Friday, March 4, 2016
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.
Wednesday, March 2, 2016
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.
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.
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.
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.
Tuesday, March 1, 2016
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.
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.
Magistrate 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.
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.
Stuart 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.
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.
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.
Thursday, February 25, 2016
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.
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.
In its Motion to Vacate filed today, Apple, Inc. argued that the Magistrate's Order Compelling Apple, Inc. to Assist Agents in Search of an Apple IPhone was not supported by the All Writs Act and is unconstitutional.
The constitutional arguments are basically three:
First, embedded in the argument that the All Writs Act does not grant judicial authority to compel Apple to assist the government is the contention that such would violate the separation of powers. Crucial to this premise is the Communications Assistance for Law Enforcement Act (CALEA), which Apple contends does not apply to Apple and which has not been amended to do so or amended to provide that companies must provide decryption keys. Absent such an amendment, which was considered as CALEA II but not pursued, the courts would be encroaching on the legislative role.
For the courts to use the All Writs Act to expand sub rosa the obligations imposed by CALEA as proposed by the government here would not just exceed the scope of the statute, but it would also violate the separation-of-powers doctrine. Just as the “Congress may not exercise the judicial power to revise final judgments,” Clinton v. Jones (1997), courts may not exercise the legislative power by repurposing statutes to meet the evolving needs of society, see Clark v. Martinez (2005)(court should “avoid inventing a statute rather than interpreting one”) see also Alzheimer’s Inst. of Am. Inc. v. Elan Corp. (N.D. Cal. 2013) (Congress alone has authority “to update” a “technologically antiquated” statute “to address the new and rapidly evolving era of computer and cloud-stored, processed and produced data”). Nor does Congress lose “its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution” in times of crisis (whether real or imagined). Youngstown Sheet & Tube Co. v. Sawyer (1952).
[citations abbreviated]. Apple adds that "whether companies like Apple should be compelled to create a back door to their own operating systems to assist law enforcement is a political question, not a legal one," citing Baker v. Carr (1962).
Second, Apple makes a cursory First Amendment argument that commanding Apple to "write software that will neutralize the safety features that Apple has built into the iPhone" is compelled speech based on content and subject to exacting scrutiny. Apple also contends that this compelled speech would be viewpoint discrimination:
When Apple designed iOS 8, it wrote code that announced the value it placed on data security and the privacy of citizens by omitting a back door that bad actors might exploit. The government disagrees with this position and asks this Court to compel Apple to write new software that advances its contrary views.
Third, and even more cursorily, Apple makes a substantive due process argument under the Fifth Amendment. Here is the argument in full:
In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from “‘arbitrary deprivation of [its] liberty by government.’” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“We have emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government,’ . . . [including] the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” (citations omitted)); cf. id. at 850 (“Rules of due process are not . . . subject to mechanical application in unfamiliar territory.”).
Interestingly, there is no Fourth Amendment argument.
The main thrust of Apple's argument is the statutory one under the All Writs Act and the application of the United States v. New York Telephone Co. (1977) factors that the government (and Magistrate) had relied upon. Apple disputes the burden placed on Apple that the Order would place. Somewhat relevant to this, Apple contends that "Had the FBI consulted Apple first" - - - before changing the iCloud password associated with one of the relevant accounts - - - "this litigation may not have been necessary."
February 25, 2016 in Cases and Case Materials, Congressional Authority, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), First Amendment, News | Permalink | Comments (0)
Wednesday, February 24, 2016
In a relatively brief opinion in Susan B. Anthony List v. Driehaus, a panel of the Sixth Circuit found that Ohio's false campaign statute, Ohio Rev. Code § 3517.21(B)(9), violates the First Amendment.
Recall that the Sixth Circuit had previously decided that the constitutional challenge was not ripe for review, but that the United States Supreme Court unanimously reversed in June 2014. On remand, District Judge Timothy Black concluded that the statute violated the First Amendment.
The Sixth Circuit panel reasoned that any Sixth Circuit precedent supporting the view that falsehoods were categorically excluded from the First Amendment had been abrogated by United States v. Alvarez, (the "stolen valor" case). Instead, the panel found that the Ohio law both targeted core speech and was a content-based regulation, and thus strict scrutiny was applicable. The Sixth Circuit reasoned that
Ohio’s interests in preserving the integrity of its elections, protecting “voters from confusion and undue influence,” and “ensuring that an individual’s right to vote is not undermined by fraud in the election process” are compelling.
However, the means chosen were not narrowly tailored:
in their (1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over-inclusiveness and under-inclusiveness.
Additionally, the Sixth Circuit noted:
Ohio’s political false-statements laws have similar features to another Ohio election law that the Supreme Court found unconstitutional. In McIntyre [v. Ohio Elections Committee (1995)] , the Supreme Court struck down Ohio’s election law prohibiting anonymous leafleting because its prohibitions included non-material statements that were “not even arguably false or misleading,” made by candidates, campaign supporters, and “individuals acting independently and using only their own modest resources,” whether made “on the eve of an election, when the opportunity for reply is limited,” or months in advance. Ohio’s political false-statements laws have all of the same flaws. Such glaring oversteps are not narrowly tailored to preserve fair elections.
The use of McIntyre is an interesting one because the "right to be anonymous" recognized in McIntyre seemed to rest in part on the government interest in ensuring truthfulness and cited the Ohio campaign falsehoods law in support.
Given that the court did recognize as compelling the government's interests in addressing lies in campaigns, is there any possibility that a government could craft a narrowly tailored regulation? It seems doubtful.
On this anniversary of Marbury v. Madison (decided February 24, 1803), and given the current controversies regarding the appointment of Justice Scalia's successor after his unexpected death, Justice Scalia's views on the political nature of judicial appointments, including those to the United States Supreme Court, is worth a read.
Dissenting in Rutan v. Republican Party of Illinois (1990), Scalia wrote:
Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an "appropriate requirement." Ante, at 1. It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Marbury v. Madison, 1 Cranch 137 (1803). Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.
The Court's majority opinion - - - authored by Justice William Brennan, a Democrat appointed to the United States Supreme Court by the Republican President Dwight Eisenhower - - - held that the Illinois governor's practice of implementing certain austerity measures in state government in accordance with political affiliation violated the First Amendment rights of government employees. Brennan's opinion for the Court notably began:
To the victor belong only those spoils that may be constitutionally obtained. Elrod v. Burns (1976), and Branti v. Finkel (1980), decided that the First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. Today we are asked to decide the constitutionality of several related political patronage practices — whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not.
What the Constitution does - - - or does not - - - provide regarding the "spoils" of judicial appointment is being hotly contested. And in this, Marbury v. Madison may be relevant as more than illustration should the controversy become subject to judicial review.
Tuesday, February 23, 2016
In a Memorandum Opinion in Fields v. City of Philadelphia, recently appointed United States District Judge for the Eastern District of Pennsylvania, Mark Kearney held that the First Amendment does not protect video-recording of the police absent a "stated purpose of being critical of the government."
For Judge Kearney, video-recording is conduct and there is no "expressive" element unless there is an explicit intent of being critical of police conduct. Mere "observation," Judge Kearney wrote, is not expressive. It is not within the First Amendment unless the observers are "members of the press."
Judge Kearney rather unconvincingly distinguished the First Circuit's 2011 opinion in Glik v. Cunniffee, by stating [in a footnote], "In Glik, the plaintiff expressed concern police were using excessive force arresting a young man in a public park and began recording the arrest on his cell phone and the police then arrested plaintiff." Even if valid, this distinction is problematical. It may be pertinent with regard to one plaintiff, Richard Fields, who took a picture of 20 or so police officers outside a home hosting a party. However, with regard to the other plaintiff, Amanda Geraci, who the judge notes is a "self-described 'legal observer'" with training, the distinction seems to be one without a difference: she was at a protest and "moved closer" to videotape an officer arresting one of the protesters when a police officer restrained her and prevented her from doing so.
Judge Kearney thus granted the motion for summary judgment on the First Amendment claims. The judge did, however, deny summary judgment on the Fourth Amendment claims for unreasonable search and false arrest (for Fields) and excessive force (for Geraci). Yet however these claims are resolved, the First Amendment ruling is one that is exceedingly suitable for Third Circuit review.
In her opinion in Jones v. County of Suffolk (NY) and Parents For Megan's Law, Judge Joanna Seybert found that the group was a state actor for constitutional purposes and that the complaint stated a valid Fourth Amendment claim.
The facts as alleged in the complaint illustrate the continuing constitutional issues with civil monitoring of persons convicted of sex offenses. Jones, convicted in 1992, is a low-risk sex offender subject to numerous requirements under the New York Sex Offender Registry Act (SORA). New York's Suffolk County (on Long Island), passed an additional act, the Community Protection Act, which Judge Seybert described as including "aggressive sex offender monitoring and verification." The county act authorized the county law enforcement agency to enter into a contract with the organization Parents for Megan's Law (PFML), a “victim’s advocacy organization that campaigns for increased punitive regulation of people registered for past sex offenses” and “has called for legislative changes that, among other things, would require people convicted of SORA offenses to live far away from population centers.” The contract requires PML to "use ex-law enforcement personnel" to "engage in proactive monitoring of registered sex offenders." And "proactive" would be one way to describe the actions of the PFML personnel who came to Jones' home several times, waited for him at the doorstep, asked for his driver's license and kept it for several minutes, questioned him about his employment, and warned that they would make further unannounced visits to his home and work.
In its motion to dismiss, PFML argued that it was a private entity not subject to constitutional constraints. Judge Seybert, relying on Second Circuit precedent, held that there was a "close nexus" and a "delegation of a public function," and thus PML was a state actor. This was not an ordinary contract, but one in which the police department directed the monitoring operations of the PFML. Important to her analysis, there was a letter from the county police department informing designated sex offenders that they would be required to provide identification to PML personnel, thus "creating the appearance of joint action" between the state and the organization.
The letter was also important to Judge Seybert's Fourth Amendment analysis. The judge distinguished the allegations here from Florida v. Jardines (2013), on which both parties relied, regarding the constitutionality of a so-called "knock and talk" by law enforcement:
Defendants assert that because PFML agents’ interactions with Jones can be classified as a “knock and talk,” no Fourth Amendment violation occurred. However, the allegations in the Complaint raise questions about whether a reasonable person in Jones’ position would feel free to terminate his interactions with PFML. The questioning here did not take place in an open field, or a Greyhound bus, but rather within Jones curtilage--an area afforded heightened Fourth Amendment protection. Moreover, in advance of the visits, Jones received a letter from the SCPD instructing him that he would be visited by PFML for the purpose of verifying his address and employment information. Although the letter stated that Jones would be “asked to provide them with personal identification” and “requested to provide employment information,” the letter begins by stating that “registered sex offenders are required to provide this information under [SORA].” Citizens do not often receive letters from the police announcing home visits by third-party groups. At the very least, the letter is ambiguous as to whether compliance was mandatory. Finally, the description of PFML agents’ conduct gives the distinct impression that compliance was not optional. The fact that the agents waited for fifteen minutes on Jones’ porch while he was in the shower, “followed [him] closely” as he walked to retrieve his driver’s license, and told Jones that “they may make subsequent, unannounced appearances at his job,” gives the encounter the appearance of a seizure of Jones’ person, rather than a consensual “knock and talk.”
Judge Seybert did dismiss the complaint's due process claim, which Jones argued were based on a right to familial association that had been injured by the PFML "visits" to his home. Judge Seybert reasoned that there was no "invasion of a liberty interest" that was "separate and apart" from the Fourth Amendment claim and thus an independent substantive due process claim could not proceed.
While there are other issues before the court - - - including whether a state (or county) can delegate its sex offender monitoring to a private group are also before the court as a matter of state law - - - the constitutional constraints governing the monitoring of designated sex offenders seems to be squarely presented.
Monday, February 22, 2016
Judge Ellen Segal Huvelle (D.D.C.) dismissed a complaint by the estates of two persons killed in a drone strike in Yemen. Judge Huvelle ruled that the complaint, which sought a declaration that the strike violated the Torture Victim Protection Act and customary international law, raised a non-justiciable political question.
The case, Bin Ali Jaber v. U.S., grew out of a drone strike that killed five individuals in Yemen. The estates of two of the victims sued, seeking a declaration that the U.S. violated the TVPA and international law. The government moved to dismiss the case as a non-justiciable political question.
Judge Huvelle granted the motion. She wrote that the court lacked judicially manageable standards for judging the legality of a drone strike, and that the decision to order the strike was a "policy determination of a kind clearly for nonjudicial discretion."
Judge Huvelle distinguished Comm. of U.S. Citizens Living in Nicaragua v. Reagan and Al-Aulaqi v. Panetta--cases in which the courts held that tort claims arising from foreign policy decisions were justiciable--because the plaintiffs in those cases raised constitutional claims. "Because the judiciary is the ultimate interpreter of the Constitution, constitutional claims can require a court to decide what would otherwise be a political question, but no such claims have been made here."
Judge Huvelle recognized that her ruling was in tension with Judge Weinstein's decision in In re Agent Orange Product Liability Litigation--with claims "not materially distinguishable from plaintiffs'." But she said, "[O]f course, this Court is bound by the decisions of the D.C. circuit, not the Eastern District of New York."
The brief denial (without opinion) came after the state developed a new districting plan--which wouldn't have gone into effect if the Court granted a stay, but which will now go into effect for the state's primaries.
Recall that the lower court ruled that North Carolina impermissibly used race to draw the districts, by packing black voters into these two districts. The court rejected the state's claim that it used race in one of the districts to comply with preclearance under the Voting Rights Act. The court said that even assuming (without deciding) that compliance with the VRA is a compelling government interest, the state failed to show that its use of race was narrowly tailored to achieve that interest.
Friday, February 19, 2016
Call for Presenters!
THE U.S. FEMINIST JUDGMENTS PROJECT:
REWRITING THE LAW, WRITING THE FUTURE
Call for Papers and Presentations
Deadline April 15, 2016
From the organizers:
We are seeking proposals for papers to be presented during the U. S. Feminist Judgments Project conference October 20-21, 2016 at the Center for Constitutional Law at The University of Akron School of Law in Akron, Ohio. We are also seeking proposals for “snapshot” presentations to be included in the final plenary of the conference. The conference is co-sponsored by The University of Akron School of Law and the University of Nevada, Las Vegas – William S. Boyd School of Law.
This conference will celebrate the 2016 publication of U.S. Feminist Judgments: Rewritten Opinions of the United States Supreme Court. That volume brought together more than fifty feminist legal scholars and lawyers to rewrite, using feminist reasoning, significant Supreme Court cases from the 1800s to the present day. (For more information, see the project website here.) Illustrating the value of this method of practical scholarship, the volume demonstrates that different processes and different outcomes would have been possible had decision makers applied feminist theory and methods in critical Supreme Court cases despite the restrictions of stare decisis.
The conference is designed to provide the appropriate setting and the essential participants for a structured conversation that explores and assesses the effects of feminist methods and theories on real-world judicial decision making. We expect the conference will identify common core principles and propose directions for future scholarship.
To this end, we seek proposals for papers that incorporate feminist theory and methods or report on research that furthers feminist thought. The organizers view feminism and feminist theory broadly as covering issues of inequality related to gender and gender norms, but also intersectional dynamics related to race, sexual orientation, immigration status, socioeconomic class, and disability.
Potential topics cover a broad range, including women in the judiciary, women in the legal profession, women and rhetoric, women in politics, empirical studies involving gender or gender norms, feminist theory, reproductive freedom, pregnancy, reproduction, families, sex, sexuality, violence against women, employment, sexual harassment, or affirmative action. We welcome with enthusiasm proposals from faculty in disciplines other than law, and we would especially appreciate proposals from new voices in feminism and feminist theory.
Our hope is to build on the insights of the U.S. Feminist Judgments book and to explore new avenues of inquiry for feminist legal scholarship. We hope to provide a supportive atmosphere to foster scholarship and networking among teachers, scholars, and others who are interested in gender equality and the law.
The conference will include plenary sessions related specifically to the U.S. Feminist Judgments book as well as sessions that will be more general in focus, concurrent sessions drawn from this Call for Papers, and a closing panel also drawn from this Call for Papers. The closing panel will be a brainstorming session to consider future directions for scholarly and practical projects that relate to gender equality, the judiciary, future Feminist Judgments projects, or all of the foregoing.
Concurrent Sessions – Paper Proposals
The concurrent sessions will feature presentations on any topic related to gender equality issues, with preference given to presentations related to the topics of women in the judiciary, women in the legal profession, women and rhetoric, women in politics, empirical studies involving gender or gender norms, feminist theory, reproductive freedom, pregnancy, reproduction, families, sex, sexuality, violence against women, employment, sexual harassment, or affirmative action. We will organize the presentations into panels based on the subject matter of the proposals.
Interested persons should submit a brief written description of the proposed paper (no more than 1000 words) and a resume. Please let us know in the proposal which of the above categories or what other, non-listed category best fits your proposal. Please use the subject line “U.S. Feminist Judgments Project October Conference Paper Proposals” and e-mail these materials to Maria Campos (firstname.lastname@example.org) by April 15, 2016. We will notify selected speakers by June 1, 2016.
Brainstorming Presentations – Snapshot Proposals
The final plenary session of the conference will feature snapshots, or very brief presentations, of ideas for future projects that will advance gender equality in the law. Each selected participant will be limited to five minutes to present her or his idea or project. The presentations will be followed by audience feedback and comments. We welcome proposals for this brainstorming session on any topic related to gender equality.
Interested persons should submit a brief written description of the proposed presentation (no more than 300 words) and a resume. Please use the subject line “U.S. Feminist Judgments Project October Conference Snapshot Proposals” and email these materials to Maria Campos (email@example.com) by April 15, 2016. We will notify selected speakers by June 1, 2016.
Anyone interested in issues of law and gender equality is eligible to submit a proposal, including full-time faculty members, fellows, visitors, and adjuncts who teach in undergraduate or graduate schools; judges; practitioners; government officials; and business, community, and non-profit leaders. The conference is free and open to the public.
There is no publication commitment associated with the conference. Presentation abstracts will be made available on the website of the Center for Constitutional Law at The University of Akron, and by mutual agreement of interested authors and journal editors, remarks may be published in a special symposium issue of ConLawNOW, the online companion journal run by the Center for Constitutional Law.
There is no registration fee for the conference but proposers and panelists must pay all of their own expenses associated with conference attendance. There will be a conference-negotiated rate at a local hotel. The University of Akron is located approximately 15 minutes from the Akron-Canton Airport and approximately 40 miles southeast of Cleveland Hopkins International Airport.
Thursday, February 18, 2016
Check this out: Alden Abbott outlines the case against the Consumer Financial Protection Bureau over at Heritage.
The CFPB, an independent regulatory agency created under Dodd-Frank that's charged with doing just what its name says, has been subject to a non-stop barrage of attacks from the right ever since its creation--for policy reasons, and for violations of separation of powers. Abbott summarizes the latter, drawing on Free Enterprise Fund:
The Free Enterprise Fund case strongly indicates that the CFPB's degree of independence goes beyond constitutionally acceptable norms.
First, the CFPB is more than one level removed from presidential oversight. Its director is independent from management supervision by the institution within which the bureau sits--the Federal Reserve System--and the Federal Reserve System is independent from presidential control.
Second, the bureau's independence from congressional appropriations or budgetary review prevents Congress from exercising its key means of oversight: the power of the purse.
Taken as a whole, these features grant the bureau greater autonomy than is allowed to any regulatory institution whose structure has been reviewed by the Court.
But neither feature of the CFPB is problematic. As to supervisory independence, Abbott's claim is simply wrong, on his own terms. He earlier says, correctly, that the head of the CFPB serves for five years, and can be removed by the President for cause. This isn't the kind of double-insulation that the Court found offensive in Free Enterprise Fund; instead, it's a direct line of accountability to the President that the Court has long approved. It doesn't matter that the CFPB sits within the Federal Reserve System, because the head of the CFPB answers to the President.
As to financial independence, it's hardly novel for an agency to self-fund outside the regular appropriations process, through fees or fines. Indeed, the Congressional Research Service says (correctly) that CFPB's funding--which comes from the Fed's combined earnings (and not regular appropriations)--"give the Bureau less flexibility than the OCC, FDIC, and other banking regulators that are able to increase assessments on the institutions within their jurisdiction to raise revenue, as needed to carry out their responsibilities." And Congress still has oversight: the CFPB reports regularly and is subject to audits by the Comptroller General, and the director must testify at least twice a year before Congress.
We'll continue to see challenges to the CFPB in the courts. But unless the Court changes its approach to independent agencies, or unless Congress changes things, don't expect the CFPB to go away.