Friday, February 13, 2015
There's no shortage of opinion on standing in King v. Burwell, the case testing whether the IRS had authority under the Affordable Care Act to grant tax credits to purchasers of health insurance through a federally-facilitated (not state-run) exchange. The Wall Street Journal and Mother Jones wrote about the standing problems first, but now there's coverage all around the internet.
Still, neither the government nor the Court has said anything about it.
The Court can consider the plaintiffs' standing anytime, and on its own motion. If it rules that the plaintiffs in this case lack standing, surely there will be efforts to find new plaintiffs.
But remember: The parallel case in the D.C. Circuit--which first came down the same day as King--is still in abeyance pending the outcome of King. If the Court dismisses King for lack of standing, the D.C. Circuit would likely lift its case out of abeyance and put the issue back before the Supreme Court relatively quickly (or at least quicker than ACA opponents could scrounge up new plaintiffs and start all over).
Wednesday, February 11, 2015
The White House today sent its long-awaited authorization for use of military force against ISIS (or ISIL) to Congress. Here's the accompanying letter from the President.
The draft AUMF authorizes the President to use "necessary and appropriate" military force against "ISIL or associated persons or forces." (The draft defines "associated persons or forces" as "individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.") The draft has a three-year duration, and specifically excludes the use of U.S. troops in "enduring offensive ground operations," but it contains no geographic restriction on the use of force.
The draft would also revoke the 2002 AUMF against Iraq. However, it does not revoke (or otherwise address) the sweeping 2001 AUMF, although President Obama calls for refinement, and ultimately revocation, in his accompanying letter.
The draft acknowledges that "the United States has taken military action against ISIL" already, and cites "its inherent right of individual and collective self-defense" as authority for that prior action. Last fall, the President cited his Article II powers and the 2001 AUMF as authority for military action against ISIS and the Khorasan Group.
Tuesday, February 10, 2015
The Massachusetts Supreme Judicial Court ruled today that a parent in a private guardianship proceeding is entitled to counsel as a matter of due process. (The court previously ruled that a parent in a private adoption proceeding enjoyed that same right.) The case provides a categorical right to counsel under Massachusetts law, and thus stands in contrast to the case-by-case approach to a parent's federal due process right to counsel in Lassiter v. Department of Social Services.
The case, Guardianship of V.V., involved a guardianship proceeding between a minor's mother and great-grandmother. The mother was not initially represented by counsel when the lower courts awarded guardianship to the great-grandmother, although the mother obtained a lawyer later in the proceedings.
By the time the Supreme Judicial Court had a chance to rule, the case had become moot. That's because the minor was back with the mother. (The court said that the case was not moot on account of the mother obtaining a lawyer later in the proceeding. The court said the point was that the mother didn't have an attorney at the initial guardianship proceeding.) Still, the court said that the issue was capable of repetition but evading review--that it was an issue sure to come up again, and, because of the quick turn-around in guardianship cases, likely to evade appellate review.
The court held that the weighty interests and due process considerations in guardianship proceedings meant that parties to a guardianship proceeding had a categorical right to counsel. The court also noted that the state, by statute, provided counsel to parties to a guardianship proceeding where the state is a party, and that the same interests are at stake in a private guardianship proceeding.
February 10, 2015 in Cases and Case Materials, Comparative Constitutionalism, Fundamental Rights, News, Opinion Analysis, Procedural Due Process, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Newly elected Illinois Governor Bruce Rauner (R) late yesterday issued an executive order that halted enforcement of the fair share provisions in state union contracts with state employees. At the same time, he filed a preemptive federal lawsuit seeking a declaratory judgment that his EO was constitutional.
The pair of moves (especially the unusual lawsuit) can only be understood as a full frontal assault on whatever is left of public sector fair share under the First Amendment after last Term's ruling in Harris v. Quinn. (And there's not much left.) Indeed, the lawsuit seems specifically engineered only to put Abood, the 1977 case upholding public sector fair share requirements, before the Court again and to topple it once and for all.
"Fair share" fees are those fees charged to nonunion members in a union shop. They're designed to cover union expenses that benefit all employees (union or not), like collective bargaining. The Supreme Court ruled in Abood in 1977 that fair share fee requirements do not violate the First Amendment (as compelled speech and association), because they are justified in order to avoid free-riding by nonunion members (that is, nonunion members who benefit from the union's activities, but fail to pay union dues) and to promote labor peace. Without fair share fee requirements, public sector unions could be hard-pressed to gain membership or collect any fees. That's because without fair share requirements every individual employee might rationally think that he or she could duck out of union membership and fees and free-ride on the union's bargaining. If enough employees think this, the unions could disappear.
The Supreme Court in recent years has chipped away at Abood, first in Knox v. Service Employees (2012) and then in Harris v. Quinn (2013). Abood's definitely holding on by just a string, but the Court hasn't specifically overruled it.
Governor Rauner's actions seem designed to do just that. Rauner's EO, halting fair share enforcement, is based on his worry that "the collective bargaining agreements force some employees to subsidize and enable union activities that they do not support," and "Illinois state employee unions are using compelled "fair share" fees to fund inherently political activities to influence the outcome of core public sector issues."
But Illinois law permits the collection of fair share fees only for nonunion members' "proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment . . . ." 5 ILCS 315/6. It does not permit collection of fair share fees for other activities, like political advocacy. Thus, Illinois law is fully constitutional and comports with Abood. (Again, even if Abood is on its way out, it's still the law of the land.) Still, Governor Rauner's EO takes it head-on.
To punctuate the EO, Governor Rauner then filed a preemptive suit against the unions in federal court seeking declaratory relief that his EO is constitutional. This sounds like a nonjusticiable political question, or like Rauner lacks standing, or like the whole thing isn't yet ripe. (Shouldn't the unions be suing?) But Rauner has an answer for this (strange as it sounds): The EO renders null and void the fair share provisions in the state's collective bargaining agreements, thus creating a controversy between the Governor and unions.
The aggressive EO and the strangeness of the suit can only mean that Governor Rauner is taking on public sector fair share and Abood full force--that he's doing it because he wants his name on the case overturning Abood.
Monday, February 9, 2015
Supreme Court Denies Stay of Alabama Same-Sex Marriage While Alabama Supreme Court Chief Justice Continues the Argument
Over a dissenting opinion by Justice Thomas, joined by Justice Scalia, the Court denied the application for a stay in Strange v. Searcy. Recall that in January, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.
The controversial Chief Judge of the Alabama Supreme Court Roy Moore has reacted negatively to the federal court opinion, including penning a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order. That letter prompted an ethics complaint filed against Roy Moore from the Southern Poverty Law Center arguing that:
Chief Justice Roy Moore has improperly commented on pending and impending cases; demonstrated faithlessness to foundational principles of law; and taken affirmative steps to undermine public confidence in the integrity of the judiciary. For all these reasons, we respectfully request that this Judicial Inquiry Commission investigate the allegations in this complaint and recommend that Chief Justice Moore face charges in the Court of the Judiciary.
assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.
Judge Moore's argument that the state need not comply with federal decisions has prompted some commentators to make comparisons to Alabama's position during the Civil Rights Era, including a thoughtful WaPo piece by ConLawProf Ronald J. Krotoszynski Jr. at University of Alabama Law School.
The dissenting opinion from Justice Thomas (joined by Scalia) did not mention Judge Moore by name, but did include a decisive nod to some of Moore's arguments:
Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. *** It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.
Perhaps more importantly, Justice Thomas notes that the constitutionality of same-sex marriage is now before the Court, but yet
the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.
Justice Thomas is not the only one considering whether the Court's denial of a stay and thus allowing same-sex marriages to proceed in Alabama is a "signal" of the Court's leanings in DeBoer v. Snyder.
February 9, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Interpretation, News, Opinion Analysis, Recent Cases, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Thursday, February 5, 2015
Japanese PM Shinzo Abe has been making noises about revising the country's pacifist constitution--and this time not just in the interpretation. The talk comes in the wake of, and in apparent reaction to, the recent killings of two Japanese hostages by ISIS.
Article 9 of the Japanese Constitution, the pacifist provision, reads:
Renunciation of War. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.
In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.
Recall that PM Abe previously interpreted Article 9 to allow collective self-defense. This time, the buzz is that Abe will move to amend the text.
The Japan Times reports here.
Tuesday, February 3, 2015
Check out William Baude's (U. Chicago) NYT op-ed, The Supreme Court's Secret Decisions, on the many and important under-the-radar decisions that the Supreme Court makes in its orders docket and through summary reversals. Baude calls these the "shadow docket," and argues for more transparency.
Baude's op-ed is a condensed version of his recently posted Foreward: The Supreme Court's Shadow Docket, forthcoming in the NYU Journal of Law & Liberty.
Monday, February 2, 2015
The D.C. Circuit on Friday affirmed an FTC order that required POM Wonderful, LLC, to support future ads with claims of health benefits with one scientific study. But at the same time, the court said that a Commission order requiring two studies went too far.
The case, POM Wonderful, LLC v. FTC, arose out of a Commission finding that POM Wonderful engaged in false, misleading, and unsubstantiated representations in its advertisements in violation of the FTC Act. In particular, the Commission found that POM Wonderful made unsubstantiated claims that regular consumption of POM products could treat, prevent, or reduce the risk of various ailments, including heart disease, prostate cancer, and erectile dysfunction.
The full Commission voted to hold POM Wonderful and associated parties liable for violating the FTC Act and order them to stop making misleading and inadequately supported health claims. The Commission's order also barred POM Wonderful from running future ads asserting that its products treat or prevent any disease unless it has at least two randomized, controlled human clinical trials demonstrating statistically significant results.
The D.C. Circuit ruled that POM Wonderful's ads weren't protected by the First Amendment (because they were false or misleading), and that the Commission therefore had authority to punish or prohibit them. The court also said that the First Amendment allowed the Commission to require one scientific study to support any future health-benefit claims:
Requiring RCT substantiation as a forward-looking remedy is perfectly commensurate with the Commission's assessment of liability for petitioners' past conduct: if past claims were deceptive in the absence of RCT substantiation, requiring RCTs for future claims is tightly tethered to the goal of preventing deception. To be sure, the liability determination concerned claims about three specific diseases whereas the remedial order encompasses claims about any disease. But that broadened scope is justified by petitioners' demonstrated propensity to make deceptive representations about the health benefits of their products, and also by the expert testimony supporting the necessity of RCTs to establish causation for disease-related claims generally. For purposes of Central Hudson scrutiny, then, the injunctive order's requirement of some RCT substantiation for disease claims directly advances, and is not more extensive than necessary to serve, the interest in preventing misleading commercial speech.
But the court rejected the order for two studies. That's because the Commission failed "adequately to justify a categorical floor of two RCTs for any and all disease claims."
The court rejected POM Wonderful's related statutory claims.
Wednesday, January 28, 2015
Ohio AG Mike DeWine this week sued the federal government for levying an assessment against the state under the ACA's Transitional Reinsurance Program. DeWine argues that the federal assessment on the state violates the text of the ACA (which, he says, doesn't authorize the government to levy this assessment on the states), the Tenth Amendment, the anti-commandeering principle, and intergovernmental tax immunity.
Under the Transitional Reinsurance Program, the federal government collects a contribution from health insurers and self-insurers (or their administrators) in order to off-set the costs of high-risk individuals in the individual health insurance market and thus to stabilize premiums in the individual market. Part of the proceeds also goes to the general fund of the Treasury. The contributions are in effect from 2014 through 2016.
AG DeWine claims that the federal government wrongfully assessed his state $5.3 million. (Ohio self-insures its employees.) He claims that the ACA didn't authorize this, and that it violates various federalism principles in the Constitution:
71. Had Congress applied this tax directly against State and local governments, which it did not, such a tax would violate the "residuary and inviolable sovereignty" that the United States Constitution leaves to the several States in our federalism system . . . .
72. Especially here, where the tax is not imposed as a "user fee" on States or local governments and where the tax is specifically designed to raise more revenue for the federal government than will be allocated to the reinsurance program (with certain amounts of the tax revenues indeed designed as monies that "may not be used for the program established under this section," 42 U.S.C. Sec 18061(b)(4)), such a direct tax against the State and its instrumentalities would breach our federal Constitution's vertical separation of powers.
73. The federal government lacks authority under the United States Constitution to levy such broad-based, revenue-generating taxes against the States and their instrumentalities.
Monday, January 26, 2015
The Brennan Center's Daniel Weiner recently released Citizens United Five Years Later, the Center's latest in an outstanding series of reports on Citizens United, campaign spending, and the 2014 elections.
Weiner writes that the case's biggest impact hasn't been increased corporate spending (although corporate spending has increased). Instead, Citizens United and other cases have led to a huge increase in spending by super-wealthy mega-donors:
Perhaps most important, the singular focus on the decision's empowerment of for-profit corporations to spend in (and perhaps dominate) our elections may be misplaced. Although their influence has increased, for-profit corporations have not been the most visible beneficiaries of the Court's jurisprudence. Instead--thanks to super-PACs and a variety of other entities that can raise unlimited funds after Citizens United--the biggest money (that can be traced) has come from an elite club of wealthy mega-donors. These individuals--fewer than 200 people and their spouses--has bankrolled nearly 60 percent of all super-PAC spending since 2010.
And while spending by this wealthy club has exploded, we have seen neither the increased diversity of voices that the Citizens United majority imagined, nor a massive upsurge in total election spending. In fact, for the first time in decades, the total number of reported donors has begun to fall, as has the total contributed by small donors (giving $200 or less). In 2014, the top 100 donors to super-PACs spent almost as much as all 4.75 million small donors combined.
A sobering picture.
Weiner's "can be traced" parenthetical gets some attention in the report, too, where Weiner discusses dark money, "independent" groups, and reporting requirements (or the lack of reporting requirements)--all features of a post-Citizens United world.
Thursday, January 22, 2015
The Ninth Circuit ruled in Shinault v. Hawks that a state has to provide pre-deprivation notice and hearing before it freezes funds in an inmate's trust account to recover the cost of his incarceration. But at the same time, the court said that this rule wasn't "clearly established" at the time, so the defendants enjoyed qualified immunity. The court also rejected the inmate's Eighth Amendment claim.
The upshot is that prison authorities took more than $60,000 of an inmate's money--money from a settlement for a medical liability claim--in violation of procedural due process. But according to the Ninth Circuit, the inmate has no recourse against the officers.
Lester Shinault received a $107,417.48 settlement from a medical claim against a drug manufacturer who products (prescribed while Shinault was not in custody) caused him to develop diabetes. Shinault's attorney deposited the money in his inmate trust account.
Prison authorities then ordered Shinault to pay $65,353.94 to cover the cost of his incarceration. On the same day that Shinault requested a hearing, authorities transferred this amount from his trust account into a "reserved miscellaneous" sub-account in Shinault's name, but which Shinault could not access. An ALJ ruled against Shinault (in a hearing where Shinault didn't have an attorney and struggled mightily to represent himself), and about a year later authorities withdrew $61,352.39.
Shinault sued, arguing that the withdraw violated procedural due process and the Eighth Amendment. The district court granted summary judgment against him.
The Ninth Circuit held that authorities violated procedural due process under the Mathews v. Eldridge balancing test, because they failed to provide a pre-deprivation hearing prior to freezing the funds. But it also held that the violation wasn't "clearly established" at the time (because it couldn't find precedent directly on point, and because it said that procedural due process questions were fact specific, that is, not determined until a particular case is litigated), so the officials enjoyed qualified immunity.
In other words, the court said it wasn't "clearly established" that authorities had to provide a pre-deprivation hearing before freezing over $60,000.00 that Shinault obtained from a settlement with a drug company whose products caused him to develop diabetes. Because this wasn't "clearly established," the defendants enjoyed immunity, and Shinault has no claim against them for return of his money.
The court also held that authorities did not violate Shinault's Eighth Amendment rights, because "no authority supports the notion that freezing or withdrawing funds from an inmate account constitutes deliberate denial of care under the Eighth Amendment."
Wednesday, January 21, 2015
The Supreme Court heard oral arguments today in Rodriguez v. United States, the case testing whether an officer can prolong a traffic stop to conduct a dog sniff, even if the officer lacks suspicion for the sniff.
After arguments--and maybe even before--it's clear that the problem is line drawing. On balance, that maybe more of a problem for the government than for Rodriguez.
Rodriguez, represented by Shannon O'Connor, argued for a bright line rule: when the purpose of the stop is over, any after-occuring dog sniff requires new individualized suspicion or probable cause, even if the Court has held that an officer may conduct a dog sniff during the stop. The government, on the other hand, represented by Ginger Anders, argued for a de minimis extension--that the Fourth Amendment permits a reasonable de minimis extension of a traffic stop to conduct a dog sniff.
But when is the purpose of a stop over? And how to define a de minimis extension? Those problems dominated the arguments today.
O'Connor had trouble defending her bright-line rule, and even seemed to shift once or twice. She argued that an officer cannot detain a driver beyond the point when the purpose of the stop ends, even if it ends in a mere warning. But O'Connor received significant push-back from Justices Kennedy, Scalia, and Alito, all of whom presented hypotheticals designed to show that that bright line wasn't always so bright. Moreover, it wasn't clear that O'Connor's bright line really mattered. For example, Justice Scalia pointed out that an officer can investigate all kinds of things during a traffic stop--whether a driver's license is valid, whether the car is stolen, etc., even a dog sniff--and wondered why then the officer couldn't also conduct a dog sniff after the purpose of the stop ended.
Justice Kennedy seemed to push O'Connor toward an even sharper bright line, that the purpose of the traffic stop ends at the issuing of a ticket. O'Connor at one time seemed to adopt it, but that only got her in more trouble. That's because the issuing-a-ticket position has obvious problems: traffic stops don't always end with tickets, or, as Justice Alito pointed out, any clever officer would simply delay handing over the ticket until after a dog sniff. Justice Scalia pounced, Chief Justice Roberts weighed in ("What if the officer says I need to think about this for a while?"), and even Justice Ginsburg expressed reservations with the issuing-a-ticket line.
So O'Connor backed off and reverted to her earlier position that the stop ends when the purpose of the stop ends. But that position fared no better.
But if the Court had problems with O'Connor's lines, it had maybe even more problems with the government's lines. The government argued that the Fourth Amendment permits a de minimis extension beyond the purpose of the stop. But defining "de minimis" proved difficult. It wasn't clear whether this position had the support of even Chief Justice Roberts and Justice Scalia (although it may have had the support of Justice Alito). Chief Justice Roberts pointed out that a dog sniff will probably last longer than the stop itself--is that a de minimis extension? Justice Breyer pointed out that Anders's de minimis rule isn't easily enforceable--what do you tell the police to do? Justice Kagan argued that a dog sniff outside the bounds of the stop is something like an officer taking a cigarette break--unreasonable.
Part of the problem for the government is how the case came to the Court: the lower court said that a de minimis extension was reasonable. That holding assumes that there's a point at which the purpose of the stop ends, and a de minimis extension afterward. If so, and if the courts can define that point, then any extension really is beyond the purpose of the stop. And a Fourth Amendment violation for a de minimis period is still a Fourth Amendment violation. (And what's de minimis, anyway? That's hard to say, and, for dog sniffs, may run longer than the stop itself--as Chief Justice Roberts pointed out.) This problem seemed to trouble enough Justices, including Chief Justice Roberts, that the Court may well go with Rodriguez.
The Constitutional Accountability Center published its most recent issue paper in its series on the Roberts Court at 10, this one on access issues. And it doesn't paint a pretty picture.
Brianne Gorod, the author of Roberts at 10: Roberts's Consistent Votes to Close the Courthouse Doors, looks at Roberts Court cases in four areas: standing, arbitration, pleading standards, and suits against states. Gorod concludes that the Court's record is mixed, but mostly negative:
Although most of the decisions of the Roberts Court in this area have limited access to the courts, there have been a few that have not, including most significantly the Court's 2007 decision, Massachusetts v. EPA, holding that Massachusetts could sue the Environmental Protection Agency to challenge its failure to regulate greenhouse gas emissions under the Clean Air Act.
But if the Court's record is mixed, Gorod says that Chief Justice Roberts's record is not:
He dissented in that 2007 case and in every other case during his tenure as Chief Justice in which the Court has refused to limit access to the courts, and he has always been in the majority when it has decided to limit such access.
Gorod says that Chief Justice Roberts's record is "not terribly surprising," given his pre-confirmation positions on access.
Check it out.
Tuesday, January 20, 2015
The Supreme Court will hear oral arguments tomorrow in Rodriguez v. United States, the case testing whether an officer can extend a traffic stop for a canine sniff, without additional individualized suspicion to justify the sniff. Here's my argument preview from the ABA's Preview of United States Supreme Court Cases, with permission:
Just after midnight on March 27, 2012, Dennys Rodriguez and his passenger Scott Pollman were driving west from Omaha, Nebraska, to Norfolk, Nebraska, on Nebraska State Highway 275. Shortly into their trip, Officer Struble, who was patrolling the highway, observed the car’s passenger-side tires pass briefly over the line separating the highway from the shoulder. Officer Struble pulled the car over.
Officer Struble approached the vehicle and obtained Rodrigeuz’s license, registration, and proof of insurance. Officer Struble asked Rodriguez why he had driven onto the shoulder. Rodriguez said he swerved to avoid a pothole. Rodriguez seemed agitated when Officer Struble informed him that driving on the shoulder was a traffic violation. Officer Struble also observed Pollman in the passenger seat and noticed that Pollman seemed nervous.
Officer Struble asked Rodriguez to step out of the vehicle. Rodriguez complied. Officer Struble then asked Rodriguez to accompany him to his patrol car so that he could complete some paperwork. Rodriguez asked if he had to go to Officer Struble’s patrol car; Officer Struble said “no”; and Rodriguez said that he would rather sit in his own car. Officer Struble later testified that “in his experience” declining to sit in his patrol car was a “subconscious behavior that people concealing contraband will exhibit.”
Officer Struble returned to his patrol car (without Rodriguez) and called in a request for a records check on Rodriguez.
Officer Struble then returned to Rodriguez’s vehicle, this time to talk to Pollman. Officer Struble asked Pollman for his identification; he also asked Pollman about their trip. Pollman told Office Struble that he and Rodriguez drove from Norfolk to Omaha to look into buying an older-model Ford Mustang. They decided against buying the car, however. Officer Struble asked Pollman if he saw a picture of the car before making the trip; Pollman said that he had not.
Officer Struble returned to his patrol car. Office Struble was suspicious that Rodriguez and Pollman would drive to Omaha to look into purchasing a car without seeing a picture of it first. He was also suspicious that Rodriguez and Pollman would drive the long distance from Norfolk to Omaha late on a Tuesday night. Office Struble had a drug-detection dog in his car, and, based on his suspicions, he decided that he would “walk [his] dog around the vehicle regardless of whether [Rodriguez] gave [him] permission or not.” But he wanted a second officer to act as a back-up, because there were two persons involved in the stop. Officer Struble requested a records check on Pollman and began writing a warning ticket for Rodriguez for driving on the shoulder.
Officer Struble returned to Rodriguez’s vehicle (for the third time). He returned the documents to Rodriguez and Pollman and issued a written warning ticket to Rodriguez. Officer Struble gave the ticket to Rodriguez at about 12:25 a.m. At this point, Officer Struble had taken “care of all the business” of the traffic stop and had “got[ten] all the reason for the stop out of the way.”
Nevertheless, Officer Struble did not let Rodriguez go. Instead, he asked Rodriguez if Rodriguez had an issue with Officer Struble walking his dog around the car. Rodriguez replied that he did have an issue with that. Officer Struble then directed Rodriguez to turn off the engine, exit the vehicle, and stand in front of the vehicle until a second officer arrived.
Officer Struble’s back-up officer arrived at about 12:33 a.m. About seven or eight minutes after Officer Struble issued the warning ticket to Rodriguez, Officer Struble walked his dog around Rodriguez’s vehicle. The dog alerted, the officers searched the vehicle, and the officers found a bag of methamphetamine.
Rodriguez was charged with possession with intent to distribute 50 grams or more of methamphetamine in violation of federal law. He moved to suppress the evidence seized from his vehicle, arguing that Officer Struble violated his Fourth Amendment rights by detaining him for a dog sniff without reasonable suspicion of criminal activity. The district court denied Rodriguez’s motion, and the United States Court of Appeals for the Eighth Circuit affirmed. This appeal followed.
Under the Fourth Amendment, an officer can make a brief investigative stop, like a traffic stop, based on particularized and objective “reasonable suspicion” of illegal activity. For example, an officer can stop a vehicle after observing a driver violate a traffic law. But the stop must be related in scope to the officer’s justification for it. This means that the officer may detain the driver only for the period required to complete the tasks related to the original justification for the stop, for example, to run a records check, to interview a driver, to write a ticket, or even to conduct a dog sniff. The stop satisfies the Fourth Amendment if it is reasonable, that is, if it is reasonably related to the justification for the stop.
But state and federal courts split over what should happen after an officer completes the tasks directly related to the original stop. Some courts say that detention beyond this point constitutes a separate seizure, requiring independent and separate justification. Others, like the Eighth Circuit in this case, say that detention beyond this point is an extension of the original stop, so long as the nature and duration of the overall stop is reasonable, because the additional detention constitutes only a de minimis intrusion on the detainee’s personal liberty.
The parties wrangle over which approach is correct. They agree that an officer may conduct a dog sniff of the outside of a vehicle during an otherwise lawful traffic stop. The Supreme Court held as much in Illinois v. Caballes, 543 U.S. 405 (2005). But they disagree about whether a dog sniff can prolong a stop, even for a short period of time. Central to this dispute is the standard the Court should use to judge the prolonged stop—independent individualized suspicion of a different illegal activity (as Rodriguez would have it), or the overall reasonableness of the stop (as the government argues).
Rodriguez argues that the Fourth Amendment permits an officer to make a traffic stop based, as here, on probable cause of illegal activity. But he claims that the stop must be reasonably related to the circumstances that justified the stop in the first place and no longer than necessary to effectuate that purpose. Rodriguez says that an officer can use a drug dog to conduct a sniff if the sniff does not delay completion of the tasks related to the traffic violation. But he contends that an officer cannot expand the boundaries of a traffic stop in order to conduct a sniff. Rodriguez says that once the officer has completed all the tasks required during a lawful traffic stop, the driver is free to go, unless the officer has reasonable suspicion of additional criminal activity.
Rodriguez claims that these principles establish a bright-line rule—that a traffic stop ends when an officer completes the tasks related to the traffic violation, and that any detention beyond that point, no matter how brief, is unreasonable (and thus violates the Fourth Amendment) unless the additional detention is independently justified by individualized suspicion. He says that this rule would provide guidance to officers in the field and protect innocent drivers from suspicionless intrusions while at the same time giving officers plenty of time to conduct valid dog sniffs during a lawful detention.
Rodriguez argues that the Eighth Circuit’s reasons for its de minimis exception to these rules are flawed. He claims that the Eighth Circuit wrongly assumed that the line marking the end of a traffic stop is “artificial,” and that under a legitimate reasonableness standard the Fourth Amendment would allow a dog sniff that could have occurred within the scope of the traffic stop to occur shortly after the stop. Rodriguez says that the line is a constitutional one, and not “artificial,” and that any other approach would allow the officers to determine the end of a traffic stop for Fourth Amendment purposes. Rodriguez also claims that the Eighth Circuit was wrong to say that a dog sniff is similar to ordering a driver out of a car during a stop—a valid de minimis intrusion under Pennsylvania v. Mimms. 434 U.S. 106 (1977). Rodriguez claims that ordering a driver out of a car during a stop justified by probable cause (as in Mimms) is far different than conducting a dog sniff after a stop based on no cause at all. He also says that a dog sniff is far more intrusive than an order to get out of a car. Finally, Rodriguez claims that the Eighth Circuit wrongly concluded that an officer may conduct a suspicionless search using a dog sniff, because a dog sniff is not a “search” under the Fourth Amendment. Rodriguez says that the dog sniff in his case violated the Fourth Amendment, because it required his continued detention even after the justification for the stop expired (and not for any reasons having to do with the dog sniff as such).
Rodriguez argues that under his bright-line rule, the Court should reverse the Eighth Circuit’s decision. He says that Officer Struble had no objectively reasonable basis for detaining him after completing the tasks related to the justification for the initial stop. He claims that any additional facts that Officer Struble considered suspicious (and that might independently justify continued detention) are “consistent with innocent travel and easily explained by the circumstances of the stop.” Rodriguez contends that because Officer Struble had no independent justification for his continued detention after he completed the tasks related to the justification for the initial stop, the dog sniff violated the Fourth Amendment.
The government argues that Officer Struble’s dog sniff was a reasonable incident to the traffic stop, even if it briefly prolonged the stop, because the overall duration of the stop was objectively reasonable. The government says that under the Fourth Amendment an officer can conduct a number of inquiries before resolving a traffic violation, just so long as the stop does not run an unreasonably long time. For example, the government claims that an officer can conduct inquiries related to the traffic stop, like verifying the validity of a driver’s license and registration or conducting a background check. The government claims that an officer can also conduct inquiries into unrelated criminal activities, even without reasonable suspicion, like asking passengers about matters unrelated to the traffic stop or conducting a dog sniff. Again, the government says that the test for these inquiries, and their effects on the duration of the stop, is the overall reasonableness of the stop.
The government argues that the sequence of an officer’s permissible tasks during a stop should not matter. In particular, the government contends that an officer’s issuing a traffic ticket before a dog sniff does not alone render that dog sniff unconstitutional. Instead, the government claims that the Court should apply a test of overall reasonableness and look to the total duration of the stop (compared to the duration of stops under similar circumstances), the proportion of the stop dedicated to the dog sniff, and the officer’s diligence throughout.
The government contends that Rodriguez’s argument for a bright-line rule has several problems. For one, the government says that a bright-line rule prohibiting a dog sniff after an officer issues a ticket would not reduce delays in the stop; it would only force an officer to re-sequence his or her tasks related to the stop (by conducting the dog sniff before issuing a ticket). The government claims that this would unduly constrain officers’ discretion to conduct inquiries in the order warranted by the particular stop. For another, the government contends that a bright-line rule, in treating the motorist like a newly pulled-over motorist after the officer issues a ticket, ignores the fact that the officer previously detained the motorist on probable cause that he or she committed a traffic violation. The government says that its test, overall reasonableness, does not have these problems. The government claims that lower courts have applied this test without difficulties to dog sniffs conducted both before and after an officer issues a ticket.
Applying its overall reasonableness test, the government argues that the dog sniff in this case did not unreasonably prolong Rodriguez’s traffic stop. The government claims that the overall duration (about 29 minutes) was within the range of other similar traffic stops. It says that the seven- or eight-minute delay to conduct the dog sniff was not an unreasonably large portion of the stop. Moreover, the government contends that the delay was warranted by Officer Struble’s need for backup. And the government says that Officer Struble acted diligently throughout the stop.
Finally, the government argues that Rodriguez’s detention to conduct a dog sniff was independently justified by Officer Struble’s reasonable suspicion of other unlawful activity.
This case will resolve a split in the federal and state courts over whether the Fourth Amendment allows a de minimis detention beyond an officer’s original traffic stop. (Indeed, as Rodriguez points out in his cert. petition, the split reached this very case: Rodriguez’s case would have turned out differently if it had been tried in Nebraska state court instead of in a Nebraska federal court.)
On the one hand, the case goes to the duration of a traffic stop, and an officer’s ability to conduct additional investigations (like a dog sniff) after he or she completed the tasks directly related to the original stop. Rodriguez’s bright-line rule could potentially shorten stops and restrict an officer’s ability to conduct these investigations; the government’s overall reasonableness approach could lengthen stops (at least incrementally, as here) and give an officer more flexibility in conducting additional investigations.
But on the other hand, the case may not significantly affect either the duration of a stop or an officer’s ability to conduct a dog sniff in most cases. That’s because, as the government argues, even a ruling for Rodriguez might only force officers to re-sequence their activities during a traffic stop, for example, to conduct a dog sniff before the officer issues a ticket.
The Supreme Court today ruled that a prisoner sentenced to death had a right to assistance of substitute counsel in his federal habeas proceeding, when his original attorneys missed the AEDPA habeas filing deadline and couldn't themselves argue for equitable tolling.
The ruling, Christeson v. Roper, issued per curiam, and without briefing or oral argument, marks a victory for the right to counsel in federal habeas cases.
Christeson was sentenced to death. The federal district court appointed counsel pursuant to 18 U.S.C. Sec. 3599(a)(2) (providing for appointment of counsel for state death row inmates). But Christeson's attorneys let lapse the 1-year filing deadline for federal habeas claims under AEDPA. Those attorneys then weren't in a position to argue for equitable tolling of the 1-year deadline, because they'd have to argue (against their own interests) that they dropped the ball. But they also failed to cooperate with new attorneys who sought appointment on the case (and who could make the equitable tolling argument). The district court declined to substitute counsel, and the Eighth Circuit affirmed.
The Supreme Court reversed. The Court said that the standard for substitute counsel for a Section 3599 appointed attorney under Martel v. Clair was a broad one, the "interests of justice," which included several factors. The Court said that one of those factors in this case was the original attorneys' conflict of interest in arguing for equitable tolling. The Court said that the lower courts applied the right "interests of justice" standard, but failed to account for the conflict of interest as a factor.
While not every case in which a counseled habeas petitioner has missed AEDPA's statute of limitations will necessarily involve a conflict of interest, [the original attorneys'] contentions here were directly and concededly contrary to their client's interest, and manifestly served their own professional and reputational interests.
Clair makes clear that a conflict of this sort is grounds for substitution.
Justices Alito and Thomas dissented. They argued that the Court shouldn't have decided the case without argument, and that the case involved only "an error, albeit a serious one, on the part of the [original] attorneys."
The ruling only means that Christeson will now have substitute attorneys to argue equitable tolling; it says nothing about the merits of the equitable tolling claim itself, let alone the underlying habeas petition. Still, it represents a victory for the right to counsel for federal habeas petitioners.
Monday, January 19, 2015
ConLawProfBlog's own Prof. Ruthann Robson (CUNY) recently published her thoughtful, creative, and compelling piece on Williams-Yulee, the case testing Florida's ban on campaign contributions by judicial candidates, on the Supreme Court's calendar on Tuesday. Robson's Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar is part of Vanderbilt Law Review's Rountable on the case.
Robson takes a refreshing look at the issue of judicial candidate campaign contributions through the eyes of a public interest attorney. Indeed, she starts the piece with a personal testimonial about being solicited herself--and the awkward position that put her in. (Tellingly, her position wasn't so awkward for other, non-public interest attorneys. They simply contributed.)
She argues that public interest lawyers have a special interest in this issue, and in this case. That's because
as public interest attorneys, we are less likely to be able to contribute to judicial campaigns, but may feel more likely to comply with a solicitation because we know our clients are already at a disadvantage. Additionally, our opposing clients and counsel are often those who are precisely in the position of being solicited and of answering those solicitations with substantial contributions.
She makes her case by persuasively arguing for a "second look" at four earlier decisions--newer and older, all touching on judicial integrity--that in different ways illustrate why a ruling for Williams-Yulee (overturning Florida's ban) "would have a disproportionately negative impact on the public interest bar." Those cases are Republican Party of Minnesota v. White (striking Minnesota's rule that prohibited judicial candidates from announcing their views on disputed issues); Caperton v. A.T. Massey Coal Co. (holding that the failure of a state high court judge to recuse himself from a case involving a major donor violated due process); Shelley v. Kraemer (holding that the judiciary is subject to the same constitutional constraints that the other branches are); and In Re Hawkins (Fl. Sup. Ct.) (upholding a sanction of removal from the bench after a judge sold her book to attorneys with cases before her).
Robson's "second look" cases together illustrate why an impartial judiciary, and the appearance of an impartial judiciary, are so important--to the public, to be sure, but especially to public interest attorneys and their clients. They also show how a ruling for Williams-Yulee (a former public defender herself) could so adversely affect the public interest bar.
Robson's piece brings a voice to this case--the voice of the underrepresented and their attorneys--that's all-too-often lost in sterile arguments about free speech. And she shows why the Court should pay attention to that voice.
[Public interest attorneys] should not have to worry whether [judges] think we "support" them, or whether our adversaries "support" them. We should not have to curry favor through financial contributions directly requested by a person who is hearing our client's causes. To do our work, we must continue to have faith that our judges, whether elected or whether appointed to the United States Supreme Court, are not mere politicians.
An excellent piece that adds to the debate. Check it out.
Friday, January 16, 2015
The ACLU and the federal government settled Al-Kidd v. United States, the case challenging the government's post-9/11 practice, pursuant to the Material Witness Statute, of imprisoning Muslim men as material witnesses without any basis for holding them.
The case was on remand from the United States Supreme Court. The Court ruled in 2011 that then-defendant John Ashcroft was entitled to qualified immunity against Al-Kidd's Fourth Amendment claim. (All eight participating justices agreed that Ashcroft did not violate a "clearly established" Fourth Amendment right at the time of Al-Kidd's arrest and detention. Justice Kagan was recused.) However, four of the eight justices agreed that there were serious questions about the statutory claim, that is, "whether the Government's use of the Material Witness Statute in [Al-Kidd's] case was lawful." The Court remanded the case to the district court for further proceedings as to the remaining defendants.
The district court granted summary judgment to Al-Kidd on most claims; a defendant (an FBI agent) filed an interlocutory appeal with the Ninth Circuit; and the Ninth Circuit heard oral arguments in May 2014. The parties settled this week.
The government issued a statement: "The government acknowledges that your arrest and detention as a witness was a difficult experience for you and regrets any hardship or disruption to your life that may have resulted from your arrest and detention." It also agreed to pay Al-Kidd $385,000.00.
Thursday, January 15, 2015
The Brennan Center issued a report this week concluding that very wealthy "independent" spenders are the primary beneficiaries of the five-year-old Citizens United. Daniel Weiner, the report's author, says, "This is perhaps the most troubling result of Citizens United: In a time of historic wealth inequality, the decision has helped reinforce the growing sense that our democracy primarily serves the interests of the wealthy few, and that democratic participation for the vast majority of our citizens is of relatively little value." Weiner explains that wealthy individuals spend through super-PACs and dark money group, "while often sponsoring candidates like racehorses."
The report also looks at other Citizen United legacies, including the increase in dark money election spending by publicly held corporations, weakening contribution limits, and trampling shareholder and employee rights (because shareholders and employees are often kept in the dark about corporate spending).
So: What to do? David Gans of the Constitutional Accountability Center has one idea. He argues this week in the LA Times that Congress should encourage political participation (campaign contributions) by small donors through contribution tax credits. Gans explains that Congress passed just such a tax credit in 1972, and that it lasted until 1986. But it is no more. He also explains why a tax credit should have bipartisan support (as it did in 1972). Gans elaborates on his argument in an issue brief titled Participation and Campaign Finance: The Case for a Federal Tax Credit.
Tuesday, January 13, 2015
The Supreme Court heard oral arguments yesterday in Oneok v. Learjet, the case testing whether the federal Natural Gas Act preempts state antitrust claims arising from a conspiracy among natural gas companies to inflate retail natural gas prices.
The dispute arose when natural gas companies reported false natural gas sales prices to industry publications used to set gas prices in retail and wholesale contracts, artificially inflating those prices, and resulting in the Energy Crisis in 2000 to 2002. Retail gas purchasers brought state antitrust cases in several states. The gas companies moved to dismiss, arguing that the Natural Gas Act preempted those claims.
Indeed, the Gas Act grants FERC authority to regulate wholesale sales of natural gas (called "jurisdictional" sales) and any practice that "directly affect[s] jurisdictional rates." So the question in the case is this: Does that authority reach, and preempt state-law claims based upon, the gas companies' false reporting of gas prices to industry publications, thus affecting retail and wholesale gas prices?
The arguments didn't reveal any significant new points (that weren't briefed), and revealed only a little about the Court's likely direction in the case.
The parties agreed that the Gas Act field-preempts state-law claims for some field, but the predictably disagreed about the scope of that field. Oneok, represented by Neal Katyal, argued that the field includes practices like false reporting of gas prices that affect retail sales, because the false reporting also affected wholesale sales (or jurisdictional sales, within FERC's bailiwick). Learjet, represented by Jeffrey Fisher, argued that the Act doesn't sweep that far, and that FERC's authority does not field-preempt the state-law claims here.
Oneok also argued that the Gas Act could conflict-preempt state-law claims (an issue, it said, that would have to be decided on remand), because state-law claims could conflict with the Act and the nationwide uniformity in reporting that FERC encourages. Learjet said that the state-law antitrust claims were congruent with a federal antitrust claim (that everyone says was available to Learjet and the other plaintiffs), so there's no conflict between the state-law claims and federal law.
Questions from the bench revealed little. The progressives on the bench were by far the most active, pressing Katyal the hardest (and seemingly least persuaded by his points), but also probing Fisher (especially Justice Breyer). Conservatives were largely silent, except that Justice Scalia seemed inclined to accept Katyal's point about how price reporting affects wholesale rates (and therefore preempts state-law claims as to retail rates), and Chief Justice Roberts seemed skeptical of Fisher's argument that a ruling for the gas companies would allow them to manipulate and transform any non-jurisdictional practice into one that "directly affect[s] jurisdictional rates."
Justice Kennedy seemed to straddle, and maybe hinted at a result. He asked Katyal whether the Gas Act would preempt a state-law claim that was "exactly the same as the Sherman Act." Katyal responded:
And I think that is complementary authority, which, Justice Kennedy, your opinion in Arizona v. United States decried. Once we're in the field, once Congress has said to a federal agency, as it is here, FERC is regulating the very practice that they are seeking to regulate three different ways, then you can't tolerate states in the area. Why? Because states will have all sort --
Justice Kennedy then asked if Katyal had a back-up conflict-preemption argument, in case his field-preemption point didn't pan out. Katyal: Yes, but for remand.
The outcome will obviously be important to the parties and anyone else worried about accountability for the Energy Crisis in 2000-2002, but probably won't be too important to anyone else. That's because Congress increased FERC's authority in 2005--prompting the government to argue against cert. in the first place.
Friday, January 9, 2015
The Nebraska Supreme Court today upheld the state law delegating authority to the governor to approve the Keystone pipeline and to use eminent domain to access land along the pipeline route. The ruling does not affect fight in Washington, however, where today the House passed a bill to approve the pipeline, and where President Obama promised to veto it.
The Nebraska case arose out of a Nebraska law that delegated to the governor the power to approve the pipeline. (The former governor did so.) Taxpayers sued, arguing that the law violated the state constitution.
Four (of seven) judges agreed. They said that the law violated a state constitutional provision that reserves to the Public Service Commission this kind of decision. That provision says,
There shall be a Public Service Commission . . . . The powers and duties of such commission shall include the regulation of rates, service and general control of common carriers as the Legislature may provide by law. But, in the absence of specific legislation, the commission shall exercise the powers and perform the duties enumerated in this provision.
The four judges wrote that "we have held that the PSC has 'independent legislative, judicial, and executive or administrative powers' over common carriers, which powers are plenary and self-executing." Moreover, "specific legislation" means "specific restrictions," not "general legislation to divest the PSC of its jurisdiction and transfer its powers to another governmental entity besides the legislature." Thus the legislative delegation over Keystone to the governor improperly intruded upon the power of the PSC under the state constitution.
But under another state constitutional provision, four judges aren't enough to rule a law unconstitutional. The state constitution requires a super-majority of five (of seven) judges to rule a law unconstitutional. So even though a majority held the delegation unconstitutional, it's not. That means the law stays in place, the delegation is good, and the governor's action approving Keystone is untouched.
Before ruling on the merits, the court also ruled on taxpayer standing. The same four judges that argued that the delegation was unconstitutional also held that taxpayers had standing. (The other three argued that there was no standing, and that the standing decision also required a super-majority.) The court invoked its "great public concern" exception to the general rule against taxpayer standing. Under that exception, the court can take up a taxpayer case when it involves an issue of "the Legislature's obedience to the fundamental distribution of power in this state": "when a taxpayer claims that the Legislature enacted a Law that undermines the fundamental limitations on government powers under the Nebraska Constitution, this court has full power and the responsibility to address the public rights raised by a challenge to that act." The "great public concern" exception gives the Nebraska courts more leeway in taking up taxpayer cases than the Supreme Court's standing rules under Article III.