouse gas emissions from automobiles and trucks. The agencies issued coordinated rules, one set of rules for cars and, later, one set for trucks. (The D.C. Circuit previously upheld the car rules, and the Supreme Court denied review.)
The plaintiffs--business, associations, and individuals in California, and Plant Oil Powered Diesel (or POP Diesel), a company that promotes the use of vegetable oil in place of traditional diesel fuel--sued, arguing that the regulations were arbitrary and capricious in violation of the Administrative Procedures Act. The California plaintiffs challenged the EPA rules only; POP Diesel challenged both the EPA and NHTSA rules. The California plaintiffs argued that the regs jacked up the price of cars and trucks in the state; POP Diesel argued that the truck rule makes its product economically unfeasible.
The court held that the California plaintiffs lacked standing, because they couldn't show causation and redressability. That's because even if they won on the merits--and the court struck the EPA rules--the NHTSA rules would still drive the prices of their vehicles up. In other words, because both agencies' sets of rules did the same thing, defeating one wouldn't solve their alleged problem.
As to POP Diesel, the court said that it didn't fall within the zone of interests protected by the portion of the Clean Air Act governing emissions standards for motor vehicles. The court said that economic interests, like POP Diesel's, without more, aren't within the congressional goals of the Act, and that POP Diesel's green approach alone doesn't put it within the Act's zone of interests.
The court dismissed the case and ended the plaintiffs' challenge to the emissions regs.
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.