Monday, November 14, 2016
Saturday, November 12, 2016
The D.C. Circuit ruled this week in LeFande v. D.C. that the D.C. Metropolitan Police Department did not violate an officer's First Amendment rights when the MPD fired the officer for internal e-mails critical of MPD operations and officers, and refusing to respond to a superior's request.
The ruling puts an end to this very long-running dispute, and the very long-running, and highly contentious, relationship between the officer, LeFande, and the MPD.
This piece of the case arose when Matthew LeFande, police reserve officer with the MPD (a volunteer position designed to assist full-time officers), wrote a series of internal e-mails highly critical of certain MPD operations and MPD officers, and declining to comply with a superior's request. (The case actually started much earlier, with a suit LeFande filed against the MPD, and the MPD fired him. He raised a First Amendment claim to his termination (based on his free speech in bringing the suit), but the MPD said it actually fired him for the e-mails--thus opening this latest chapter of the case.)
The court ruled that it didn't have to say whether the e-mails constituted citizen speech on matters of public concern (under Pickering), because the MPD's interest in efficiency outweighed LeFande's interests in free speech, anyway. The court held that LeFande's free-speech interest in sending e-mails criticizing MPD operations and officers "cannot outweigh the fact that their 'disruptive force' . . . threatens workplace efficiency." It further held that LeFande's interest in sending e-mails declining a superior's request were outweighed by the MPD's interest in efficiency, because "[i]f police department leadership faced opposition from employees after every routine request, the machinery of law enforcement would grind to a halt."
The court conceded that some of LeFande's speech (especially those e-mails criticizing MPD operations) implicated matters of public concern--perhaps more than the survey questions in Connick. But it ruled that the MPD's interest outweighed LeFande's, especially "given the 'special degree of trust and discipline required in a police force.'"
Senior Judge Jed S. Rakoff (S.D.N.Y.) published his essay in The New York Review of Books, Why You Won't Get Your Day in Court, examining the many ways that doctrine, politics, logistics, resources, and raw power conspire to leave us with a diminished access to the courts. Check it out.
Sunday, November 6, 2016
The Supreme Court on Saturday stayed an injunction issued by the Ninth Circuit late last week halting enforcement of Arizona's ballot collection ban. The order means that Arizona can enforce its criminal ban on ballot collection pending appeal to the full Ninth Circuit--well after Election Day.
Recall that a divided three-judge panel of the Ninth Circuit denied a preliminary injunction against Arizona's 2016 ballot collection law. That law criminalized the collection and delivery of early ballots by anyone other than the voter. (Arizona had previously allowed certain persons other than the voter to collect and deliver a voter's ballot. This practice was used by minority communities in the state, including Native American, Hispanic, and African American communities that, for different reasons, lacked easy access to the polls.)
The full Ninth Circuit then agreed to hear the case. And the court issued an injunction against enforcement of the law pending appeal. As to any problems from enjoining a law so close to the election (like voter confusion)--the Purcell factors--the court wrote:
First, the injunction does not affect the state's election processes or machinery. . . .
Enjoining enforcement of H.B. 2023 will not have any effect on voters themselves, on the conduct of election officials at the polls, or on the counting of ballots. . . .
Here, the injunction preserves the status quo prior to the recent legislative action in H.B. 2023. Every other election cycle in Arizona has permitted the collection of legitimate ballots by third parties to election officials. . . .
Moreover, the court wrote that Arizona's first attempt at criminalizing ballot collection was stopped by DOJ--denied preclearance before Shelby County effective wiped preclearance off the books. But then Arizona re-enacted it in 2016, after Shelby County said that Arizona no longer had to preclear election-law changes. Thus, according to the Ninth Circuit, an injunction pending appeal didn't run into Purcell problems, because "[i]n the wake of Shelby County, the judiciary provides the only meaningful review of legislation that may violate the Voting Rights Act."
The Ninth Circuit will hear oral arguments in January, but the Supreme Court's order on Saturday ensures that Arizona's ban on ballot collection will stay in place for this election cycle.
The order was unsigned, and there were no concurrences or dissents.
Friday, November 4, 2016
In her opinion in Hill v. Williams, United States District Judge Christine Arguello enjoined Colorado Revised Statute § 1-13-712(1), which prohibits a voter from “show[ing] his ballot after it is prepared for voting to any person in such a way as to reveal its contents.” In late October, the Denver District Attorney issued a news release reminding voters that posting an image of a completed ballot - - - a "ballot selfie" - - - was a misdemeanor. Two separate sets of plaintiffs thereafter sued to enjoin the Colorado statute as a violation of the First Amendment.
As Judge Argeullo explains,
Colorado uses an all mail-in ballot election. Every registered voter who registered to vote on or before October 31, 2016, has received a mail-in ballot to complete at home. Individuals who did not register by that date are allowed to register at the polling places and vote up to, and including, Election Day. Moreover, voters who have obtained ballots in the mail are still allowed to vote in person on Election Day. . . . The Deputy Secretary of State testified that she anticipates between 100,000 and 750,000 Coloradans will vote in person on November 8, 2016.
The ballot selfie prohibition thus included photographs at polling places as well as photographs of ballots completed for mailing.
The judge first rejected the state's arguments that the plaintiffs lacked standing or that the case was already moot. The judge likewise rejected the argument that an injunction would alter election laws and procedures immediately before an election. Despite the timing, the judge stated that the plaintiffs' request (and her injunction) was narrowly crafted, and further noted that "if local rules at polling places prohibit the use of cameras due to privacy concerns, nothing in this Court’s Order prohibits the enforcement of those rules."
In the discussion of the First Amendment merits, the judge applied intermediate scrutiny for purposes of the preliminary injunction and concluded that the statute failed. The judge also accepted that voter fraud was a significant government interest. However, the judge found the means chosen were not sufficiently narrowly tailored to serve that interest: the statute prohibits a wide range of conduct and does not include a mens rea related to voter fraud. Moreover, other extant laws could achieve the purpose of preventing voter fraud.
Thus, the judge entered a preliminary injunction against the defendant prosecutors
from enforcing Colorado Revised Statute § 1-13-712(1) by prosecuting, referring for prosecution, and/or investigating violations thereof, or instructing any person to remove from publication any photograph or image of that person’s voted ballot, unless such violations or publication is in connection with violations of other criminal laws. Nothing in this Order shall alter the ability of Defendants or other officials to enforce any other laws, rules, or regulations related to the administration of the election, including those rules in effect at polling places.
This opinion contrasts with the opinion regarding the New York statute. Like the New York statute, the Colorado statute is longstanding (section § 1-13-712 was passed in 1891, but was most recently amended in 1980), and both lawsuits were filed close to the pending election. However, Judge Arguello balanced the First Amendment interests in favor of the individuals and issued a narrow but effective injunction.
Thursday, November 3, 2016
In the opinion in Silberberg v. Board of Elections of New York, United States District Judge P. Kevin Castel denied a motion for a preliminary injunction against NY Election Law §17-130(10), originally enacted 126 years ago, which makes it a misdemeanor for a person to "show" a ballot after it is prepared for voting to any person.
Judge Castel's central rationale for denying the motion relied on the age of the statute compared with the litigation:
This action was commenced 13 days before the presidential election, even though the statute has been on the books longer than anyone has been alive. Selfies and smartphone cameras have been prevalent since 2007. A last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as well- intentioned voters either took the perfectly posed selfie or struggled with their rarely-used smartphone camera. This would not be in the public interest, a hurdle that all preliminary injunctions must cross.
The age of the statute also figured into Judge Castel's First Amendment analysis, distinguishing the NY statute from the ballot-selfie prohibition of New Hampshire the First Circuit recently declared unconstitutional in Rideout v. Gardner. The New Hampshire statute had been recently enacted: it would be difficult for the state to provide evidence of what would happen should the statute be invalidated and the statute was not directed at any specific technology.
While Judge Castel's First Amendment analysis is cogent, it is not entirely convincing. It may be that New York's statute violates the First Amendment, but the judge made it clear that a preliminary injunction this close to an election was not the vehicle to do so.
In his opinion in Republican Party of Pennsylvania v. Cortes, United States District Judge for the Eastern District of Pennsylvania Gerald Pappert has rejected the Equal Protection, Due Process, and First Amendment constitutional challenges to the state election code provision §2687(b) requiring poll watchers to be qualified electors of the county in which they serve.
The challenge argues that the code provision violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment by hampering poll watchers’ fundamental right to vote. The "crux of this argument," as Judge Pappert states, is "that if a qualified, registered voter casts a valid ballot in one county and a fraudulent ballot is cast for a different candidate in another county, the fraudulent ballot effectively negates the valid ballot, and the qualified, registered elector’s vote is diluted." But Judge Pappert rejected any applicability of Reynolds v. Sims's vote-dilution, noting that the vote-dilution theory here is "based on speculation that fraudulent voters may be casting ballots elsewhere in the Commonwealth and the unproven assumption that these alleged instances of voter fraud would be prevented by the affected poll watchers were they not precluded from serving at these locations." Additionally, the challengers argued that the code provision arbitrarily distinguished between voters by county, a classification which the challengers conceded in the hearing would merit only rational basis scrutiny. Indeed, Judge Pappert found that the entirety of the Fourteenth Amendment challenge to the code provision was subject to rational basis scrutiny given that the fundamental right to vote was not actually being burdened.
Judge Pappert also rejected the claim that Section 2687(b) infringes on the rights to free speech and association under the First Amendment by narrowing the pool of potential watchers at any polling place to the county level. The judge noted that plaintiffs cited no authority for the proposition that poll-watching is protected by the First Amendment or that it constitutes "core political speech." Instead, it is a state-created function and is subject to limitations by the state. It is distinguished from petition-circulators, for example, because "poll watchers do not discuss or advocate for a political candidate or viewpoint, either explicitly or implicitly." Instead, poll watchers, whatever their private motivations may be, are "performing a public function delegated by the state."
In addition to finding that the constitutional claims failed to satisfy the likelihood of success on the merits necessary to warrant a preliminary injunction, Judge Pappert also found the other factors for preliminary injunction lacking. Additionally, Judge Pappert noted that the Plaintiffs "waited until eighteen days before the election to bring the case": "There was no need for this judicial fire drill and Plaintiffs offer no reasonable explanation or justification for the harried process they created." Moreover, should the code be enjoined, "poll watchers would be allowed to roam the Commonwealth on election day for the first time in the Election Code’s seventy-nine year history—giving the Commonwealth and county election officials all of five days’ notice to prepare for the change."
Judge Pappert, a former Attorney General of Pennsylvania, has authored a very well-reasoned 28 page opinion likely to withstand any appeal. And although the opinion does not mention it, election-watchers are well aware of the context of the Pennsylvania situation: As reported, Republican Presidential Candidate Donald Trump has exhorted people in the more rural portions of the state to "Go down to certain areas and watch and study make sure other people don't come in and vote five times." Meanwhile, the Pennsylvania Democratic Party filed a complaint against the Pennsylvania Republican Party and the Trump Campaign for voter intimidation violating the Ku Klux Klan Act.
Wednesday, November 2, 2016
A divided three-judge panel of the Ninth Circuit on Friday affirmed a district court's denial of a preliminary injunction against Arizona's law criminalizing the collection of early ballots. Today, the full Ninth Circuit agreed to rehear the case--just six days before the election.
Today's grant means that Friday's decision has no precedential value, and that the full Ninth Circuit will reconsider the matter itself.
The case challenges Arizona's 2016 law that criminalizes the collection of early ballots, with certain exceptions. This changed Arizona's earlier practice, which permitted individuals other than the voter to collect early ballots and submit them on behalf of the voter--a practice relied upon and favored by minority communities in the state, including Native American, Hispanic, and African American communities that, for different reasons, lack easy access to the polls.
Plaintiffs challenged the new law under the Voting Rights Act, the Equal Protection Clause, and the First Amendment. The district court ruled that they didn't show a likelihood of success on the merits and thus denied a preliminary injunction. A 2-1 panel of the Ninth Circuit affirmed on Friday. Then, today, the full court agreed to rehear the case.
But under Ninth Circuit rules, don't necessarily expect a reversal. As Judge Reinhardt explains in concurring with today's grant:
Unfortunately, however, our en banc process is not perfect and also does not necessarily represent the view of the full court. It is selected by lot, as a full court en banc is ordinarily deemed too unwieldy. Thus, although it is preferable to a three judge panel, in an extraordinary case such as this, it too may not accurately reflect the view of the court as a whole. . . . The en banc court here is composed of a majority of judges who did not support the en banc call [and] it may be that its judgment will not reflect the view of the full court.
Judges O'Scannlain, Tallman, Callahan, Bea, and Ikuta dissented from the grant, arguing that just six days out from the election, the en banc court "risks present chaos and future confusion."
Friday, October 28, 2016
The United States Supreme Court has granted certiorari in Packingham v. North Carolina involving the constitutionality of a state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access certain commercial social networking sites.
In its opinion the Supreme Court of North Carolina, reversing the court of appeals, concluded that the statute was constitutional on its face and as applied to Packingham, a registered sex offender, who had a Facebook.com page.
The opinion for the majority by Justice Robert Edmunds, found that the North Carolina statute was content-neutral. The court reasoned that the "limitations imposed by the statute are not based upon speech contained in or posted on the site," but simply on the character of the site as one that is available for use by minors. Thus the court applied "intermediate scrutiny" under United States v. O'Brien (1968), with the O'Brien factors. Perhaps most interesting is the court's analysis of the availability of ample alternatives for expression:
On the as-applied challenge, the court similarly rejected Packingham's First Amendment claims, finding that the incidental burden on Packingham's speech was no greater than was essential to the furthering the government's interest in protecting children. Similarly, the court concluded that the statute was not overbroad and that Packingham could not raise a vagueness challenge given that he was within the purview of the statute.
The dissenting opinion, authored by Justice Robin Hudson and joined by Justice Cheri Beasley, contended that O'Brien was not the correct standard because the statute "primarily targets expressive activity usually protected by the First Amendment," and should be more properly considered as content-based under Reed v. Town of Gilbert. However, Justice Hudson argued that even under O'Brien, the statute burdened substantially more speech than necessary" because it sweeps too broadly in the sex offenders it includes and in the speech (activity) it prohibits, including social networking sites that allow minors (such as newspapers and Amazon).
Other courts have ruled on the issue of sex offender bans from social media. Recall the Seventh Circuit's opinion finding Indiana's sex offender ban from social media unconstitutional. And also recall the 2012 decision by a federal district judge finding Louisiana's broad prohibition unconstitutional under the First Amendment. If one were to make a wager, it would seem that the North Carolina statute would similarly be declared unconstitutional.
[image via -cropped]
The Court today has granted certiorari in Glouster County School Board v. G.G.
As we previously discussed, while the constitutional issues are not in the foreground, it does involve important equality issues for transgender and gender nonconforming students as well as issues of Exceutive - - - or perhaps more properly, administrative agency - - - power.
The Court's Order limits the grant to Questions 2 and 3, thus eliminating the issue of the viability of "Auer deference" from consideration. The Questions presented in the certiorari petition are:
(1) Whether the court should retain the Auer v. Robbins doctrine despite the objections of multiple justices who have recently urged that it be reconsidered and overruled;
(2) whether, if Auer is retained, deference should extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and
(3) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.
Wednesday, October 26, 2016
In the wake of Senator McCain's statements last week--first saying that Senate Republicans would block any SCOTUS nominees by a President Clinton, then (kind of) walking it back--conservative scholars are starting to outline the case for absolute obstruction and even permanently reducing the size of the Supreme Court.
Ilya Shapiro makes the case at The Federalist; Michael Stokes Paulsen makes the case at the National Review. Both argue that the Constitution doesn't require the Senate to consider, much less approve, any nominee; and both note that nothing in the Constitution sets the number of justices at 9. Beyond those points, their arguments turn on politics alone--that obstruction will give the advantage to conservatives, at least until the 2020 election, and maybe beyond.
This flies in the face of Senate Republicans' stated reason for refusing to give Judge Garland a hearing (let the people decide, through the presidential election). When that explanation wears out, expect them to adopt these new, "constitutional" arguments.
In its opinion in Keefe v. Adams, a divided panel of the Eighth Circuit upheld the dismissal of a student from the Associate Degree Nursing Program at Central Lakes College (CLC) in Minnesota. Other students had complained about posts on Craig Keefe’s Facebook page and he was eventually removed from the program for :behavior unbecoming of the profession and transgression of professional boundaries." Keefe challenged the constitutionality of the dismissal based on the First Amendment and procedural due process. The district judge granted summary judgment for the university officials and the majority opinion, authored by Judge James Loken for the Eighth Circuit panel, affirmed.
The concerning posts involved other students in the class and group projects, including his objection to a fellow student changing the group presentation - "Not enough whiskey to control that anger" and calling another student a "bitch" for presumably reporting his Facebook posts.
Doesnt anyone know or have heard of mechanical pencils. Im going to take this electric pencil sharpener in this class and give someone a hemopneumothorax with it before to long. I might need some anger management.
In a footnote, the court helpfully explains:
a hemopneumothorax is a “trauma” where the lung is punctured and air and blood flood the lung cavity; it is not a medical procedure.
College officials discussed the posts and Keefe originally deflected. He was dismissed from the program under specific provisions in the Nursing Program Student Handbook which also refers to the Nurses Association Code of Ethics, including professional boundaries and "behavior unbecoming." He appealed within the the college, citing failures of procedural due process, but his appeal was denied.
On the procedural due process issue, the majority concluded:
Viewing the summary judgment record as a whole, we conclude that Keefe was provided sufficient notice of the faculty’s dissatisfaction, an explanation of why his behavior fell short of the professionalism requirements of the Program, an opportunity to respond to the initial decision-maker, and an opportunity to appeal her adverse decision. Nothing in the record suggests that Keefe’s removal from the Nursing Program was not a careful and deliberate, genuinely academic decision.
Dissenting in part, Judge Jane Kelly argued that the dismissal decision was not "academic." Instead, it was a disciplinary dismissal for which he argued the due process standard should be higher. Judge Kelly highlighted one of the meetings with Keefe in which he was not given all the posts beforehand with "time to review the posts and formulate a response." However, Judge Kelly contended that the college administrators were entitled to qualified immunity on the due process claim.
The First Amendment issue is the central one. As Judge Loken's opinion for the majority notes, Keefe frames the issue categorically: "a college student may not be punished for off-campus speech," unless that speech is "unprotected by the First Amendment." Judge Loken characterized this as an "extreme position" not adopted by any court.
The Eighth Circuit majority rehearsed some of the cases involving academic requirements for professionalism and fitness, including cases such as Ward and Keeton involving professional students' failure to comply with anti-bias requirements. These principles, the court held, were equally pertinent to off-campus speech, especially given that the off-campus speech was "directed at classmates, involved their conduct in the Nursing Program, and included a physical threat related to their medical studies."
For the dissenting judge, it was important that Keefe's Facebook posts "were not made as part of fulfilling a program requirement and did not express an intention to break specific curricular rules." As to the "threat," the dissenting judge argued that the district judge had failed to make findings that Keefe's statement qualified as a true threat. For the dissenting judge, summary judgment was improper.
The split opinion might indicate that the case is a good candidate for en banc review and there were First Amendment groups as amici on behalf of the dismissed student. Nevertheless, the Eighth Circuit opinion does comport with the trend of allowing professional educational programs latitude to "professionalize" students and to dismiss those who do not conform.
Tuesday, October 25, 2016
In her order in Crookston v. Johnson, Federal District Judge Janet Neff has issued a preliminary injunction regarding Michigan's ban on the so-called ballot-selfie. Michigan's ban is expressed in two statutes, MICH. COMP. LAWS §§ 168.579, 168.738(2), which require rejection of the ballots for "exposure" and Secretary of State rules prohibiting photographs and use of cell phones by voters in the voting station.
Not surprisingly, Judge Neff relied on the First Circuit's opinion last month in Rideout v. Gardner invalidating New Hampshire's prohibition of the ballot-selfie. Judge Neff assumed that the Michigan scheme was content-based - - - prohibiting only speech about marked ballots - - - and that even if there were compelling government interests such as coercion, the means chosen was not narrowly tailored. However, even if the Michigan scheme was deemed content-neutral, Judge Neff found that it failed intermediate scrutiny. Again, part of the problem is that there is little if anything to show that the coercion and vote-buying is related to the ballot-selfie, and even if there were a sufficient interest, Michigan's ban is not sufficiently focused.
One relatively novel government interest raised by Michigan is protection of “the rights of other voters in the exercise of their right to vote by causing intimidation, disruption, and long lines at the polls.” This interest is not extensively discussed Judge Neff, but the specter of long lines caused by "photographers" could be important. However, in North Carolina where early voting has begun, the lines are reportedly related to the decrease in voting places rather than to voter-conduct.
With the election imminent, Michigan may spend its time seeking review from the Sixth Circuit - - - or it may simply concede that the trend seems to be toward ballot-selfies as protected by the First Amendment.
Monday, October 24, 2016
Profs. Joanna Shepherd and Michael S. Kang (both of Emory), in cooperation with the American Constitution Society, recently published a comprehensive empirical study of state-court decisions in election cases. The result: State court judges are politically biased in these cases and thus favor their own party's interests in election disputes.
The study provides yet one more reason not to elect judges, especially in partisan elections.
The study, Partisan Justice: How Campaign Money Politicizes Judicial Decisionmaking in Election Cases, forthcoming in the Stanford Law Review, is based on data from over 500 election cases from all 50 states from 2005 to 2014, including over 2,500 votes from more than 400 judges in state supreme courts.
Analyzing a new dataset of cases from 2005 to 2014, this study finds that judicial decisions are systematically biased by these types of campaign finance and re-election influences to help their party's candidates win office and favor their party's interests in election disputes.
The study finds that judicial partisanship is significantly responsive to political considerations that have grown more important in today's judicial politics. Judicial partisanship in election cases increases, and elected judges become more likely to favor their own party, as party campaign-finance contributions increase.
But "[t]his influence of campaign money largely disappears for lame-duck judges without re-election to worry about."
Judge Reggie B. Walton (D.D.C.) ruled today in Backpage.com v. Lynch that Backpage lacked standing to challenge a federal law criminalizing ads for sex trafficking.
The ruling ends this case, unless and until Backpage successfully appeals.
Backpage, an on-line classified ad service that hosts an "adult services" section, challenged the Stop Advertising Victims of Exploitation Act of 2015, which amended the existing sex-trafficking prohibition and created a criminal penalty for advertising sex trafficking, including trafficking of minors. Backpage brought a pre-enforcement challenge to the SAVE Act, arguing that it was unconstitutionally vague and overbroad, and that it violated Backpage's free speech. To establish standing, Backpage argued that it intended "to engage in a course of conduct arguably affected with a constitutional interest."
The court rejected that argument. The court said that Backpage only "intends to continue hosting third party advertisements, including advertisements that are adult-oriented and concern escort services," but not advertisements that (even arguably) violate the SAVE Act (which, according to the court, wouldn't be constitutionally protected, anyway). Because Backpage didn't "allege an intention to engage in a course of conduct arguably affected with a constitutional interest," and that is "proscribed by [the] statute [it] wishes to challenge," it lacked standing for its pre-enforcement challenge.
The court distinguished the several other cases that Backpage won, writing that those cases were different.
Friday, October 21, 2016
The Fourth Circuit ruled today that victims of torture at the hands of a private military contractor are not barred by the political question doctrine from pressing their case in federal court.
The ruling is a significant victory for the plaintiff-victims and for access to justice in general. It means that some portion of this case (and maybe all of it) can move forward on the merits.
The case arose when former prisoners at Abu Ghraib sued a private military contractor, CACI, for torture and mistreatment under the Alien Tort Statute. After some up-and-down on different issues, the district court ruled that the case raised a non-justiciable political question and dismissed it. In particular, the district court said (1) that CACI was under the control of the military, (2) that the case raised questions of "sensitive judgments made by the military," and (3) that the court lacked judicially manageable standards for resolving the dispute.
The Fourth Circuit reversed and remanded. As to the district court's first two grounds, the Fourth Circuit said that they don't apply when a plaintiff alleges illegal behavior under international law or criminal law. "Accordingly, when a military contractor acts contrary to settled international law or applicable criminal law, the separation of powers rationale underlying the political question doctrine does not shield the contractor's actions from judicial review."
More particularly, as to the first ground (under the control of the military), the Fourth Circuit said that "when a contractor has engaged in unlawful conduct, irrespective of the nature of control exercised by the military, the contractor cannot claim protection under the political question doctrine." The court said that the district court improperly analyzed the under-the-control-of-the-military question and remanded for further consideration of the question of illegal conduct. (The court was quite clear, however, that there was some illegal behavior. The question on remand is just how much.)
As to the second ground (sensitive judgments of the military), the Fourth Circuit again looked to the legality of the conduct: "to the extent that the plaintiffs' claims rest on allegations of unlawful conduct in violation of settled international law or criminal law then applicable to the CACI employees, those claims fall outside the protection of the political question doctrine." The court said that the district court improperly analyzed the sensitive-judgments-of-the-military question and remanded this, too. (Again, the court was quite clear that there was some illegal behavior.)
Any conduct of the CACI employees that occurred under the actual control of the military or involved sensitive military judgments, and was not unlawful when committed, constituted a protected exercise of discretion under the political question doctrine. Conversely, any acts of the CACI employees that were unlawful when committed, irrespective whether they occurred under actual control of the military, are subject to judicial review. Thus, the plaintiffs' claims are justiciable to the extent that the challenged conduct violated settled international law or the criminal law to which the CACI employees were subject at the time the conduct occurred.
As to the third ground (that the court lacked judicially discoverable and manageable standards for adjudicating the case), the Fourth Circuit said that "torture" and "war crimes" are well defined in the U.S.C. The court said that it may be a hard question, but it's not one that lacks standards. No remand on this question.
In all, under the Fourth Circuit's ruling, some portion of this case (and maybe all of it) can move forward. It all depends on how much CACI behavior was clearly illegal.
Tuesday, October 18, 2016
The Brennan Center released a new report, The New Era of Secret Law. Here's from the introduction:
Most of all, there is scant public understanding of the depth and scope of the problem. OLC opinions and FISA Court opinions are the only two manifestations of secret law that regularly make headlines. But OLC and the FISA Court are not the only government entities that make law. Moreover, the factor driving secrecy in OLC and FISA Court opinions--namely, a dramatic increase in the scope of national security activities and authorities--is a potent force throughout much of government. How common is security-driven secret law, and where else is it occurring?
Solving the problem of secret law raises its own set of questions. Are there cases in which disclosure of rules or legal interpretations, even with sensitive facts redacted, could harm national security? How great is that risk, and how does it compare with the harms of secret law? What procedural and substantive reforms could help ensure that the public's interests in both transparency of laws and the security of the nation are best served?
This report attempts to shed light on these questions, beginning with the foundational inquiry into what secret law is.
Friday, October 14, 2016
In its opinion in National Institute of Family and Life Advocates v. Harris, the Ninth Circuit rejected a First Amendment challenge to the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, the FACT Act. The FACT Act mandates that licensed pregnancy-related clinics, including crisis pregnancy centers that specifically discourage abortion and employ "deceptive advertising and counseling practices" related to the availability of abortion, disseminate a notice stating the availability of publicly-funded family-planning services that include contraception and abortion. Additionally, the FACT Act requires unlicensed clinics provide notice that they are not licensed.
Recall that mandatory disclosures by pregnancy crisis centers has previously been considered in Circuit opinions. In The Evergreen Association, Inc. d/b/a Expectant Mother Care Pregnancy Centers v. City of New York, a divided panel of the Second Circuit in 2014 ruled that only one of the three major provisions of NYC's Local Law 17 seeking to mandate disclosures by pregnancy crisis centers was constitutional. The en banc Fourth Circuit has also rules: First, in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore, it reversed the granting of a preliminary injunction finding fault with the application of the summary judgment standard by the district judge, and second in Centro Tepeyac v. Montgomery County, affirmed a finding that one of the mandated disclosures was constitutional and the other was not.
The Ninth Circuit opinion, authored by Judge Dorothy W. Nelson, rejected the argument that the mandated notice of other services available for pregnancy to be afforded by licensed facilities (the "Licensed Notice") should be subject to strict scrutiny because "all" content-based regulations should be subject to strict scrutiny, notwithstanding the United States Supreme Court's decision in Reed v. Town of Gilbert (2015). Judge Nelson's opinion noted that abortion regulation and the practice of medicine have been subject to "reasonable regulation" even when speech is involved. Instead, the Ninth Circuit unanimous panel took as precedent its ruling in Pickup v. Brown regarding prohibition of sexual conversion therapy and the concept of "professional speech":
We now turn to the correct level of scrutiny to apply to the Licensed Notice and conclude that under our precedent in Pickup, intermediate scrutiny applies. Licensed Clinics are not engaging in a public dialogue when treating their clients, and they are not “constitutionally equivalent to soapbox orators and pamphleteers.” Pickup. Thus, it would be inappropriate to apply strict scrutiny. And, unlike in Pickup, the Licensed Notice does not regulate therapy, treatment, medication, or any other type of conduct. Instead, the Licensed Notice regulates the clinics’ speech in the context of medical treatment, counseling, or advertising.
Because the speech here falls at the midpoint of the Pickup continuum, it is not afforded the “greatest” First Amendment protection, nor the least. It follows, therefore, that speech in the middle of the Pickup continuum should be subject to intermediate scrutiny.
In applying intermediate scrutiny, Judge Nelson found that
California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion. The California Legislature determined that a substantial number of California citizens may not be aware of, or have access to, medical services relevant to pregnancy. * * * *
We conclude that the Licensed Notice is narrowly drawn to achieve California’s substantial interests. The Notice informs the reader only of the existence of publicly-funded family-planning services. It does not contain any more speech than necessary, nor does it encourage, suggest, or imply that women should use those state-funded services. The Licensed Notice is closely drawn to achieve California’s interests in safeguarding public health and fully informing Californians of the existence of publicly-funded medical services. And given that many of the choices facing pregnant women are time-sensitive, such as a woman’s right to have an abortion before viability, we find convincing the AG’s argument that because the Licensed Notice is disseminated directly to patients whenever they enter a clinic, it is an effective means of informing women about publicly-funded pregnancy services.
Additionally, the panel found that the Unlicensed Notice - - - the mandated disclosure that a facility is not licensed - - - survives every level of scrutiny, even strict scrutiny.
The Ninth Circuit panel opinion acknowledged that it was in agreement with the Second and Fourth Circuits on the Unlicensed Notice provision, but that the Second and Fourth Circuits had applied a higher level of scrutiny to similar mandated disclosures and found that they were not constitutional.
There is thus an arguable split amongst the circuits on the subject of mandated disclosures by so-called pregnancy crisis centers, with the Ninth Circuit's conceptualization of "professional speech" again ripe for a certiorari petition to the United States Supreme Court.
Michael Gerhardt (UNC) and Richard Painter (U. Minn.) recently released The New Normal: Unprecedented Judicial Obstruction and a Proposal for Change, an ACS Issue Brief that criticizes Senate obstruction of judicial nominees and proposes a solution.
Gerhardt and Painter argue that the majority and minority leaders in the Senate should enter into a pact "to keep their respective members completely committed to the objectives of allowing every judicial nomination the opportunity to receive a hearing and making public the reasons for any opposition." "An agreement between the majority and minority is the same mechanism that was used in 2013 to fix the problem with anonymous holds over judicial nominations, and it is the only kind of mechanism that can guarantee that our federal courts, including the Supreme Court, will be fully staffed and capable of exercising their constitutional functions as the third branch of government."
Gerhardt and Painter's latest solution complements their earlier ones, from this 2011 ACS Issue Brief. There the authors prescribed this four-part plan:
1. Nominees should get a Judiciary Committee hearing within 90 days of nomination;
2. The Senate should bar the use of anonymous holds;
3. Every nominee should come to the Senate with a presumption that the nominee will get a prompt Judiciary Committee hearing, with the burden falling on any senators who oppose the nomination "to make their case publicly"; and
4. When a nominee is reported out of committee, there's a presumption "that a majority 'yes' votes are needed to confirm the nominee," with an up-or-down vote within 120 days of the nomination.
Tuesday, October 11, 2016
In a sweeping endorsement of the unitary executive theory, the D.C. Circuit ruled today in PHH Corp. v. CFPB that the Consumer Financial Protection Bureau is unconstitutional. But at the same time, the court limited the remedy to reading out the "for-cause" termination provision for the director and turning the Bureau into an ordinary executive agency.
The ruling allows the Bureau to continue to operate, but, unless the ruling is stayed pending the inevitable appeal, removes the for-cause protection enjoyed by the director. Because that for-cause protection is what makes the CFPB "independent," the ruling turns the Bureau into a regular executive agency, with a single head that enjoys no heightened protection from removal.
In an opinion by Judge Kavanaugh, the court ruled that the single head of the Bureau, terminable only for cause, put the Bureau outside the reach of the President, in violation of Article II. The court said that this feature of the Bureau--single head, terminable only for cause--meant that there was no political accountability for the Bureau, and no check on the director's actions. (The court contrasted this single-head structure with a board structure in an independent agency, where, according to the court, the members could check each other.) The court also said that the single-head structure cuts against the historical grain--that we've never done it that way. Here's a summary:
The CFPB's concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency. The overarching constitutional concern with independent agencies is that the agencies are unchecked by the President, the official who is accountable to the people and who is responsible under Article II for the exercise of executive power. Recognizing the broad and unaccountable power wielded by independent agencies, Congress and Presidents of both political parties have therefore long endeavored to keep independent agencies in check through other statutory means. In particular, to check independent agencies, Congress has traditionally required multi-member bodies at the helm of every independent agency. In lieu of Presidential control, the multi-member structure of independent agencies acts as a critical substitute check on the excesses of any individual independent agency head--a check that helps to prevent arbitrary decisionmaking and thereby to protect individual liberty.
Emphasizing a unitary executive, the court wrote at length, and disapprovingly, about how the director is entirely unaccountable. But this ignores the fact that the for-cause termination provision does not mean "never able to fire." It also ignores other ways that a President can influence the Bureau, outside of just firing the director at will. And it also ignores other checks on the office, like statutory authorities and restrictions, congressional oversight, and (ironically) judicial review of CFPB actions (although these are obviously not presidential checks on the Bureau).
After ruling the CFPB unconstitutional--but saving it by striking only the for-cause termination provision for the director--the court went on to hold that the CFPB misapplied the Real Estate Settlement Procedures Act.
Judge Randolph joined the majority opinion and added that the ALJ who presided over the hearing (after the CFPB filed its charges) was appointed in violation of the Appointments Clause.
Judge Lecraft Henderson concurred in the court's statutory ruling, but argued that the court did not need to touch the constitutional question (because it could grant PHH relief under the statute alone).
This ruling is hardly the end of this case: it'll undoubtedly go to the Supreme Court.