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.

800px-Rifle_in_poznanThe 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. 

[image via]

March 22, 2014 in Federalism, Opinion Analysis, Second Amendment, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, March 21, 2014

Michigan District Judge Declares State's Prohibition on Same-Sex Marriage Unconstitutional

Following the trend which we most recently discussed here and here, Senior United States District Judge for the Eastern District of Michigan, Bernard Friedman, declared the state's same-sex marriage ban unconstitutional in his  opinion today in DeBoer v. Snyder.

At issue was Michigan's state constitutional amendment, Mich. Const. Art. I, § 25, which the court referred to as the Michigan Marriage Amendment, MMA, passed by voter referendum in November 2004.  The judge held a trial limiting the issue to whether the MMA "passed rational basis review" under the Fourteenth Amendment and held that it did not because it violated the Equal Protection Clause.  The court stated it therefore did not reach the Due Process Clause question.

The state proffered the by now familiar government interests to satisfy the required "legitimate" government interest:

  1.  providing an optimal environment for child rearing;
  2. proceeding with caution before altering the traditional definition of marriage; and
  3. upholding tradition and morality.

489px-1836_MichiganIn evaluating each of these, the judge reached the by now familiar conclusions.  Judge Friedman discussed the evidence at trial, holding that there was "no logical connection between banning same- sex marriage and providing children with an 'optimal environment' or achieving 'optimal outcomes;'" that the "wait and see" approach did not satisfy the legitimate government interest standard; and finally that upholding tradition and morality likewise did not satisfy the legitimate government interest standard, citing several of the recent cases that have held likewise. 

Additionally, Judge Friedman rejected the state's "federalism" argument that sought to distinguish United States v. Windsor, relying heavily on Loving v. Virginia.  As the judge phrased it:

Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA cannot stand.

The judge also rejected the argument that the MMA's status as a constitutional amendment prompted by voter referendum was relevant, quoting the famous language from the 1943 flag-salute First Amendment case of West Virginia Bd. of Ed. v. Barnette: the "very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy" and "to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."

Judge Friedman's decision is closely and carefully reasoned, although it closes with a rhetorical paragraph that labels the opinion "a step in the right direction."

The Judge enjoined the enforcement of the same-sex marriage ban and unlike some other judges, he did not order a stay.

[image: Map of Michigan circa 1836 via]

 

March 21, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Canada Supreme Court: No to Nadon

In its opinion today in Reference re Supreme Court Act, ss. 5 and 6, the Supreme Court of Canada, with only one Justice dissenting, concluded that Marc Nadon would not be joining them on the nation's highest bench.

As we previously discussed, the nomination of Marc Nadon (objected to by some for its failure to advance gender parity), posed a constitutional question regarding whether a judge on the Federal Court of Appeal was eligible for the Supreme Court.   Cribbing from another of our discussions that quoted Canadian scholars Michael Plaxton and Carissima Mathen, here's the problem in a nutshell:

Section 5 of the Supreme Court Act states: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Section 6 provides: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Mr Justice Nadon was, at the time of his nomination, neither a judge of a Quebec superior court nor a current member of the practicing bar. It is therefore not clear that he is “among the advocates” of Quebec within the meaning of section 6.

800px-Supreme_Court_of_Canada,_Ottawa
Supreme Court of Canada

 

Today the Court decided that

A judge of the Federal Court or Federal Court of Appeal is ineligible for appointment to the Supreme Court of Canada under s. 6 of the Act.  Section 5 of the Act sets out the general eligibility requirements for appointment to the Supreme Court by creating four groups of people who are eligible for appointment:  (1) current judges of a superior court of a province, including courts of appeal; (2) former judges of such a court; (3) current barristers or advocates of at least 10 years standing at the bar of a province; and (4) former barristers or advocates of at least 10 years standing.  However, s. 6 narrows the pool of eligible candidates from the four groups of people who are eligible under s. 5 to two groups who are eligible under s. 6.  In addition to meeting the general requirements of s. 5, persons appointed to the three Quebec seats under s. 6 must be current members of the Barreau du Québec, the Quebec Court of Appeal or the Superior Court of Quebec.
The plain meaning of s. 6 has remained consistent since the original version of that provision was enacted in 1875, and it has always excluded former advocates.  By specifying that three judges shall be appointed “from among” the judges and advocates (i.e. members) of the identified institutions, s. 6 impliedly excludes former members of those institutions and imposes a requirement of current membership.  Reading ss. 5 and 6 together, the requirement of at least 10 years standing at the bar applies to appointments from Quebec.
This textual analysis is consistent with the underlying purpose of s. 6 and reflects the historical compromise that led to the creation of the Supreme Court as a general court of appeal for Canada and as a federal and bijural institution.  Section 6 seeks (i) to ensure civil law expertise and the representation of Quebec’s legal traditions and social values on the Court, and (ii) to enhance the confidence of Quebec in the Court.  This interpretation is also consistent with the broader scheme of the Act for the appointment of ad hoc judges, which excludes judges of the federal courts as ad hoc judges for Quebec cases.

The Court's opinion seems well-reasoned, careful, and right.  And while its effect is certainly cataclysmic to Nadon (and perhaps to his conservative supporters), it may be less so for Canadian politics ultimately, and even less so for Canadian constitutional law doctrinally.  Nevertheless,  Nadon's appointment to the Supreme Court would have changed Canadian Constitutional law.  And certainly, the nomination of a Justice to the nation's highest court being deemed ineligible to serve on that Court by the Justices of the Court themselves is certainly dramatic.

 

March 21, 2014 in Comparative Constitutionalism, Courts and Judging, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, March 20, 2014

Eleventh Circuit Finds Private Property Loitering Buffer Zone Violates First Amendment

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. 

800px-Jack_Kerouac_House_-_Winter_Park_Florida
Jack Kerouac's House, near [in] Winter Park, Florida via

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.

March 20, 2014 in First Amendment, Opinion Analysis, Speech | Permalink | Comments (2) | TrackBack (0)

Minnesota Supreme Court Reverses Conviction for Advising or Encouraging Suicide

The Minnesota Supreme Court yesterday reversed a conviction for advising or encouraging another in committing suicide, ruling that the conviction violated the First Amendment.  At the same time, the court remanded the case to determine whether the defendant "assisted" suicides in violation of Minnesota law.

The case, Minnesota v. Melchert-Dinkel, involved the defendant's prosecution and conviction for violation of Minnesota Stat. Sec. 609.215, which makes it illegal to "intentionally advise[], encourage[], or assist[] another in taking the other's own life."  Melchert-Dinkel, posing as a depressed and suicidal young female nurse, responded to posts on web-sites related to suicide and encouraged two individuals, one in England and one in Canada, to take their own lives.  Melchert-Dinkel gained the trust of the victims and then urged them each to hang themselves, falsely claiming that he (as she) would also commit suicide.

Melchert-Dinkel was charged with violating Minnesota's ban on advising or encouraging suicide.  The trial court convicted him, specifically finding that he "intentionally advised and encouraged" both victims to take their own lives, and concluded that Melchert-Dinkel's speech was not protected by the First Amendment.

The Minnesota Supreme Court disagreed.  The state high court said that the ban swept too broadly to meet strict scrutiny.  In particular, "advise" and "encourage" could include "speech that is more tangential to the act of suicide and the State's compelling interest in preserving life," even "general discussions of suicide with specific individuals or groups."

The court rejected the state's argument that Melchert-Dinkel's speech was unprotected because it was "integral to criminal conduct."  The court noted that suicide is no longer illegal in Minnesota, Canada, or the UK.  With no underlying criminal conduct, the speech couldn't be integral to it.

The court also rejected the state's argument that Melchert-Dinkel's speech was unprotected incitement.  That's because there was no underlying lawless action, imminent or not.

Finally, the court rejected the state's argument that Melchert-Dinkel's speech was unprotected "deceit, fraud, and lies."  The court (citing Alvarez) said that there was no such exception to the First Amendment.

At the same time, the court ruled that the portion of the statute that banned "assisting" another in taking his or her own life survived.  The court remanded the case to the trial court to determine whether Melchert-Dinkel's actions constituted "assisting" in the suicides.

March 20, 2014 in Cases and Case Materials, First Amendment, Fundamental Rights, News, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 19, 2014

District Judge Orders Election Commission to Include Proof of Citizenship on Federal Form

Judge Eric Melgren (D. Kansas) today ordered the federal Election Assistance Commission to add language to state-specific instructions on the federal voter registration form for Arizona and Kansas that would require voter registration applicants to show proof of citizenship.

Arizona and Kansas previously announced that they would adopt a two-tier registration system, one for state elections and one for federal elections, in response to the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc.  Recall that in that case the Court ruled that the National Voter Registration Act, which requires states to "accept and use" a uniform federal form to register voters for federal elections, preempted an Arizona law that required state officials to reject any application for registration that wasn't accompanied by proof of citizenship.  The NVRA federal form simply required applicants to aver, under penalty of perjury, that they satisfy state requirements for voter registration.  The Court said that Arizona impermissibly required more.

Arizona and Kansas announced, in response to Inter Tribal Council, that they'd simply adopt a two-tiered system.  That is, they'd continue to "accept and use" the federal form (without additional proof of citizenship) for registration for federal elections, and they'd use their own state form (with an additional requirement for documentary proof of citizenship) for state elections. 

That seemed inefficient (among other things), to say the least.

Now, Judge Melgren's ruling, if upheld, might mean that Arizona and Kansas would ditch their efforts to create the two-tiered system, because they'd get what they want on the federal form--proof of each applicant's citizenship. 

The ruling, if upheld, also invites other states to follow suit and get their own state-specific instructions on the NVRA federal form that would require additional documentary proof of citizenship.  This could create hassles for registration through the federal form, even though a primary goal of that form was to make registration simpler.  If many states did this, they could undermine the ease of registration that the NVRA was designed to promote.

The case, Kobach v. USEAC, grew out of Arizona's and Kansas's requests to the EAC to include state-specific instructions on the federal voter registration form that would require voter registration applicants in those states to show proof of citizenship.  The states' requests came on the heels of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc. 

The Court said that the NVRA preempted Arizona's proof-of-citizenship requirement, but it also said that a state could ask the EAC to add a proof-of-citizenship requirement on the state-specific instructions that accompany the NVRA federal form.

That's exactly what Kansas and Arizona did.  The EAC declined, and the states sued, arguing that the EAC's decision violated the Administrative Procedures Act, among other things.

Judge Melgren agreed.  He ruled that the adding the state-specific instructions on the NVRA federal form (to provide proof of citizenship) could be harmonized with the NVRA (and that the NVRA didn't preempt state law on this point):

But the NVRA does not include a similar clear and manifest prohibition against a state requiring documentary proof of citizenship.  In fact, the NVRA does not address documentary proof of citizenship at all, neither allowing it nor prohibiting it.  Therefore, the Court must find that the NVRA is silent on the subject.  Because Congress has not addressed the same subject as the state law, there is no basis to determine that the NVRA has preempted Arizona or Kansas law on the subject of documentary proof of citizenship.

Moreover, Judge Melgren said that not allowing Kansas's and Arizona's requested instructions would raise serious constitutional questions--that is, whether the NVRA intrudes too much on state authority to set the qualifications of voters for state and federal elections under the Elections Clause.  Judge Melgren wrote that requiring the EAC to include the requested state-specific instructions would avoid this question.

March 19, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 18, 2014

Alabama Justices Chill State Constitution Revisions

Alabama Supreme Court Chief Justice Roy Moore and Justice Tom Parker issued advisory opinions to the state legislature last week that said that the legislature's article-by-article approach to amending the state constitution is unconstitutional.

The opinions came after the legislature began an organized effort in 2010 to rewrite the state's 1901 constitution.  That constitution is widely considered an outdated relic crafted to perpetuate white supremacy in the state.  (The document still contains provisions for a poll tax and segregated schools.  It also sharply limits home rule for local governments--so that local governments dominated by African Americans couldn't gain political power.  But that's part of why the document is now so long, and so amended: In order to get anything done at the local level, the state has to change the constitution.)  It's also quite long: with over 800 amendments, it's the longest constitution in the United States, and one of the longest in the world.

The constitution allows for amendment by way of the state legislature and Alabama voters.  It also allows for a constitutional convention if the legislature and voters agree to hold a constitutional convention.  Several efforts to overhaul the entire document have failed, however.

So the Constitutional Revision Commission, a panel formed in 2011, began an article-by-article rewrite.

Chief Justice Moore's and Justice Parker's advisory opinions said that the article-by-article approach was an unconstitutional side-step around the requirement for a constitutional convention in order to change the whole document.  Those opinions appear to have chilled the rewrite effort--at least temporarily. 

Here's more from The Gadsden Times, The Ledger-Enquirer, The Anniston Star, and AL.com (and here).

March 18, 2014 in Comparative Constitutionalism, News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2014

Daily Read: Hurley v. Irish-American Gay, Lesbian, and Bisexual Group

Writing for a unanimous Court in 1995, Justice Souter in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group held that the First Amendment rights of the South Boston Allied War Veterans Council (and its individual member John "Wacko" Hurley) allowed the exclusion of the Irish-American Gay, Lesbian, and Bisexual Group (GLIB) from the St. Patrick's Day Parade, despite the Massachusetts' public accommodation law prohibiting discrimination on the basis of sexual orientation.

Rainbow-shamrockJustice Souter famously opined that although the parade might seem not to have a particularized message that would be inconsistent with GLIB, its message was as particularized as "the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll."

Some St. Patrick's Day parades continue to exclude identified sexual minority groups, including the Boston one - - - in which Boston's mayor will reportedly not participate this year, and the New York City one - - - in which NYC's mayor will likewise reportedly not participate this year.  Other St. Patrick's Day parades do not ban LGBT groups.

March 17, 2014 in Association, First Amendment, Sexual Orientation, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Sunday, March 16, 2014

Epps on the Guaranty Clause and Kerr

Garrett Epps (U. Balt.) asked last week in The Atlantic: Can the U.S. Government Declare a State Constitution "Un-Republican"?

Epps's question comes on the heels of the Tenth Circuit ruling last week in Kerr v. Hickenlooper.  The Tenth Circuit ruled that a group of elected state office-holders have standing to challenge the state constitutional Taxpayer's Bill of Rights, or TABOR, under the Guaranty Clause, and that the suit isn't a political question.  Unless and until it's appealed, the ruling means that the plaintiffs' case can go forward.

TABOR is a Colorado state constitutional provision, adopted by popular initiative in 1992, that says that no governmental unit can raise taxes or approve a new tax without a vote of the people.  State office-holders argued in Kerr that this provision violates the U.S. constitutional provision, the Guaranty Clause, that says that the federal government "shall guaranty to every State in this Union a Republican Form of Government."  The governor, defendant in the case, argued that the plaintiffs lacked standing and that the case posed a non-justiciable political question.  A three-judge panel of the Tenth Circuit disagreed.

Epps's interest goes beyond the case, however.  He argues in his piece that the Guaranty Clause poses a "puzzle" for states' righters:

That clause, like a dormant volcano, rumbled last week in a courtroom in Denver [in the Kerr case].  The sound should worry those who think state prerogatives trump those of the nation.

. . .

The sobering implication [of the Guaranty Clause] is that Congress could decide at any point that a state's constitution was not "republican," expel its members from Congress, and require its people to draft a new constitution.

It's kind of hard to square that power with the claim that the state's are "co-sovereigns" with the federal government.  It's an odd kind of "co-sovereign" that exists by grace of its "peer."

March 16, 2014 in Federalism, News | Permalink | Comments (0) | TrackBack (0)

60 Minutes on Drones

60 Minutes ran a segment tonight on the use of drones for domestic surveillance, among other things, and the related privacy issues.  CBSNews.com has the principal segment, plus an extra on "the drone surveillance debate" and an "overtime" on "drones in flight airborne over Austin."

March 16, 2014 in News | Permalink | Comments (0) | TrackBack (0)

Daily Read: Lea Brilmayer Argues the Crimean Referendum is Invalid - - - and Unconstitutional

In an op-ed for The Guardian, Professor Lea Brilmayer contends that not only is the Crimean referendum regarding joining Russia problematic given the presence of Russian troops, but then

there's a bigger problem: the referendum seems inconsistent with the Ukrainian constitution, which says all Ukrainians would have to vote on Crimea’s secession – not just those living in Crimea.

Indeed, Title X of the Constitution of Ukraine governs "The Autonomous Republic of Crimea" and does not seem to provide for secession.  Yet questions of secession are vexing, even in the United States, as we've discussed.  

CatonWoodvilleLightBrigade
"Charge of the Light Brigade" via

March 16, 2014 in Comparative Constitutionalism, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, March 15, 2014

Arkansas Federal Judge Permanently Enjoins Arkansas 12 Week Gestation Abortion Ban

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.

 

March 15, 2014 in Abortion, Due Process (Substantive), Gender, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

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.

1827_Finley_Map_of_Tennessee_-_Geographicus_-_Tennessee-finley-1827

 

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]

March 15, 2014 in Courts and Judging, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, March 14, 2014

Daily Read: Media Coverage in the Pistorius Trial

The high profile trial of Oscar Pistorius may be South Africa's "OJ Simpson moment." Although there are certainly differences - - - Pistorius admits he fired the gunshots that killed his partner, Reeva Steenkamp; his defense is that he thought she was an intruder - - -  the televised trials and intense media interest are similar.

Yet the South African judge has had to contend with the question of how much graphic material to allow.

Over at Constitutionally Speaking, Pierre De Vos confronts the issues.  The original decision was to "grant permission to media houses to broadcast the Oscar Pistorius murder trial live on radio and television."  But then during the trial, there was a "ruling by Judge Masipa to ban live tweeting of the evidence of the pathologist, apparently to protect the sensibilities of the family of the deceased due to the potential graphic nature of the evidence" was "at best ill-advised."  Indeed, the judge later reversed  his own "decision to prohibit live tweeting of the pathologist’s evidence," but continued to ban the audio or audio-visual broadcasting of the pathologist's "testimony due to the possible graphic nature of the evidence."

399px-Oscar_Pistorius_2_Daegu_2011

Amy Davidson, writing on the New Yorker Blog,  provides journalist context to the testimony in question; testimony that made Pistorius himself vomit. 

For comparative constitutionalists interested in conflicts of "free press" and "fair trial," the Pistorius trial is yet another case study.

[image of Oscar Pistorius via]

March 14, 2014 in Comparative Constitutionalism, Criminal Procedure, News, Speech, Television | Permalink | Comments (0) | TrackBack (0)

Constitutional Challenge to Uganda's Anti-Homosexuality Law

Uganda's controversial law, The Anti-Homosexuality Act, 2014, long-linked to United States Evangelicals, has been challenged as unconstitutional by a petition filed in the Constitutional Court of Uganda.

The vast majority of the claims of unconstitutionality focus on the rights provisions in the Uganda Constitution, including explicit rights of equality, privacy, dignity, civic participation, freedom from cruel, inhuman and degrading punishment, expression, for persons with disabilities, and fair hearing.  The claims also rely on the principles in the "National Objectives and Directive Principles of State Policy" which are part of the Constitution.

Coat_of_Arms_of_Uganda

Here are a few examples of the ultimate legal arguments in the petition:

THAT sections 1, 2 and 4 of the Anti-Homosexuality Act 2014, in defining and criminalising consensual same sex/gender sexual activity among adults in private, are in contravention of the right to equality before the law without any discrimination and the right to privacy guaranteed under Articles 2(1) & (2), 21(1), (2) & (4) and 27 of the Constitution of the Republic of Uganda respectively;

THAT section 2(1)(c) of the Anti-Homosexuality Act 2014, in criminalising touching by persons of the same sex, creates an offence that is overly broad and is in contravention of the principle of legality under article Articles 2(1) & (2), 28(1), (3b), (12), 42 and 44(c) of the Constitution of the Republic of Uganda;

THAT Sections 7 and 13(1) & (2) of Anti-Homosexuality Act 2014, in criminalising aiding, abetting, counselling, procuring and promotion of homosexuality, create offences that are overly broad, penalise legitimate debate, professional counsel, HIV related service provision and access to health services, in contravention of the principle of legality, the freedoms of expression, thought, assembly and association, and the right to civic participation guaranteed under principle XIV of the National Objectives and Directive Principles of State Policy, Articles 2(1) & (2), 8A, 28(1), (3b), & (12), 29(1), 36, 38(2), 42 and 44(c) of the Constitution of the Republic of Uganda 1995.

There are certainly many who hope the Uganda Constitutional Court will look to the prestigious Constitutional Court of South Africa for guidance in deciding these issues, although unlike the South African Constitution, the Uganda Constitution does not have an explicit provision protection sexual orientation.

[H/T Tony Tate]
[Image of Uganda Coat of Arms via]

 

March 14, 2014 in Comparative Constitutionalism, International, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Thursday, March 13, 2014

Florida Supreme Court Finds Statutory Wrongful Death Damages Cap Violates State Constitution's Equal Protection Clause

Responding to a certified question from the Eleventh Circuit, the Florida Supreme Court's opinion in Estate of McCall v. United States held that the statutory cap on wrongful death noneconomic damages, Fla. Stat. § 766.118, violates the right to equal protection under Article I, Section 2 of the Florida Constitution.

The statute put a cap in medical malpractice cases, providing that

  • Noneconomic damages shall not exceed $500,000 per claimant;
  • No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants; and
  • The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate.

The Florida Supreme Court's plurality opinion applied the rational basis test to this statutory scheme (given that there were no suspect or quasi-suspect classes or fundamental rights involved).  But it nevertheless found that the

statutory cap on wrongful death noneconomic damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants. In such circumstances, medical malpractice claimants do not receive the same.

The plurality found that the damages cap "bears no rational relationship to a legitimate state objective." 

In a subsection tellingly entitled "The Alleged Medical Malpractice Crisis," the plurality rejected the legitimacy of the government interest.  It essentially rejected the Report of Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force Report), issued in January 2003, on which the Legislation relied.   The opinion dismantles specifics of the Report, ultimately concluding that "the finding by the Legislature and the Task Force that Florida was in the midst of a bona fide medical malpractice crisis, threatening the access of Floridians to health care, is dubious and questionable at the very best."

As to the rational relationship of the means chosen to address the government interest, the plurality reasoned that

Even if these conclusions by the Legislature are assumed to be true, and Florida was facing a dangerous risk of physician shortage due to malpractice premiums, we conclude that section 766.118 still violates Florida’s Equal Protection Clause because the available evidence fails to establish a rational relationship between a cap on noneconomic damages and alleviation of the purported crisis.

Finally, the plurality reasoned that

even if a “crisis” existed when section 766.118 was enacted, a crisis is not a permanent condition. Conditions can change, which remove or negate the justification for a law, transforming what may have once been reasonable into arbitrary and irrational legislation.

464px-Henri_Geoffroy_-_Visit_day_at_the_Hospital_-_Google_Art_Project
The disagreement in the concurring opinion found fault with the court's power to "engage in the type of expansive review of the Legislature’s factual and policy findings" although not questioning the "plurality’s excellent scholarship regarding the flaws in the Legislature’s conclusions as to the existence of a medical malpractice crisis."  However, the concurring Justices agreed that if there were a crisi, there was not one any longer, and emphasized that "the arbitrary reduction of survivors’ noneconomic damages in wrongful death cases based on the number of survivors lacks a rational relationship to the goal of reducing medical malpractice premiums."

The dissenting opinion stressed the deference due to the legislature in the rational basis test.

As the plurality noted, other courts have similarly found damages caps in medical malpractice cases unconstitutional.  Such cases demonstrate that equality claims under state constitutions can prove a potent limit on legislation.

[image: Henri Geoffroy, "Visit day at the Hospital" via]

March 13, 2014 in Equal Protection, Medical Decisions, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 12, 2014

Florida Supreme Court Says Bar Can Deny Law License to Undocumented Immigrants

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.

 

March 12, 2014 in Cases and Case Materials, Federalism, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 11, 2014

Feinstein Rails Against CIA Search of Committee Computers

Senator Dianne Feinstein, the head of the Senate Intelligence Committee, railed against CIA searches of the Committee computer network in a speech on the Senate floor today. Senator Feinstein said the searches violated separation of powers, the Senate's constitutional investigation and oversight powers, and the Fourth Amendment, among other things. 

The CIA allegedly searched Committee computers to determine how Committee staff obtained certain documents related to CIA detention and interrogation policies.  (CIA Director John Brennan denied this.)  The CIA Inspector General referred the matter to the Justice Department.

In a related matter, the CIA General Counsel asked the Justice Department to investigate whether Committee staff improperly obtained CIA material.  Senator Feinstein said that this move was designed to intimidate the Committee. 

As a result, DOJ is apparently investigating two issues: whether the CIA improperly spied on the Committee, and whether Committee staff improperly obtained certain CIA material.  The NYT has a good back-grounder here

March 11, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, March 10, 2014

Daily Video: Edward Snowden Speaks

"I took an oath to support the Constitution, and I felt the Constitution was violated on a massive scale," Edward Snowden said in his video conference delivered from his asylum in Russia to the South By Southwest (sxsw) Interactive Festival. 

Here's the video:

 

 Some good analysis at LATimes.  [to be updated]

March 10, 2014 in Current Affairs, First Amendment, Fourth Amendment, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, March 7, 2014

FISC Rejects Government Motion to Keep Telephony Records More Than Five Years

Robson

Professor Ruthann Robson, City University of New York (CUNY) School of Law

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.

Telephone_Line_Time_is_Precious_Art.IWMPST4037

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.

[image via]

March 7, 2014 in Cases and Case Materials, Executive Authority, Fourth Amendment, Opinion Analysis, Web/Tech | Permalink | Comments (0) | TrackBack (0)