Tuesday, April 15, 2014
In a very brief order in Zogenix v. Patrick, federal district judge Rya Zobel enjoined the Massachusetts Emergency Order prohibiting prescriptions of "hydrocodone bitartrate product in hydrocodone only extended release formulation," i.e., the controversial opiate Zohydro ER.
Judge Zobel wrote:
The FDA endorsed Zohydro ER’s safety and effectiveness when it approved the drug. When the Commonwealth interposed its own conclusion about Zohydro ER’s safety and effectiveness by virtue of DPH’s emergency order, did it obstruct the FDA’s Congressionally-given charge?
I conclude that it did. The FDA has the authority to approve for sale to the public a range of safe and effective prescription drugs—here, opioid analgesics. If the Commonwealth were able to countermand the FDA’s determinations and substitute its own requirements, it would undermine the FDA’s ability to make drugs available to promote and protect the public health.
Thus, the judge found that it was preempted. Judge Zobel issued a preliminary injunction prohibiting the state from enforcing its emergency order, although it stayed its injunction until April 22, 2014.
Does this mean that no state can further regulate any FDA approved drug? Even in the contraception area?
In its opinion National Legal Services v. India, the Supreme Court of India has recognized the constitutional rights of transgender persons, including the right not to be denominated as either "male" or "female."
The opinion by K.S. Radhakrishnan begins with an invocation of the "trauma, agony and pain which the members of Transgender community undergo" but rather quickly also invokes the cultural roots and importance of the community: "TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts."
The judgment rests on an interpretation of several provisions of the Constitution of India, including Article 14 (equality before law); Article 15 (prohibition of discrimination on the basis of various grounds, including sex); Article 16 (equality of opportunity in public employment, including sex); Article 19 (including freedom of expression); and Article 21 (protection of life and personal liberty). The judgment engaged in some originalist reasoning that broadly interpreted "sex" to include sex-stereotyping:
Constitution makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders. Both gender and biological attributes constitute distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.
Given this interpretation, the Court not suprisingly ruled
We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.
The Court has some interesting discussions of dress and grooming as an aspect of gender which included references to US cases and is further discussed here.
The Court also specifically disavowed any relationship between its present judgment in National Legal Services v. India and the controversial opinion Koushal v. NAZ Foundation decided in December in which the Court - - - or as the Court states here "A Division Bench of this Court" reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional:
we express no opinion on it [Kousal] since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.
In a separate judgment, A.K. Sikiri did not mention the sodomy decision in Koushal v. Naz Foundation, but the judgment's expansive rhetoric could be read as an implicit disagreement with that decision as well as serving as a further butressing of today's judgment. The concurring opinion elaborated on the importance of TG persons and communities to India's culture. It referenced Immanuel Kant, John Rawls, Amartya Sen as providing the "jurisprudential basis for doing justice to the Vulnerable Groups which definitely include TGs." It explicitly stated the "dynamic" and "living character" of the Constitution and its interpretation. It considered judicial review in the context of democracy (including, implicitly, "sexual democracy") and decidedly opined that it is the role of the judiciary to "ensure access to justice to the marginalized section of the society," and that undoubtedly "TGs belong to the unprivileged class which is a marginalized section."
The judgment not only requires the government to recognize a "third gender" and to grant "legal recognition of their gender identity such as male, female or as third gender," but also directs the government to take positive steps in education, health provisions, and "seriously address" various problems.
April 15, 2014 in Comparative Constitutionalism, Courts and Judging, Due Process (Substantive), Equal Protection, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)
Monday, April 14, 2014
In the widely anticipated opinion in Henry v. Himes, Judge Timothy Black has ruled that Ohio Const. Art. XV, § 11 and Ohio Rev. Code § 3101.01(C) denying legal recognition to the marriages of same-sex couples validly entered in other jurisdictions violates the Fourteenth Amendment.
Recall that Judge Black previously issued an opinion in Obergefell v. Kasich with a similar conclusion, although that opinion was limited to the particular plaintiffs. Judge Black's preliminary injunction ruling in Obergefell was the first post-Windsor decision on same sex marriage, and interestingly used some of Justice Scalia's dissenting language to support his reasoning.
While Obergefell involved a person who was dying, the plaintiffs in Henry are same-sex couples expecting children or with children. The four plaintiff couples, who entered into valid marriages in other jurisdictions, seek to have the names of both parents recorded on their children’s Ohio birth certificates and a declaration that Ohio’s refusal to recognize valid same-sex marriages is unconstitutional. Judge Black relied heavily on his previous rationale in Obergefell, and again found that while marriage is a fundamental right, the Supreme Court has not explicitly recognized it as such, and "the balancing approach of intermediate scrutiny is appropriate in this similar instance where Ohio is intruding into – and in fact erasing – Plaintiffs’ already- established marital and family relations." Again, Judge Black footnotes Professor Steve Sanders work on the liberty interest in having one's marriage recognized.
In the equal protection analysis, Judge Black does advance a distinct rationale for "heightened scrutiny" given that the children's birth certificates are involved. He writes that the "Supreme Court has long held that disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause," citing Plyler v. Doe, 457 U.S. 202 (1982). But, as in Obergefell, he also explicitly found that even if rational basis were applied, the Ohio provisions failed to satisfy it.
On the last page of Judge Black's opinion is the text of a song, "Happy Adoption Day" (1992). For some, this will seem appropriate and celebratory. For others, this will seem indecorous and treacly. Judge Black's previous statements have displeased at least one state representative - - - who has introduced a resolution in the Ohio legislature calling for the House of Representatives of Congress to initiate impeachment proceedings.
In its divided opinion in National Association of Manufacturers v. Securities and Exchange Comm'n, a panel of the DC Circuit Court of Appeals held that 15 U.S.C. § 78m(p)(1)(A)(ii) & (E), part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, requiring a company to disclose if its products were not "DRC conflict free" violated the First Amendment.
DRC - - - Democratic Republic of the Congo - - - has not only "endured war and humanitarian catastrophe," it is also the site of extraction of certain minerals - - - gold, tantalum, tin, and tungsten - - - that are used in a variety of familiar objects (cell phones, automobile parts, and golf clubs) and finance the parties engaged in the violence. In an attempt to discourage use of these so-called "conflict minerals," Congress required companies to disclose its products as not “DRC conflict free” in the report it files with the SEC and also post the statement on its website.
Reversing the district judge, who had upheld the law, the panel majority stated that "rational basis review" in the First Amendment context is the "exception, not the rule." The panel majority rejected the argument that the disclosure was one of "purely factual and uncontroversial information":
it is far from clear that the description at issue—whether a product is “conflict free”—is factual and non- ideological. Products and minerals do not fight conflicts. The label “conflict free” is a metaphor that conveys moral responsibility for the Congo war. It requires an issuer to tell consumers that its products are ethically tainted, even if they only indirectly finance armed groups. An issuer, including an issuer who condemns the atrocities of the Congo war in the strongest terms, may disagree with that assessment of its moral responsibility. And it may convey that “message” through “silence.” By compelling an issuer to confess blood on its hands, the statute interferes with that exercise of the freedom of speech under the First Amendment.
[citations omitted]. Thus, the panel majority found that Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), was inapposite. Instead, under Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), the intermediate scrutiny standard for commercial speech, the mandated disclosure failed.
The panel, however, was divided on this issue. While the court unanimously upheld various SEC regulations challenged on administrative law grounds, Judge Srinivasan dissented on the First Amendment issue. Specifically, Judge Srinivasan contended that this opinion should be held in abeyance "pending the en banc court’s decision" in another case "rather than issue an opinion that might effectively be undercut by the en banc court in relatively short order." The case in question is American Meat Institute v. United States Dep't of Agriculture in which the DC Circuit so recently ordered an en banc hearing. Recall that American Meat Institute, requiring labeling of meat products by country of origin, also considered the relationship between Zauderer v. Office of Disciplinary Counsel and Central Hudson - - - and that is the very question certified for en banc review. Judge Srinivasan was a member of the American Meat Institute panel.
Given this posture, it seems certain that the Government will seek en banc review.
Saturday, April 5, 2014
Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan. Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.
We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser. Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.
The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism. Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).
Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir. Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing). All three were U.S. citizens.
Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others). The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.
Judge Collyer ruled that special factors counseled against a Bivens remedy. Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:
In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.
Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military. The need to hesitate before implying a Bivens claim is particularly clear. Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces. It is the Executive's position that AQAP is affiliated with al-Qa'ida.
. . .
Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.
. . .
Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen. Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.
Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.
The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense. Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case. The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.
Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy. She wrote that without these facts, the court "would have denied the motion to dismiss."
April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, April 3, 2014
Does a city policy governing "extended use" of school facilities that excludes permits for the "purpose of holding religious worship services, or otherwise using a school as a house of worship" violate the First Amendment?
The Second Circuit in its opinion in Bronx Household of Faith v. Board of Education of the City of New York answered in the negative, a majority of the panel holding that the policy, Regulation I.Q., does not violate either the Free Exercise Clause or the Establishment Clause.
If this controversy sounds familiar, that would not be surprising. We discussed it here, and as today's opinion notes, the litigation has been "long-running," citing Bronx Household of Faith v. Bd. of Educ. of City of New York, 650 F.3d 30 (2d Cir. 2011) (“Bronx Household IV”); Bronx Household of Faith v. Bd. of Educ. of City of New York, 492 F.3d 89 (2d Cir. 2007) (“Bronx Household III”); Bronx Household of Faith v. Bd. of Educ. of City of New York, 331 F.3d 342 (2d Cir. 2003); Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207 (2d Cir. 1997).
Today's opinion - - - Bronx Household V - - - reverses the district judge's grant of an injunction on Free Exercise claims which were arguably not before the courts previously. The majority of the Second Circuit panel, in an opinion by Judge Pierre Leval joined by Guido Calabresi, carefully refuted the district judge's reasoning. In short, the panel majority held that Locke v Davey, 540 U.S. 712 (2004) (finding that the exclusion of devotional theology degree programs from eligibility for state scholarships does not violate Free Exercise Clause) was more apposite than Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)(holding that an ordinance "targeting" the Santeria practice of animal sacrifice merited strict scrutiny and violated the Free Exercise Clause).
The panel rejected the argument that the Regulation I.Q. targets religion generally or targets religions that have worship services. The panel also rejected the attempt to distinguish the scholarship in Locke v, Davey, noting that under the "extended use" policy, the city subsidizes the use of school facilities since the organizations can use the facilities without cost. The panel also found that the city's desire not to violate the Establishment Clause was a valid one. As the panel summarized:
In view of (1) the absence of discriminatory animus on the part of the Board against religion, or against religions that conduct worship services; (2) the bona fides and the reasonableness of the Board’s concern that offering school facilities for the subsidized conduct of religious worship services would create a substantial risk of incurring a violation of the Establishment Clause claim; and (3) the fact that the Board’s policy (a) leaves all persons and religions free to practice religion without interference as they choose, (b) treats all users, whether religious or secular, in identical fashion, and (c) imposes no burden on any religion, leaving all free to conduct worship services wherever they choose other than the Board’s schools; as well as the other reasons recited in this opinion and in Bronx Household IV, we conclude that Reg. I.Q. does not violate Plaintiffs’ rights to free exercise of religion, whether or not it is subject to strict scrutiny.
As to the Establishment Clause, the court rejected Bronx Household's argument that for the city to determine what constituted "religious worship services" would infringe the Establishment Clause. Bronx Household relied upon Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694 (2012) - - - an example of how doctrine has been changing during this protracted litigation - - - but the majority expressed a very different view:
Hosanna-Tabor, moreover, does not merely fail to support Bronx Household’s claim of Establishment Clause violation due to excessive entanglement by the Board; it actively contradicts the argument. This is because in Hosanna-Tabor the Supreme Court itself did precisely what the District Court found a governmental entity prohibited from doing.
In other words, when the United States Supreme Court "undertook to make its own determination whether the plaintiff was a minister subject to the ministerial exception," it engaged in the very same type of determination that Bronx Household argues would violate the Establishment Clause.
If Senior Judge John Walker, dissenting, has his way, the Court might have a chance to discuss this Establishment Clause rationale again. Walker contends that this "case presents substantial questions involving the contours of both religion clauses and the Free Speech Clause of the First Amendment, the resolution of which are ripe for Supreme Court review." Most certainly, Bronx Household will be quoting that language in any petition seeking Supreme Court review.
Wednesday, April 2, 2014
The Eleventh Circuit's opinion in Arcia v. Florida Secretary of State, Detzner concludes that Florida's program to remove "suspected non-citizens" from the voter rolls in 2012 violated Section 8(c)(2)(A) of the National Voter Registration Act (the 90 Day Provision) which requires states to “complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.” 42 U.S.C. § 1973gg-6(c)(2)(A).
While the case rests on an issue of statutory application, it raises two constitutional concerns.
First, there are Article III concerns of standing and mootness, with the Secretary of State arguing the court should not exercise jurisdiction over the matter. The standing argument as to the individual plaintiffs focused on the lack of "injury in fact," but the court found that they were directly injured when they were wrongly identified as noncitizens, even though they were not ultimately prevented from voting. Additionally, they had standing to challenge Florida's second attempt to remove voters by showing "imminent injury." The standing argument as to the organization plaintiffs -- Florida Immigration Coalition, Inc., The National Congress for Puerto Rican Rights, and 1199SEIU United Healthcare Workers East - - - was resolved by the court's conclusion applying both a diversion-of-resources theory and an associational standing theory.
The court likewise rejected the mootness argument. Although the 2012 election had certainly passed, the court found that the situation fit squarely within the “capable of repetition, yet evading review” exception to the mootness doctrine. It reasoned that the challenged action fit both prongs of the test: the action in its duration was too short to be fully litigated prior to cessation or expiration; and there is a reasonable expectation that the same complaining party will be subject to the same action again.
The other constitutional aspect of the case involved the interpretation of the federal statute's 90 day provision itself:
We reject Secretary Detzner’s attempts to have us decide today whether both the General Removal Provision and the 90 Day Provision allow for removals of non-citizens. Certainly an interpretation of the General Removal Provision that prevents Florida from removing non-citizens would raise constitutional concerns regarding Congress’s power to determine the qualifications of eligible voters in federal elections. Cf. Arizona v. Inter Tribal Council of Arizona, Inc., ___ U.S. ___, 133 S. Ct. 2247, 2257 (2013) (“Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”). We are not convinced, however, that the Secretary’s perceived need for an equitable exception in the General Removal Provision also requires us to find the same exception in the 90 Day Provision. None of the parties before us have argued that we would reach an unconstitutional result in this case if we found that the 90 Day Provision prohibits systematic removals of non-citizens. Constitutional concerns would only arise in a later case which squarely presents the question of whether the General Removal Provision bars removal of non- citizens altogether. And before we ever get that case, Congress could change the language of the General Removal Provision to assuage any constitutional concerns. With this in mind, we will confine our ruling to apply to the plain meaning of the 90 Day Provision and decline Secretary Detzner’s invitation to go further.
The panel opinion, written by Judge Beverly Martin, was not unanimous. While Judge Adalberto Martin joined the opinion, Judge Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting by designation, wrote a very brief dissent, simply citing the two federal district court cases on the issue.
Tuesday, April 1, 2014
In a divided opinion in Korab v. Fink, a Ninth Circuit panel upheld the constitutionality of Hawai'i's health benefits for a certain class of "nonimmigrant aliens" against an equal protection challenge. The court reversed the preliminary injunction entered by the district judge.
There are several layers of complexity in the case. There is the immigration scheme, including a particular one involving specific nations; the health benefits schemes of both the federal government and the state; and the equal protection doctrine applicable to immigrant status fluctuating depending upon whether the government regulation is federal or state.
Judge Margaret McKeown's relatively brief majority opinion does an excellent job of unweaving and weaving these various strands of complexities in 22 pages. As she explains, in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress classified "aliens" into three categories for the purpose of federal benefits, including Medicaid: eligible aliens, ineligible aliens, and a third category which allowed state option. The "aliens" at issue are citizens of the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau who, under the Compact of Free Association (“COFA”) with the United States, may enter the United States and establish residence as a “nonimmigrant. The "COFA aliens" are in the third category of state option. At one point, Hawai'i included coverage for the COFA "nonimmigrants," but with the advent of Basic Health Hawai'i, its 2010 program, the COFA "nonimmigrants" were excluded. It is the COFA "nonimmigrants" who challenge their exclusion from Basic Health Hawai'i on the basis of equal protection.
Given the federal and state interrelationships, the question of the level of scrutiny that should apply is pertinent. As Judge McKeown explains, "states must generally treat lawfully present aliens the same as citizens, and state classifications based on alienage are subject to strict scrutiny review." In contrast, she states, "federal statutes regulating alien classifications are subject to the easier-to-satisfy rational-basis review." What standard should apply to a "hybrid case" such as Basic Health Hawai‘i, in which a state is following a federal direction? Judge McKeown's majority concludes that rational-basis review applies to Basic Health Hawai'i "because Hawai‘i is merely following the federal direction set forth by Congress under the Welfare Reform Act."
Judge Bybee's concurring opinion, slightly longer than the majority opinion he joined, is an extended argument against equal protection doctrine's applicability in favor of a preemption doctrine.
Judge Richard Clifton, who was appointed to the bench from a private practice in Honolulu, argued that the higher level of scrutiny should be applied essentially because it is Hawai'i that is exercising its state power when in makes the choice.
I acknowledge there is something paradoxical and more than a little unfair in my conclusion that the State of Hawai‘i has discriminated against COFA Residents. The state responded to an option given to it by Congress, albeit an option that I don’t think Congress had the power to give. Hawai‘i provided full Medicaid benefits to COFA Residents for many years, entirely out of its own treasury, because the federal government declined to bear any part of that cost. Rather than terminate benefits completely in 2010, Hawai‘i offered the BHH program to COFA Residents, again from its own pocket. The right of COFA Residents to come to Hawai‘i in the first place derives from the Compacts of Free Association that were negotiated and entered into by the federal government. That a disproportionate share of COFA Residents, from Pacific island nations, come to Hawai‘i as compared to the other forty-nine states is hardly a surprise, given basic geography. The decision by the state not to keep paying the full expense of Medicaid benefits for those aliens is not really a surprise, either. In a larger sense, it is the federal government, not the State of Hawai‘i, that should be deemed responsible.
While Judge Clifton's remarks concluding his dissent focus on the paradox in his opinion, his observations also implicitly point to the paradox at the heart of the majority's decision given that the federal scheme gives the state choices - - - and it was the state that chose to exclude certain "nonimmigrants" from the South Pacific.
April 1, 2014 in Congressional Authority, Disability, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, Medical Decisions, Opinion Analysis, Preemption, Spending Clause | Permalink | Comments (1) | TrackBack (0)
Thursday, March 27, 2014
A panel of the Fifth Circuit upheld the restrictive abortion law of Texas in its opinion in Planned Parenthood of Texas Surgical Providers v. Abbott.
Authored by controversial conservative Judge Edith Jones, the unanimous panel opinion upholds positions of equally controversial Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis. The district judge's decision had enjoined the "admitting provisions of HB 2 as unconstitutional:
A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services
The Fifth Circuit quickly stayed the injunction. In today's panel opinion, Judge Jones wrote that the the district judge's opinion "applied the wrong legal standards under rational basis review and erred in finding that the admitting–privileges requirement amounts to an undue burden for a 'large fraction' of the women that it affects."
As to rational basis, Judge Jones highlighted the highly deferential standard, its place in a democracy, its practicality (if the legislature doesn't think a law is working, it can change it), and its application to HB2:
Viewed from the proper perspective, the State’s articulation of rational legislative objectives, which was backed by evidence placed before the state legislature, easily supplied a connection between the admitting–privileges rule and the desirable protection of abortion patients’ health.
As to the undue burden, Judge Jones noted that the Supreme Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey,
counsels against striking down a statute solely because women may have to travel long distances to obtain abortions. The record before us does not indicate that the admitting–privileges requirement imposes an undue burden by virtue of the potential increase in travel distance in the Rio Grande Valley.
The narrow exception of the Fifth Circuit's reversal if that the admitting privileges requirement "may not be enforced against abortion providers who timely applied for admitting privileges under the statute but are awaiting a response from the hospital."
Wednesday, March 26, 2014
Affirming the federal district judge, a panel of the Ninth Circuit in its opinion in Jackson v. City of San Francisco found that San Francisco's gun regulations likely survived the Second Amendment challenges and therefore the denial of the preliminary injunction was proper.
At issue were two San Francisco gun-related regulations: one that requires handguns to be stored in a locked container at home or disabled with a trigger lock when not carried on the person and the other that prohibits the sale of hollow-point ammunition within San Francisco.
The panel, as other courts have done, derived its framework from District of Columbia v. Heller, first asking whether the challenged regulations burden conduct protected by the Second Amendment and then applying the "appropriate" level of scrutiny. Because Heller (and McDonald v.Chicago which incorporated the Second Amendment against the states) left open this second inquiry, the panel - - - again following other circuits - - -then analyzed ‘how close the law comes to the core of the Second Amendment right’ and ‘the severity of the law’s burden on the right.’ The panel analogized to First Amendment principles and noted that "firearm regulations which leave open alternative channels for self-defense are less likely to place a severe burden on the Second Amendment right than those which do not." The panel applied intermediate scrutiny to the regulations.
The opinion distinguished the San Francisco gun regulation requiring safety measures from those seemingly similar District of Columbia safety measures the United States Supreme Court found unconstitutional in Heller:
Section 4512 does not impose the sort of severe burden imposed by the handgun ban at issue in Heller that rendered it unconstitutional. Unlike the challenged regulation in Heller, section 4512 does not substantially prevent law-abiding citizens from using firearms to defend themselves in the home. Rather, section 4512 regulates how San Franciscans must store their handguns when not carrying them on their persons. This indirectly burdens the ability to use a handgun, because it requires retrieving a weapon from a locked safe or removing a trigger lock. But because it burdens only the “manner in which persons may exercise their Second Amendment rights,” the regulation more closely resembles a content-neutral speech restriction that regulates only the time, place, or manner of speech. The record indicates that a modern gun safe may be opened quickly. Thus, even when a handgun is secured, it may be readily accessed in case of an emergency. Further, section 4512 leaves open alternative channels for self-defense in the home, because San Franciscans are not required to secure their handguns while carrying them on their person. Provided San Franciscans comply with the storage requirements, they are free to use handguns to defend their home while carrying them on their person.
As to the sale of hollow point bullets, the panel found that there was standing to challenge the restriction and that such ammunition was protected by the Second Amendment. But it again applied intermediate scrutiny and found the regulation survived. It reasoned that the city's regulation "imposed only modest burdens on the Second Amendment right" given "the availability of alternative means for procuring hollow-point ammunition."
The opinion is firmly rooted in current doctrine, even as that doctrine is in disarray. Earlier this month the Delaware Supreme Court held a gun restriction in public housing unconstitutional; earlier this year a district judge in Chicago held that city's gun regulations unconstitutional. The United States Supreme Court this Term has denied certiorari to several petitions seeking review of lower court cases including Fifth Circuit cases upholding a ban of sales of guns to those under 21.
Borrowing from First Amendment doctrine seems especially problematic in these cases, but understandable given the infantile state of the doctrine.
Saturday, March 22, 2014
Delaware Supreme Court Interprets State Constitutional "Second Amendment" Provision to Protect the Right to Firearms in Public Housing Common Areas
Responding to a certified question from the Third Circuit, the Delaware Supreme Court interpreted its state constitutional "right to bear arms" provision expansively in its opinion in Doe v. Wilmington Housing Authority.
At issue were two policies of the housing authority. The first, the Common Area Provision, prohibited "residents, household members, and guests from displaying or carrying a firearm or other weapon in a common area, except when the firearm or other weapon is being transported to or from a resident’s housing unit or is being used in self-defense." The second, the Reasonable Cause Provision, required "residents, household members, and guests to have available for inspection a copy of any permit, license, or other documentation required by state, local, or federal law for the ownership, possession, or transportation of any firearm or other weapon" if there was reasonable cause to believe there was a violation.
The court interpreted Article I §20 of the Delaware Constitution as inconsistent with the housing authority policies. The constitutional provision provides: “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.” As the court noted, this was not adopted as part of the state constitution until 1987, given concerns of the original state constitutional framers because of concerns "over groups of armed men," but nevertheless "Delaware has a long history, dating back to the Revolution, of allowing responsible citizens to lawfully carry and use firearms in our state."
Importantly, the Delaware Supreme Court clearly stated that it was interpreting Article I §20 as an independent ground and did not base its opinion on the Second Amendment. It considered its four previous cases, noting that only in one did it cite Second Amendment cases. Interestingly, however, in three of the four cases, the court rejected the Article I §20 claim, and in one it remanded the case on the basis of the jury instructions in the criminal trial.
Here, however, the court found that the "common areas" in public housing deserved special consideration. Applying the "intermediate scrutiny" standard developed in its precedent, the court reasoned that even "active and retired police officers who are residents, household members, or guests are disarmed by the Common Area Provision," and that an "individual’s need for defense of self, family, and home in an apartment building is the same whether the property is owned privately or by the government." Thus, the court concluded that
the Common Area Provision severely burdens the right by functionally disallowing armed self-defense in areas that Residents, their families, and guests may occupy as part of their living space.
As to the Reasonable Cause Provision, the court found that it was not severable from the Common Areas provision, and was therefore also unconstitutional.
The Delaware Supreme Court's unanimous opinion clearly articulates the adequate and independent state grounds of Article I §20of the state constitution, but less clearly articulates and supports its reasoning for interpreting the state constitutional provision to invalidate the public housing prohibitions of firearms.
Thursday, March 20, 2014
In its relatively brief opinion in today in Bell v. City of Winter Park, a panel of the Eleventh Circuit found the portion of an ordinance allowing a 50 foot buffer zone around a private residence related to loitering violated the First Amendment.
The ordinance provision, amending § 62-77, provided:
A person regularly residing in a ‘dwelling unit’, as that term is defined in Section 62-79, may post a ‘no loitering’ sign on the property of such residence in which the person regularly resides, and an officer of the City may enforce this section against any person remaining in a public area, including a park, sidewalk, street, public right-of-way, after the sign is posted, who loiters, stands, sits, or lies before or about the dwelling unit on which property the ‘no loitering’ sign is posted, or remains on public property within a buffer area as defined in Section 62-79, of fifty (50) feet from the property line of such residence.
The opinion by Judge Gerald Tjoflat (who has been a circuit court judge since 1975) reasoned that while the provision may look content neutral, it allowed private persons to prohibit speech in public fora for content or viewpoint reasons.
Further, there was "immense discretion."
The amount of discretion § 62-77 provides is alarming. Private citizens are permitted to have the City regulate speech on traditional public fora for any reason. Additionally, § 62-77 provides no standards for enforcement, leaving City officers free to enforce the prohibition on the basis of the content or viewpoint of an individual’s speech. We therefore hold that § 62-77 is unconstitutional.
While reversing the district judge on this issue, the court did affirm the judge and uphold the constitutionality of another subsection of the ordinance, prohibiting "any person or persons to picket, protest or conduct any picketing or protesting activity within a buffer area of 50 feet from the property line of any dwelling unit in the City of Winter Park." As the Eleventh Circuit panel correctly noted, this provision of the ordinance was "nearly on all fours" with Frisby v. Schultz, (1988). The Court in Frisby valued the "well-being, tranquility, and privacy of the home” and construed the law as a valid time, place, and manner regulation.
The court's distinction between "loitering" and "picketing" is a careful and noteworthy one.
Saturday, March 15, 2014
In an opinion in Edwards v. Beck, a federal judge permanently enjoined portions of Arkansas' Act 301, which imposed regulations on the performance of abortions in Arkansas.
Judge Wright considered the Act's three provisions: a heartbeat testing requirement; a disclosure requirement; and a ban on abortions when a fetal heartbeat is detected and the fetus has reached twelve weeks’ gestation.
She found that the 12 week ban prohibits pre-viability abortions and "thus impermissibly infringes a woman’s Fourteenth Amendment right to elect to terminate a pregnancy before viability."
Yet Judge Wright concluded that the disclosure and heartbeat testing could be severed from the unconstitutional 12 week provision, because they are
independently capable of furthering the stated purpose of Act 301, to protect unborn children, and that they are severable from the unconstitutional twelve-week ban and the requirement of license revocation for a physician who performs an abortion banned under the Act. The State, from the inception of a pregnancy, maintains its own interest in protecting the life of a fetus that may become a child, and the Supreme Court has recognized that the disclosure of truthful information about fetal development is relevant to a woman’s decision- making process and is rationally related to the State’s interest in protecting the unborn.
The judge's analysis on the severability issue is relatively slight and she could easily have reached the opposite conclusion under her articulated rationales. But she decided that only the ban on 12 week abortions was declared unconstitutional.
Tennessee Federal Judge Issues a Narrow Injunction Regarding Prohibition of Same-Sex Marriage Recognition
In her opinion in Tanco v. Haslom, federal district judge in the Middle District of Tennessee, Aleta A. Trauger, decided that what she called the state's "Anti-Recognition Laws" are most likely unconstitutional as violative of equal protection, even under rational basis review. She therefore enjoined the state from refusing to recognize the otherwise valid out-of-state marriages of the six plaintiffs in the case.
Judge Trauger's opinion is relatively brief. She highlights the United States Supreme Court's decision in United States v. Windsor , and while she does not mention Justice Scalia's Windsor dissent, she does echo the cases that have, and notes the "rising tide" of cases that have relied on Windsor to find their state same-sex marriage prohibitions unconstitutional. She states that she
finds Judge Heyburn’s equal protection analysis in Bourke [v. Beshear], which involved an analogous Kentucky anti-recognition law, to be especially persuasive with respect to the plaintiffs’ likelihood of success on the merits of their Equal Protection Clause.
While emphasizing the narrowness of her opinion and that the United States Supreme Court will ultimately rule on the matter, she concludes with a prediction:
At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs’ marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history.
[image: 1827 map of Tennessee via]
Wednesday, March 12, 2014
The Florida Supreme Court last week ruled that the state bar can deny a law license to undocumented immigrants. The ruling means that FSU law school graduate Jose Godinez-Samperio, and other undocumented immigrants, cannot be admitted to the Florida bar--at least for now.
At the same time, concurring justices called on the state legislature to change Florida law to allow admission of certain unauthorized aliens, following California's recent lead. See In re Garcia.
The question came to the court by way of a certified question of the Florida Board of Bar Examiners on the application of Gordinez-Samperio. Gordinez-Samperio came to the U.S. when he was nine years old with his parents, who overstayed their visas. He learned English, became an Eagle Scout, was valedictorian of his high school graduating class, and attended New College of FSU. But he's undocumented.
The court cited federal law that states that aliens are not "eligible for any State . . . public benefit," including "any . . . professional license," unless they are "qualified alien[s]," nonimmigrant aliens, or aliens who are "paroled" into the United States for less than one year. Federal law also allows states to override this provision, but only "through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility."
The court said that there was no such state law.
It also rejected the argument that applicants who have been granted status under the deferred action program, DACA, announced by President Obama in June 2012, were not exempt from the bar on state professional licenses. The court, quoting DACA, said that DACA is "an act of prosecutorial discretion . . . [and] [d]eferred action does not provide an individual with lawful status."
Gordinez-Samperio and other undocumented immigrants can still get bar membership, if the state legislature allows for it--as California did in the Garcia case.
Friday, March 7, 2014
In an opinion today Foreign Intelligence Surveillance Court Judge Reggie Walton denied the Government's motion to amend a previous order requiring "telephony metadata produced in response to the Court’s orders be destroyed within ﬁve years." The Government argued that it should be allowed to retain data beyond five years because destruction of the metadata “could be inconsistent with the Government’s preservation obligations in connection with civil litigation pending against it.”
In denying the motion without prejudice, the judge reasoned that FISA’s minimization requirements are not superseded by the common-law duty to preserve evidence. The Government's presumed "fear that the judges presiding over the six pending civil matters may sanction the government at some point in the future for destroying BR [telephony] metadata that is more than ﬁve years old," was, the judge stated, "far-fetched." The judge's dismissal was without prejudice to a subsequent motion "providing additional facts or legal analysis, or seeking a modiﬁed amendment to the existing minimization procedures."
Taking the motion to dismiss at face value, it seems that the Government was actually worried that it might be sanctioned in civil trials if it destroyed evidence after five years and wanted a ruling from the court.
A more nefarious interpretation would be that the Government used the excuse of civil trials to attempt to extend the time it could keep telephony metadata, but was thwarted by the court.
And an even more nefarious interpretation would be that the Government wanted the "cover" of a court opinion to destroy telephony metadata that might be beneficial to plaintiffs in pending civil matters.
And an even more nefarious interpretation? There are sure to be more speculations.
Thursday, March 6, 2014
In its unanimous opinion in Commonwealth v. Robertson, the Supreme Judicial Court of Massachusetts avoided the constitutional challenge to the state's statutory prohibition of "secretly photographing or videotaping a person 'who is nude or partially nude,'" G.L. c. 272, § 105 (b ), by interpreting the statute not to apply to taking photographs at the areas under women's skirts ("upskirting").
The defendant had argued that if § 105 (b ) "criminalizes the act of photographing a fully clothed woman under her skirt while she is in a public place, it is both unconstitutionally vague and overbroad," but because the court "concluded that § 105 (b ) does not criminalize the defendant's alleged conduct," it did not reach the constitutional questions.
Yet, as in many cases, the court's statutory interpretation does occur in the shadow of the constitutional challenge. The court reasoned that the statute "does not penalize the secret photographing of partial nudity, but of "a person who is ... partially nude" (emphasis in original). Courts have long struggled with definitions of "nudity" - - - recall the United States Supreme Court's recent foray into this area in FCC v. Fox with an oral argument that drew attention to the nude buttocks in the courtroom decor.
Additionally, the court reasoned that the statutory element of in "such place and circumstance [where the person] would have a reasonable expectation of privacy in not being so photographed" did not cover the alleged acts of photography in a public place, such as the Massachusetts Bay Transportation Authority (MBTA) trolley. The court rejected the Commonwealth's argument emphasizing the "so" in "so photographed" - - - that "because a female MBTA passenger has a reasonable expectation of privacy in not having the area of her body underneath her skirt photographed, which she demonstrates by wearing the skirt" by interpreting "so" as simply referential.
The court concluded that at the
core of the Commonwealth's argument . . . is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but § 105 (b ) in its current form does not address it.
And the court noted that in the past legislative session proposed amendments to § 105 were before the Legislature that appeared to attempt to address precisely the type of "upskirting" conduct at issue in the case. Given the court's opinion in Robertson, this issue will most likely be again before the Massachusetts legislature.
Tuesday, March 4, 2014
In its opinion in Wilkins v. Daniels, a panel of the Sixth Circuit affirmed the district judge and affirmed the constitutionality of the Ohio Dangerous Wild Animals and Restricted Snakes Act, which became effective January 1, 2014. The Act prohibits possession of dangerous wild animals - - - including tigers, lions, bears, alligators, and pythons 12 feet or longer - - - without a permit. The permit requirements include the implantation of a microchip under the animal's skin. The Act includes an exemption for individuals accredited by the Association of Zoos and Aquariums (AZA) or the Zoological Association of America (ZAA).
The exemption in the Act's scheme and the "chipping" requirement give rise to the constitutional challenges.
First, and perhaps most creatively, the challengers argued that the exemption for "individuals accredited by the Association of Zoos and Aquariums (AZA) or the Zoological Association of America (ZAA)" constituted compelled speech prohibited by the First Amendment. This compelled speech argument had two "distinct but interrelated" parts: a compelled association claim because the Act "forces" them to join either the AZA or ZAA and a compelled speech claim because the Act requires them to "subsidize the speech of their purely private political and ideological rivals,” the AZA or ZAA.
The panel briefly and accurately set out the doctrine and classic First Amendment cases, but the court's analysis is digestable to its conclusion that there was no compulsion, by association or subsidy: "There are fifteen ways appellants can comply with the Act: the permitting requirement and fourteen exemptions." As the panel concluded, "[m]ere unwillingness to conform their conduct to the permitting requirements or the other thirteen exemptions does not mean that the Act compels appellants to join the AZA or ZAA."
Second, the challengers argued that microchipping requirement violated the Takings Clause. The panel found the challenge not ripe because there was no pursuit of state compensation. But, on the merits, the panel found that there was not a taking, stressing the physical taking (rather than the regulatory taking) aspect that seemed to be the central argument. The court analogized to other types of "property," accepting the State's argument that if the Act’s microchipping requirement to be ruled a taking, “laws requiring license plates on cars, warning labels on packaging, lighting on boats, handrails in apartment buildings, and ramps leading to restaurants” would be suspect.
The court rejected these constitutional challenges that, while innovative, seemed to have little support in the doctrine. The arguments also had little political appeal - - - the court notes in its opinion that the Ohio Act was prompted by an incident in which "an Ohio man released over fifty exotic animals before committing suicide."
Friday, February 28, 2014
Judge John D. Bates (D.D.C.) yesterday dismissed a case brought by Citizens for Responsibility and Ethics in Washington, or CREW, challenging the IRS rule that allows donors to certain political organizations to remain under the radar.
The ruling means that CREW's effort in this court to get the IRS to rewrite its rule on 501(c)(4) organizations fails, and that unless and until the IRS rewrites its rule, 501(c)(4) organizations can continue engaging up to 49% of their activity in political spending while keeping their donors hidden from public view.
The case, Citizens for Responsibility and Ethics in Washington v. IRS, challenged the IRS rule implementing Section 501(c)(4) of the tax code. That provision grants a tax exemption for organizations "not organized for profit but operated exclusively for the promotion of social welfare." (Emphasis added.) But the IRS rule implementing that provision applies to organizations that are "primarily engaged in promoting in some way the common good and general welfare of the people of the community. An organization embraced within this section is one which is operated primarily for the purpose of bringing about civic betterments and social improvements."
In short: The statutory "operated exclusively" became a regulatory "primarily engaged," giving 501(c)(4)s considerably more latitude to engage in electioneering.
That matters, because 501(c)(4) status allows organizations to spend money in politics while at the same time shielding the names of donors. Some 501(c)(4)s have taken the position, based on the IRS rule, that they qualify for tax exemption if they engage 49% of less in political donations. That's a lot of political donations--and a lot of shielding of donors--especially when the statute requires them to be "operated exclusively" for social welfare purposes.
So CREW sued, arguing that the IRS regulation let 501(c)(4)s get away with way more political spending, and shielding, than the Internal Revenue Code allowed.
But Judge Bates dismissed the case for lack of standing. He ruled that CREW could not establish informational injury, because its injury--lack of information on donors--was hypohetical and speculative. In particular, Judge Bates wrote that it wasn't the IRS regulation that prevented CREW from getting information on donors, but instead the organizations' decision on how to organize. In other words, if the IRS rewrote its regulation to conform to the Internal Revenue Code, 501(c)(4)s might drop their tax-exempt status or reorganize under another tax-exempt provision to maintain donor confidentiality; but they wouldn't necessarily reorganize as 527s (which would require donor disclosure). Judge Bates wrote that this also prevented CREW from showing causation and redressability.
Judge Bates also ruled that CREW did not have standing based on programmatic injury--the injury to its ability to collect donor information and fulfill its watchdog mission. That's because CREW's injury isn't "fairly traceable" to the IRS decision not to rewrite its rule--there are other intervening causes of CREW's injury.
In its opinion in Dariano v. Morgan Hill Unified School District, the Ninth Circuit rejected a claim by students that their constitutional rights were violated when school officials banned their American flag clothing during a Cinco de Mayo celebration.
Affirming the district judge, the panel applied Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) to the First Amendment claims, distinguishing Tinker:
In contrast to Tinker, in which there was “no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone,” id., there was evidence of nascent and escalating violence at Live Oak. On the morning of May 5, 2010, each of the three students was confronted about their clothing by other students, one of whom approached student M.D. and asked, “Why are you wearing that? Do you not like Mexicans[?]” Before the brunch break, [Principal] Rodriguez learned of the threat of a physical altercation. During the break, Rodriguez was warned about impending violence by a second student. The warnings of violence came, as the district court noted, “in [the] context of ongoing racial tension and gang violence within the school, and after a near-violent altercation had erupted during the prior Cinco de Mayo over the display of an American flag.” Threats issued in the aftermath of the incident were so real that the parents of the students involved in this suit kept them home from school two days later.
Moreover, the school did not "embargo all flag-related clothing," but "distinguished among the students based on the perceived threat level" and allowed "two students to return to class when it became clear that their shirts were unlikely to make them targets of violence."
The court also rejected the students' equal protection claim, which seemed to rest upon viewpoint discrimination, and indeed the court again relied upon Tinker. The court further rejected the facial due process challenge to the school dress code, which prohibited clothing that “indicate[s] gang affiliation, create[s] a safety hazard, or disrupt[s] school activities," finding that it need not be more specific:
It would be unreasonable to require a dress code to anticipate every scenario that might pose a safety risk to students or that might substantially disrupt school activities. Dress codes are not, nor should they be, a school version of the Code of Federal Regulations. It would be equally unreasonable to hold that school officials could not, at a minimum, rely upon the language Tinker gives them.
While school dress codes and their application can raise grave constitutional concerns, the context as the court explains it here seems to warrant the tailored of school officials, American flag or not.
[image: American Flag clothing patch from "Easy Rider" via]