Wednesday, March 23, 2016

Argument Preview: Does the Accommodation to the Contraception Requirement Violate Religious Freedom?

The Court will hear oral arguments tomorrow in, Zubik v. Burwell, the case challenging the government's accommodation to the Affordable Care Act's contraception requirement under the Religious Freedom Restoration Act. Here's my preview of the case for the ABA Preview of U.S. Supreme Court Cases, with permission:

ISSUE

Does the federal accommodation to the contraceptive-coverage requirement for religious nonprofits substantially burden their religious practices, and, if so, is the accommodation the least restrictive way to promote a compelling government interest?

FACTS

The Patient Protection and Affordable Care Act (the “Act,” “Affordable Care Act,” or sometimes called “Obamacare”) requires health insurers and employer-sponsored group health plans to provide certain preventive services to their customers without imposing copayments, deductibles, or other cost-sharing charges. Congress included this requirement in order to encourage individuals to get appropriate preventive care and, as a result, to improve public health. But the Act did not specify the exact preventive services to be covered; instead, Congress provided for coverage of services according to recommendations of medical experts.

The requirement included preventive services specific to women’s health. Congress included these gender-specific services in order to remedy a particular problem—that women pay significantly more for preventive care and thus often fail to seek preventive services. As with the more general preventive services, the Act did not specify the exact gender-specific preventive services to be covered; instead, Congress left this task to the experts, providing for coverage of “preventive care and screenings” specified in “comprehensive guidelines support by the Health Resources and Services Administration” (or “HRSA”), a component of the U.S. Department of Health and Human Services (“HHS”).

In developing the guidelines, HRSA relied on recommendations from the Institute of Medicine (“IOM”), a part of the National Academy of Sciences. IOM recommended including the full range of contraceptive methods approved by the Food and Drug Administration (“FDA”), including oral contraceptive pills, diaphragms, injections and implants, emergency contraceptive drugs, and intrauterine devices. IOM based this recommendation on extensive medical literature establishing that contraceptives greatly decrease the risk of unintended pregnancies and negative health outcomes. IOM cited the deterrent effect of copayments on the use of contraception, and concluded that “[t]he elimination of cost sharing for contraception therefore could greatly increase its use, including the more effective and longer-acting methods.”

HRSA adopted IOM’s recommendations and included all FDA-approved prescription contraceptive methods in its guidelines. The relevant federal agencies (HHS, the U.S. Department of Labor, and the U.S. Department of the Treasury) incorporated the HRSA guidelines in their regulations.

The Act’s preventive-services requirement applies to individual health insurance plans and employer-sponsored group plans. (The Act exempts a small and declining percentage of plans from certain reforms, including the preventive-services requirement. About 25 percent of plans were exempt in 2015.) The requirement is enforced against health insurers by state insurance regulators and HHS; it is enforced against employer-sponsored group health plans through the Employee Retirement Income Security Act (“ERISA”) and a tax penalty on employers with noncompliant plans.

Recognizing that some employers have religious objections to contraceptives, but at the same time that their employees should receive the same access to FDA-approved contraceptives as other individuals in employer-sponsored plans, the relevant departments created an accommodation. This accommodation applied specifically to religious nonprofits that opposed covering contraceptive services on religious grounds. The regulations allowed an objecting employer to opt out of any requirement by sending a simple form (EBSA Form 700) to the plan’s health insurer or third-party administrator (for self-insured plans), or by providing written notification to the Secretary of HHS. (The government adopted the latter procedure in light of the Court’s ruling in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). In that case, the Court granted an injunction pending appeal to Wheaton College, halting the use of the form, but requiring the plaintiff to inform HHS in writing that it satisfied the requirements for the accommodation. The latter procedure (the letter) is simply an extension of this procedure to all religious nonprofits.) Either method (EBSA Form 700, or written notification to the Secretary) requires an objecting employer to provide only essential information—the basis for its accommodation, the type of plan it offers, and contact information for the plan’s insurer or third-party administrator.

If an objecting employer opts out of the contraceptive-coverage requirement, either the employer’s insurer (for insured plans) or third-party administrator (for self-insured plans) must provide contraceptive coverage to the employer’s employees directly, independently of the objecting employer, and without additional cost to the employees. (Health insurers have to provide contraceptive services, anyway. But the accommodation requires them to provide those services under a plan that is separate and distinct from the objecting employer’s plan. As to third-party administrators to objecting employers: the Act gives them sole legal responsibility for providing contraceptive coverage under ERISA.)

A good number of religious nonprofits have taken advantage of the accommodation. In 2014, HHS provided user-fee reductions to compensate TPAs for making contraceptive coverage available to over 600,000 employees and beneficiaries. In 2015, more than 10 percent of all nonprofit organizations with 1,000 or more employees took advantage of the accommodation.

At the same time, however, more than two-dozen nonprofits objected. These included religious colleges and universities, other religious nonprofits (like Little Sisters), and three Catholic dioceses. (The Catholic dioceses are automatically exempt from the contraceptive-coverage requirement as houses of worship.) They brought nine separate suits in various federal courts around the country, arguing that the accommodation violated the federal Religious Freedom Restoration Act, or “RFRA.” The U.S. Courts of Appeals for the Third, Fifth, Tenth, and D.C. Circuits rejected these claims. (The U.S. Courts of Appeals for the Second, Sixth, and Seventh Circuits agreed, although those cases are not part of this consolidated appeal.) Only the Eighth Circuit ruled for the plaintiffs.

CASE ANALYSIS

The federal RFRA says that the government cannot “substantially burden a person’s exercise of religion” unless the burden is “the least restrictive means of furthering [a] compelling government interest.” 42 U.S.C. Sec. 2000bb-1(a) and (b)(2). The Act thus has two prongs: the “substantial burden” prong, and (2) the “fitness” prong, which requires a close fit between the means (here, the accommodation) and the government interest. The courts only consider the fitness prong if the plaintiffs can satisfy the substantial burden prong.

All the lower courts (with the sole exception of the Eighth Circuit) have ruled that the accommodation is not a “substantial burden” under RFRA. As a result, those courts have not even considered whether the accommodation is the least restrictive means to further a compelling interest. Here, the parties argue both.

The plaintiffs argue first that the accommodation is a substantial burden on their religious exercise, because it implicates them in the provision of contraception, contrary to their religious beliefs. In particular, the plaintiffs claim that the accommodation requires them to submit a document that authorizes their own insurance companies or TPAs to provide contraceptive coverage to their own employees and students, in violation of their religious beliefs. They say that the accommodation then requires them to maintain an ongoing relationship with an insurer or TPA that continues to provide contraceptive coverage, again in violation of their religious beliefs. The plaintiffs contend that the accommodation violates their sincerely held religious belief, and that the Court should defer to them on this question.

The plaintiffs argue next that the accommodation is not the least restrictive way that the government can further a compelling government interest. They claim that the government has already granted a number of exemptions from the contraceptive-coverage requirement, leaving out millions of people, for both religious and other, less important, and nonreligious reasons. They say that this shows that the government’s interest in applying the requirement to them (even with the accommodation) cannot be compelling. Moreover, they contend that the government has other ways to provide contraceptive coverage. For example, they claim that the government could provide contraceptive coverage through insurance exchanges, certain existing federal programs, or tax subsidies. Because the government has no compelling interest, and because it has alternative ways to provide contraceptive coverage, the accommodation fails the second prong of the RFRA test.

The government argues first that the accommodation is not a substantial burden on the plaintiffs’ religious beliefs. The government claims that the accommodation allows the plaintiffs to entirely opt out of the contraceptive-coverage requirement, and that the government itself then directly requires insurers or TPAs to provide contraceptive coverage, completely independently and separately from the coverage provided by the plaintiffs. (In this way, according to the government, the accommodation doesn’t force the plaintiffs to authorize the coverage; instead, the law itself requires coverage.) Moreover, the government contends that the plaintiffs’ sincere objections to the government’s independent requirement of third parties (the insurers and TPAs) cannot constitute a substantial burden under the RFRA. If it were otherwise, any religious accommodation could subject countless government programs to RFRA’s stringent second prong and “profoundly impair the government’s ability to accommodate religious objections.”

The government argues next that even if the accommodation amounts to a substantial burden, the accommodation serves a compelling government interest. In particular, the government says that it has a compelling interest in protecting the health of female employees, and that contraceptive coverage advances that interest. The government claims that the plaintiffs are wrong to argue that other exemptions mean that the government lacks a serious compelling interest. After all, it says, most laws have exceptions, and they don’t take away from a law’s purposes. Moreover, the government contends that other exemptions to the contraceptive mandate do not undermine its core purpose and compelling interest. Finally, the government argues that the accommodation serves its interest in the least restrictive way, because it ensures that female employees can automatically receive contraceptive coverage and that they can receive contraceptive services through their regular medical care, without having to sign up for a new and different plan or program (which does not currently exist in federal law).

SIGNIFICANCE

This is a strange case to wrap one’s head around. That’s because the plaintiffs are not complaining that the contraceptive coverage requirement itself violates their religious freedom. That claim might be understandable. And it would probably be an easy case, in light of the Court’s decision just two Terms ago in Burwell v. Hobby Lobby, holding that the contraceptive-coverage requirement violated the Religious Freedom Restoration Act as to a closely-held for-profit corporation.

But instead, the plaintiffs claim that the government’s effort to exempt them from the contraceptive-coverage mandate violates their religious beliefs. More particularly, they claim that the accommodation violates their religious beliefs, because it triggers the offending government policy. On the face of it, this kind of claim seems to turn the idea of an accommodation on its head. And moreover, as the government argues, it potentially subjects other religious accommodations in other policy areas to similar religious freedom challenges. This could put the government between the Scylla of a policy that might burden a religious practice and the Charybdis of an accommodation to that policy—with a result of forcing the government ship in the future to turn away from a policy altogether. It seems strange and surprising that the RFRA could frustrate this and other government policies this way.

Still, the question is open. The Supreme Court in Hobby Lobby identified the accommodation (the very one at issue here) as an example of how the government might exempt a closely-held, for-profit corporation from the contraceptive-coverage requirement. (The Court used this to show that the government had other, less restrictive ways to further its purpose under the fitness prong of RFRA.) But the Court consciously declined to say whether the accommodation violated the RFRA. As a result, the Court seemed to sanction the accommodation, even as it also seemed to invite this challenge to it.

And speaking of challenges, this is the fourth challenge to the ACA to reach the Court. The first involved challenges to the individual coverage requirement and Medicaid expansion. The Court in NFIB v. Sebelius, 567 U.S. __ (2012), upheld those provisions, with one caveat: the government could not withhold a state’s entire Medicaid budget if the state declined to expand Medicaid (although the government could withhold additional funding for the expansion itself). The second involved a challenge to the contraceptive coverage requirement. The Court in Hobby Lobby ruled that the requirement violated the First Amendment as applied to closely-held, for-profit corporations, although the government could create an accommodation. The most recent challenge involved the subsidies to help lower-income individuals purchase health insurance on the government exchanges. The Court in King v. Burwell, 576 U.S. __ (2015), upheld those subsidies. As a result, ACA challengers have gone 0 and 3, even as they have forced some important changes to implementation of the Act along the way.

There are more challenges in the pipeline, however. One of those involves a challenge to the tax penalty that enforces the individual coverage requirement. Challengers argue that the ACA did not originate in the House of Representatives (as the Constitution requires for revenue-raising bills), and thus the tax penalty is unconstitutional. Another involves a challenge to the government’s subsidies to health insurers to offset their costs in providing certain benefits under the Act. Challengers in the House of Representatives argue that the government spent money for this program without a congressional appropriation. There are others, too.

None of these (including the present case) is likely to threaten the Act in its entirety. But each one (again, including the present case) has the potential to chip away at, or significantly alter, a portion.

March 23, 2016 in Cases and Case Materials, News, Religion | Permalink | Comments (0)

Monday, March 21, 2016

Racial Redistricting, District Packing, and an Outsider's Interests in Reelection

The Supreme Court heard oral arguments today in Whittman v. Personhuballah, the case testing whether a state's move to pack black voters into a congressional district supposedly to comply with Section 5 of the Voting Right Act, but with the effect of diluting black voters' influence, violates equal protection.

Our preview is here.

Not surprisingly, the justices spent a good deal of time on standing, in particular, whether Representative Forbes, a congressman who had a lock on reelection in District 4, had standing to challenge the lower court's redistricting plan, because it made it tougher for him to get reelected in District 4. (Indeed, he's running in District 2, where he has a better chance of election, for this reason.) Justices Sotomayor and Kagan seemed to take strong positions that Forbes lacked standing; Justice Breyer staked out an only somewhat weaker position. The conservatives, along with Justice Kennedy, seemed to lean the other way.

On the merits, Justice Kagan put the finest point on the challengers' theory: If a legislature redistricts based malign racial intent, but the map also perfectly promotes acceptable political interests, is it subject to strict scrutiny? Michael Carvin, attorney for the challengers, said no. Justice Kagan went right to the point: "that sounds to me as though it's a harmless error rule for racial discrimination. And we've never had a harmless error rule for racial discrimination."

Chief Justice Roberts put a similar question to all the attorneys, but his hypo did not include any other evidence of racial motive: "If race and partisanship are co-extensive, then . . . which one predominates?" Opponents of the legislature's map had to concede that it'd be a tie; and under a tie, race could not predominate.

The difference between Justice Kagan's hypo and Chief Justice Roberts's hypo is the evidence of the 55-percent BVAP floor. But Chief Justice Roberts didn't seem inclined to look to that evidence to show that race predominated with the legislature. He asked: How do we determine the intent of the legislature? By 10 percent say-so? By 80 percent say-so? What if most of the legislators were only interested in protecting their own party, even though the sponsor of the legislature's redistricting plan used a 55-percent-BVAP (race-based) floor? If the direct evidence of a 55-percent-BVAP floor doesn't persuade that race predominated, then it's a tie, and then race didn't predominate--and the legislature's plan stands.

Chief Justice Roberts was also troubled that the lower court didn't require the plaintiffs to show that a map based on partisanship interests would be different.

With Justice Kennedy seeming to lean with the conservatives, the case could be headed for a 4-4 split, which would uphold the lower court's ruling that District 3 was an unconstitutional racial gerrymander.

March 21, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, Jurisdiction of Federal Courts, News, Oral Argument Analysis, Standing | Permalink | Comments (0)

Thursday, March 17, 2016

Starger's Citation Maps

Check out Prof. Colin Starger's (U. Balt., U. Balt. Sup. Ct. Mapping Project) nifty new online Supreme Court citation network tool. This site, which Starger produced in collaboration with Free Law Project, allows you to map Supreme Court case citations against Spaeth data on the decision direction (liberal-conservative) in The Supreme Court Database, with links to the decisions and a ton more information. Starger already posted a bevy of maps, but you can create your own, too. Here's a sample, mapping from Buckley to McCutcheon:

 

March 17, 2016 in Campaign Finance, News, Scholarship | Permalink | Comments (0)

Can a State Pack Black Voters in a District to Comply with the Voting Rights Act?

The Court will hear oral arguments on Monday in Whittman v. Personhuballah, a case testing whether a state's move to pack black voters into a congressional district supposedly to comply with Section 5 of the Voting Rights Act, but with the net effect of diluting black voters' influence, violates equal protection. This is the second time in two Terms that the Court has dealt with the issue: last Term the Court ruled in Alabama Legislative Black Caucus v. Alabama that the lower court applied the wrong standard and remanded the case for further proceedings. Whittman deals with a slightly different question, as described below. There's also a significant question of standing.

Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

Does a redrawn congressional district, which is based on maintaining a minimum fixed percentage of black voters in a district and in fact increases the percentage, violate equal protection?

Case at a Glance

The Equal Protection Clause forbids a state legislature from unjustifiably using race as the predominate factor in redrawing state legislative and congressional districts. At the same time, some states were required under the Voting Rights Act to ensure against retrogression, the diminution of a minority group’s ability to elect a preferred candidate of their choice. This means that a covered state had to consider race in redistricting. This case tests how a covered state can consider race.

INTRODUCTION

The Virginia legislature adopted a redistricting plan that increased the percentage of black voters in a majority-minority congressional district. The legislature based the plan on maintaining a fixed percentage of black voters in a certain congressional district, supposedly to comply with the Voting Rights Act. A three-judge district court struck the plan as a racial gerrymander and ordered the implementation of its own map.

ISSUES

    1. Does a member of congress from an adjoining district have standing to challenge the court-ordered map, on the theory that the map may make it harder for him to win re-election?
    2. Did the Virginia legislature’s use of race predominate when it drew congressional district 3, and, if so, was its use of race justified in order to comply with the Voting Rights Act?

FACTS

In 1991, as part of its redistricting plan after the 1990 Census, Virginia created its Third Congressional District, or “CD3.” The state created CD3 as its only majority-minority district, so that racial minorities in the district could elect a candidate of their choice. At the time, CD3 had a black voting age population, or “BVAP,” of 61.17 percent. The U.S. Department of Justice, or “DOJ,” precleared the plan and CD3 under Section 5 of the Voting Rights Act, “VRA.”

In 1997, however, a three-judge court invalidated CD3 as a racial gerrymander. The court in Moon v. Meadows, 952 F. Supp. 1141 (E.D. Va. 1997), found the evidence “overwhelming that the creation of a safe black district predominated in the drawing of the boundaries.” As a result, the General Assembly redrew the district, and lowered its BVAP to 50.47 percent. DOJ precleared the plan, and CD3 was not challenged.

After the 2000 Census, the state redrew CD3 again, along with its other congressional districts. As part of this redistricting, the state shifted a number of black voters from CD4 into CD3 and CD5. As a result, the BVAP in CD3 increased to 53.1 percent. DOJ precleared the plan, and CD3 was not challenged. (This plan is sometimes called “the Benchmark Plan,” because it immediately preceded the challenged plan and thus sets the benchmark against which the challenged plan is measured.)

After the 2010 Census, the state once again undertook to redraw its congressional districts. This time, CD3 was underpopulated by 63,976 citizens, so it needed additional citizens in order to reach the state’s benchmark population for compliance with the one-person-one-vote principle. Delegate Bill Janis introduced a plan that added population to CD3 and increased its BVAP from 53.1 percent to 56.3 percent.

Janis said that he based his plan on several criteria. These included the one-person-one-vote principle, the VRA rule against retrogression of minority voter influence, respecting the will of the Virginia electorate as reflected in the November 2010 elections, and maintaining current boundaries as much as possible. Throughout the floor debates on the plan, Janis repeatedly said that Section 5 of the VRA prohibited retrogression of minority voter influence, that compliance with Section 5 was “nonnegotiable,” and that compliance with the non-retrogression mandate was a “paramount concern” in drafting the plan.

The Virginia legislature failed to enact a plan in its 2011 special session. But Janis’s plan was reintroduced in the 2012 session (although Janis was no longer a member). At least two members of the legislature (Senators Locke and McEachin) protested that the plan packed black voters into CD3 and some surrounding districts, leaving them “essentially disenfranchised.” The House and Senate nevertheless passed the Janis plan, and the governor signed it. The plan maintained an 8-3 partisan division in favor of Republicans in the state and protected all incumbent members of congress. DOJ precleared the plan in March 2012.

In June 2013, in Shelby County v. Holder, 133 S. Ct. 2612, the Court invalidated the preclearance coverage formula in Section 4 of the VRA. This meant that Virginia (along with other previously covered jurisdictions) were no longer subject to the non-retrogression requirement in Section 5.

In October 2013, Dawn Curry Page, Gloria Personhuballah, and James Farkas, three voters in CD3, filed this case, seeking to invalidate CD3 as a racial gerrymander. Republican members of congress from districts surrounding CD3, including Representative Randy Forbes, Republican from CD4, intervened in the case to defend the plan.

The plaintiffs alleged that CD3 was designed to pack black voters in the district, which would dilute black voters’ influence in CD3 and in other districts. During trial, the plaintiffs called an expert, Dr. Michael McDonald, who testified that CD3 was drawn as a majority-black district for predominantly racial reasons. (McDonald based his conclusion in part on an Alternative Plan, produced by the plaintiffs, that resulted in a 50.1 percent BVAP in CD3. The parties disagree over the meaning of the Alternative Plan and whether it supports McDonald’s conclusion.) The state called its own expert, John Morgan, who testified that CD3 was explainable by race-neutral factors of politics and incumbency protection.

Importantly, evidence suggests the General Assembly applied a 55-percent-BVAP floor in drawing CD3. In particular, some evidence shows that at least some in the legislature thought that CD3 needed a 55 percent BVAP in order to pass DOJ preclearance under Section 5 of the VRA. (Remember, the state created CD3 before the Court ruled in Shelby County.)

The district court, by a 2-1 vote, concluded that CD3 was an unconstitutional racial gerrymander and enjoined the state from conducting any further congressional elections under the 2012 plan. The intervenors appealed, and the Supreme Court vacated the district court’s judgment and remanded the case in light of Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015). (Alabama Legislative Black Caucus involved the same kind of challenge to a similar plan, which also packed black voters into a district supposedly to comply with Section 5 of the VRA. The Court held that the lower court used an incorrect standard for judging this kind of case and gave some guidance for applying the correct standard. As discussed below, a portion of this ruling is relevant here.)

On remand, the district court again ruled 2-1 that CD3 was an unconstitutional racial gerrymander. The court wrote that the “legislative record here is replete with statements indicating that race was the legislature’s paramount concern in enacting the 2012 Plan,” and that the legislature had impermissibly used “a 55% BVAP floor” in redrawing CD3. (Because race predominated in redrawing CD3, the court applied strict scrutiny. The court held that compliance with Section 5 was a compelling state interest, but that the state’s use of race to increase the BVAP from 53.1 percent to 56.3 percent was not narrowly tailored to avoid retrogression in CD3. That’s because Congressman Bobby Scott, “a Democrat supported by the majority of African-American voters,” had been repeatedly reelected under the prior BVAP by large margins.) The intervenors appealed to the Court.

Meanwhile, the remedial phase of the litigation proceeded in the district court. The court invited the parties and any interested non-parties to propose plans and appointed Dr. Bernard Grofman as special master. Grofman rejected the proposed plans and recommended his own. The court found that the Grofman plan cured the racial gerrymander by redrawing CD3 according to neutral districting criteria, and not race. The court also found that the plan complied with the VRA, despite the drop in CD3’s BVAP (to 45.3 percent), because the lower BVAP combined with significant white-crossover voting preserved “African-American voters’ ability to elect the representative of their choice.”

The court-ordered plan also changed CD4. The plan increased the BVAP in CD4 from 31.3 percent to 40.9 percent, creating a “realistic possibility,” according to Grofman, that black voters could elect a candidate of their choice. The plan also increased Democratic representation (as measured by the election results for the 2012 Presidential election) from 48.8 percent to 60.9 percent, turning a “safe seat for the Republican incumbent” into a “competitive” district, according to Grofman. (The current and previous maps, and alternative maps, are available at the web-site for the Virginia Division of Legislative Services, http://redistricting.dls.virginia.gov/2010/RedistrictingPlans.aspx#41,list.)

The intervenors again appealed to the Supreme Court. The plaintiffs in the original case (minus Dawn Curry Page, who was dismissed by stipulation) defend the court-ordered plan as appellees before the Court. The Virginia State Board of Elections also defends the plan as an appellee. The government defends the plan as amicus in support of the appellees. The Court divided oral argument to permit each of the parties and the government to participate.

CASE ANALYSIS

The case involves two principal issues. Let’s take them one at a time.

Standing

In order to bring a case in federal court, a plaintiff must demonstrate (1) that he or she suffered an “injury in fact,” (2) that the challenged action caused the injury, and (3) that the lawsuit will redress the injury. The injury-in-fact requirement means that a plaintiff must show “concrete” and “particularized” harm, “actual or imminent.” The causation requirement means that the plaintiff has to show that the challenged action (here, the district court ruling and the court-ordered map) caused the injury. And the redressibility requirement means that the plaintiff must show that a successful lawsuit would redress their harm.

Standing is a threshold requirement. This means that the Court has to be satisfied that the intervenors have standing before it will rule on the merits (the discrimination claim, discussed below). Here, the parties focus particularly on intervenor Forbes. If Forbes has standing, then the Court will consider the merits. If not, the Court will dismiss the case.

The intervenors argue that they have standing, because the court-ordered plan transforms at least one of their districts (CD4, Forbes’s district) from a majority-Republican district to a majority-Democratic district. (Indeed, they say that every proposed plan would have made at least one Republican district a majority-Democratic district, so that they would have standing under any of the proposed plans.) The intervenors contend that this injures at least one of them, because it harms his or her chances for reelection, replaces his or her “base electorate” with “unfavorable” Democratic voters, and undoes his or her recommendations for the district. (The Board sides with the intervenors on standing and makes similar arguments.)

The plaintiffs argue that the intervenors lack standing. They claim that the intervenors have no responsibility for drawing or enforcing the 2012 redistricting plan (and therefore cannot complain that they were harmed by losing their redistricting power), and that they do not live in or represent CD3, the only challenged district. The plaintiffs assert that the intervenors’ only claim to standing is that the court-ordered plan might make it harder for some of them to win, if they choose to run, and if they defeat their primary challengers. The plaintiffs say that this alleged harm is too speculative and not sufficiently connected to the court-ordered plan. And in any event, they say, there are many other factors that might contribute to this harm. (The government sides with the plaintiffs on standing. The government adds that the intervenors have no right to “fence out those voters to enhance their odds of electoral success,” and therefore no harm when that happens.)

Discrimination

State legislatures can use a variety of factors in redrawing state legislative and congressional districts. Most of these factors are neutral—for example, preserving the compactness of a district, preserving the contiguity of a district, maintaining communities with like interests within a single district, and even advancing political interests—and do not alone raise constitutional problems. But the Equal Protection Clause prohibits a state legislature from using race as a factor, when its use of race predominates over other race-neutral factors without a sufficient justification (that is, without satisfying strict scrutiny).

States that were subject to the preclearance requirement in Section 5 of the VRA, including Virginia, had to consider race in their redistricting decisions. That’s because in order to obtain preclearance under Section 5, a covered state had to show that its new map, as compared to the immediately preceding map, would not result in retrogression, that is, diminishment of a minority group’s ability to elect its preferred candidate. (No state is subject to the preclearance requirement today. The Supreme Court in Shelby County struck the coverage formula for preclearance. This means that preclearance remains on the books, but currently there are no covered jurisdictions.)

This raises an important question: If a state legislature uses race in redistricting in order to comply with Section 5, does that use of race violate equal protection? The Supreme Court gave us some guidance to work that out last Term in Alabama Legislative Black Caucus v. Alabama. As relevant here, the Court held that Section 5 does not require a state to maintain a particular minority percentage; instead, it requires the state to maintain a minority’s ability to elect a preferred candidate of choice. This means that when a state legislature uses race as a predominate factor in redistricting in order to comply with Section 5, it cannot use a mechanical percentage—because that’s not what Section 5 requires.

That principle would seem to answer the question in this case (in favor of the plaintiffs and the Board), except that this case involves an additional wrinkle. Here, the intervenors claim even if the legislature used race as a predominate factor, CD3 would have looked the same if the legislature hadn’t used race. The intervenors rely on language from Easley v. Cromartie, 552 U.S. 234 (2001), to argue that because CD3 would have come out the same under neutral principles (without considering race), then race couldn’t have predominated, and the 2012 map satisfies equal protection.

The parties and amicus frame their equal protection arguments around these principles.

The intervenors argue first that the district court erred in finding that race predominated in drawing CD3 in the 2012 plan. The intervenors concede that race was a factor in the 2012 plan—that the legislature recognized that compliance with Section 5 of the VRA was “non-negotiable” and “paramount.” But they say that this use of race was necessary (because the state had to comply with Section 5), and that if it is considered predominant, then every use of race to comply with the VRA will automatically be deemed predominant. Moreover, they contend that the legislature’s racial goals were coextensive with neutral redistricting principles that governed all districts (like protecting incumbents by preserving the cores of existing districts) and with the legislature’s political objectives. They say that because the use of race resulted in the same district lines that would have resulted without the use of race, race cannot have predominated over neutral redistricting principles. Finally, the intervenors contend that the district court’s approach requires the legislature to treat majority-minority districts differently than majority-white districts, because under the district court’s approach the legislature could not use neutral principles to draw CD3, so long as the VRA also required the legislature to draw CD3 the same way.

Next, the intervenors argue that the district court failed to properly determine whether the legislature’s racial considerations subordinated other neutral redistricting criteria. They claim that the legislature would have drawn CD3 the same based only on neutral criteria, and so race could not have predominated. (They even say that achieving a 55 percent BVAP floor was the best way to achieve the legislature’s neutral redistricting objectives, irrespective of any racial purpose in using that floor.) The intervenors contend that the district should have determined whether there was an inconsistency between the neutral motives and the racial motives in order to determine whether racial motives predominated. But they say that the court never looked at this question.

Third, the intervenors argue that CD3 in the 2012 plan served permissible political purposes. They say that the 2012 plan treated CD3 the same as all other (majority-white) districts in the state, making only minor changes to district cores for the permissible purpose of benefitting incumbents. They claim moreover that changing CD3’s shape or reducing its BVAP would have sent a significant number of Democratic voters into the adjacent districts, all of which had Republican incumbents. Again, according to the intervenors, this means that CD3’s shape and BVAP serve the permissible purpose of benefitting incumbents. Finally, they contend that even the plaintiffs’ expert conceded that CD3 benefitted Republican incumbents and could be explained by a political purpose.

Fourth, the intervenors argue that the plaintiffs failed to show that the state could have achieved its political goals by drawing CD3 any other way. They contend that drawing CD3 with a BVAP of 56.3 percent was the only way for the state to retain all Republicans incumbents. They say that the plaintiffs’ alternative plan proves their point: this plan, which itself subordinated neutral redistricting principles to race, would have converted CD2 from a toss-up district with a Republican incumbent into a Democratic district, in order to achieve a lower BVAP.

Finally, the intervenors argue that CD3 in the 2012 plan meets the Alabama test. They claim that of all the alternatives, CD3 best advances the legislature’s political purposes and thus least subordinates those principles to race. In particular, they say that the court-ordered plan, with its reduction to a 30 percent BVAP, was not only based on race but likely would have failed DOJ preclearance. They contend that the legislature therefore had a “good reason” under Alabama to adopt the 2012 version of CD3.

The plaintiffs argue that race impermissibly predominated when the legislature redrew CD3 in 2012. They say that Janis, who originally introduced the plan, said as much, when he adopted the 55-percent-BVAP threshold based on a mistaken belief that any decrease in the BVAP would violate Section 5 of the VRA. They claim that circumstantial evidence shows this, too: the 2012 version of CD3 was the least compact district in the state, using water continuity to connect disparate black communities along the James River; it moved over 180,000 people to address underpopulation in CD3 of only 63,976; and the legislature disproportionately moved black voters into and white voters out of CD3.

The plaintiffs argue next that the intervenors are wrong to assert that the district court failed to apply Alabama—a legal error. Instead, the plaintiffs say that in truth the intervenors challenge the district court’s factual findings. But the plaintiffs contend that the intervenors cannot show that the district court’s findings were “clearly erroneous,” the standing for reversal on appeal.

The plaintiffs argue that the intervenors are also wrong to assert that the legislature’s use of race could not have predominated, because CD3 would have looked the same based on race-neutral redistricting criteria. The plaintiffs claim that if the legislature used race as a proxy for race-neutral criteria (as the intervenors seem to argue), then the legislature impermissibly used race. Moreover, the plaintiffs say that Comartie II is distinguishable: in that case, the direct evidence showed a partisan purpose, and the plaintiffs advanced a largely circumstantial case to prove otherwise; but in this case, the direct evidence (Janis’s statements) reveals a clear racial purpose behind the 2012 version of CD3.

Finally, the plaintiffs argue that Alabama supports their position. They say that the legislature made the same mistake as the legislature in Alabama, by focusing on how it could meet the arbitrary threshold of a 55 percent BVAP. But the plaintiffs argue that under Alabama the legislature should have focused on this question: “To what extent must we preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice?” Alabama, 135 S. Ct. at 1274. The plaintiffs argue that the intervenors try to escape the plain factual record, but they cannot: the record clearly reflects that race was the predominate purpose in drawing the 2012 version of CD3.

The Virginia State Board of Elections (as appellees) and the government (as amicus) make substantially similar arguments. The government clarifies a couple of points, however. First, the government says that mere statements that the legislature has to comply with the VRA does not mean that race predominated; instead, the legislature’s use of the 55-percent-BVAP threshold, along with other circumstantial evidence, means that race predominated. And the government, like the plaintiffs and the Board, argues that the court made no clear error in finding these facts. Next, the government contends, contrary to the intervenors, that a racial gerrymandering claim does not depend on a showing that race and politics conflicted. Instead, the government says that the constitutional harm comes from the predominate use of race, and that a plaintiff who can show that race predominated need not also show that the district’s actual configuration was different than an alternative configuration under race-neutral criteria. Finally, the government emphasizes that “Section 5 does not require jurisdictions to adhere to mechanical and factually unsupported racial targets, uninformed by a functional analysis of a minority group’s ability to elect.” And because that is exactly what the legislature did here, race impermissibly predominated.

SIGNIFICANCE

This is the second time in two years that the Court will consider a case of a previously covered jurisdiction packing black voters into a district supposedly to comply with Section 5 of the VRA. The Court limited this practice last Term in Alabama by ruling that (as relevant here) a state legislature cannot use mechanical percentages in order to comply with the VRA; instead, it must use the retrogression standard. That principle seems to answer the question in this case (because the Virginia legislature used a mechanical percentage), except that the intervenors claim that CD3 would have looked the same even without race—and therefore that race did not predominate in drawing CD3. Look for the Court to test this claim at oral argument.

The history of this case and the result in Alabama both suggest that the Court may lean toward the plaintiffs and the Board (and against the intervenors). First, the Court denied the intervenors’ application for a stay of the lower court’s decision pending appeal. Ordinarily, that would not (necessarily) suggest anything about the likely outcome. But in this case, Virginia has to know the shape of its districts, because it has to conduct 2016 elections. Because Virginia is set to run its elections based on the court-ordered map, the Court would throw a real wrench into Virginia politics by reversing course. (For one, it could affect Forbes himself. Forbes has announced that he will run for re-election in 2016 in CD2, not CD4, his current district. That’s because under the court-ordered map, CD4 leans much more Democratic. If the Court reversed the lower court, this could affect Forbes and the new representative in CD4, among others. It’ll be interesting to see if Forbes’s decision to run in CD2 becomes a factor for standing purposes.) Second, Alabama was a 5-4 decision, with Justice Kennedy siding with the progressives. This is a different case, to be sure, but it could turn on a similar line-up.

If the Court gets to the merits, look for it to rule narrowly. Given the Court’s approach in Alabama and given certain features of this case, this case seems an unlikely vehicle for the Court to make a grand statement about the constitutionality of the practice of packing districts for the supposed purpose of complying with the VRA, but with the effect of diluting the impact of all black voters in the state.

But that’s only if the Court rules on the merits. Indeed, we have good reason to think it might not, or at least that the Court will take the standing issue very seriously. The Court itself introduced the issue and ordered the parties to file supplemental briefs on it—twice. The first time, the Court simply asked the parties to brief whether the intervenors had standing. This apparently didn’t satisfy the Court, however, because it then asked the parties to brief whether they had standing because none of them lived in or represented CD3. These orders raise the real possibility that the Court could simply dismiss the case based on lack of standing, and not even address the merits.

March 17, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, News | Permalink | Comments (0)

Wednesday, March 16, 2016

President Obama's Nomination to the United States Supreme Court

Merrick Garland, the chief judge on the U.S. Court of Appeals for the D.C. Circuit is Obama's nominee. 

The New Yorker analyzes Garland as a "sensible choice."

NPR says "Reputation Of Collegiality, Record Of Republican Support."

First Amendment ConLawProfs might note that Garland was in the majority in American Meat Institute v. U.S. Department of Agriculture.  Also of note is that he was part of the panel that decided that there was no clearly established right not to be tasered during a protest under the First, as well as Fourth, Amendment in Lash v. Lemke.

 

 


Merrick_Garland

March 16, 2016 in Congressional Authority, Courts and Judging, Executive Authority, News, Supreme Court (US) | Permalink | Comments (0)

Tuesday, March 15, 2016

When Does a Court's Dismissal of a Prisoner's FTCA Case Foreclose a Parallel Bivens Claim?

Here's my argument preview in Simmons v. Himmelreich, originally posted at SCOTUSblog. The case is scheduled for oral argument next Tuesday.

Federal prisoners who seek redress for civil rights violations face an infamous thicket of rules, regulations, statutes, and case law. Prisoners have to navigate often-complicated prison rules and regulations to file an administrative claim in the first instance. They have to check to see that they have exhausted all administrative options before filing in federal court. And they have to choose and plead their federal claims carefully. (And that’s just the beginning.) This thicket sometimes seems especially designed only to thwart prisoners’ claims entirely, creating an access barrier that restricts and even prohibits a federal prisoner from obtaining a remedy for a civil rights violation.

On the other hand, this thicket serves some important governmental interests. It helps ensure that a prison itself gets a first crack at providing relief to a prisoner. It helps narrow the issues and streamline a case for the federal court. And it ensures that a federal employee and the government itself need only defend against a single lawsuit arising out of the same incident.

This case tests the push and pull between the rules in this thicket. And while the case deals in the technical and sometimes complicated interplay between different statutory provisions, it really comes down to this simple question: When a federal prisoner seeks redress for a civil rights violation, does federal law favor relatively more open access to the courts, or does it favor protection of federal employees and the government?

The facts

In October 2008, Walter Himmelreich was serving a 240-month sentence at the Federal Correctional Institution in Elkton, Ohio, for the production of child pornography. Himmelreich’s crime didn’t sit well with another inmate at Elkton, a prisoner who was housed in the Special Housing Unit because of his disciplinary violations. That prisoner told officials that he was “not able to live with pedophiles” and that if he were released into the general compound he “will smash a pedophile.” Just four days after this prisoner made these claims, prison officials nevertheless transferred him back into the general compound where, perhaps unsurprisingly, he assaulted Himmelreich. Himmelreich suffered serious injuries, including internal bruising, external injuries, permanent ringing in the ears, persistent headaches, and a pinched nerve.

Himmelreich filed and lost an administrative tort claim. He then filed two separate suits in federal court – one under the Federal Tort Claims Act, and the other under Bivens, which allows a plaintiff to sue a federal officer for a constitutional violation, in this case the Eighth Amendment. The court dismissed the FTCA case and then the Bivens case. Himmelreich appealed the Bivens ruling, and after the case went up to the Sixth Circuit twice (where Himmelreich won both times), this question is now before the Court: Does a court’s dismissal of a prisoner’s FTCA case under the FTCA’s “discretionary act” exception foreclose that prisoner’s separate Bivens claim?

The law

The case sits at the intersection of four provisions of the FTCA. The first is the FTCA’s jurisdictional provision, Section 1346(b). This provision waives the United States’s sovereign immunity and grants district courts “exclusive jurisdiction” over claims against the United States for torts by government employees arising out the scope of their employment. In practice, this section operates like ordinary tort claims against a private employer who concedes respondeat superior liability, that is, liability on behalf of its employees for acts within the scope of their employment.

The second provision is the FTCA’s list of exceptions in Section 2680. This provision contains several categories of claims to which the FTCA does not apply. One of those categories encompasses what is commonly known as the “discretionary function” exception: any claim based on a federal employee’s “exercise or performance or the failure to exercise or perform a discretionary function or duty.”

The third is the FTCA’s judgment bar in Section 2676. The judgment bar provides that:

The judgment in any action under [the jurisdictional provision] shall constitute a complete bar to any action by the claimant, by reason of the same subject mater, against the employee of the government whose act or omission gave rise to the claim.

In practice, the judgment bar forecloses a plaintiff’s ability to pursue other kinds of claims against government employees arising from the same underlying incident. Congress enacted the judgment bar to protect federal employees and the government itself from multiple suits by the same plaintiff for the same injuries. At the time of its adoption, this provision served primarily to bar parallel state-law tort claims filed against federal employees in state court. But since 1971, when the Court recognized a federal constitutional-tort cause of action against federal employees in Bivens, the judgment bar has also foreclosed a parallel Bivens cause of action.

The final provision is the Westfall Act. That act, enacted in 1988, after the FTCA, makes the FTCA the “exclusive” remedy for a tort claim against a federal employee. It also precludes state-tort claims against federal employees and provides for the prompt substitution of the United States for the employee-defendants in those state-tort cases. Because the Westfall Act bars state-tort suits directly against federal employees, the judgment bar now functions primarily to foreclose parallel federal Bivens claims.

The case

After Himmelreich filed his first case (the FTCA case), the federal government moved to dismiss pursuant to the FTCA’s discretionary-function exception. The court granted the motion, noting that Section 2680 is an exception to the FTCA’s general waiver of sovereign immunity, and that the court therefore “lacks subject matter jurisdiction over acts falling within the discretionary function exception.” The court issued a document titled “JUDGMENT ENTRY” in which the court “ORDERED, ADJUDGED and DECREED” that the case was dismissed.

The court then dismissed Himmelreich’s second case, the Bivens case, for failure to state a claim. The Sixth Circuit reversed and remanded. The district court again dismissed the case, this time based on two alternative theories: Himmelreich’s failure to exhaust administrative remedies and the FTCA’s judgment bar. The Sixth Circuit again reversed, ruling that Himmelreich’s failure to exhaust administrative remedies was excused (an issue that is not now before the Court), and that the judgment bar did not foreclose Himmelreich’s Bivens claim. As to the latter, the court of appeals said that the district court’s dismissal under Section 2680 amounted to a dismissal for lack of subject matter jurisdiction, and that it was therefore not a “judgment” subject to the judgment bar. This is the question now before the Court.

The arguments

The government argues that the district court’s dismissal of Himmelreich’s FTCA case was a “judgment” under the FTCA judgment bar and thus forecloses his Bivens claim against the individual prison officials. The government says that this interpretation comports with the plain definition of the term, Congress’s use of the term in other portions of the FTCA, and the congressional purpose of the judgment bar. The government contends that Himmelreich is wrong to argue that the judgment bar applies only to the subset of judgments that is capable of having some preclusive effect under the principle of res judicata. According to the government, the term “judgment” is nowhere confined only to judgments having preclusive effect. But even if the term “judgment” is so confined, the government claims that the district court’s dismissal under Section 2680 is still a “judgment” under the judgment bar. That’s because Section 2680 imposes “substantive limitations” on FTCA liability, which makes the dismissal a ruling “on the merits” and therefore (under claim preclusion) precludes another case raising the same claim. It’s also because the district court actually determined that Section 2680 applies, and so (under issue preclusion) the ruling precludes Himmelreich from relitigating the issue. (This argument hinges on Himmelreich’s claim that the judgment bar extends the same res judicata preclusive effect that the government has under the FTCA to a government employee.) Finally, the government says that Himmelreich is wrong to argue that the judgment bar does not apply to an FTCA action dismissed under Section 2680 (because the judgment bar covers any FTCA action), and that he is wrong to claim that the introductory language to Section 2680 prevents Section 2680 dismissals from triggering the judgment bar (because the Court has ruled otherwise in a related context).

Himmelreich counters that the judgment bar does not foreclose his Bivens claim against the individual officials. As an initial matter, he says that the judgment bar does not even apply here, because the plain terms of Section 2680 say that the FTCA’s other provisions, including the judgment bar, “shall not apply” to the categories of exceptions in Section 2680. It’s also because the judgment bar is only triggered by a “judgment” in a suit “under section 1346(b).” But he says that Section 1346(b) does not apply to the “claims” enumerated in Section 2680, so that his FTCA action was not even “under” Section 1346(b) in the first place.

Himmelreich argues next that the court’s dismissal for lack of jurisdiction is not a “judgment” under the judgment bar, because the court’s dismissal carries no res judicata effect (and thus does not shield the government employee from suit). Finally, Himmelreich claims that the government’s approach would lead to absurdities, including lower courts blocking Bivens claims based on technical defects (that result in dismissal) in a plaintiff’s FTCA case, encouraging personal-capacity lawsuits (before FTCA claims, which the FTCA was designed, in part, to prevent), and depriving plaintiffs of a remedy for civil rights violations.

In the end – as technical and complicated as this thicket can be – the bottom line is pretty simple: the Court will either favor more access to justice for federal prisoners who seek redress for civil rights violations, or it will favor the government’s interest in protecting its employees from lawsuits.

March 15, 2016 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News | Permalink | Comments (0)

DOJ Guidance on Court Fines and Fees

The U.S. Department of Justice issued guidance and resources yesterday for state courts on the assessment and enforcement of fines and fees--and how to avoid access barriers, the criminalization of poverty, and other constitutional problems for those who can't pay. The move addresses a disturbing trend in state courts to use fines and fees to raise revenue and line the pockets of private corporations, while at the same time barring access to justice and jailing people because they're poor.

The Civil Rights Division and Office for Access to Justice issued a "Dear Colleague" letter and Resource Guide, and announced $2.5 million in grants and support for a task force to address these issues.

The Dear Colleague letter outlines the problem:

Recent years have seen increased attention on the illegal enforcement of fines and fees in certain jurisdictions around the country--often with respect to individuals accused of misdemeanors, quasi-criminal ordinance violations, or civil infractions. Typically, courts do not sentence defendants to incarceration in these cases; monetary fines are the norm. Yet the harm caused by unlawful practices in these jurisdictions can be profound. Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape. Furthermore, in addition to being unlawful, to the extent that these practices are geared not toward addressing public safety, but rather toward raising revenue, they can cast doubt on the impartiality of the tribunal and erode trust between local governments and their constituents.

The letter outlines seven actions that state courts must take to bring their fine- and fee-practices in line with Bearden v. Georgia, Boddie v. Connecticut, and, most recently, Turner v. Rogers, among other due process and equal protection cases protecting access and barring the criminalization of poverty.

March 15, 2016 in Equal Protection, News, Procedural Due Process | Permalink | Comments (0)

Friday, March 11, 2016

Eighth Circuit Says No Standing to Challenge Ban on Disclosing Execution Team

The Eighth Circuit ruled today that the ACLU lacked standing to bring a case against the director of the Missouri Department of Corrections to stop him from enforcing the state's ban on revealing the identities of execution team members. The ruling is a set-back for the ACLU and its efforts to disclose information about the state's executions, and, in particular, who provides the drugs. (Publicizing the providers has been an effective strategy by anti-death-penalty advocates to get those providers to stop providing.)

The case arose when the ACLU realized that it may have posted information about Missouri's executions (obtained under the Missouri Sunshine Law) that included "the identity of a current or former member of an execution team" in violation of a state law that prohibits revealing this information. The organization only realized the potential violation after it saw how the Department defined the members of the team--to include "anyone selected by the department director who provides direct support for the administration of lethal chemical, including individuals who prescribe, compound, prepare, or otherwise supply the lethal chemicals for use in the lethal injection procedure." So the organization removed the material from its web-site and moved quickly to sue the director for declaratory and injunctive relief, arguing that the law violated free speech, free press, and due process.

The director moved to dismiss, claiming that he was immune under the Eleventh Amendment, that the ACLU lacked standing, and that the claims failed as a matter of law.

The Eighth Circuit today sided with the director on immunity and standing (and didn't say anything on the merits). The court ruled that the director was immune, because under the law he has no role in enforcing the prohibition, even if he has authority to define the members of the execution team. But the court said that defining the members wasn't an enforcement action within the meaning of Ex Parte Young.

The court also ruled that the ACLU lacked standing. That's (again) because the director has no authority to enforce the prohibition. (Instead, the law provides for a civil cause of action by any execution team member against anyone who reveals his or her identity.) The court said that this means that the director's action (defining the execution team) didn't cause the ACLU's injury, and an injunction against the director wouldn't redress it.

But the court did recognize that the ACLU suffered an injury--an objectively reasonable fear of legal action that chills its speech. Because this fear derives from the possibility of a team member's suit, the organization could probably could sue a team member who appears in its materials for the same relief. Or it could post the material, wait to be sued, and then raise the constitutional defenses.

March 11, 2016 in Cases and Case Materials, Eleventh Amendment, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Wednesday, March 9, 2016

United States District Judge: Same-Sex Ruling (and 14th Amendment) Do Not Apply in Puerto Rico

In a 10 page opinion, Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.

Recall that in October 2104, Judge Juan Perez-Gimenez had largely relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question" to find that there was no constitutional right to same-sex marriage.  In the appeal to the First Circuit, the Solicitor General of Puerto Rico decided that it would not defend the same-sex marriage ban.   And then the United States Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples. 

The First Circuit thus remanded Conde-Vidal v. Garcia-Padilla to Judge Juan Perez-Gimenez "for further consideration in light of Obergefell v. Hodges" and specifically stated "We agree with the parties' joint position that the ban is unconstitutional." The parties submitted a  Joint Motion for Entry of Judgment with a proposed order.

In rejecting the parties' joint motion, Judge Juan Perez-Gimenez contended that because Puerto Rico was a "stranger to the proceedings" in Obergefell which involved same-sex marriage bans in the Sixth Circuit (Michigan, Kentucky, Ohio, and Tennessee), it was not bound by the decision.  This reasoning is similar to some of the arguments most recently raised by some Justices on the Supreme Court of Alabama. 

Additionally - - - and perhaps with more legal grounding - - - he concluded that Obergefell does not apply to Puerto Rico because it is not a "state":

the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico.

The judge based this "juridical reality" on his conclusion that the doctrine of selective incorporation only applies to states and not Puerto Rico, or perhaps more correctly, that the Fourteenth Amendment itself is not applicable to Puerto Rico "insofar as it is not a federated state." 

Additionally, Judge Perez-Gimenez asks "does the Constitution follow the flag?" and concludes that under The Insular Cases (1901), territorial incorporation of specific rights is questionable:

Notwithstanding the intense political, judicial and academic debate the island’s territorial status has generated over the years, the fact is that, to date, Puerto Rico remains an unincorporated territory subject to the plenary powers of Congress over the island under the Territorial Clause.More importantly, jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment. As explained by the Supreme Court, “noting the inherent practical difficulties of enforcing all constitutional provisions ‘always and everywhere,’ the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed.” Boumedine v. Bush. 

Thus, this court believes that the right to same-sex marriage in Puerto Rico requires: further judicial expression by the U.S. Supreme Court; or the Supreme Court of Puerto Rico, see e.g. Pueblo v. Duarte, 109 D.P.R. 59 (1980)(following Roe v. Wade, 410 U.S. 113 (1973) and declaring a woman’s right to have an abortion as part of the fundamental right to privacy guaranteed under the Fourteenth Amendment); incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause, see Const. amend. Art. IV, § 3; or by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68 [prohibiting same-sex marriage].

In staking out a position regarding Puerto Rico's status, Judge Perez-Gimenez's opinion reverberates with the two cases regarding Puerto Rico presently before the United States Supreme Court even as it looks back to his earlier opinion hostile to the right of same-sex marriage. 800px-Map_of_USA_PR

[updated: March 11, 2016:  Further discussion of these issues available here].

March 9, 2016 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Monday, March 7, 2016

United States Supreme Court Reverses Alabama Supreme Court's Denial of Full Faith and Credit to Lesbian "Second-Parent" Adoption

In a brief and straightforward per curiam opinion today in V.L. v. E.L.,  the United States Supreme Court granted certiorari and reversed the Alabama Supreme Court's denial of full faith and credit to a Georgia adoption involving a lesbian couple. 

As we discussed last September when the Alabama Supreme Court's opinion was rendered, it relied in large part on the dissenting opinion of a Georgia Supreme Court in a different case to support its conclusion that the Georgia courts did not have proper "jurisdiction" over the adoption. 

The United States Supreme Court stated that the Alabama Supreme Court's "analysis is not consistent with this Court's controlling precedent." It continued:

Indeed, the Alabama Supreme Court’s reasoning would give jurisdictional status to every requirement of the Georgia statutes, since Georgia law indicates those requirements are all mandatory and must be strictly construed. That result would comport neither with Georgia law nor with common sense.

As Justice Holmes observed more than a century ago, “it sometimes may be difficult to decide whether certain words in a statute are directed to jurisdiction or to merits.” Fauntleroyv. Lum, 210 U. S. 230, 234–235 (1908). In such cases, especially where the Full Faith and Credit Clause is concerned, a court must be “slow to read ambiguous words, as meaning to leave the judgment open to dispute, or as intended to do more than fix the rule by which the court should decide.” Id., at 235. That time-honored rule controls here. The Georgia judgment appears on its face to have been issued by a court with jurisdiction, and there is no established Georgia law to the contrary. It follows that the Alabama Supreme Court erred in refusing to grant that judgment full faith and credit.

That the parties to the case are lesbians - - - "two women who were in a relationship" - - - is made apparent by the United States Supreme Court.  This fact most likely figured largely in the Alabama Supreme Court's original majority ruling given the well-known hostility of its controversial chief justice to sexual minority rights.  However, given Friday's odd dismissal of the same-sex marriage litigation by the Alabama Supreme Court and today's United States Supreme Court definitive and unanimous reversal, it seems as if the opinions of Alabama Supreme Court Justice Greg Shaw (pictured below),  who dissented in E.L. as well as the earlier same-sex marriage opinions, has been vindicated.

Shaw
Alabama Supreme Court Justice Greg Shaw

 

March 7, 2016 in Courts and Judging, Family, Full Faith and Credit Clause, Interpretation, Opinion Analysis, Recent Cases, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)

Friday, March 4, 2016

Alabama Supreme Court on Same-Sex Marriage

The Supreme Court of Alabama has issued its opinions- - - totaling 170 pages typescript - - - in Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County dismissing all pending petitions and motions that seek relief from having to issue marriage licenses.  And yet, the lengthy concurring opinions in the case contradict rather than support this dismissal.

Recall that in January, controversial Chief Justice of the Alabama Supreme Court Roy Moore issued an Administrative Order forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect." Earlier, after an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Justice Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue.  In a March 2015 opinion  in  this same case - - - Ex parte State of Alabama ex rel. Alabama Policy Institute - - - known as API,  the court, without Justice Moore and over a dissent by Justice Shaw held  that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Recall that the United States Supreme Court declined to stay the federal judge's judgment.  A few months later, the United States Supreme Court decided Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.

In today's opinions, Chief Justice Moore is center-stage and plays a confusing part.

Ala-s-ct

First, he provides a "statement of nonrecusal."  He discusses his own participation in various aspects of this continuing litigation and concludes he is not reviewing his own Administrative Order but instead "the effect of Obergefell."  

Second, in his own "specially concurring" opinion, his ultimately conclusion is that Obergefell is incorrectly decided and that the Alabama Supreme Court is under no duty to obey it.  He writes quite personally:

I took my first oath to support the Constitution of the United States in 1965 at the United States Military Academy on the banks of the Hudson River at West Point, New York. On this very site General George Washington defended the northwest territory against British invasion during the Revolutionary War. I repeated that oath many times during my military service in Western Europe, Vietnam, and locations in the continental United States. Following my military service and upon graduation from the University of Alabama School of Law, I again took an oath to "uphold and support" the United States Constitution. As a private practitioner, deputy district attorney, circuit judge, and Chief Justice of the Alabama Supreme Court on two separate occasions, I took that oath and have administered it to other Judges, Justices, Governors, and State and local officials. In both civilian and military life the oath of loyalty to the Constitution is of paramount importance. **** The oath I took as a cadet at the United States Military Academy at West

Point stated, in part, "that I will at all times obey the legal orders of my superior officers, and the Uniform Code of Military Justice." 57 Bugle Notes, at 5 (1965) (emphasis added). Later, as a company commander in Vietnam, I knew the importance of following orders. The success or failure of a mission and the lives of others depended on strict adherence to the chain of command. The principle of obedience to superior orders is also crucial to the proper functioning of a court system. Nevertheless, the principle of obedience to superior officers is based on the premise that the order given is a lawful one.

He then discusses "Lt. William Calley, a unit commander at My Lai in Vietnam who was convicted of killing 22 innocent civilians," to support his "military analogy" that one should not simply "follow orders" when the orders are immoral.

Third,  Chief Justice Moore's opinion is the major, if not majority opinion. 

The opinion garnering the most Justices - - - three - - - is by Justice Stuart and is quite short, but speaks volumes.  It reads in full:

Motions and petitions are dismissed without explanation by this Court for numerous reasons as a matter of routine. When a Justice issues a writing concurring in or dissenting from an order summarily dismissing a pending motion or petition the writing expresses the explanation for the vote of only the Justice who issues the writing and of any Justice who joins the writing. Attributing the reasoning and explanation in a special concurrence or a dissent to a Justice who did not issue or join the writing is erroneous and unjust.

Justice Greg Shaw also concurs specially, but his is the opinion that supports the conclusion. Justice Shaw had dissented from the March 2015 Order.   He now concludes that given Obergefell, the March 2015 Order "no longer has a field of operation or any legal effect."  

It is the accepted legal doctrine and the historic legal practice in the United States to follow the decisions of the Supreme Court as authoritative on the meaning of federal law and the federal Constitution. Arguments have been put forth suggesting that this doctrine and this practice are incorrect. Those arguments generally have not been accepted by the courts in this country. For example, in Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court of the United States rejected the argument by certain state officials that they were not bound by that Court's decisions.

The idea that decisions of the Supreme Court of the United States are to be followed is not something new or strange. Thus, the members of this Court who would follow the Obergefell decision would not, as either Chief Justice Moore or Justice Parker suggests, be "bow[ing their] knee[s] to the self-established judicial despots of America," "blindly follow[ing] the unsubstantiated opinion of 'five lawyers,'" "'shrink[ing] from the discharge'" of duty, "betray[ing]" their oaths, "blatantly disregard[ing] the Constitution," standing "idly by to watch our liberties destroyed and our Constitution violated," participating in the "conversion of our republican form of government into an aristocracy of nine lawyers," or be adhering to a perceived "evil."  They would, quite frankly, be doing what the vast majority of past and present judges and lawyers in this country have always assumed the Constitution requires, notwithstanding the unconvincing arguments found in the requests before us and in the specially concurring opinion of Chief Justice Moore. I charitably say the arguments are "unconvincing" because virtually no one has ever agreed with their rationales.

 [footnote omitted].

Justice Shaw certainly seems to have the better view and the citation of Cooper v. Aaron is exactly on point.  But given the result, it does not seem as if the National Guard will be marching into Montgomery any time soon.

Could this part of the saga be concluded?

AL_state_capitol_postcard_1

 

March 4, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Supreme Court Issues Stay in Louisiana Abortion Controversy

The Court issued an Order today in June Medical Services v. Gee involving Louisiana's abortion statute "The Unsafe Abortion Protection Act, HB 388.  The district judge had found the Louisiana's statute's admitting privilege provision was unconstitutional and issued a preliminary injunction.  The Fifth Circuit in a 15 page opinion granted the state's emergency motion to stay the district judge's preliminary injunction. Thus, the Court's Order essential reinstates the injunction against the Louisiana statute.

The Louisiana statute is similar to Texas's HB 2 at issue in Whole Woman's Health v. Hellerstdet (previously Cole), argued before the Court on Wednesday.   In today's Order regarding the Louisiana statute, the Court referenced Whole Woman's Health:

Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole, No. 14A1288 (June 29, 2015), the application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on February 24, 2016, presented to Justice Thomas and by him referred to the Court, is granted and the Fifth Circuit’s stay of the district court’s injunction is vacated.
Justice Thomas would deny the application.

In the Whole Woman's Health oral argument, Justice Alito mentioned the Louisiana litigation twice, both times in regarding to the evidence in the case about the precise number of abortions that were being performed.  But on the constitutional issues, it does seem as if the decision in Whole Woman's Health will be determinative regarding the Louisiana statute's constitutionality.

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March 4, 2016 in Abortion, Due Process (Substantive), Fourteenth Amendment, Gender, Medical Decisions, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)

Wednesday, March 2, 2016

Tenth Circuit Strikes Disclosure Requirements as to Small Scale Issue Organization

The Tenth Circuit ruled today in Coalition for Secular Government v. Williams that burdensome state disclosure requirements as applied to a small-scale issue-advocacy nonprofit violate the First Amendment. The ruling means that Colorado's disclosure requirements cannot apply against the Coalition for Secular Government's small-scale advocacy against a statewide "personhood" ballot initiative in the 2014 general election.

The Coalition for Secular Government is a small outfit (one person) that devotes itself to printing and distributing material against a proposed "personhood" amendment in Colorado each time it comes up for a vote--the last in 2014. Because the Coalition collects donations to support its operations, the state constitution and implementing laws and regulations require the Coalition to register as an "issue committee" and to disclose information about contributors. These turn out to be quite a hassle, especially for a small group, so the Coalition sued, arguing that they violate the First Amendment.

The Tenth Circuit agreed. The court applied "exacting scrutiny" and concluded that "the minimal informational interest [in disclosure] cannot justify the associated substantial burdens [of compliance]." The court noted that the small-scale nature of the Coalition had an impact on both sides of the balance. As to the informational interest, "the strength of the public's interest in issue-committee disclosure depends, in part, on how much money the issue committee has raised or spent," and the informational interest in the Coalition's spending (about $3,500) was nothing like the informational interest in a group that spent, say, $10 million. As to the burden, the court noted that a small-scale organization like the Coalition faces greater challenges in compliance than a large-scale outfit.

At the same time, the court declined to say whether the state constitutional threshold for issue-committee reporting (a mere $200) constituted a facial violation of the First Amendment. As a result, that threshold is still on the books.

 

March 2, 2016 in Association, Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0)

Court Hears Oral Arguments on Texas' HB2 Abortion Restrictions

The Court heard oral arguments today in Whole Woman's Health v. Hellerstdet (previously Cole), the case being touted as the most important abortion rights case in many years.   Recall that the Court granted certiorari to the Fifth Circuit's decision essentially upholding the bulk of the controversial HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis).   A divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.

The Fifth Circuit's most recent opinion, reversing the district judge, held that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements, did not impose an "undue burden" on women and were thus constitutional under the Fourteenth Amendment's Due Process Clause.  Importantly, this is the decision that would stand should the Court split 4-4.   The most likely scenario of such a split would be Chief Justice Roberts, and Justices Alito, Thomas, and Kennedy on one side and Justices Ginsburg, Breyer, Kagan, and Sotomayor on the other.  The most likely scenario of a reversal of the Fifth Circuit and a finding that HB2's provisions are unconstitutional is generally considered to be Justice Kennedy joining the Justice Ginsburg group.  Not surprisingly then, Justice Kennedy will be the focus of most any analysis of today's argument.

And indeed, Justice Kennedy took an active role in today's argument in which each of the advocates was accorded extra time in part because of the procedural issues involved regarding the challenge to HB2 as applied and what contentions may have been precluded by the previous facial challenge.  While this issue did occupy the beginning of Stephanie Toti's argument on behalf of Whole Woman's Health, and questions regarding remand were raised - - - including by Justice Kennedy - - - it is unclear whether there is sufficient enthusiasm for deciding the case on procedural issues. 

Instead, as Solicitor General Donald Verrilli, arguing in support of Whole Woman's Health, phrased it, the question before the Court is whether the right to abortion "is going to retain real substance" and "whether the balance ­­ struck in Casey still holds."  Justice Kennedy was in the majority in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey authored by Justice O'Connor and which upheld the essential core of Roe v. Wade.  Scott Keller, the Attorney General of Texas, not only accepted Casey in his argument but argued that it was the petitioners - - - Whole Women's Health - - - that were "trying to upset the balance that was struck in Casey."  

The "balance" of Casey could be said to reside in the "undue burden" standard that the Court articulated, but today's argument displayed some of the ambiguities with that standard.  On one view, which seemed to be the one Chief Justice Roberts was articulating, the statute has to pass "rational basis" and then it is measured again as to whether there is an undue burden.  On the other view, the "undue burden" is measured with regard not only to the exercise of the right to an abortion but measured against the level of the state interests.  Justice Breyer articulated this understanding, but importantly, in a colloquy with the Texas Attorney General after a question by Justice Alito, Justice Kennedy also seemed to adhere to this view:

JUSTICE ALITO: Would it not be the case that - - - ­­ would it not be the case - - - that a State could increase the ­­ the standard of care as high as it wants so long as there's not an ­­ an undue burden on the women seeking abortion? So, you know, if they could ­­if they could increase the standard of care up to the very highest anywhere in the country and it wouldn't be a burden on the women, well, that would be a benefit to them. Would there be anything unconstitutional about that?

MR. KELLER: No. Provided that women do ­­are able to make the ultimate decision to elect the procedure.

JUSTICE KENNEDY: But doesn't that show that the undue ­burden test is weighed against what the State's interest is?

MR. KELLER: Justice Kennedy - - -

JUSTICE KENNEDY: I mean, are they ­­ are these two completely discrete analytical categories, undue burden, and we don't look at the State’s interest?

On the question of the state's interest, Texas Attorney General Keller had a difficult time responding to the questions from Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Comparisons to dental procedures and colonoscopies prevailed, and on the issue of nonsurgical abortions requiring the taking of two pills which Texas law required be done at an ambulatory surgical facility, some Justices pressed especially hard.  The "abortion is different" argument of Texas Attorney General Keller seemed especially unconvincing here.

The actual effect of the HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements on the closing of clinics was raised at numerous times, with Justice Kennedy interestingly interjecting the precise percentage - - - 20% - - - of the capacity of licensed facilities after the passage of HB2.  Justice Ginsburg found it "odd" that Attorney General Keller pointed to the ability of women to go across state lines to New Mexico - - - which does not have similar restrictions - - - to support his contention that women were not substantially burdened. 

The oral argument did little to upset the pre-argument predictions.  Justice Alito was most hostile to the petitioners, and although Justice Thomas asked no questions today unlike Monday,  his views on abortion do not seem in flux.  Justices Ginsburg, Breyer, Kagan, and Sotomayor did not seem to find the arguments on behalf of Texas credible.  While the Chief Justice has known to be surprising and could possibly craft a narrow opinion, Justice Kennedy is occupying the center.  It does seem, however, as if that center tilts slightly back toward Casey and away from HB2.

March 2, 2016 in Abortion, Due Process (Substantive), Gender, Medical Decisions, Oral Argument Analysis, Sexuality | Permalink | Comments (1)

Federal Judge Finds No Constitutional Violation in Denying Permit to "Wandering Dago" Food Truck

In her extensive opinion in Wandering Dago, Inc.  v. Desito, United States District Judge for the Northern District of New York Judge Mae D'Agostino granted summary judgment for the government against the First Amendment and Equal Protection claims of "Wandering Dago" resulting from the denial of a permit to operate a food truck at the Empire State Plaza in Albany (pictured below), a facility owned by the state of New York and operated by the state Office of General Services (OGS) under Commissioner RoAnn Desito.

 In the summers of 2013 and 2014, OGS administered "The Empire State Plaza Summer Outdoor Lunch Program," permitting vendors to operate food trucks for limited hours on the plaza, intended to provide "lunch options to the approximately 11,000 State employees who work at Empire State Plaza, as well as for visitors to the Capitol, State Museum, performing arts center" - - - known as The Egg - - - and various monuments and memorials in New York's capital city.  As the list of applicants was being processed, the name "Wandering Dago" attracted attention of OGS employees, one who "recognized the term 'dago' as 'a highly offensive term for Italians,'" and after conducting a "computer search" to determine whether this was true, his conclusion was not only "confirmed" but it was "revealed" that the term has been "used to refer to people of Spanish and Portuguese descent, as well as Italians."  OGS denied the application "on the grounds that its name contains an offensive ethnic slur and does not fit with OGS' policy of providing family-friendly policy."  Wandering Dago's application the next year was similarly rejected.

800px-The_Egg_at_Empire_State_Plaza

The First Amendment claims were primary; the Equal Protection Clause claims having been previously dismissed and warranting little more analysis when re-plead.  On the First Amendment, Judge D'Agostino identified the problem common to so much free speech litigation: this case does not fit neatly into any particular First Amendment "framework."  Thus, Judge D'Agostino engaged in several strands of analysis, most prominently being "forum" analysis, but also government speech, employee (contractor) speech, and commercial speech.

As to forum doctrine, Judge D'Agostino rehearses the well-know different types of forum, ultimately deciding that the forum is a "nonpublic forum."  Key to this conclusion, as is so often true, is the definition of the forum.  For Judge D'Agostino, the forum is not Empire State Plaza, but the lunch program - - - "which happens to take place within the grounds that comprise the Empire State Plaza."  That OGS required permits and controlled the "forum" contributes to this view.

Yet even under a nonpublic forum, the government must be "reasonable" and content/viewpoint neutral.  As to the reasonableness, Judge D'Agostino discounted the fact that the policy was not written or even previously articulated.  Somewhat confusingly, the judge decided that the owners of Dago did not intend to express anything particular by the name, and therefore there could be no viewpoint/content discrimination and similarly found that there was no problem with unbridled discretion.  The judge rejected the applicability of  In Re Simon Shiao Tam, in which the en banc Federal Circuit held that the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, is unconstitutional because it violates the First Amendment because  it did not involve a forum, but an application of strict scrutiny.  Judge D'Agostino also distinguished cases in which the proprietor was denied the entire opportunity to sell the goods rather than simply not allowed to participate in a particular program.

The particular program aspect supports the judge's conclusion that "government speech" was at issue, relying on Walker v. Texas Sons of Confederate Veterans in which the Court found that Texas's program of specialty license plates was government speech.

While Judge D'Agostino's opinion is well-structured and comprehensive, the analysis regarding content/viewpoint discrimination, no matter the forum type, will most likely be fertile ground for appeal.  On government speech, the case may provide the Second Circuit with an opportunity to clarify the limits of Walker.

March 2, 2016 in Equal Protection, First Amendment, Interpretation, Opinion Analysis, Speech | Permalink | Comments (1)

Tuesday, March 1, 2016

D.C. Circuit Sends Disclosure Requirement Challenge to 3-Judge Court

The D.C. Circuit ruled today in Independence Institute v. FEC that a nonprofit organization's First Amendment challenge to federal electioneering disclosure requirements must go to a three-judge court (and not be dismissed). The ruling keeps alive the nonprofit's challenge to disclosure requirements for its "electioneering communication" under the Bipartisan Campaign Finance Reform Act--even if its constitutional arguments seem, well, weak.

Independence Institute, a 501(c)(3), sought to run a radio ad in favor of a federal statute that would reform federal sentencing, and to encourage citizens to express their support for the law to Colorado's Senator Mark Udall. But Udall was running for re-election at the time, so the radio spot would qualify as an electioneering communication under BCRA. That would trigger disclosure requirements, forcing Independence Institute to disclose its donors to the FEC.

Independence Institute complained, arguing that forced disclosure violated the First Amendment, and sought review by a three-judge court. The district judge denied the request, concluding that the plaintiff's claims were foreclosed by McConnell v. FEC and Citizens United, both of which upheld disclosure requirements against a facial challenge and against one particular as-applied challenge.

A divided panel of the D.C. Circuit reversed. The court said that Independence Institute's arguments passed the low standard the Court recently set in Shapiro v. McManus--denying a three-judge court only when a claim is "essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit." In particular, Independence Institute argued that its as-applied claim against the disclosure requirement was different than the as-applied claim that the Court rejected in Citizens United, because Citizens United was a 501(c)(4) organization (not a (c)(3), like Independence), and that Citizens United therefore had a lesser interest in privacy, and that the government had a greater interest in publicly identifying Citizens United's donors. (Independence also argued that the First Amendment bars compelled disclosure unless the electioneering communication is unambiguously campaign-related (not an issue ad, as here). The court didn't address this.)

That seems pretty weak, but not "essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit," according to the court.

Judge Wilkins dissented, arguing that the issue's been settled by the Court.

The ruling sends the case to a three-judge court for further proceedings. While this isn't a ruling on the merits--and seems like a poor test case to challenge disclosure requirements--the ruling nevertheless keeps the case alive.

March 1, 2016 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Monday, February 29, 2016

Federal Magistrate Finds All Writs Act Not Sufficient to Compel Apple to "Unlock" IPhone in Brooklyn Case

Bearing remarkable similarity to the ongoing controversy in California often styled as FBI v. Apple, a federal magistrate in the Eastern District of New York today sided with Apple, finding that the All Writs Act does not grant judicial authority to compel Apple to assist the government in "unlocking" an iPhone by bypassing the passcode security on a iPhone. 

In his 50 page Memorandum and Order in  In Re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued By This Court, Magistrate James Orenstein concluded that while the All Writs Act as applied here would be in "aid of jurisdiction" and "necessary and proper," it would not be "agreeable to the usages and principles of law," because Congress has not given such specific authority to the government.  Similar to Apple's argument in the California case, Magistrate Orenstein notes the constitutional argument:

The government's interpretation of the breadth of authority the AWA confers on courts of limited jurisdiction thus raises serious doubts about how such a statute could withstand constitutional scrutiny under the separation-of-powers doctrine.

There is no mention of the First, Fifth, or Fourth Amendments.

500px-Apple_Computer_Logo_rainbow.svgMagistrate Orenstein engaged in an application of the United States v. New York Telephone Co. (1977) factors, finding that even if the court had power, it should not exercise it.   The magistrate found that New York Telephone was easily distinguished.  On the unreasonable burden factor, the magistrate stated:

The government essentially argues that having reaped the benefits of being an American company, it cannot claim to be burdened by being seen to assist the government. See Govt. II at 19 (noting the "significant legal, infrastructural, and political benefits" Apple derives from being an American company, as well as its "recourse to the American courts" and to the protection of "American law enforcement ... when it believes that it has been the victim of a crime"); id at 19-20 ("This Court should not entertain an argument that fulfilling basic civic responsibilities of any American citizen or company ... would 'tarnish' that person's or company's reputation."). Such argument reflects poorly on a government that exists in part to safeguard the freedom of its citizens – acting as individuals or through the organizations they create – to make autonomous choices about how best to balance societal and private interests in going about their lives and their businesses. The same argument could be used to condemn with equal force any citizen's chosen form of dissent.

At the end of his opinion, Judge Orenstein reflected on the divisive issues at stake and concluded that these were ones for Congress.

But Congress will certainly not be acting in time to resolve the pending controversies.  Unlike the California case, this warrant and iphone resulted from a drug prosecution and had proceeded in a somewhat haphazard manner.  Pursuant to the Magistrate's request about other pending cases,

Apple identified nine requests filed in federal courts across the country from October 8, 2015 (the date of the instant Application) through February 9, 2016.  In each, Apple has been ordered under the authority of the AWA (or has been told that an order has been requested or entered) to help the government bypass the passcode security of a total of twelve devices; in each such case in which Apple has actually received a court order, Apple has objected. None of those cases has yet been finally resolved, and Apple reports that it has not to date provided the requested assistance in any of them. 

So it seems that the California "terrorism" case is not unique.  Judge Orenstein's opinion is well-reasoned and well-structured and could easily be echoed by the federal courts in California - - - and elsewhere. 

February 29, 2016 in Congressional Authority, Courts and Judging, Criminal Procedure, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Supreme Court Hears Oral Arguments on Pennsylvania Supreme Court Judge's Recusal

The Court today heard oral arguments in Williams v. Pennsylvania on issues of due process and the Eighth Amendment revolving around the court's decision in a death penalty case and judicial ethics. The Pennsylvania Supreme Court has been especially rocked by scandals - - - with one Justice resigning because of corruption and another because of sexually explicit emails and another Justice being subject to disciplinary proceedings over the explicit emails - - - but this controversy involves a different Justice, former Chief Justice of the Pennsylvania Supreme Court Ronald Castille. Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013.  Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row."

One of those people on death row is Terrance Williams, convicted at age 18 and whose story has attracted much interest. Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief.  Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty.  Williams' post-conviction claim, moreover, is based on prosecutorial misconduct. 

The central case in today's oral argument was  Caperton v. Massey (2009) regarding judicial bias. Unlike the situation of Justice Benjamin in Caperton, Castille did not cast a "deciding vote" on the court.  [Nevertheless, Castille's concurring opinion is worth reading for its defensiveness].  The problem is how - - - or even whether - - - to apply the 5-4 decision in Caperton, which involved judicial bias resulting from campaign contributions. 

Nypl.digitalcollections.510d47e4-4e67-a3d9-e040-e00a18064a99.001.wStuart Lev, arguing for Williams, faced an almost-immediate question from Chief Justice Roberts, who dissented in Caperton, asking whether the nature of the decision of the former-prosecutor now-Justice should matter - - - was it mere policy or something more individualized?  Justice Alito, who also dissented in Caperton, was wary of constitutionalizing the matters of recusal without clear lines.  On the other hand, Ronald Eisenberg, arguing for Pennsylvania, seemed to admit that there could be cases in which recusal was necessary, but stressed the long time involved here - - - 30 years - - - which at one point prompted Justice Kennedy to ask "So the fact that he spent 30 years in solitary confinement actually helps the State?"  (Eisenberg noted that this wasn't "exactly" the situation).  Justice Sotomayor stressed that what was important was that Castille was prosecutor and judge in the "same case."  For both sides, much of the wrangling was over what any "rule" should be - - - with the background of the Caperton rule being fluid rather than rigid.

The fact that Castille was only one of the Justices was important, but perhaps less so than it would be for another court.  The idea that a judge simply "votes" for a result was looked on with disfavor.  As Justice Kennedy stated:

But if - - - ­­ if we say that, then we say that being a judge on a 15­ judge court doesn't really make much difference. You ­­ - - - you don't have a duty, and you don't have can't persuade your colleagues. It's very hard for us  to write that kind of decision.

Earlier in the argument, there was some discussion of the remedy - - - and the "unsatisfying" remedy (as Justice Kagan phrased it) of sending the case back to the Pennsylvania Supreme Court to (re)consider the recusal motion.  Lev, arguing for Williams, noted that this was the remedy in Caperton and also that the "Pennsylvania Supreme Court is constituted differently," now than it was then.  "There were three new justices elected this last November and took office in January."

But what rule should the Court instruct the Pennsylvania Supreme Court to apply?  This is likely to divide the Court just as it did in Caperton.  But there does seem to be a belief among a majority of Justices that the judicial ethical rules alone are not protecting due process.  

February 29, 2016 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Oral Argument Analysis, Supreme Court (US) | Permalink | Comments (0)

Supreme Court's Oral Argument in Voisine: Does Justice Thomas believe there is a Second Amendment issue?

Today's oral argument in Voisine v. United States centers on  the statutory construction of 18 U.S.C. § 921(a)(33)(A) which defines a "“misdemeanor crime of domestic violence” as an offense that is a misdemeanor AND 

has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

The relevance of this definitional section is its application to 18 U.S.C. §922(g)(9) which makes is a federal crime for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence," to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

At issue in Voisine is whether the misdemeanor crimes involving family offenses that can be satisfied with a reckless mens rea are included the definition.  Virginia Villa, arguing for the petitioners Voisine and Armstrong, stressed statutory definitions but the arguments delved into common law definitions as well.  Arguing for the United States, Assistant Solicitor General Ilana Eisenstein stressed Congressional intent, with Justice Ginsburg surfacing the "rule of lenity." 

But the argument then took a constitutional turn.

Clarence_Thomas_official

This was prompted by questioning from Justice Thomas (seemingly just as Eisenstadt believed her argument had concluded):

 This Court should continue to interpret Section 922(g)(9) in light of that compelling purpose.

If there are no further questions.

JUSTICE THOMAS: Ms. Eisenstein, one question.

Can you give me ­­ this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?

Justice Thomas thereafter made a First Amendment analogy, asked whether the Second Amendment was indefinitely suspended, and pointed out that the underlying misdemeanor need not have involved a firearm.   In considering possible analogies, Justice Kennedy pointed to SORNA which curtails the interstate travel of registered sex offenders.  (Justice Kennedy could have analogized to sex offender cases involving the restrictions on First Amendment rights as well).  Justice Breyer asked whether the Congressional statute was a "reasonable regulation of guns under the Second Amendment given Heller and the other cases with which I disagreed?"  This provoked laughter but was also a poignant reminder that Heller's author was not on the bench given his unanticipated death.  Justice Breyer, however, continued and attempted to make clear that the constitutional question was not clearly before the Court.  It may be before the Court as a matter of constitutional avoidance (the statute should be construed to avoid the constitutional question), but, as Justice Breyer stated:

 So one answer would be, well, maybe so. We aren't facing the constitutional question. We are simply facing the question of what Congress intended. And if this does raise a constitutional question, so be it. And then there will, in a future case, come up with that question. So we ­­ or our point is, we don't have to decide that here.

EISENSTEIN: That's correct, Your Honor.

JUSTICE BREYER: Thank you.

EISENSTEIN: If there are no further questions.

 Ilana Eisenstein was then excused by Chief Justice Roberts.

Justice Thomas broke his own well-remarked upon habit of not asking questions during oral argument; it's been a decade since he has.  But as some Court observers has noticed, he did write notes which were passed to Justice Scalia.  It is difficult to not to make a causal connection in this regard.  Moreover, Justice Thomas assumed a more active role in a case seemingly involving Second Amendment rights, an issue which a future Court might reconsider. 

However, as the Court did in another domestic violence case last term,  Elonis v. United States, look for a decision that engages in statutory construction and avoid the constitutional issue.

 

February 29, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, Interpretation, Oral Argument Analysis, Second Amendment, Supreme Court (US) | Permalink | Comments (0)

Thursday, February 25, 2016

District Judge Dismisses Complaint Seeking Judge Cebull's Emails

Recall the controversy in 2012 regarding the racist and sexist emails of Judge Richard Cebull of the District of Montana reportedly regarding President Obama?  Judge Cebull resigned about a year later, as the matter was being investigated by judicial committees. The Ninth Circuit Committee on Judicial Conduct and Disability entered its Decision in January 2014 incorporated the findings of judicial misconduct of other committees, but found that remedial action was "inoperative" given Cebull's retirement. 

In Adams v. Committee on Judicial Conduct and Disability, two Montana journalists sought more information than the Committee included in that decision, including additional emails, and brought suit against the Committee and other defendants.  In an 25 page Order today, Judge Yvonne Gonzalez Rogers dismissed the complaint without leave to amend.  Judge Rogers's decision included several grounds.

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circa 1894 via

First, Judge Rogers concluded that the Committee on Judicial Conduct and Disability was protected by federal sovereign immunity and that the Committee had not waived that immunity.

Second, Judge Rogers considered the Defendants' claim that the plaintiff journalists lacked standing.  Citing First Amendment cases such as Branzburg v. Hayes (1972), Judge Rogers found that the plaintiffs did suffer "injury in fact" as journalists.  However, Judge Rogers concluded that the plaintiff journalists failed to satisfy another element of standing, the causation inquiry, stating that "Plaintiffs have not alleged that their injury is fairly traceable to any conduct of the Committee, at least not with clarity."  She thus dismissed the complaint for lack of standing.

Third, Judge Rogers entertained the Committee's arguments that it was protected by judicial immunity.  Judge Rogers found that the Committee had both judicial immunity and quasi-judicial immunity, and granted the motion to dismiss on both these grounds.

Fourth, the Committee sought judicial deliberative privilege regarding Judge Cebull's emails.  However, Judge Rogers found that the particular emails sought were not "in pertinent part, communications relating to official judicial business."

Fifth and finally, was the First Amendment claim.  The Defendants claimed that the emails were "investigative materials" shielded from First Amendment disclosure by the confidentiality provision of the Judicial Council’s Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C section 360.  Judge Rogers framed the issue thusly:

(i) assuming Defendants are correct that the emails are “investigative materials” covered by 360(a), is that confidentiality restriction consistent with the First Amendment?; and alternatively,

(ii) assuming the emails are not “investigative materials” covered by 360(a), does the First Amendment provide any right or claim to compel their disclosure by Defendants?

The Court turns to the Press-Enterprise II framework to determine if, under either formulation, Plaintiffs’ access claim is one that meets the historical experience and logic criteria, such that a qualified First Amendment right of access exists.

Using the experience and policy framework of Press Enterprise II (1986) Judge Rogers concluded that under either formulation of the issue, the press did not sustain a claim for access to the emails. Instead, the "more general rule set forth by the Supreme Court in Houchins [v. KQED (1978) ] — that the First Amendment right of the public or the press does not grant unlimited access to all government information or information within the government’s control—prevails.

Thus, it seems we will never be have an opportunity to read  the other (presumably offensive) emails that Judge Cebull sent through his official judicial accounts when he was a sitting judge.  Given the multiple grounds on which Judge Rogers relied, and the well-reasoned First Amendment discussion,  any appeal would have much to overcome in order to be successful.

 

February 25, 2016 in Courts and Judging, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)