Wednesday, May 13, 2015
Illinois Governor Bruce Rauner is looking to amend the state constitution to give the state more flexibility in cutting state worker pensions, according to the Herald & Review. Rauner's idea came in reaction to the state supreme court ruling last week holding that state efforts to cut state pensions violated the state constitutional Pension Protection Clause.
Still, an amendment is unlikely to occur, at least anytime soon. The Illinois Constitution requires a 3/5 vote of state lawmakers in both houses. But the Democratic-controlled state legislature is unlikely to approve any pension amendment at all, much less by this kind of super-majority. Even if the state legislature approved a measure, it'd need to be approved by 3/5 of the voters voting on the measure, or a majority voting in the election.
This is just the latest effort of Governor Rauner to re-make constitutions. Recall that he earlier issued an executive order cutting public-sector union fair-share fees, and filed a preemptive suit against the unions seeking to get mandatory public sector fair share fees declared unconstitutional. This bold move anticipates that the Supreme Court is ready to overturn Abood--a First Amendment mainstay that says that states can require fair share in the interests of preventing free riders and promoting labor peace. Given the Court's recent rulings, Rauner is probably right that Abood is on the chopping block. Still, his very aggressive suit is designed only to hasten Abood's demise.
Monday, May 11, 2015
In its opinion in United States v. Pierce, the Second Circuit considered the arguments of co-defendant/appellant Melvin Colon regarding the admissibility of a rap video and images of tattoos in the criminal trial. The unanimous opinion, authored by Judge Denny Chin, affirmed the convictions of Colon and his co-defendants for conspiracy, racketeering, murder, narcotics trafficking, and firearms offenses largely related to their activities as members of a "violent street gang, dubbed the Courtlandt Avenue Crew (ʺCACʺ) by the government," as well as a gang known as Godʹs Favorite Children, or ʺGFC.ʺ
Colon contended that his First Amendment rights were violated when the district court permitted the government to present as evidence a rap video and images of his tattoos, some of which he had posted to his Facebook page. The "rap video" portrayed Colon as rapping: ʺYG to OG / Somebody make somebody nose bleed/ Iʹm OG shoot the Ruger / Iʹm a shooter.ʺ A witness, also seen in the video, testified for the prosecution that the Young Gunnaz crew, or YG, was feuding with the OG (formerly the GFC). The images of the tattoos introduced at trial were explained by the Second Circuit as including:
a close‐up of Colonʹs hand, showing his ʺY.G.K.ʺ tattoo, which stands for ʺYoung Gunnaz Killer.ʺ In some of the photographs Colon is pointing a gun at his Y.G.K. tattoo, indicating, according to the government, his desire to harm members of the Young Gunnaz. Other tattoos depicted in the photographs introduced at trial included one on his right arm that read ʺCourtlandtʺ; tattoos on his left arm that referenced [co-defendant] Meregildoʹs nicknames (ʺYoungʺ and ʺKillaʺ); and one stating ʺM.I.P. [Mac In Peace] T‐Money,ʺ referring to Harrison, the former leader of CAC.
The Second Circuit panel rejected the First Amendment challenges to the introduction of the evidence. First, the court noted that the conviction did not rest on the expression: "here, the speech is not 'itself the proscribed conduct,'" interestingly citing United States v. Caronia, the 2012 Second Circuit case reversing a conviction for promoting the off-label use of prescription drugs. Additionally, the Second Circuit considered Colon's argument that the rap lyrics were merely "fictional artistic expressions," and discussed the New Jersey Supreme Court decision last year in State v. Skinner, noting that the court there observed that ʺ[o]ne would not presume that Bob Marley, who wrote the well‐known song ʹI Shot the Sheriff,ʹ actually shot a sheriff.ʺ However, the Second Circuit distinguished Skinner in which the court reversed the conviction (although not explicitly on the basis of the First Amendment), by concluding that here the rap lyrics and tattoos were properly admitted, because they were relevant and their probative value was not substantially outweighed by the danger of unfair prejudice. Specifically - - - if cursorily - - - the Second Circuit reasoned:
The government proffered the rap video to show Colonʹs animosity toward the Young Gunnaz, as well as his association with CAC. The government similarly offered the tattoo evidence to help establish his motive for violence against the Young Gunnaz, and to show his loyalty to Harrison and Meregildo ‐‐ indeed other members of CAC had similar tattoos. Hence, the rap video and tattoos were relevant, their probative value was not outweighed by the danger of unfair prejudice, and Colonʹs First Amendment rights were not implicated when the district court admitted the evidence from his social media account.
As in other cases raising First Amendment challenges to the introduction of expressive evidence, the First Amendment issues are subsumed into the evidentiary one.
Colon also challenged a portion of the Stored Communications Act (SCA), 18 U.S.C. § 2703(c)(1), regarding the subpoenaing of Facebook for page content. Appellant Colon, however, is not challenging the Government's acquisition of his own Facebook content, however, but argued that SCA's prohibition of his subpoena of Facebook content from a witness, denied him his Fifth Amendment due process right to present evidence and his Sixth Amendment right to confront adverse witnesses. Colon managed to obtain some of the Facebook postings through the work of a private investigator and his attorney used it in cross-examination and introduced portions of it. The Second Circuit declined to reach the constitutional question, given that "Colon possessed the very contents he claims the SCA prevented him from obtaining, and his suggestion that there could have been additional relevant exculpatory material in the Parsons Account is purely speculative."
The court's opinion resolves the issues before it (including a sentencing issue which earned a remand), but does little to elucidate the important First Amendment concerns that remain regarding the admissibility of rap lyrics and tattoos in criminal trials.
Friday, May 8, 2015
Judge Hanen issued a "Supplemental Order" in the state case, led by Texas, against the federal government challenging the President's Deferred Action program, DAPA, doubling down on his earlier conclusion that the government "abdicat[ed] its duty to enforce this country's immigration laws."
The order cites testimony by ICE Director Sarah Saldana before the House Judiciary Committee on April 14, 2015, "reiterat[ing]," according to Judge Hanan, "that any officer or agent who did not follow the dictates of the 2014 DHS Directive would face the entire gamut of possible employee sanctions, including termination." This, according to Judge Hanan, is conclusive evidence that the program represents "the Government's abdication of its duty to enforce the INA," and not lawful discretionary enforcement.
Judge Hanan likened DAPA to the government's non-enforcement of the Civil Rights Act, and active funding of segregating schools, in Adams v. Richardson, the 1973 D.C. Circuit case. Judge Hanan wrote,
Just like HEW giving federal funds to those violating the civil rights laws in Adams, the DHS in this case is giving a variety of rewards to individuals violating the country's immigration laws. This general policy of affirmatively awarding benefits is not merely an exercise of prosecutorial discretion. The Government has announced, and has now confirmed under oath, that it is pursuing a policy of mandatory non-compliance (with the INA), and that any agent who seeks to enforce the duly-enacted immigration laws will face sanctions--which could include the loss of his or her job. If the solicitation of voluntary compliance (questioned by taxpayers who are rarely accorded standing) equates to abdication, certainly mandatory non-compliance by the Government (questioned by twenty-six states) does as well.
The Illinois Supreme Court ruled unanimously that the state's efforts to cut public pensions violated the state constitutional Pension Protection Clause.
The case means that the state can't balance its budget on the backs of state workers who are members of a public retirement system. It also means that the state supreme court takes the state constitutional Pension Clause seriously.
The case arose after the state legislature, and former Governor Quinn signed, Senate Bill 1 in late 2013. Senate Bill 1, which became Public Act 98-599, cut state workers' public pension benefits in several ways. State workers sued, arguing, among other things that the cuts violated the state constitutional Pension Protection Clause.
The Pension Protection Clause says that "[m]embership in any pension or retirement system of the State *** shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired." The Clause was added in the 1970 constitution in order to protect state workers from pension cuts in a system that had been (and since has been) chronically underfunded.
The Illinois high court's ruling says that the Clause means what it says. In fact, the court said exactly that: "We held in [Kanerva v. Weems] that the clause means precisely what it says." And this means that "once an individual begins work and becomes a member of a public retirement system, any subsequent changes to the Pension Code that would diminish the benefits conferred by membership in the retirement system cannot be applied to that individual." The court called the question "easily resolved."
The court also rejected the state's argument that its fiscal situation is so dire that it has to dip into public pension funds by using its "reserved sovereign powers." The court said that things might be bad, but they've been bad before, and will be bad again. It's no reason to violate the Pension Protection Clause. The court also said that other provisions of the 1970 constitution contained limitations or suspension provisions; not so the Public Pension Clause.
First, Florida Governor Rick Scott sued the federal government for halting federal LIP funding for the state. Now, according to The Hill, he's turning to state hospitals to figure out how to replace federal LIP funds with a make-shift state program.
Here's one governor who really doesn't want to expand Medicaid.
As we previously explained, HHS told Florida that it would lose federal Low Income Pool, or LIP, money, designed to pay back hospitals for uncompensated care for low-income individuals, because HHS deemed Medicaid a better way to pay for low-income health care. But that would require Florida to expand Medicaid under Obamacare. HHS's move prompted Governor Scott to sue HHS, arguing that the threat to halt LIP funding amounted to coercion to expand Medicaid in violation of NFIB v. Sebelius. (It doesn't. NFIB said that the ACA's structure, which allowed HHS to halt all a state's Medicaid funding if a state declined to expand Medicaid to reach those at or below 133% of the federal poverty line, was unduly coercive. Losing LIP funding is a far cry from that structure. And that's even assuming that HHS's move to halt Florida's LIP funding is a kind of penalty for Florida's decision not to expand Medicaid (and it's not at all clear that it is).)
Perhaps recognizing that the suit was a nonstarter, now Governor Scott is looking inward, to Florida, to fund its own LIP-like program. He's asked state hospitals to submit proposals for sharing profits to cover the costs of a state-run program.
Thursday, May 7, 2015
District Judge Rejects Challenges to Requirement that Government Contractors Post Employee Rights Notice
In an opinion today in National Association of Manufacturers (NAM) v. Perez, Judge Amit Mehta of the District of Columbia District Court rejected various challenges to the Department of Labor's so-called "Posting Rule," a regulation requiring, as a condition of nearly all federal contracts, that contractors post workplace notices informing their employees of their rights under the National Labor Relations Act. The "Posting Rule" is derived from President Obama's Executive Order 13496, promulgated in January 2009 pursuant to the Procurement Act.
The central constitutional challenge is that the "Posting Rule" is compelled speech and violates the First Amendment as an unconstitutional condition. The court's first task was to determine the relevance of a NAM v. NLRB, 717 F.3d 947 (D.C. Cir. 2013), overruled in part by Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014). The judge concluded that while the posting at issue in NAM was "nearly identical," that case was not a First Amendment one - - - although it drew on some First Amendment principles - - - but an interpretation of §8(c) of the NLRA which prohibits the expression of views, argument, or opinions as constituting an unfair labor practice.
Instead, the challenge here was analogous to the Supreme Court's decision in Rumsfeld v. FAIR involving the Solomon Amendment directed at law schools.
There is little material distinction between FAIR and this case. The facts differ, but the First Amendment analysis and outcome are the same. Like the Solomon Amendment, the Posting Rule is a “far cry” from the government-mandated speech deemed unconstitutional in Barnette and Wooley. Requiring an employer to post government speech about labor rights is “simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.”
Moreover, the Posting Rule does not require a contractor to speak at all. Rather, the contractor is required to host government speech as a condition of receipt of a federal contract. That, of course, presents a contractor with a choice—agree to post the Notice or forgo federal contracting. But that choice is no different than the one presented by the Solomon Amendment— either accommodate a military recruiter or forgo federal funds.
Additionally, the Posting Rule does not interfere with the contractor’s ability to convey a different message. A contractor can still express its own views or engage in lawful activities to discourage unionization. Indeed, nothing in the rule prevents a contractor from creating its own posting and placing it next to the Department of Labor-drafted Notice, so as to make clear that the Notice does not reflect the contractor’s own views and its display is government mandated. *** A contractor’s speech is thus not “affected by the speech it [is] forced to accommodate.”
Nor are employees likely to believe that the Notice is their employer’s speech.
[citations omitted]. The court rejected NAM's attempt to distinguish FAIR because the speech here is a “slanted list of rights that unfairly promotes unionization while pointedly omitting a host of other critical employee rights,” noting even if the court could determine the meaning of "slanted," it is well settled that the government may make content-based choices about its own speech.
The court rejected NAM's arguments regarding preemption, as well as its statutory and administrative law arguments. It therefore entered summary judgment in favor of the government.Given the vigor with which NAM has litigated similar issues, it will most likely appeal. However, recently appointed Judge Mehta has authored a closely reasoned opinion that should withstand review.
In its lengthy, well-reasoned, and unanimous opinion in American Civil Liberties Union (ACLU) v. Clapper, the Second Circuit today concluded that NSA's bulk telephony metadata collection is not authorized by §215 of the PATRIOT Act, 50 USC §1861(b)(2)(A). After hearing oral arguments last September, the panel reversed the district court's opinion that had rejected both the statutory and constitutional challenges to the scheme. Recall that this widespread collection has been controversial since the program was first revealed through information obtained by Edward Snowden; we've additionally discussed the issues here, here, and here.
The Second Circuit, in the opinion authored by Gerard Lynch, did agree with the district judge that the ACLU plaintiffs had standing to challenge the collection of call records. The court stated that "the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program." The court rejected the government's contention that any alleged injuries depend on the government's reviewing the information collected rather than simply collecting it: the collection is [challenged as] a seizure and the Fourth Amendment prohibits both searches and seizures. The court distinguished Amnesty International v. Clapper in which the United States Supreme Court's closely divided opinion concluded that the alleged standing was based on a "speculative chain of possibilities." Instead:
appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected.
The panel likewise held that the ACLU organizations have standing to assert a First Amendment violation regarding its own and its members' rights of association.
However, the court did not rule on the Fourth and First Amendment claims explicitly, although its conclusion regarding §215 occurs in the shadow of the constitutional issues, or as the court phrases it: "The seriousness of the constitutional concerns" has "some bearing on what we hold today, and on the consequences of that holding."
What the court does hold is that "the telephone metadata program exceeds the scope of what Congress has authorized and there violates §215." After a discussion of the program and §215, it first considers the government's arguments that the judiciary is precluded from considering the issue. The court interestingly observes that judicial preclusion here would "fly in the face of the doctrine of constitutional avoidance."
[I]t would seem odd that Congress would preclude challenges to executive actions that allegedly violate Congress’s own commands, and thereby channel the complaints of those aggrieved by such actions into constitutional challenges that threaten Congress’s own authority. There may be arguments in favor of such an unlikely scheme, but it cannot be said that any such reasons are so patent and indisputable that Congress can be assumed, in the face of the strong presumption in favor of APA review, to have adopted them without having said a word about them.
The court likewise held that there was no implicit preclusion.
On the merits of the §215 challenge, the court essentially found that the government's interpretation of "relevant" was too broad. The court noted that both parties relied on the grand jury analogy, supported by the statute's language and legislative history. Yet for the court, the government's argument faltered on this very ground:
Moreover, the court relies on the Privacy and Civil Liberties Oversight Board (PLCOB) Report regarding the overbreadth, noting that "counterterrorism in general" is not sufficiently narrow. Further, the court states that the government's interpretation reads the "investigation" language of §215 out of the statute, and even more specifically, §215's language "relevant to an authorized investigation (other than a threat assessment)."
Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.
May 7, 2015 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Standing, State Secrets | Permalink | Comments (0) | TrackBack (0)
The en banc Eleventh Circuit ruled this week in United States v. Davis that a court order, pursuant to the Stored Communications Act, compelling the production of a telephone company's business records containing information as to cell tower locations (and linking the defendant's calls to those towers) did not violate the Fourth Amendment.
The ruling reverses an earlier panel decision, which held that the order violated the Fourth Amendment. The panel nevertheless affirmed the conviction, however, based on the good-faith exception to the exclusionary rule.
The ruling tests traditional Fourth Amendment rules against technological advances--and their ability to reveal vast amounts of highly personal data. The court applied a traditional Fourth Amendment approach, but invited Congress to revisit the appropriate balance between technology and privacy in cases like this.
The defendant, Quartavious Davis, was charged with several counts for his role in a string of robberies. At Davis's trial, the prosecution introduced telephone records from Metro PCS, obtained through an earlier court order, showing the telephone numbers for each of Davis's calls and the number of the cell tower that connected each call. An officer-witness then connected the location of the cell towers with the addresses of the robberies, placing Davis near the robbery locations around the time of the robberies. (The evidence showed the location of the cell towers that connected Davis's calls, but not the precise location of Davis or his phone.) Davis was convicted and sentenced to 1,941 months in prison.
The court order for the records was based on the Stored Communications Act. The SCA provides that a federal or state governmental entity may require a telephone service provider to disclose "a record . . . pertaining to a subscriber to or a customer of such service (not including the contents of communications)" if "a court of competent jurisdiction" finds "specific and articulable facts showing that there are reasonable grounds to believe" that the records sought "are relevant and material to an ongoing criminal investigation." This does not require a showing of probable cause. Davis argued that the order violated the Fourth Amendment.
The Eleventh Circuit rejected Davis's arguments. The court wrote that the SCA actually provides greater privacy protections than a routinely issued subpoena to third parties for a wide variety of business records (credit card statements, bank statements, and the like). This, it said, was no different. It also wrote that Davis claimed no trespass, and that he had no reasonable expectation of privacy in the location of cell towers to which he voluntarily sent call signals, or in the business records of his third-party provider. The court thus concluded that there was no "search."
But even if there were a search, the court held that it was reasonable, balancing the government interests against Davis's expectations of privacy. It said that the government had compelling interests in investigating and preventing crimes, and that Davis had, at most, a diminished expectation of privacy.
Judges Martin and Jill Pryor dissented, arguing that technological advances, "which threaten to cause greater and greater intrusions into our private lives," threaten "to erode our constitutional protections."
The Food and Drug Law Institute and Georgetown's O'Neill Institute for National and Global Health Law are co-sponsoring a symposium on Constitutional Challenges to the Regulation of Food, Drugs, Medical Devices, Cosmetics, and Tobacco Products on Friday, October 30, 2015, at Georgetown University Law Center.
Abstracts are due June 1, 2015.
John Bessler (U. Baltimore) writes over at Jurist.org with helpful background and context on Glossip v. Gross. That's the Supreme Court case testing the constitutionality of lethal injection when the first drug doesn't reliably induce unconsciousness, or a deep, coma-like state, resulting in extreme pain when the second drug is administered. Our preview of the oral arguments is here.
Wednesday, May 6, 2015
The D.C. Circuit last week dismissed a case challenging the Consumer Financial Protection Bureau under separation of powers. The ruling in Morgan Drexen, Inc. v. CFPB held that the plaintiffs lacked standing and should pursue their constitutional claims against the CFPB in a CFPB enforcement action pending in another federal district court.
The ruling ends this particular challenge to the CFPB (for now), but allows the plaintiff to pursue its challenge in the enforcement action.
Morgan Drexen filed the claim after the CFPB threatened enforcement action against the firm for violations of the Consumer Financial Protection Act and the Telemarketing Sales Rule in its bankruptcy and debt-relief services. Kimberly Pisinski, an attorney who contracts with Morgan Drexen for paralegal services, joined the suit on the theory that the CFPB's enforcement action against Morgan Drexen would affect her own law practice.
Morgan Drexen and Pisinski sought declaratory and injunctive relief, arguing that the CFPB is unconstitutional because its powers are overbroad, it's headed by a single director who is removable only for cause, it is funded outside the ordinary appropriations process, and judicial review of its actions is limited.
But soon after Morgan Drexen and Pisinski sued in the D.C. District, the CFPB filed an enforcement action against Morgan Drexen in the Central District of California. Pisinski, who apparently really, really wanted to be a part of the action, moved to intervene in that suit, too. (The court denied her motion. The court also recently granted the CFPB's motion for sanction and default judgment against Morgan Drexen, finding that "[d]efendants willfully and in bad faith engaged in a coordinated and extensive effort to deceive the Court and opposing counsel" and having "blatantly falsified evidence . . . concealing this fact from the Court, opposing counsel, and even their own counsel at every turn.")
The D.C. Circuit ruled that Morgan Drexen could lodge its constitutional claims against the CFPB in the enforcement case in the Central District of California instead of in its case in the D.C. District. The court said that Morgan Drexen wouldn't suffer any harm in harm in doing so, and that it'd support judicial economy.
The court also ruled that Pisinski lacked standing. That's because she didn't allege a CFPB enforcement action would harm her practice, or that she engaged in any illegal conduct as a Morgan Drexen contractor:
In sum, Pisinski has failed to proffer evidence in support of any of her theories of standing: that she was responsible for Morgan Drexen's allegedly illegal conduct, that her practice is or will be economically harmed by the Bureau's enforcement action against Morgan Drexen, or that implicit accusations by the Bureau that she exercised too little control over Morgan Drexen or engaged in illegal conduct herself could damage her professional standing. The record evidence does not show that she used Morgan Drexen's allegedly illegal services or that there is a substantial risk that the Bureau's enforcement action will cause harms to her practice or professional reputation that she has asserted.
Judge Kavanaugh dissented, arguing that Pisinsky had standing, and that the majority's approach is "more complicated than it needs to be."
Friday, May 1, 2015
The Ninth Circuit's opinion in Center for Competitive Politics v. Harris rejected a First Amendment challenge to a disclosure of major donors requirement.
The nonprofit Center for Competitive Politics (CCP)- - - an organization to promote the First Amendment and "campaign freedom"- - - sought to enjoin the California Attorney General from requiring it to disclose the names and contributions of the Center’s “significant donors” on Internal Revenue Form 990 Schedule B, which the Center must file with the state in order to maintain its registered status with the state’s Registry of Charitable Trusts. The unanimous panel affirmed the district judge's denial of a preliminary injunction.
The court rejected as a "novel theory" CCP's argument that the disclosure requirement alone is so injurious that it must meet strict scrutiny.
CCP is correct that the chilling risk inherent in compelled disclosure triggers exacting scrutiny—“the strict test established by NAACP v. Alabama,” —and that, presented with a challenge to a disclosure requirement, we must examine and balance the plaintiff’s First Amendment injury against the government’s interest. However, CCP is incorrect when it argues that the compelled disclosure itself constitutes such an injury, and when it suggests that we must weigh that injury when applying exacting scrutiny. Instead, the Supreme Court has made it clear that we must balance the “seriousness of the actual burden” on a plaintiff’s First Amendment rights. Here, CCP has not shown any “actual burden” on its freedom of association.
[citations omitted]. The court largely relies on the Supreme Court's 2010 decision in Doe v. Reed, (John Doe I) in which the Court upheld the constitutional of Washington's disclosure of petition signatures. Indeed, the Ninth Circuit panel noted that
unlike in John Doe No. 1 or in other cases requiring the disclosure of the names of petition signatories, in this case, the disclosure would not be public. The Attorney General keeps Form 990 Schedule B confidential. Although it is certainly true that non-public disclosures can still chill protected activity where a plaintiff fears the reprisals of a government entity, CCP has not alleged any such fear here. CCP instead argues that the Attorney General’s systems for preserving confidentiality are not secure, and that its significant donors’ names might be inadvertently accessed or released. Such arguments are speculative, and do not constitute evidence that would support CCP’s claim that disclosing its donors to the Attorney General for her confidential use would chill its donors’ participation.
However, the Ninth Circuit left open the possibility that CCP could show "a reasonable probability that the compelled disclosure of [its] contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties" that would warrant relief on an as-applied challenge, just as the Court did in Doe v. Reed. Recall that on remand in Doe v. Reed the Ninth Circuit found no such probability. Given the confidential nature of the 990 Form here, CCP would most likely have an even more difficult time showing such a probability.
The Ninth Circuit also rejected the preemption claim. Essentially although the Form is required by the federal IRS, federal law does not bar state attorneys from requesting the information in the form.
UPDATE: On May 15, 2015, the Center for Competitive Politics filed an Emergency Application for Injunction Pending Certiorari in the United States Supreme Court; more here.
Wednesday, April 29, 2015
Florida Governor Rick Scott filed suit yesterday against the federal government arguing that its move to take away the state's Low Income Pool money compels the state to expand Medicaid under the Affordable Care Act--all in violation of the anti-commandeering principle and the "gun to the head" principle in NFIB v. Sebelius.
We posted on Florida's LIP and the constitutional issues here. The Center for Budget and Policy Priorities just put out a very helpful backgrounder here.
In short, LIP is a federal program that pays health-care providers for uncompensated care for the poor. Medicaid, and the ACA's Medicaid expansion, pays directly for health care for that same population.
The lawsuit argues that the federal government threatened to take away the state's LIP money unless the state expands Medicaid under the ACA--and that this amounts to unconstitutional coercion in violation of federalism principles and the Tenth Amendment under NFIB.
But the case is a sham. The federal government doesn't appear to be strong-arming Florida into expanding Medicaid as much as it appears to prefer to spend money directly on health insurance for the poor instead of paying for uncompensated care for them. That's a policy choice that the federal government can make. States have no entitlement to LIP money, or to any particular federal approach to providing health care for the poor. And when the feds take away LIP funds, Florida's choice is clear: figure out a way to cover care for the poor, or don't.
Governor Scott claims that this isn't a real choice, because the state can't afford to let the poor go without health insurance. If that's right, he can implement his own program, or he can expand Medicaid. This hardly seems like compulsion.
The case is obviously politically, and not constitutionally, motivated, and probably has little chance of success on the merits. "Probably," because so many thought the same thing about NFIB, before the Court got a hold of it.
There's another commonality with NFIB: Governor Scott hired Paul Clement to represent him.
The case centers around Oklahoma's use of midazolam as the first drug in the cocktail. In particular the case asks whether midazolam, a sedative, reliably induces a sufficiently pain-free state so that the condemned prisoner wouldn't feel the intense pain associated with the second drug, potassium chloride. (Everyone agrees that potassium chloride alone causes intense pain and suffering. The pain is described as burning alive, or burning from the inside out.) If so, there's probably no constitutional problem with midazolam. (Under Baze, the Court upheld a different lethal injection protocol on the assumption, supported in the record, that the first drug reliably produced a deep, coma-like unconsciousness.) If not, however, Oklahoma's protocol may violate the Eighth Amendment.
But there's a problem: Nobody seems to know for sure. More: the state's expert's testimony at trial on a key point about how midazolam works was wrong--so much so that the state itself backed away from that testimony. That means that the district court's ruling, based on its conclusion that midazolam sufficiently protects against pain, based on the state's expert's testimony, is seriously flawed. (Justice Kagan described it as "gobbledygook." That seems about right.)
The Court focused principally on two questions today. The first, whether the state's use of midazolam reliably induces a sufficiently pain-free state so that the condemned prisoner wouldn't suffer from potassium chloride, seemed to divide the Court along conventional ideological lines. The progressive wing went with the condemned (against the use of midazolam), and the conservatives went with the state. The second question--whether the petitioners bear the burden to show that midazolam does not induce the state (and to identify a constitutional alternative for the state), or whether the state bears the burden to show that its use of midazolam does not cause intense pain and suffering--divided the Court the same way.
Justice Kennedy is probably the swing vote, but he was relatively quiet today. He only piped up when the arguments turned to whether the petitioners contributed to the problem in the first place. (Oklahoma started using midazolam because it couldn't gain access to the barbiturate drugs that more reliably protect against pain--and that the Court upheld in Baze. Oklahoma can't gain access to the barbiturate drugs because manufacturers have stopped supplying them, for ethical reasons, for use in lethal injections. Justice Alito suggested that opponents of the death penalty contributed to that situation, and that the Court shouldn't be complicit in this "guerrilla war" against the death penalty.) Justice Kennedy simply asked what relevance this all had to the case. Answer from the petitioners: none.
On one level, the case asks pretty narrow and technical questions about a particular drug and the burdens in proving an Eighth Amendment violation under Baze.
But on another level, the case potentially strikes a serious blow against the death penalty itself. That's because if the Court strikes Oklahoma's use of midazolam (whatever it does with the burden), Oklahoma and other lethal-injection states will have to look to a much less attractive alternative--something like electrocution, the gas chamber, or even a firing squad. (That's "much less attractive" on the barbarity scale, not the constitutional one (alas).) Some states have already moved in this direction. If that happens across the board, moves like this could erode public support for the death penalty. And if that's true, a ruling for the petitioners could be much more than a narrow, technical ruling on lethal injections: it could strike a serious practical blow against the death penalty itself.
In a likely response to last week's decision by a federal district judge that the New York Metropolitan Transit Authority (MTA) must accept an anti-Muslim advert (representing that Jihad means "Kill Jews"), the MTA today amended its advertising policy to exclude all political advertisements.
The new policy's purpose is to"convert the MTA’s Property from a designated public forum into a limited public forum by excluding advertising of a political nature." The new policy prohibits advertising that:
Is political in nature, including but not limited to advertisements that either:
Are directed or addressed to the action, inaction, prospective action or policies of a governmental entity, except as permitted in Sections IV.A.2–IV.A.3 of this Policy [governing advertising by the MTA itself or government agencies]; or
Prominently or predominately advocate or express a political message, including but not limited to an opinion, position, or viewpoint regarding disputed economic, political, moral, religious or social issues or related matters, or support for or opposition to disputed issues or causes.
The issue of anti-Muslim adverts on public transportation has caused much activity in the courts. The new MTA policy is similar to one considered by the Sixth Circuit which found a rejection of an anti-Muslim advertisement in southern Michigan buses by the governmental authority SMART to be constitutional under SMART's policy prohibiting several categories of advertising including "political or political campaign advertising."
[UPDATE: Here's some reporting on the issue by NPR's NYC station.]
In a well-crafted but hardly surprising opinion in Abu-Jamal v. Kane, Chief Judge Christopher Conner of the Middle District of Pennsylvania concluded that Pennsylvania's "Revictimization Relief Act" is unconstitutional.
Recall that Act provided:
In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonable attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.
At the time of signing, it was clear that the Act was primarily directed at Mumia Abu-Jamal; Abu-Jamal brought suit soon after the Act was passed; another challenge was brought by Prison Legal News and consolidated.
Judge Conner began his opinion by noting that the First Amendment does not "evanesce" at the prison gate, and ended it by stating that the First Amendment does not "evanesce at any gate." (emphasis in original). In applying well-settled First Amendment doctrine, Judge Conner focused on both Simon & Schuster v. Crime Victims Board (1991) (holding unconstitutional the so-called "Son of Sam" law) and Snyder v. Phelps (2011) (essentially holding that free speech trumped the tort of intentional infliction of emotional distress). Judge Conner easily rejected the State's argument that the statute regulated "conduct" - - - which is, after all, the word in the statute and which would merit lower scrutiny - - - noting that:
throughout its brief legislative gestation, the law was championed primarily as a device for suppressing offender speech. The Act's sponsor extolled its capacity to silence Abu-Jamal in particular. The chairman of the house judiciary committee opined that the Act would end the "extreme distress" suffered by victims when offenders achieve celebrity, admonishing Goddard College for providing a "cold blooded murderer" [Abu-Jamal] with a speaking forum.
(emphasis in original; citations to Stipulation omitted). As a content-regulation, the Act "instantly fails" the exacting scrutiny standard according to Judge Conner.
In addition to the content-restriction fatality, Judge Conner found that the Act was impermissibly vague and substantially overbroad as those doctrines are derived from due process. The Act's "central limitation" turns on the unknowable emotive response of victims, which a person cannot determine "short of clairvoyance." Moreover, the Act applies to "offenders," a term the statute does not define, and which could presumably apply to a wide swath of persons, including non-offender third parties who publish statements by offenders. Relatedly, the overbreadth defect of the Act concerned the judge:
[T]he Act ostensibly affects protected - - - and critically important - - - speech, including: pardon applications, clemency petitions, and any testimony given in connections with those filings; public expressions of innocence, confessions, or apologies; legislative testimony in support of improved prison conditions and reformed juvenile justice systems; programs encouraging at-risk youth to avoid lives of crime; or any public speech or written work whatsoever, regardless of the speaker's intention or the work's relation to the offense.
In other words, if the victim can demonstrate "mental anguish," the statute would be satisfied. And, combined with the broad notion of "offender," taken to its "logical conclusion," the Act would "limit an accused person's right to profess his innocence before proven guilty."
Pennsylvania would be wise not to appeal this judgment. It would have even been more wise if the legislature had not passed - - - and the Governor had not signed - - - such a patently unconstitutional statute last year.
In its 5-4 opinion in Williams-Yulee v. The Florida Bar, the Court concluded that Florida's Code of Judicial Conduct 7C(1) prohibiting the personal solicitation of campaign funds by judicial candidates does not violate the First Amendment.
From the oral arguments, it did seem as if the opinion would be closely divided, but it was less predictable that Chief Justice Roberts would be writing for the majority upholding Florida's Canon7C(1). In the majority opinion, joined by Justices Breyer, Sotomayor, and Kagan in full, and by Ginsburg except as to part II, Roberts began:
Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Sen- ate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrity of their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.
We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court.
However, writing only for a plurality, Chief Justice Roberts, relying on Republican Party of Minnesota v. White (2002), held that a "State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest." The plurality rejected the Florida Bar's argument, supported by several amici, that the Canon should be subject to the more permissive standard of Buckley v. Valeo (1976) requiring that the law be “closely drawn” to match a “sufficiently important interest.” It concluded that the “closely drawn” standard is a "poor fit" for this case which is a claimed violation of a right to free speech rather than a claimed violation of “freedom of political association.”
Justice Ginsburg, concurring, reiterated her dissent in Republican Party of Minnesota v. White regarding the standard of review, and emphasized that the Court's "recent campaign-finance decisions, trained on political actors, should not hold sway for judicial elections," specifically discussing Citizens United (2010) and McCutcheon (2014). Justice Breyer, who joined the Chief Justice's opinion in full, nevertheless wrote briefly regarding the standard of review, reiterating his previous statements that he views "this Court’s doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied."
Despite the highest scrutiny, however, Chief Justice Roberts's opinion for the Court declared that
Canon 7C(1) advances the State’s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech. This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny.
The Court found that “protecting the integrity of the judiciary” and “maintaining the public’s confidence in an impartial judiciary” were both compelling governmental interests. (The Court did not discuss a specific interest of lawyers or their clients in judicial integrity). As to the narrow tailoring, the Court rejected the "underinclusive" argument - - - essentially that judicial candidates could indirectly solicit campaign funds - - - by noting that while underinclusivity may raise a "red flag," there is no "freestanding 'underinclusiveness limitation.'” Here, the Court concluded that
personal solicitation by judicial candidates implicates a different problem than solicitation by campaign committees. However similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public. Florida’s choice to allow solicitation by campaign committees does not undermine its decision to ban solicitation by judges.
There are three dissenting opinions by the Justices: Scalia, joined by Thomas; Kennedy, and Alito. As the author of Caperton v. Massey, on which the Court partially relies for its compelling governmental interest in judicial integrity, Kennedy's opinion is perhaps most noteworthy. (And recall that Chief Justice Roberts dissented in Caperton). Caperton, based in due process rather than free speech, is uncited in Kennedy's concurring opinion, which focuses on the First Amendment:
This separate dissent is written to underscore the irony in the Court’s having concluded that the very First Amendment protections judges must enforce should be lessened when a judicial candidate’s own speech is at issue. It is written to underscore, too, the irony in the Court’s having weakened the rigors of the First Amendment in a case concerning elections, a paradigmatic forum for speech and a process intended to protect freedom in so many other manifestations.
At the crux of Kennedy's dissent, as the other dissents, is the similarity of judicial elections to political elections. The distinction - - - or lack thereof - - - between judicial and other elections is the linchpin on which the differing views of the case pivot. Chief Justice Roberts ends the Court's opinion with an originalist reflection on that distinction:
The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with life tenure constituted “the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.” The Federalist No. 78, at 465. Jefferson thought that making judges “dependent on none but themselves” ran counter to the principle of “a government founded on the public will.” 12 The Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view of Hamilton; most States have sided with Jefferson. Both methods have given our Nation jurists of wisdom and rectitude who have devoted themselves to maintaining “the public’s respect . . . and a reserve of public goodwill, without becoming subservient to public opinion.” Rehnquist, Judicial Independence, 38 U. Rich. L. Rev. 579, 596 (2004).
It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity.
Tuesday, April 28, 2015
The Court today heard oral arguments in two parts in the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans. There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.
For oral argument on the first certified question - - -does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? - - - Mary Bonauto argued for the Petitioners; Solicitor Donald Verrilli argued for the United States as amicus curiae supporting Petitioners; and John Bursh, as Special Assistant Attorney for Michigan argued for Respondents.
For oral argument on the second certified question - - - does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? - - -Douglas Hallward-Driemeier argued for Petitioners and Joseph Whalen, Associate Solicitor General of Tennessee, argued for Respondents.
The Court and the advocates acknowledged that the second question is only reached if the first question is answered in the negative: Justice Ginsburg and Justice Kagan both posited this principle with Hallward-Driemeier and Whalen, respectively, agreeing. Chief Justice Roberts noted that" we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-sex marriage as a marriage," and later raised the issue of whether the second question made practical sense:
It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It'd simply be a matter of time until they would, in effect, be recognizing that within the State.
The themes of the oral arguments held no surprising issues:
Is a same-sex marriage decision by the Court premature? Interestingly, Justice Kennedy pointed out that it is "about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years."
Should it be the Court or the states that should decide? The question of the proper role of judicial review has long preoccupied the courts in the context of same-sex marriage. Justice Scalia raised this issue several times, but when John Bursh raised it on behalf of Michigan, Justice Kagan responded that "we don't live in a pure democracy; we live in a constitutional democracy."
Is the race analogy apt? Bursch distinguished Loving (as well as Turner v. Safley and Zablocki v. Redhail) because previous cases involved man-woman marriage and "States' interest in linking children to their biological" parents.
Is there a slippery slope? What about polygamous and incestuous marriages? What about age of consent laws?
What about religious freedom? How do we know that ministers won't be forced to perform "gay marriages"?
Should the case be resolved on Equal Protection or Due Process? Justice Kennedy asked General Verrilli about Glucksberg, Verrilli replied:
GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.
JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental argument?
GENERAL VERRILLI: Well, because we think well, because we think while we do see that there is, of course, this profound connection, we do think that for reasons like the ones implicit in the Chief Justice's question, that this issue really sounds in equal protection, as we understand it, because the question is equal participation in a State conferred status and institution. And that's why we think of it in equalprotection terms
Counsel, I'm I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?
The open question is whether the Court's opinion will be as predictable as the questions.
April 28, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Oral Argument Analysis, Religion | Permalink | Comments (0) | TrackBack (0)
The Supreme Court will hear a challenge to Oklahoma's three-drug lethal injection protocol tomorrow, the last day of scheduled oral arguments for the Term. Here's an excerpt from my preview of the case, Glossip v. Gross, for the ABA Preview of United States Supreme Court Cases, with permission:
For many years, Oklahoma administered the death penalty using a three-drug lethal-injection protocol that included sodium thiopental, pancuronium bromide, and potassium chloride. The first drug, sodium thiopental, is a fast-acting barbiturate sedative that is designed to induce a deep, coma-like state of unconsciousness in the condemned. The second drug, pancuronium bromide, is a paralytic agent that is designed to inhibit all muscular-skeletal movements, thus paralyzing the diaphragm and stopping respiration. The third drug, potassium chloride, interferes with the electrical signals that stimulate heart contractions and thus induces cardiac arrest.
Since 2010, however, Oklahoma has been unable to obtain the first drug, sodium thiopental, for use in executions. Oklahoma used an alternative barbiturate, pentobarbital, for a brief period, but that drug, too, became unavailable for use in executions. (Oklahoma was not alone. Other states that used sodium thiopental in executions also saw their sources dry up. Those states, too, turned to pentobarbital or a similar barbiturate capable of producing a deep coma. But soon enough, the sources for pentobarbital also dried up.)
So in early 2014, Oklahoma substituted midazolam hydrochloride (midazolam) for sodium thiopental and pentobarbital as the first drug in its protocol. (Oklahoma retained pancuronium bromide and potassium chloride as the second and third drugs, respectively.) Midazolam is a sedative in the benzodiazepine family of drugs. Midazolam and other benzodiazepines are prescribed to treat anxiety disorders and insomnia, to reduce anxiety before general anesthesia, and for conscious sedation in minor outpatient procedures. Unlike barbiturates, midazolam does not reliably produce a deep, coma-like state that would render a person insensate to severe pain; and it is not used as the sole drug to maintain general anesthesia during a painful procedure. (There is some dispute on this point. The state’s expert testified at trial that 500 milligrams would induce and maintain coma-like unconsciousness between its administration and death. The petitioners, however, take issue with the expert’s methodology, as described more below.) Indeed, studies show that although midazolam can cause unconsciousness, a person on midazolam can be “jolted into consciousness” by the infliction of pain. (Midazolam itself does not reduce or relieve pain.) Moreover, midazolam has a “ceiling effect.” This means that beyond a certain dosage, an additional increase in dosage does not produce a corresponding increase in effect.
Oklahoma first used midazolam on April 29, 2014, in its execution of Clayton Lockett. The state administered 100 milligrams of midazolam, and Lockett was declared unconscious seven minutes later. But during the administration of the second and third drugs, Lockett awoke. He writhed in the gurney, bucked his head, and said, “This shit is fucking with my mind,” “Something is wrong,” and “The drugs aren’t working.” Lockett died 24 minutes later. While a subsequent investigation found that a catheter failure caused the drugs to infiltrate Lockett’s tissue instead of directly entering his bloodstream (as they should have), this would not have significantly impacted midazolam’s effectiveness, because it has a rapid absorption rate even when not administered intravenously.
Lockett’s experience was not unique. Ohio and Arizona both used a mixture of midazolam and hydromorphone in executions with similar results. In January 2014, Ohio used 10 milligrams of midazolam and 40 milligrams of hyodromorphone to execute Dennis McGuire. McGuire gasped for nearly ten minutes before his death. In July 2014, Arizona used more of each drug, 750 milligrams of each, to execute Joseph Wood. Wood gasped for nearly two hours before dying.
After its investigation into Lockett’s execution, Oklahoma adopted a new execution protocol, effective September 30, 2014. The new protocol gives the Director of Oklahoma’s Department of Corrections sole discretion to select among four alternative drugs or drug combinations to be used in lethal injection executions. The first alternative calls for the administration of 5,000 milligrams of pentobarbital in a one-drug procedure. The second alternative provides for the administration of 5,000 milligrams of sodium pentothal in a one-drug procedure. The third alternative calls for the administration of 500 milligrams of midazolam and 500 milligrams of hydromorphone. The fourth alternative calls for the administration of 500 milligrams of midazolam, 100 milligrams of vecoronium bromide, and 240 milliequivalents of potassium chloride. The new protocol requires the Director to inform the condemned of his or her decision in writing ten calendar days before the scheduled execution.
Richard Glossip and other death-row prisoners, including Charles Warner, sued Oklahoma and moved for a preliminary injunction to stop the state from carrying out executions in an unconstitutional manner, including through the use of midazolam in a three-drug protocol. The district court denied relief. The United States Court of Appeals for the Tenth Circuit affirmed.
On January 13, 2015, petitioners filed a petition for writ of certiorari to the Supreme Court along with an application to stay their scheduled executions. On January 15, 2015, the Court denied the stay application. Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, dissented.
That same evening, Oklahoma used its fourth alternative drug combination, which includes midazolam as the first of three drugs, to execute Charles Warner. (This combination is the same combination that the state used to execute Lockett, but with a much higher dose of midazolam.) After Warner was injected with midazolam, but before he was sedated past the point of speech, his last words were reported as “my body is on fire.”
A week later, on January 23, 2015, the Court agreed to hear the appeal. The state then applied for a stay of execution for the remaining three petitioners, asking the Court to stay the executions “until final disposition in Oklahoma’s favor . . . or, alternatively, until [the state] has in its possession a viable alternative to midazolam for use in its executions.” The Court granted the stay on January 28, 2015, ordering that the state’s “executions using midazolam are stayed pending final disposition of this case.”
The Supreme Court upheld a three-drug protocol like Oklahoma’s old protocol, including sodium thiopental as the first drug, seven years ago in Baze v. Rees, 553 U.S 35 (2008). In that case, the challengers conceded that an execution under the protocol would be humane and constitutional if performed correctly. But they argued that there was a significant risk that the procedures would not be performed correctly. In particular, they claimed that the sodium thiopental would not be properly administered to achieve its intended effect, thus resulting in severe pain upon the administration of the second and third drugs. The challengers argued that a different protocol—a one-drug protocol using a single dose of sodium thiopental or another barbiturate—would solve this problem.
The Court rejected this argument. A plurality of the Court ruled that the challengers failed to show that the three-drug protocol would create a “substantial risk of serious harm,” an “objectively intolerable risk of harm” that would prevent prison officials from pleading that they were “subjectively blameless for purposes of the Eighth Amendment.” The plurality also held that the challengers failed to show that their proposed alternative effectively addressed a “substantial risk of serious harm.” The plurality wrote,
To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as “cruel and unusual” under the Eighth Amendment.
The Court in Baze thus articulated the standard for an Eighth Amendment violation. It also set a standard for when a condemned prisoner challenges the administration of a protocol and suggests an alternative.
But this case is different than Baze for two reasons. First, the first drug in Oklahoma’s protocol is midazolam, a sedative, and not sodium thiopental or another barbiturate. As a result, this case raises a new question: whether a lethal injection protocol that includes midazolam as the first drug violates the Eighth Amendment. Next, Glossip and the other challengers (together, Glossip) do not merely take on the administration of the protocol; they challenge the protocol itself. In particular, Glossip does not concede (as the Baze challengers did) that the protocol, if properly administered, is constitutional. Instead, Glossip challenges the protocol itself (even if properly administered). Given these differences, this case asks whether and how the courts should apply the Baze standards to challenges that are meaningfully different than those in Baze itself.
Glossip argues first that Oklahoma’s use of midazolam violates the Eighth Amendment because it creates a “substantial risk of serious harm” or an “objectively intolerable risk of harm” in violation of Baze. Glossip says that unlike properly administered sodium thiopental, midazolam does not reliably induce a deep, coma-like unconsciousness that would render a person insensate to pain, and that, indeed, clinical studies show that when midazolam was used in surgery, patients felt pain. Moreover, he claims that there is no substantial practice among the states of using midazolam for lethal injections (again, in contrast to the widespread use of sodium thiopental, at least when it was available). Glossip says that only four states have used midazolam in an execution, and only two have used it as anesthesia.
Glossip contends that the lower court’s decision to credit the state’s expert that a 500-milligram dose of midazolam would induce a deep unconsciousness was clear error. Glossip claims that the expert supported his opinion with only undisclosed or unreliable sources and mathematical error, and that the expert’s supposition about how the drug works “has no acceptance in the scientific community.” Instead, Glossip says that midazolam’s properties, including its ceiling effect, mean that it cannot reliably induce a deep, coma-like unconsciousness.
On the second issue, Glossip argues that the Tenth Circuit erred in setting a higher standard for a stay of execution than the one set by the plurality’s decision in Baze. Glossip says that the traditional standard for obtaining a stay requires, among other things, “a significant possibility of success on the merits.” Hill v. McDonough, 547 U.S. 573 (2006). He says that the Baze plurality did not modify or overrule that standard. Yet he claims that the Tenth Circuit and other courts have construed Baze to set a new and higher standard, one that all but forecloses a stay. He contends that this is wrong. Glossip claims that, if anything, a higher standard should apply only to cases like Baze, where a death-row prisoner challenges a concededly valid method of execution but seeks to show a step that “the State could take as a failsafe for other, independently adequate measures.” But where, as here, a person lodges a claim that the state’s method itself violates the Eighth Amendment, Glossip contends that the traditional stay standard should apply.
Finally, on the third issue, Glossip argues that the Tenth Circuit also erred in requiring the petitioners to propose a commercially available alternative drug for their executions. Glossip claims that the Eighth Amendment prohibits certain punishments, independent of whether market forces prevent a state from adopting its preferred alternative. Glossip says that Hill supports this principle, and Baze did not overrule it. Glossip writes, “The vitality of a core constitutional guarantee does not vary with the marketing decisions or supply constraints of private corporations.”
Oklahoma argues first that the Court should dismiss the appeal as improvidently granted. The state says that Glossip is challenging the lower courts’ fact-finding, and that the fact-finding at issue was not even necessary to the courts’ judgments. Oklahoma claims that this kind of fact-based dispute is ill-suited to Supreme Court review.
Oklahoma argues next that its use of midazolam does not create a “substantial risk of serious harm.” The state says, contrary to Glossip’s assertion, a 500-milligram dose of midazolam can induce a deep, coma-like unconsciousness. Indeed, the state claims that the record evidence indicates that a large dose of midazolam produces unconsciousness sufficiently deep to render a person insensate “to even extremely painful stimuli.” Oklahoma says that midazolam’s lack of analgesic properties is irrelevant, because it induces deep unconsciousness. It claims that the risk of paradoxical reactions is extremely low. And it contends that any ceiling effect has not been sufficiently established. Oklahoma also claims that its other “robust procedural safeguards” “will eliminate” the risk of severe pain.
Oklahoma argues that the district court did not err in admitting the opinions of its expert. The state says that Glossip’s challenges to the expert’s methodology lack merit and that the district court properly relied on the expert’s testimony. Oklahoma claims that the Tenth Circuit gave Glossip “every benefit of the doubt” and still ruled that none of Glossip’s challenges undermined the scientific reliability of the state’s evidence at trial.
Oklahoma argues on the second issue that the Tenth Circuit properly applied the standard that Glossip seeks here. Oklahoma says that the Tenth Circuit explicitly applied the proper standard for a preliminary injunction, and that the Supreme Court cannot assume that the Tenth Circuit applied a higher standard without saying so. Moreover, the state claims that the district court ruled that Glossip failed to meet the burden under an even more relaxed standard. And Oklahoma contends that in any event the Baze standard should apply to Glossip’s claim. The state says that the Baze plurality was clear when it wrote, “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain * * * [that] is substantial when compared to the known and available alternatives.”
Finally, on the third issue, Oklahoma argues that Glossip did not show that an alternative execution method is available that will substantially lower the risk of severe pain, which Oklahoma says is the Tenth Circuit’s alternative (not principal) holding. The state says that the Baze plurality’s requirement that a challenger identify an alternative was a “broadly applicable standard” designed to provide adequate guidance in method-of-execution cases. Oklahoma claims that all courts of appeals so far have applied Baze this (broader) way. The state says that this makes sense: Because the death penalty itself is constitutional (even if some pain results), any challenge to a method of execution that fails to identify a feasible alternative method that would result in substantially less pain amounts to a challenge to the death penalty itself. And this, the state claims, is already foreclosed by the Constitution.
Thirty-two states plus the federal government currently have a death penalty. All of these jurisdictions use lethal injection as the primary method of execution, but many have a back-up (electrocution, gas chamber, and even hanging and firing squad) in case lethal injection drugs become unavailable. (Check out deathpenaltyinfo.org for more information on state-by-state approaches to the death penalty.)
States started using lethal injection in the 1980s as a more humane method of execution, theoretically free of unnecessary pain, in reaction to the risks associated with other methods of execution. When states first adopted lethal injection, the vast majority left their statutes purposefully vague on the procedure and delegated the development of a protocol to prison officials. Historically, most states and the federal government used a three-drug protocol like Oklahoma’s earlier protocol, which included sodium thiopental or another barbiturate as the first drug. (For an excellent and critical history, check out the amicus curiae brief filed by The Louis Stein Center for Law and Ethics at Fordham University School of Law. Amicus argues, like Glossip, that states developed and modified their drug protocols not with the kind of medical or scientific rigor that we might expect, but in reaction to court decisions and out of expedience.)
But in the 7 years since Baze came down, states have moved away from the original three-drug protocol. This is at least in part because states’ sources for sodium thiopental and alternative barbiturates for use in executions have largely dried up, as international drug suppliers have refused to sell drugs for use in executions. As a result, some states have turned to compounding pharmacies to obtain lethal drugs, others have altered their protocols, and yet others have authorized alternative methods of execution when lethal drugs are not available. (For example, Utah’s governor signed a bill on March 23, 2015, allowing the use of firing squads in executions if the state is unable to obtain lethal injection drugs.)
Against this backdrop, Glossip is important because it will give states additional guidance on when a particular drug protocol violates the Eighth Amendment, and what challengers must show to prove it.
If Baze is any indication (and, indeed, if the complicated route to the Court in Glossip is any indication), the Court is deeply divided on how to evaluate these claims. While the Court upheld the protocol in Baze by a 7-2 vote, the case produced seven different opinions. Since Baze came down, Justice Sotomayor replaced Justice Souter (who dissented in Baze), and Justice Kagan replaced Justice Stevens (who wrote a separate concurrence arguing that the death penalty is unconstitutional but ultimately deferring to precedents). While these changes may not alter the head-count in this case, they may add yet another dimension to the reasoning.
Just to be clear: This case does not test the constitutionality of the death penalty itself, but instead tests the constitutionality of a particular drug protocol in administering the death penalty. It also tests the standards by which courts should evaluate challenges to a particular method of execution.
But as states continue to have problems obtaining sodium thiopental and similar barbiturates, and as they therefore increasingly look to alternative drug protocols and other methods of execution, these standards will become increasingly important in death penalty challenges. In this way, even though Glossip does not test the death penalty itself, the Court’s ruling will, as a practical matter, put a heavy thumb on the scale either for or against the death penalty.
Monday, April 27, 2015
A divided panel of the Seventh Circuit today upheld a local ordinance banning assault weapons and large-capacity magazines against a Second Amendment challenge. The ruling in Friedman v. City of Highland Park means that the ordinance, by Highland Park, a Chicago suburb, stays in place for now. But this case is a good candidate for en banc and even Supreme Court review, so we likely haven't seen the end of it.
The case is full of turns. For example, Judge Easterbrook, for the majority, used history against the plaintiffs, even though opponents of gun regulation have so often used history in support of their points. He also used federalism against the plaintiffs, even though opponents of gun regulation so often look to "states' rights" in this and other areas. He turned the preservation or efficiency of a well regulated militia into a point about the states' ability to decide what weapons should be available to civilians. And finally he turned the gun-rights victories at the Supreme Court against the plaintiffs: If the plaintiffs can already possess handguns and long-guns for self-defense (as the Court has ruled, why do they also need semi-automatic weapons?
The case is also full of both social science and common sense. For example, "That laws similar to Highland Park's reduce the share of gun crimes involving assault weapons is established by the data." And, "But assault weapons with large-capacity magazines can fire more shots, faster, and thus can be more dangerous in the aggregate. Why else are they the weapons of choice in mass shootings?"
But aside from the turns, the social science, and the common sense, the case is notable for the Second Amendment rule it uses. Judge Easterbrook declined to apply any particular tier of scrutiny and instead applied this test:
[W]hether a regulation bans weapons that were common at the time of ratification or those that have "some reasonable relationship to the preservation or efficiency of a well regulated militia," and whether law-abiding citizens retain adequate means of self-defense.
Judge Easterbrook essentially said that this is the best a lower court can do when the Supreme Court has declined to set a particular level of scrutiny (or other test).
As to the requirement of a reasonable relationship to the preservation or efficiency of a well regulated militia, the court said that "states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms, so as to have them available when the militia is called to duty." As to whether the law allows other means of self-defense, the court noted that Highland Park residents can still use handguns and long-guns for self-defense, and that the Court said that was enough.
He even at one point went so far as to say that if Highland Park's ban only "reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that's a substantial benefit."
In wrapping up, Judge Easterbrook went even more deferential:
The best way to evaluate the relation among assault weapons, crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court's opinions. The central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process.
And he went more on federalism:
Another constitutional principle is relevant: the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim. Whether those limits should be extended is in the end a question for the Justices.
Judge Manion dissented, arguing that the "ordinance infringes upon the rights of . . . citizens to keep weapons in their homes for the purpose of defending themselves, their families, and their property."