Monday, January 19, 2015

Robson on Judicial Candidate Solicitation Restrictions

ConLawProfBlog's own Prof. Ruthann Robson (CUNY) recently published her thoughtful, creative, and compelling piece on Williams-Yulee, the case testing Florida's ban on campaign contributions by judicial candidates, on the Supreme Court's calendar on Tuesday. Robson's Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar is part of Vanderbilt Law Review's Rountable on the case.

Robson takes a refreshing look at the issue of judicial candidate campaign contributions through the eyes of a public interest attorney. Indeed, she starts the piece with a personal testimonial about being solicited herself--and the awkward position that put her in. (Tellingly, her position wasn't so awkward for other, non-public interest attorneys. They simply contributed.)

She argues that public interest lawyers have a special interest in this issue, and in this case. That's because

as public interest attorneys, we are less likely to be able to contribute to judicial campaigns, but may feel more likely to comply with a solicitation because we know our clients are already at a disadvantage. Additionally, our opposing clients and counsel are often those who are precisely in the position of being solicited and of answering those solicitations with substantial contributions.

She makes her case by persuasively arguing for a "second look" at four earlier decisions--newer and older, all touching on judicial integrity--that in different ways illustrate why a ruling for Williams-Yulee (overturning Florida's ban) "would have a disproportionately negative impact on the public interest bar." Those cases are Republican Party of Minnesota v. White (striking RobsonMinnesota's rule that prohibited judicial candidates from announcing their views on disputed issues); Caperton v. A.T. Massey Coal Co. (holding that the failure of a state high court judge to recuse himself from a case involving a major donor violated due process); Shelley v. Kraemer (holding that the judiciary is subject to the same constitutional constraints that the other branches are); and In Re Hawkins (Fl. Sup. Ct.) (upholding a sanction of removal from the bench after a judge sold her book to attorneys with cases before her).

Robson's "second look" cases together illustrate why an impartial judiciary, and the appearance of an impartial judiciary, are so important--to the public, to be sure, but especially to public interest attorneys and their clients. They also show how a ruling for Williams-Yulee (a former public defender herself) could so adversely affect the public interest bar.

Robson's piece brings a voice to this case--the voice of the underrepresented and their attorneys--that's all-too-often lost in sterile arguments about free speech. And she shows why the Court should pay attention to that voice.

[Public interest attorneys] should not have to worry whether [judges] think we "support" them, or whether our adversaries "support" them. We should not have to curry favor through financial contributions directly requested by a person who is hearing our client's causes. To do our work, we must continue to have faith that our judges, whether elected or whether appointed to the United States Supreme Court, are not mere politicians.

An excellent piece that adds to the debate. Check it out.

January 19, 2015 in Campaign Finance, Cases and Case Materials, Elections and Voting, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, January 16, 2015

Government Settles Al-Kidd Case

The ACLU and the federal government settled Al-Kidd v. United States, the case challenging the government's post-9/11 practice, pursuant to the Material Witness Statute, of imprisoning Muslim men as material witnesses without any basis for holding them.

The case was on remand from the United States Supreme Court. The Court ruled in 2011 that then-defendant John Ashcroft was entitled to qualified immunity against Al-Kidd's Fourth Amendment claim. (All eight participating justices agreed that Ashcroft did not violate a "clearly established" Fourth Amendment right at the time of Al-Kidd's arrest and detention. Justice Kagan was recused.) However, four of the eight justices agreed that there were serious questions about the statutory claim, that is, "whether the Government's use of the Material Witness Statute in [Al-Kidd's] case was lawful." The Court remanded the case to the district court for further proceedings as to the remaining defendants.

The district court granted summary judgment to Al-Kidd on most claims; a defendant (an FBI agent) filed an interlocutory appeal with the Ninth Circuit; and the Ninth Circuit heard oral arguments in May 2014. The parties settled this week.

The government issued a statement: "The government acknowledges that your arrest and detention as a witness was a difficult experience for you and regrets any hardship or disruption to your life that may have resulted from your arrest and detention." It also agreed to pay Al-Kidd $385,000.00.

January 16, 2015 in Cases and Case Materials, Courts and Judging, Fourth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Supreme Court to Hear Same-Sex Marriage Case This Term

On Friday afternoon, the Court granted certiorari in the Sixth Circuit consolidated cases in DeBoer v. Snyder from the Sixth Circuit. [Recall that a divided Sixth Circuit panel reversed the district court decisions in Kentucky, Michigan, Ohio, and Tennessee].

Here's the Court's grant:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions:  1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?  2) 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? 

Interestingly, the questions presented use the word "require."  [update: here's Rick Hasen and here's Michael Dorf on that very issue].

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image via donkey hotey

 

The remainder of the Order sets out the briefing schedule and oral argument:

A total of ninety minutes is allotted for oral argument on Question 1.  A total of one hour is allotted for oral argument on Question 2.   The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions.  The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015.  The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015.  The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.

January 16, 2015 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Thursday, January 15, 2015

Wealthy Campaign Spenders After Cit U, and What to Do About It

The Brennan Center issued a report this week concluding that very wealthy "independent" spenders are the primary beneficiaries of the five-year-old Citizens United. Daniel Weiner, the report's author, says, "This is perhaps the most troubling result of Citizens United: In a time of historic wealth inequality, the decision has helped reinforce the growing sense that our democracy primarily serves the interests of the wealthy few, and that democratic participation for the vast majority of our citizens is of relatively little value." Weiner explains that wealthy individuals spend through super-PACs and dark money group, "while often sponsoring candidates like racehorses."

The report also looks at other Citizen United legacies, including the increase in dark money election spending by publicly held corporations, weakening contribution limits, and trampling shareholder and employee rights (because shareholders and employees are often kept in the dark about corporate spending).

So: What to do? David Gans of the Constitutional Accountability Center has one idea. He argues this week in the LA Times that Congress should encourage political participation (campaign contributions) by small donors through contribution tax credits. Gans explains that Congress passed just such a tax credit in 1972, and that it lasted until 1986. But it is no more. He also explains why a tax credit should have bipartisan support (as it did in 1972). Gans elaborates on his argument in an issue brief titled Participation and Campaign Finance: The Case for a Federal Tax Credit.

January 15, 2015 in Campaign Finance, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Third Circuit Defends Public Defender's First Amendment Rights to "Defend" Clients

Reversing the district court, the Third Circuit's opinion today in  Flora v. County of Luzerne held that a public defender's complaint contained sufficient allegations to proceed with a First Amendment retaliation claim.

The unanimous panel held that the United States Supreme Court's 2014 decision in Lane v. Franks "clarified that '[t]he critical question under Garcetti [v. Ceballos] is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”  While the Third Circuit noted that the district judge did not have the "benefit of Lane" when it rendered its decision, it stated that "Garcetti alone should have steered it away from applying" the standard it did, a  “related to” employment standard.

320px-Richard_Webster_Vanity_Fair_26_May_1883
"law and conscience" circa 1883 via

So what did Chief Public Defender Flora do that he alleges was protected by the First Amendment?  First, after many unsuccessful attempts to procure what he saw as inadequate funding for indigent defense, he eventually initiated a class action lawsuit for the benefit of indigent criminal defendants in state court, and interestingly simultaneously sought relief in federal court from being terminated for this action.  Second, the county's notorious "Kids for Cash" scandal had resulted in a 2009 order by the state supreme court of vacatur and expungement of thousands of delinquency adjudications and consent decrees, but in 2013 Flora learned that over 3,000 expungements had not yet occurred.  He "brought that failure to the attention of the County, the District Attorney for the County, the Administrator of the Court of Common Pleas, the public interest law firm that represented the juveniles in the expungement proceedings, and Judge Grim," who had been the special master in the case.

Both the lawsuit and the reporting of the failure to expunge were obviously "related to" Flora's position as a public defender.  But the Third Circuit rejected the "related to" standard in favor of the "ordinary duties" standard.  In this light, its interesting that the court highlights Flora's allegations that

his obligations as an attorney, rather than as the Chief Public Defender, compelled him to make the statements at issue. [And that] the funding crisis and the expungement issue as extraordinary circumstances impelling him to extraordinary speech.

 The Third Circuit concludes:

A straightforward application of Lane leads us to conclude that, given those allegations, Flora’s speech with respect to both the funding litigation and the expungement problems was not part of his ordinary responsibilities – it was not part of the work he was paid to perform on an ordinary basis. . . Flora’s ordinary job duties did not include the public reporting of lingering effects from government corruption or the filing of a class action suit to compel adequate funding for his office. Rather, he represented indigent clients in criminal court and in related proceedings . . . .To view it otherwise would unduly restrict First Amendment rights, because reporting malfeasance or misfeasance will regularly benefit an employee in the execution of his job duties by, presumably, removing impediments to proper government functioning.

The Third Circuit's opinion is another example of courts retreating from the broad brush of Garcetti and providing First Amendment protections for "whistleblowers," including attorneys who take action based on their ethical obligations.

 

January 15, 2015 in Courts and Judging, Criminal Procedure, First Amendment, Speech | Permalink | Comments (1) | TrackBack (0)

Vanderbilt Roundtable on Williams-Yulee v. The Florida Bar

On Tuesday, January 20, the United States Supreme Court will hear arguments in the closely-watched case of Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule prohibiting the personal solicitation of campaign contributions in a judicial election.  Our discussion of the grant of certiorari is here.

Vanderbilt Law Review has published its "Roundtable" symposium about the pending case.  It includes:

The Absent Amicus: “With Friends Like These . . .”
Robert M. O’Neil · 68 Vand. L. Rev. En Banc 1 (2015).

Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar
Ruthann Robson · 68 Vand. L. Rev. En Banc 15 (2015).

Much Ado About Nothing: The Irrelevance of Williams-Yulee v. The Florida Bar on the Conduct of Judicial Elections
Chris W. Bonneau & Shane M. Redman · 68 Vand. L. Rev. En Banc 31 (2015).

Williams-Yulee and the Inherent Value of Incremental Gains in Judicial Impartiality
David W. Earley & Matthew J. Menendez · 68 Vand. L. Rev. En Banc 43 (2015).

Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. The Florida Bar
Stephen J. Ware · 68 Vand. L. Rev. En Banc 59 (2015).

The Jekyll and Hyde of First Amendment Limits on the Regulation of Judicial Campaign Speech
Charles Gardner Geyh · 68 Vand. L. Rev. En Banc 83 (2015).

What Do Judges Do All Day? In Defense of Florida’s Flat Ban on the Personal Solicitation of Campaign Contributions From Attorneys by Candidates for Judicial Office
Burt Neuborne · 68 Vand. L. Rev. En Banc 99 (2015).

Williams-Yulee v. The Florida Bar, the First Amendment, and the Continuing Campaign to Delegitimize Judicial Elections
Michael E. DeBow & Brannon P. Denning · 68 Vand. L. Rev. En Banc 113 (2015).

 

 

Lawreview-2011

 

January 15, 2015 in Courts and Judging, Due Process (Substantive), Elections and Voting, First Amendment, Fourteenth Amendment, Scholarship, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 14, 2015

Second Circuit Allows First Amendment Public Employee Retaliation Claim to Proceed

In its opinion today in Smith v. County of Suffolk, a unanimous panel of the Second Circuit reversed the grant of a summary judgment in favor of the Suffolk County Police Department. 

Smith, a police officer, had presumably engaged in First Amendment protected activity, including unathorized communication with media: Smith corresponded with CNN commentator Jeffrey Toobin over a period of three years; Smith exchanged emails with Newsday correspondent Christine Armario expressing concern that the Department’s policy of arresting unlicensed drivers led to ethnic discrimination.

640px-One_of_the_finest,_advertising_poster_for_tobacco_collecting_cards,_ca._1890Additionally, Smith had presumably been subject to an adverse action: he was suspended without pay and transferred to an administrative position.  He thereafter retired.

These presumptions were made by the district court, not appealed by the Police Department, and so accepted by the Second Circuit as true.  However, the district court's ruling that the third of the elements necessary to establish a prima facie case under Pickering v. Board of Education (1968): a causal connection between the protected speech and the adverse action. Instead, the Second Circuit found that

The plain language of several of the disciplinary charges at the heart of the adverse actions directly implicates not only the fact that Smith had engaged in protected speech, but also the content of that speech. . . . The Department. . . characterized the content of the speech and cited that characterization as the basis for several disciplinary charges.

The Second Circuit then analyzed whether a summary judgment was warranted under  Mount Healthy City School District Board of Education v. Doyle (1977), if the Department "would have investigated, transferred, and suspended Smith absent his citizen-media speech." The court reasoned that the Mount Healthy defense requires specifics:

Much as plaintiffs are required at the prima facie stage to demonstrate not only the existence of protected speech but a causal connection between that speech and the adverse action, defendants asserting a Mount Healthy defense may not rely solely on the occurrence of unprotected misconduct: they must also articulate and substantiate a reasonable link between that misconduct and their specific adverse actions. A general statement that the employer would have taken some adverse action will not suffice.

(emphasis in original).  Moreover,

Put simply, the evidence of record before us permits only inferences. Those inferences may be drawn in either party’s favor, and we require more than inferences from an employer seeking summary judgment based on the Mount Healthy defense.

Similar to the Supreme Court's unanimous decision last term in Lane v. Franks, the Second Circuit's opinion is another indication that courts should take First Amendment claims by public employees more seriously. 

[image via]

January 14, 2015 in First Amendment, Opinion Analysis, Speech, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 13, 2015

Does the Natural Gas Act Preempt State Antitrust Claims?

The Supreme Court heard oral arguments yesterday in Oneok v. Learjet, the case testing whether the federal Natural Gas Act preempts state antitrust claims arising from a conspiracy among natural gas companies to inflate retail natural gas prices.

The dispute arose when natural gas companies reported false natural gas sales prices to industry publications used to set gas prices in retail and wholesale contracts, artificially inflating those prices, and resulting in the Energy Crisis in 2000 to 2002. Retail gas purchasers brought state antitrust cases in several states. The gas companies moved to dismiss, arguing that the Natural Gas Act preempted those claims.

Indeed, the Gas Act grants FERC authority to regulate wholesale sales of natural gas (called "jurisdictional" sales) and any practice that "directly affect[s] jurisdictional rates." So the question in the case is this: Does that authority reach, and preempt state-law claims based upon, the gas companies' false reporting of gas prices to industry publications, thus affecting retail and wholesale gas prices?

The arguments didn't reveal any significant new points (that weren't briefed), and revealed only a little about the Court's likely direction in the case.

The parties agreed that the Gas Act field-preempts state-law claims for some field, but the predictably disagreed about the scope of that field. Oneok, represented by Neal Katyal, argued that the field includes practices like false reporting of gas prices that affect retail sales, because the false reporting also affected wholesale sales (or jurisdictional sales, within FERC's bailiwick). Learjet, represented by Jeffrey Fisher, argued that the Act doesn't sweep that far, and that FERC's authority does not field-preempt the state-law claims here.

Oneok also argued that the Gas Act could conflict-preempt state-law claims (an issue, it said, that would have to be decided on remand), because state-law claims could conflict with the Act and the nationwide uniformity in reporting that FERC encourages. Learjet said that the state-law antitrust claims were congruent with a federal antitrust claim (that everyone says was available to Learjet and the other plaintiffs), so there's no conflict between the state-law claims and federal law.

Questions from the bench revealed little. The progressives on the bench were by far the most active, pressing Katyal the hardest (and seemingly least persuaded by his points), but also probing Fisher (especially Justice Breyer). Conservatives were largely silent, except that Justice Scalia seemed inclined to accept Katyal's point about how price reporting affects wholesale rates (and therefore preempts state-law claims as to retail rates), and Chief Justice Roberts seemed skeptical of Fisher's argument that a ruling for the gas companies would allow them to manipulate and transform any non-jurisdictional practice into one that "directly affect[s] jurisdictional rates."

Justice Kennedy seemed to straddle, and maybe hinted at a result. He asked Katyal whether the Gas Act would preempt a state-law claim that was "exactly the same as the Sherman Act." Katyal responded:

And I think that is complementary authority, which, Justice Kennedy, your opinion in Arizona v. United States decried. Once we're in the field, once Congress has said to a federal agency, as it is here, FERC is regulating the very practice that they are seeking to regulate three different ways, then you can't tolerate states in the area. Why? Because states will have all sort --

Justice Kennedy then asked if Katyal had a back-up conflict-preemption argument, in case his field-preemption point didn't pan out. Katyal: Yes, but for remand.

The outcome will obviously be important to the parties and anyone else worried about accountability for the Energy Crisis in 2000-2002, but probably won't be too important to anyone else. That's because Congress increased FERC's authority in 2005--prompting the government to argue against cert. in the first place.

January 13, 2015 in Cases and Case Materials, Congressional Authority, Federalism, News, Oral Argument Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Monday, January 12, 2015

South Dakota Federal Judge Declares State's Same-Sex Marriage Ban Unconstitutional

In her opinion in Rosenbrahn v. Daugaard, Judge Karen Schreier of the District of South Dakota found that the state's statute and constitutional amendment limiting marriage and quasi-marital recognition to "a man and a woman" was unconstitutional.

Judge Schreier's 28 page opinion is well-crafted, succinct yet comprehensive.  It largely rests on marriage as a fundamental right under the due process clause:

Pertinent decisions from the Supreme Court are clear and consistent that the right to marriage is a fundamental right. The Supreme Court has also refused to describe the right to marriage by reference to the individuals wishing to exercise that right. In keeping with the decisions of most of the federal courts that have addressed this issue, this court agrees with plaintiffs that the question in this case is whether same-sex couples, like opposite-sex couples, may marry. Thus, the right at stake is not a new right to same-sex marriage, as defendants contend. Instead, the substantive due process right is the right to marry, which right is fundamental. South Dakota’s marriage laws significantly interfere with this fundamental right by preventing same-sex couples from marrying and refusing to recognize out-of-state same-sex marriages. Because strict scrutiny applies to analyze deprivations of fundamental rights claims, the court will apply strict scrutiny here.

740px-Collier's_1921_South_DakotaIn applying strict scrutiny, Judge Schreier rejected South Dakota’s justifications - - - channeling procreation into marriage and proceeding with caution - - - as compelling, noting that the state seemingly conceded the failure to rise to this level.  As to the caution interest, the judge remarked that if "accepted as a compelling state interest, this justification would support every existing law." Moreover, the denial of same-sex marriage was not narrowly tailored to serve these interests.

In a very brief paragraph, Judge Schreier addressed the equal protection claim, essentially bootstrapping it to the due process claim:  "For reasons stated with respect to plaintiffs’ due process claim, South Dakota’s same-sex marriage ban deprives same-sex citizens of a fundamental right, and that classification is not narrowly tailored to serve a compelling state interest. Thus, South Dakota’s same-sex marriage."

Judge Schreier did issue a stay, however, writing that although the ongoing denial of a constitutional right is an irreparable injury, the lack of an opinion by the Eighth Circuit means that the decision "presents novel and substantial legal questions" warranting a stay.

Yet the legal questions may be growing less and less novel, even if still subject to a circuit split and still awaiting United States Supreme Court review.

 

January 12, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Supreme Court Hears Oral Arguments Challenging Town's Sign Ordinance

The Court heard oral arguments today in Reed v. Town of Gilbert regarding a First Amendment challenge to the town's extensive regulation regarding signage.  The town generally requires a permit to erect a sign, with nineteen different exemptions including “Temporary Directional Signs Relating to Qualifying Event.”  The exemption for these temporary directional signs further specifies that such signs "shall be no greater than 6 feet in height and 6 square feet in area,”and “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends.”

Although the challenge involves a church sign, this was largely irrelevant. Instead the content at issue is the sign’s directional nature, if indeed "directions" is a matter of content. In a divided opinion the Ninth Circuit upheld the town regulation as content neutral.  Today's oral argument seemed inclined toward a contrary opinion.

In part, the problem seemed to be the city's protection of political speech over other types of speech. As Justice Scalia asked "is there no First Amendment right to give somebody directions?" This question seemed to undercut the categorical approach, for as Justice Kagan asked earlier in the argument to counsel for Reed,

 Can I ask about the category for political signs, which is the most favorable? Because all the time this Court says that political speech is the most valued kind of speech. It's at the heart of the First Amendment. It gets special First Amendment protection. So in a way, why aren't ­­ isn't ­­ isn't the locality here basically adopting the same kind of category ­based understanding of political speech and its special rule and First Amendment analysis  that this Court has very frequently articulated?

Importantly, the directional content is relevant only for temporary signs. This of course raises the question of what is a temporary sign and how can one discern that without looking at the sign’s content.  At one point Chief Justice Roberts suggested that the distinction might be whether the sign is stuck in the ground with a little stake or whether it's in concrete, but quickly said that doesn't help the city's legitimate concerns.  Yet the city's concerns over aesthetics and safety never seemed adequately connected to regulating directional signs more severely than election signs.  Later, Justice Scalia asked whether there was a difference between the function of a sign and the content of the sign and whether function doesn't depend upon content.

800px-MadisonBirthplacePortConwayVAMuch of the doctrinal discussion was whether the standard of review should be strict scrutiny or intermediate scrutiny. The assistant to the Solicitor General argued that the correct standard with intermediate scrutiny under which the ordinance would be unconstitutional. 

 

Interestingly Justice Ginsburg sought to distinguish intermediate scrutiny in the context of the First Amendment from the context of equal protection in which "intermediate scrutiny is a pretty tough standard." One can presume she was referencing her own opinion for the Court in United States v. Virginia, the VMI case.

As anticipated the justices posed several hypos. Probably the most trenchant of these was "Happy Birthday, Uncle Fred."  Especially as compared to "Birthplace of James Madison" given that both signs could "be up for the same length of time, same size" as Justice Kennedy stated.

If today's argument is any indication - - - always a risky proposition - - - the regulations are likely to be declared unconstitutional.  It may be that such an application will have what counsel for the town called an "opposite effect" :  it "will limit speech  because towns, cities will enact one size fits all" and governments "would be inclined to ban all signs except those that the First Amendment absolutely allows."  Justice Alito, in reply, essentially shrugged: "You can make that argument in all kinds of contexts. I don't know where it gets you."

January 12, 2015 in Courts and Judging, Equal Protection, First Amendment, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Saturday, January 10, 2015

Ninth Circuit Declines En Banc Review of Same-Sex Marriage Case & Updates

The Ninth Circuit, over a dissent of three judges, has denied the petitions for en banc review of Latta v. Otter (and Sevick v. Sandoval) in which a panel held that the same-sex marriage bans in Idaho and Nevada respectively are unconstitutional.

Recall that the unanimous panel opinion authored by Judge Reinhardt held that the Idaho and Nevada laws regarding same-sex marriage "violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard" of  SmithKline Beecham Corp. v. Abbott Labs.

365px-Idaho_nedThe Ninth Circuit's panel opinion was rendered one day after the United States Supreme Court  denied certiorari to the petitions in the Fourth, Seventh, and Tenth Circuit cases with similar holdings.  However, since then, the Sixth Circuit rendered a divided panel decision in DeBoer v. Snyder reversing lower courts and upholding the same-sex marriage bans in in Kentucky, Michigan, Ohio, and Tennessee.

Judge O'Scannlain's dissent from the denial of en banc review - - - joined by Judges Rawlinson and Bea - - - relies in part on the Sixth Circuit's opinion in DeBoer v. Snyder and the circuit split it created. Like the Sixth Circuit, O'Scannlain argues that the operative precedent is Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question." And like the Sixth Circuit, the dissent distinguishes Windsor v. United States as limited to the federal government.

The major argument of the dissent, however, is that the question of same-sex marriage is not only one for the states, it is decidedly not one for the federal courts interpreting the constitution: "Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy."

This judicial restraint v. judicial activism debate is well-worn territory.  And like other judges, O'Scannlain is not a consistent adherent to one side or the other: Recall his dissent from en banc review in Pickup v. Brown, in which the panel upheld a California statute banning sexual conversion therapy against a constitutional challenge. But O'Scannlain does interestingly write:

As Justice Kennedy wrote in Schuette, ‘‘It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . . Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”

Thus, O'Scannlain implicitly points to Kennedy's inconsistency regarding the desirability of resort to democratic processes and judicial restraint in the affirmative action case of Schuette as compared to his opinion in Romer v. Evans (on Colorado's Amendment 2), as well as Windsor and Lawrence v. Texas, and presumably Kennedy's opinion should the same-sex controversy reach the United States Supreme Court.

The Court itself is currently entertaining several petitions for certiorari on the same-sex marriage issue, including the Sixth Circuit opinion.  

Meanwhile, the Fifth Circuit heard oral arguments (January 9) on appeals in Robicheaux v. Caldwell (in which a federal judge upheld Louisiana's same-sex marriage ban); DeLeon v. Perry (preliminary injunction against Texas' same-sex marriage ban as unconstitutional); and Campaign for Southern Equality v. Bryant, (preliminary injunction against Mississippi's same-sex marriage ban as unconstitutional).   The oral arguments are available on the Fifth Circuit's website.

January 10, 2015 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Friday, January 9, 2015

Nebraska Supremes Uphold Keystone Law

The Nebraska Supreme Court today upheld the state law delegating authority to the governor to approve the Keystone pipeline and to use eminent domain to access land along the pipeline route. The ruling does not affect fight in Washington, however, where today the House passed a bill to approve the pipeline, and where President Obama promised to veto it.

The Nebraska case arose out of a Nebraska law that delegated to the governor the power to approve the pipeline. (The former governor did so.) Taxpayers sued, arguing that the law violated the state constitution.

Four (of seven) judges agreed. They said that the law violated a state constitutional provision that reserves to the Public Service Commission this kind of decision. That provision says,

There shall be a Public Service Commission . . . . The powers and duties of such commission shall include the regulation of rates, service and general control of common carriers as the Legislature may provide by law. But, in the absence of specific legislation, the commission shall exercise the powers and perform the duties enumerated in this provision.

The four judges wrote that "we have held that the PSC has 'independent legislative, judicial, and executive or administrative powers' over common carriers, which powers are plenary and self-executing." Moreover, "specific legislation" means "specific restrictions," not "general legislation to divest the PSC of its jurisdiction and transfer its powers to another governmental entity besides the legislature." Thus the legislative delegation over Keystone to the governor improperly intruded upon the power of the PSC under the state constitution.

But under another state constitutional provision, four judges aren't enough to rule a law unconstitutional. The state constitution requires a super-majority of five (of seven) judges to rule a law unconstitutional. So even though a majority held the delegation unconstitutional, it's not. That means the law stays in place, the delegation is good, and the governor's action approving Keystone is untouched.

Before ruling on the merits, the court also ruled on taxpayer standing. The same four judges that argued that the delegation was unconstitutional also held that taxpayers had standing. (The other three argued that there was no standing, and that the standing decision also required a super-majority.) The court invoked its "great public concern" exception to the general rule against taxpayer standing. Under that exception, the court can take up a taxpayer case when it involves an issue of "the Legislature's obedience to the fundamental distribution of power in this state": "when a taxpayer claims that the Legislature enacted a Law that undermines the fundamental limitations on government powers under the Nebraska Constitution, this court has full power and the responsibility to address the public rights raised by a challenge to that act." The "great public concern" exception gives the Nebraska courts more leeway in taking up taxpayer cases than the Supreme Court's standing rules under Article III.

 

January 9, 2015 in Cases and Case Materials, Comparative Constitutionalism, News, Separation of Powers, Standing, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, January 8, 2015

California Ban on Foie Gras Runs Afoul of Federal Law

Judge Stephen V. Wilson (C.D. Calif.) ruled that California's ban on foie gras is preempted by the federal Poultry Products Inspection Act and permanently enjoined the state from enforcing the ban.

Judge Wilson ruled that the PPIA expressly preempts California's ban. The PPIA preempts states from imposing

[m]arketing, labeling, packaging, or ingredient requirements (or storage or handling requirements . . . [that] unduly interfere with the free flow of poultry products in commerce) in addition to, or different than, those made under [the PPIA] with respect to articles prepared at any official establishment in accordance with the requirements of this chapter[.]

Judge Wilson held that California's ban regulates only the final sale of products containing certain KurzschnabelgansRLtypes of foie gras products (foie gras from force-fed birds), and not the earlier method of manufacturing foie gras (which might have escaped preemption). He also held that it didn't matter whether foie gras from force-fed birds was a different product than foie gras from non-force-fed birds, because the PPIA covers both. "Thus, Plaintiffs' [force-fed] foie gras products may comply with all federal requirements but still violate [the California ban] because their products contain a particular constitute--force-fed bird's liver. Accordingly [the California ban] imposes an ingredient requirement in addition to or different than the federal laws and regulations."

January 8, 2015 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (0) | TrackBack (0)

West Virginia District Judge's Extensive "Gag" and Sealing Order in Blankenship Trial

Judge Irene Berger of the Southern District of West Virginia issued a Memorandum Opinion and Order clarifying and amending  but essentially reaffirming her extensive "gag" order in United States v. Blankenship, the criminal prosecution (which some say is unprecedented) of CEO Don Blankenship (pictured below) of Massey Energy for his alleged responsibility for the the Upper Big Branch Mine Disaster.  Recall Blankenship as the outsized contributor to the campaign of Brent Benjamin  for the West Virginia Supreme Court of Appeals; as a Justice Benjamin ruled in a case  involving Massey Coal.  The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal held that the failure of Benjamin to recuse himself violated due process.  The case is the subject of the book The Price of Justice.

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Don Blankenship via

To say that Blankenship is controversial - - - given the Upper Big Branch Mine disaster and Caperton with its underlying facts  - - - is probably an understatement. And Judge Berger has a difficult task attempting to protect Blankenship's rights to an impartial jury and fair trial.  But do Judge Berger's orders go too far? 

The objections to Berger's original orders were filed as a motion to intervene by the Wall Street Journal, the Associated Press, Charleston Gazette, National Public Radio, Inc., and the Friends of West Virginia Public Broadcasting, Inc..  Judge Berger allowed the intervention for the limited purpose of challenging the previous orders and found that the press organizations had constitutional standing.

Judge Berger's analysis centered on the classic First Amendment/Sixth Amendment conflict cases of Sheppard v. Maxwell (1966) and Nebraska Press Association v. Stuart (1976).  From these cases, Judge Berger noted she has

the discretion and, more importantly, the duty to take specific, reasonable steps to guard against prejudice at the outset where it has knowledge, given prior publicity, that continued publicity, regarding the facts underlying the indictment, is likely to taint prospective jurors. Courts do not exist or operate in a vacuum. In the Southern District of West Virginia, we live in coal country. Many of our families depend on coal mining for their livelihood. Many families and communities within the Southern District of this state were impacted by the deaths of the miners in the Upper Big Branch mine explosion referenced in the indictment. Interest in this case is, understandably, heightened by that loss of life. In short, the environment matters.

Judge Berger stressed that the court's order "is not directed toward the press."  Instead, it limits the "parties" from communicating with press (and "only limits the subject matter") and keeps documents filed in the court case sealed.

Yet three questions remain about the orders.

First, the breadth of the "gag" order was challenged.  In addition to the parties, attorneys, and court personnel it includes

potential witnesses, including actual and alleged victims, investigators, family members of actual and alleged victims as well as of the Defendant.

In a footnote, Judge Berger explained the inclusion of "family members":

the order applies only to those who may appear during some stage of the proceedings as parties or as witnesses. Even if not direct witnesses to the alleged offenses, victims and their family members may be witnesses at sentencing or potential beneficiaries of restitution, should the case reach that posture. As such, they are “trial participants.”

Later, she states that allowing " a potential trial participant to speak through his or her family member would eviscerate the protective measures, and is further evidence of the need for the inclusive order."

Yet "family" here could potentially be quite broad, especially in the context of rural West Virginia.

Second, Judge Berger relied on the fact that the docket was available, although not the underlying documents being referenced.  Nevertheless, the new  (Amended) Order released many documents, based on a principle that

any documents that do not contain information or argument related to the facts and substance of the underlying case do not fall within the purview of the [original] order, and should be publicly accessible.

Yet the standard does seem murky, and of course the press will have a difficult time objecting to the non-release of pleadings or other documents.

Third and last, Judge Berger's rejection of change of venue (as well as voir dire) as lesser restrictions of the First Amendment rights of the press (and public) as "not feasible options at this time" is interesting.  Berger outlines the preference for an accused to be tried in the district in which the crime is alleged to have been committed.  She writes that transfer of venue "takes place after pretrial publicity has tainted the jury pool such that a jury cannot be seated within the district." Thus, she essentially elevates the "right" to be tried in the alleged-crime's district over both the First and Sixth Amendment rights.

Judge Berger has crafted a delicate balance which will most likely need continuing calibration.  Her task to prevent a "Roman holiday" for the media (as the Court said in Sheppard) is not only operative during the pre-trial publicity stage but will undoubtedly be pronounced during the trial itself. 

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Memorial to the miners killed in the Upper Big Branch Mine via

January 8, 2015 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), Family, First Amendment, Opinion Analysis, Sixth Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Second Circuit Upholds NY's Vaccination Requirement

In a relatively brief per curiam opinion in Phillips v. City of New York the Second Circuit has upheld New York's vaccination requirement to attend public school, N.Y. Pub. Health Law § 2164(7)(a), against constitutional challenges.

The court rejected arguments that the statutory vaccination requirement and its enforcement by exclusion of students from school violates substantive due process, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment, as well as state and municipal law.  Important to the court's rationale, and which the opinion took care to mention even in its description of the statute, the law includes medical and religious exemptions.

VaccineThe religious exemption is most interesting in the context of this litigation.  For one plaintiff, the court affirmed the rejection of the religious basis for her sought-for exemption, agreeing with previous determinations that "her views on vaccination were primarily health‐related and did not constitute a genuine and sincere religious belief."  For another plaintiff, who had a religious exemption, the court found that the exclusion of her children from school during a vaccine-preventable outbreak of chicken pox was constitutional: "The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” quoting and citing Prince v. Massachusetts, 321 U.S. 158, 166‐67 (1944).

The centerpiece of the court's analysis was predictably and correctly the Supreme Court's 1905 decision in Jacobson v. Commonwealth of Massachusetts, rejecting a constitutional challenge to a state vaccination mandate.

The issue of vaccinations and constitutional challenges has received renewed attention in light of outbreaks of childhood illnesses thought to be essentially eradicated.  For example, as the LA Times reported yesterday, a recent outbreak of measles in California could be connected to vaccine-resistance:

"The current pertussis and measles outbreaks in the state are perfect examples of the consequences and costs to individuals and communities when parents choose not to vaccinate their children," [Gil] Chavez [epidemiologist with the California Department of Public Health] said.

Ther have also been widespread reports of illness outbreaks in Michigan, arguably attributable to its liberal opt-out allowance for school children.

[image via]

January 8, 2015 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Medical Decisions, News, Religion, Science | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 7, 2015

Daily Read: Ron Collins' Tribute to First Amendment Lawyer Al Bendich

Ron Collins has a moving and instructive obituary for Al Bendich, who as a new lawyer represented Lawrence Ferlinghetti against obscenity charges for publishing Allen Ginsburg's now-classic HOWL and later representing well-known comedian Lenny Bruce against similar charges.

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" Cadets at VMI reading HOWL" Gordon Ball, 1991  via

Collins is adamant about recalling the lawyers in First Amendment cases - - - and not merely the judges - - - and the career of Bendich is a reminder of the importance of litigators.

UPDATE: The New York Times Obituary of January 13, 2015, with quotes from Collins as well as others is here.

January 7, 2015 in Courts and Judging, First Amendment, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

District Judge Enjoins Arizona's Identity Theft Law

Judge David G. Campbell (D. Ariz.) ruled that federal immigration law likely preempts Arizona's sweeping identity theft laws and temporarily enjoined the Arizona laws. The ruling means that Arizona is prohibited from enforcing its identity theft laws, which criminalize using fictitious personal information to get a job, pending the outcome of the suit. Arizona can appeal.

Arizona's identity theft laws do the usual things you'd expect an identity theft law to do, plus they outlaw using real or fictitious personal information to get a job. Arizona uses the laws to convict unauthorized immigrants who seek employment using false information. Some of these immigrants sued and sought a preliminary injunction against the law, arguing that it is preempted by federal immigration law and that it violates the Equal Protection Clause.

Judge Campbell agreed as to preemption and issued the injunction. Judge Campbell rejected Arizona's claim that the identity theft law wasn't an immigration law, and therefore couldn't be preempted. He wrote, "Considering the text, purpose, and effect of the identity theft laws, the Court finds that they are aimed at imposing criminal penalties on unauthorized aliens who seek or engage in unauthorized employment in the State of Arizona." He then concluded that the plaintiffs would likely succeed on the merits of their claim that the Arizona law was field preempted by federal law that criminalizes this same kind of behavior:

These provisions evince an intent to occupy the field of regulating fraud against the federal employment verification system. Congress has imposed every kind of penalty that can arise from an unauthorized alien's use of false documents to secure employment--criminal, civil, and immigration--and has expressly limited States' use of federal employment verification documents. The Court concludes that Congress has occupied the field of unauthorized-alien fraud in obtaining employment.

Judge Campbell also ruled that "[t]he overlapping penalties created by the Arizona identity theft statutes, which "layer additional penalties atop federal law," likely result in conflict preemption.

In the same ruling, Judge Campbell denied the state's motion to dismiss the plaintiffs' equal protection claim.

January 6, 2015 in Cases and Case Materials, Federalism, News, Preemption | Permalink | Comments (2) | TrackBack (0)

Monday, January 5, 2015

Ferguson Grand Juror Brings First Amendment Claim Against Prosecutor

The actions - - - or inaction - - - of the grand jury that did not indict police officer Darren Wilson for the death of Michael Brown has prompted much controversy, including protests.  At the heart of this controversy is not only the actual facts of the incident, but the conduct of the grand jury by the prosecutor, Robert McCulloch.  McCulloch took the unusual step of providing a detailed statement about the grand jury proceedings to the press and of filing a motion in court for public disclosure of materials considered by the grand jury.

Both of those documents - - - McCulloch's statement to the press and his memorandum in support of the motion for disclosure - - - are appendices in a complaint  filed today in the Eastern District of Missouri, by the ACLU of MissouriGrand Juror Doe v. Robert McCulloch. 

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Drawing "Silence" via

Grand Juror Doe, who served on the grand jury, argues that the Missouri statutes prohibiting grand jurors from discussing the proceedings are an infringement of the First Amendment as applied in this situation.  A copy of these statutes, Mo. Stat. §540.080 (Oath of Jurors); Mo. Stat. §540.320 (Grand juror not to disclose evidence-penalty); and Mo. Stat. §540.310 (Cannot be compelled to disclose vote), were given to the grand jurors at "the conclusion of their service," according to paragraph 28 of the complaint.   But because the prosecutor has released evidence and made statements, as well as because of the legislative resolution to submit for voter referendum a repeal of the Missouri state constitutional provision providing for grand juries, Doe argues that s/he is being chilled from expressing opinions about matters of public concern and engaging in political speech.

The factual allegations in the complaint do provide a window on the content and viewpoint of Doe's expression.  Doe alleges that the conduct of the grand jury investigation of Darren Wilson "differed markedly" from other cases presented to the grand jury, and even more provocatively, that McCulloch's statement to the press and release of records do not comport with Doe's own opinions of the process.

This request for a permanent injunction against enforcing any of the challenged Missouri statutes against Doe should s/he speak about the grand jury proceedings against Wilson is supported by basic First Amendment considerations and basic notions of fairness.  The root problem here is not grand jury secrecy, but the lifting of that veil of secrecy for one party and perspective only.  As Justice Scalia stated in the context of vindicating First Amendment rights in RAV v. City of St.  Paul, this would be akin to "authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules."

 

January 5, 2015 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Race, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, January 2, 2015

Daily Read: Will Supreme Court Hear NSA Challenge in 2015?

Cyrus Favier, over at ars technica, surveys the candidates of current litigation- - - five! - - -that might bring the issues of the constitutionality of NSA surveillance to the United States Supreme Court. 

Favier looks at the dueling opinions in Klayman v. Obama and ACLU v. Clapper, as well as lesser known cases winding their ways through the courts.  And as he implies, regardless of the status of these particular cases, there are plenty more percolating:

Case name: N/A
Status: Ongoing

Moreover, the Court's unanimous recent opinion in Riley v. California finding a cell phone search requires a warrant and the continuing uncertainty over the 1979 "pen register" case Smith v. Maryland gives some credence to the speculation.

ConLawProfs looking for something accessible yet substantively provocative for the first day of classes should take a look at Favier's article.

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[image via]

January 2, 2015 in Criminal Procedure, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Recent Cases, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 23, 2014

Massachusetts Supreme Court Upholds Cyber Harassment Statute and Conviction Against First Amendment Challenge

In its unanimous opinion today in Commonwealth v. Johnson, the Supreme Judicial Court of Massachusetts upheld the state's criminal harassment statute as applied to "conduct" that largely involved speech and often occurred using electronic means. 

The statute provides that whoever "willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment." 

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"The Letter" by Guido Rey circa 1908 via

Of particular First Amendment concern is the statute's provision that the

conduct or acts described in this paragraph shall include, but not be limited to, conduct or acts conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications.

The facts are rather chilling, escalating from incidents that might properly be called "pranks" to incidents that were clearly malicious.  The defendants, the Johnsons, were involved in a protracted property and business dispute with the victims, the Lyons.  The defendants and their "handyman" placed a false advertisement on Craigslist, causing many people to arrive at the Lyons' home to collect free golf carts, and then another advertisement on Craigslist selling a motorcycle and directing interested persons to call Mr. Lyons after 10:00 pm.  Next, there was an email entitled "Let the Games Begin!" that included the victims' personal information, including social security number and banking information.  Then there was an an after-hours emergency call to the child abuse hotline reporting physical abuse to a child, resulting in a 10:30pm visit from child protective workers to the home.  And finally, there was an email, followed by a letter, to Mr. Lyons from a fictitious person accusing him of sexual molestation of the writer when the writer was 15. 

On appeal after conviction, the defendants argued that the statute violated the First Amendment, both on its face and as applied.  The court found that the facial challenge was not preserved, but addressed it by concluding that the statute provides adequate notice and safeguards that prevent its application to protected speech and noting that similar statutes have been upheld.  As to the as-applied challenge, the court found

The defendants' as-applied constitutional challenge also fails because the conduct in question was not protected speech, but rather a hybrid of conduct and speech integral to the commission of a crime . . . [and]  as applied to the defendants, does not implicate constitutionally protected speech rights.

The court rejected the argument that because the statute was not directed at "fighting words" it encompassed First Amendment protected speech.  Instead, the court explained that there were other categories of speech that were not protected under the Court's 1942 language in Chaplinsky v. New Hampshire regarding unprotected speech as words that are "no essential part of any exposition of ideas, and are of such slight social value as a step to truth' that whatever meager benefit that may be derived from them is 'clearly outweighed' by the dangers they pose."  As the Supreme Judicial Court of Massachusetts stated:

"Speech integral to criminal conduct is one such long-standing category that is constitutionally unprotected, directly applicable to the defendants' conduct here. . . ."

The court also evaluated the sufficiency of the evidence.  It again rejected the defendants' arguments.

The court's First Amendment analysis quotes the well-known principle that "[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed."  Clearly, the conduct - - - and speech - - -of the defendants gave little reason for the court to depart from this principle.

And even should the United States Supreme Court find the "facebook threats" conviction in Elonis v. United States, argued December 1, violates the First Amendment, it would most likely have little impact on the Johnsons' First Amendment claims.

December 23, 2014 in First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)