Wednesday, September 27, 2017

Sixth Circuit Finds Lack of Procedural Due Process in Title IX Disciplinary Hearing

 In its opinion in Doe v. University of Cincinnati, a Sixth Circuit panel affirmed a district judge's grant of a preliminary injunction against the university suspension of student John Doe.  The university suspended graduate student John Doe after a finding of a sexual offense in a Title IX hearing at which the complaintant did not appear. 

Using the well-established criteria for procedural due process claims, Judge Richard Griffin's relatively succinct opinion found that the risk of erroneous deprivation of Doe's acknowledged interest was great.  Doe claimed that his inability to cross-examine the complaintant in a context in which the basic issue was one of credibility - - - a choice of believing Doe's assertion that the sex was consensual and Jane Roe's complaint that it was not consensual - - - was a fundamental flaw.  The court agreed, even though the university had no ability to compel Jane Roe's appearance.  The court also found the time lapse troubling: the university waited a month after the complaint to interview Jane Roe, four months after that to notify John Doe, and four months after that to hold the hearing.

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The court did consider the potential for "emotional trauma" to Jane Roe, but concluded that when there is an issue of credibility, there must be a mutual test of credibility as part of the process "where the stakes are this high."  The court did seek to qualify its rationale as not requiring John Doe be allowed to cross-examine Jane Roe during the hearing:

However, we emphasize that UC’s obligations here are narrow: it must provide a means for the ARC [the university’s Administrative Review Committee] panel to evaluate an alleged victim’s credibility, not for the accused to physically confront his accuser.

The University has procedures in place to accommodate this requirement. A month before the ARC hearing, Mitchell informed Doe and Roe that they could “participate via Skype . . . if they could not attend the hearing.” Doe did not object to Roe’s participation by Skype, and he does not object to this practice on appeal. To the contrary, the record suggests that he or one or more of the ARC panelists in fact appeared at the hearing via Skype. What matters for credibility purposes is the ARC panel’s ability to assess the demeanor of both the accused and his accuser. Indisputably, demeanor can be assessed by the trier of fact without physical presence, especially when facilitated by modern technology.

The court's opinion added that it was "sensitive" to the "competing concerns" of the case: the goal of reducing sexual assault is more than laudable, it is necessary; but the elimination of "basic procedural protections" may not be a "fair price" to achieve that goal. 

These "competing concerns" are likewise the subject of debate as controversial Secretary of Education Betsy De Vos has acted to rescind the previous guidelines for educational institutions dealing with sexual assault based in part on the perceived "deprivation of rights" for accused students. While the new memo does not mandate cross-examination (unless it is provided to one party and then must be provided to both),  no doubt the Sixth Circuit's opinion in Doe v. University of Cincinnati will be used to bolster Secretary de Vos's decision.

 

September 27, 2017 in Current Affairs, Gender, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Friday, September 22, 2017

Court Rebuffs Challenge to New Jersey's Bail Reform Law

Judge Jerome B. Simandle (D.N.J.) today declined to halt New Jersey's bail-reform law. The law provides for alternative, non-monetary pretrial release options in order to give poor defendants (who often can't afford bail) a shot at pretrial release while still serving other criminal justice interests. The plaintiffs in the case argued that the law violated the Eighth Amendment, due process, and the Fourth Amendment.

The preliminary ruling, denying the plaintiffs' motion for a preliminary injunction, leaves the law in place, for now. But today's order isn't a final ruling on the merits.

The plaintiffs lawyered-up big time (Paul Clement appeared pro hac), suggesting that this is just the first step in their aggressive challenge to New Jersey's law. One reason for the attention to the case: Taking money out of the bail system also takes away a stream of revenue from corporations like plaintiff Lexington National Insurance Corporation. As more jurisdictions look to non-monetary bail options to avoid keeping poor, nonviolent defendants behind bars pending trial, bail providers stand to lose even more.

The New Jersey bail-reform law sets up a five-stage, hierarchical process for courts to follow in setting bail. It allows for pretrial release of certain defendants with non-monetary conditions, like remaining in the custody of a particular person, reporting to a designated law enforcement agency, home supervision with a monitoring device, and the like. In order to help navigate the process for any particular defendant, the court gets risk-assessment recommendations from a Pretrial Services Program. According to the court, in less than a year under this system, "[t]his reform has shown great success in placing persons into pretrial release who would previously have been held in jail for failure to meet monetary bail and because pretrial monitoring options were largely unavailable. As a result, many fewer defendants are being detained in jail as they await trial."

Using this system, a New Jersey court ordered plaintiff Brittan Holland released, but subject to home confinement (except for work), with an ankle bracelet for monitoring, weekly reporting, and no contact with the victim. (Holland was charged with second-degree aggravated assault and agreed to these conditions on his release in exchange for the state withdrawing its application for detention.)

Holland argued that the system deprived him of a right to have monetary bail considered as a primary condition of release, and that as a result his conditions amount to an undue restraint on his liberty. (He said that the conditions "severely restricted [his] liberty, disrupted [his] family life, made [him] concerned about [his] job security, and made [him] feel that [his] life is up in the air.") Plaintiff Lexington, a national underwriter of bail bonds, joined, arguing that the system would cause it to lose money.

The court ruled first that Holland had standing, but that Lexington probably did not. Here's how the court explained Holland's standing:

Holland claims that his injury is not simply the restriction on his liberty, but rather the imposition of that restriction after a hearing that violated his rights under the Fourth, Eighth, and Fourteenth Amendments. He claims that such injury will be sufficiently redressed should the Court order that a hearing respecting those constitutional rights (as he understands them) be held, regardless of the ultimate outcome of such a hearing. Should the Court order such a hearing to be held, the relief then would not be speculative. He claims that he was injured by the holding of a hearing that did not afford him his constitutional rights, including the alleged right to have monetary bail considered as a primary condition of release pending trial, and that ordering a new hearing that does afford him those rights will redress that injury.

As to Lexington, the court said that it failed to establish standing for itself (because it could only assert harms of a third party, someone like Holland), and that it likely failed to establish third-party standing (because criminal defendants don't face any obstacles in bringing their own claims--obviously, in light of Holland's participation in the suit). (The state also argued that Lexington lacked prudential standing, because its injury doesn't fall within the zone of interests of the statute. The court said that the state could raise that argument later, as part of a failure-to-state-a-claim argument.)

Next, the court said that Younger abstention was inappropriate, because "[p]laintiffs, here, do not seek to enjoin the state prosecution against Holland; instead, they challenge the procedure by which the conditions of pre-trial release during that prosecution was decided and seek an injunction ordering a different procedure."

As to the merits, the court held that the plaintiffs were unlikely to success on all claims. The court said that the Eighth Amendment doesn't guarantee monetary bail, and that Holland waived his right to it, anyway. It said that Holland received procedural due process, and that he had no right to monetary bail under substantive due process. And it said that conditions were reasonable under the Fourth Amendment, and, again, that Holland agreed to them, anyway.

September 22, 2017 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Standing | Permalink | Comments (1)

Monday, September 11, 2017

More Challenges to DACA Rescission

 Recall that last week, fifteen states and the District of Columbia filed New York v. Trump challenging the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood. The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky.

Today, several other states - - - California, Maine, Maryland, and Minnesota - - - filed a complaint in the Northern District of California, California v. Department of Homeland Security, also challenging the DACA rescission making similar but not identical arguments.  In the California challenge, equal protection is the sixth of the six counts, with no mention of anti-Mexican animus in the allegations.  Instead, the equal protection claim contends that "rescission of DACA violates fundamental conceptions of justice by depriving DACA grantees, as a class, of their substantial interests in pursuing a livelihood to support themselves and fu1ther their education."

However, like New York v. Trump, the California complaint includes a challenge based on the Fifth Amendment's Due Process Clause, contending in its first cause of action that:

Given the federal government's representations about the allowable uses of information provided by DACA applicants, Defendants' change in policy on when to allow the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non- citizens, is fundamentally unfair.

This "informational use" due process claim is buttressed by the California complaint's fifth cause of action sounding in equitable estoppel, a claim not made in the New York complaint. Claims similar to the New York complaint include violations of the Administrative Procedure Act and the Regulatory Flexibility Act. Factual allegations supporting these causes of action include references to the President's tweets as advancing rationales for the rescission that are absent or contrary to the Homeland Security memorandum, thus making the rescission arbitrary and capricious.

Additionally, last week in a separate complaint in Regents of the University of California v. Department Homeland Security, also filed in the Northern District of California, another challenge to the DACA rescission was filed by named plaintiff, Janet Napolitano, now Chancellor of the University of California, but also former Secretary of the Department of Homeland Security.  In the University of California (UC) complaint, there is no equal protection claim, and the due process claim is third of three claims for relief and sounds in procedural due process:

¶69.    The University has constitutionally-protected interests in the multiple educational benefits that flow from a diverse student body. Thousands of DACA students have earned prized places as undergraduate and graduate students at the University of California through their record of high— even extraordinary—personal achievement in high school and college. In reliance on DACA, the University has chosen to make scarce enrollment space available to these students and to invest in them substantial time, financial aid, research dollars, housing benefits, and other resources, on the expectation that these students will complete their course of study and become productive members of the communities in which the University operates, and other communities throughout the nation. If these students leave the University before completing their education, UC will lose the benefits it derives from their contributions, as well as the value of the time and money it invested in these students with the expectation that they would be allowed to graduate and apply their talents in the United States job market.

¶70.    UC students who are DACA recipients also have constitutionally-protected interests in their DACA status and the benefits that come from that status, including the ability to work, to pursue opportunities in higher education, to more readily obtain driver’s licenses and access lines of credit, to obtain jobs, and to access certain Social Security and Medicare benefits.

¶71.    The Rescission and actions taken by Defendants to rescind DACA unlawfully deprive the University and its students of these and other constitutionally-protected interests without due process of law. Such deprivation occurred with no notice or opportunity to be heard.

 The other two causes of action in the UC complaint are based on the Administrative Procedure Act, with the first claim for relief contending the rescission is "arbitrary and capricious" and the second cause of action objecting to lack of notice and comment.  However, the "arbitrary and capricious" claim for relief does include a reference to the Fifth Amendment:"The Rescission and actions taken by Defendants to rescind DACA are arbitrary and capricious, an abuse of discretion, and not in accordance with law because, among other things, they are contrary to the constitutional protections of the Fifth Amendment."

It may be that even more constitutional and statutory challenges to DACA are forthcoming as protests against the rescission continue.

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[image: DACA Rescission Protest at Trump Tower, NYC, September 2017, photo by Rhododendrites via]

 

 

September 11, 2017 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Procedural Due Process, Race, Standing | Permalink | Comments (0)

Thursday, July 27, 2017

Federal Judge Finds First Amendment Violation by Politician Blocking Constituent on Facebook

 In a well reasoned opinion in Davison v. Loudon County Board of Supervisors, United States District Judge James Cacheris of the Eastern District of Virginia found that a politician who reacted to a constituent's comment on her "official" Facebook post by deleting his comment and banning him from her Facebook page violated the First Amendment.

Phyllis Randall, Chair of the Loudon County Board of Supervisors, maintained a Facebook page, entitled "Chair Phyllis J. Randall." She generally "uses the Facebook page to share information of interest with the County she serves," and Judge Cacheris provided several examples of the types of postings - - - precisely the type of postings one would expect - - - relating to proclamations such as "Loudon Small Business Week" and photographs of herself at conferences or other events. 

As a threshold matter, Judge Cacheris determined that there was state action.  This state action, however, could not be attributed to the defendant County Board of Supervisors, but only as to Phyllis Randall. Although the Facebook page was not the "property" of the county and would not revert to it when Randall left office, Randall "used it as a tool of governance." The judge found that Randall used the page to communicate with her constituents and the page reflects her efforts to "swathe" it with "the trappings of her office." Further, there were other government employees who assisted with the page.  Moreover, the specific act of banning the constituent Davison arose out of public rather than private circumstances.  Davison had apparently complained about the corruption of Randall's colleagues on the Board (the actual post, having been deleted by Randall, was not before the judge). 

Judge Cacheris referenced two of the Supreme Court's decisions last Term - - - Packingham v. North Carolina opinion, noting that Facebook had become a vital platform for speech and the exchange of ideas, and Matal v. Tam, noting that if anything is clear, "it is that speech may not be disfavored by the government simply because it offends." The judge held that it was unnecessary to decide what type of "forum" under the First Amendment the Facebook page might be, given that under no forum is viewpoint discrimination permissible. Here, the judge held, Randall clearly banned Davison because of the opinion he expressed.  There was no neutral policy (such as a ban on profanity) which was being neutrally applied.

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The judge observed that Davison was banned only for a short time - - - Randall retracted her ban the next morning - - - and that during this time, Davison had adequate means to communicate his message through other avenues.  Nevertheless, the judge stated that

Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards.  By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment.

The judge issued a declaratory judgment in favor of Davison, who represented himself pro se, on the First Amendment claim, although the judge rejected a procedural due process claim that Davison had also advanced.

This case should serve as a wake-up call for politicians who use their "official" Facebook pages in ways that may violate the First Amendment.  The case may also be a harbinger of decisions to come in the ongoing litigation challenging the President's practice of "blocking" people on Twitter.

[image by Matt Shirk via]

July 27, 2017 in Current Affairs, First Amendment, Fourteenth Amendment, Opinion Analysis, Procedural Due Process, Recent Cases, Speech, Web/Tech | Permalink | Comments (1)

Wednesday, April 19, 2017

SCOTUS Finds Colorado Criminal Fee Refund Scheme Violates Due Process

The United States Supreme Court's opinion in Nelson v. Colorado opened with this seemingly simple question:

When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction?

Writing for the six Justice majority, Justice Ginsburg provided an equally simple response: "Our answer is yes."

The statutory scheme, Colorado's Compensation for Certain Exonerated Persons, provided the "exclusive process" for seeking a refund of costs, fees, and restitution according to the Colorado Supreme Court.  However, recovery under this Exoneration Act applied "only to a defendant who has served all or part of a term of incarceration pursuant to a felony conviction, and whose conviction has been overturned for reasons other than insufficiency of evidence or legal error unrelated to actual innocence."  The petitioners in the case were not within this category: one was convicted, had her conviction reversed, and was acquitted on retrial; the other was convicted, had one conviction reversed on appeal and another conviction vacated on postconviction review, and the state elected not to retry.  The first petitioner was assessed more than $8,000 in costs, fees, and restitution and had $702.10 deducted from her inmate account while she was in jail; the second petitioner was assessed more than $4,000 in costs, fees, and restitution and paid the state $1977.75.

Justice Ginsburg's concise opinion articulates and applies the well-established balancing test for procedural due process from Matthews v. Eldridge (1976), under which a court evaluates a court evaluates (A) the private interest affected; (B) the risk of erroneous deprivation of that interest through the procedures used; and (C) the governmental interest at stake. 

A_debtor_in_Fleet_Street_Prison_THSThe Court rejected Colorado's claim that the petitioners' had no private interest in regaining the money given that the convictions were "in place" when the funds were taken. Justice Ginsburg concluded that it makes no difference whether the initial court or a reviewing court adjudged the petitioners not guilty.  To rule otherwise would be inconsistent with the presumption of innocence notion fundamental to "our criminal law."  As to the risk of erroneous deprivation, Justice Ginsburg made clear that the risk was high and stressed that the petitioners were seeking refund rather than "compensation for temporary deprivation" of those funds such as interest.  Finally, Justice Ginsburg's opinion for the Court found that Colorado has "no interest in withholding" the money "to which the State currently has zero claim of right."

Justice Alito, writing in a concurring opinion only for himself, contended that the correct standard was not Matthews v. Eldridge, but Medina v. California (1992) as Colorado had argued.  For Alito, Medina was the correct standard because the refund obligation was part of the criminal process, especially pertinent with reference to restitution. Nevertheless, Alito concluded that even under Medina, stressing an historical inquiry, the Colorado statute failed due process: placing a heavy burden on criminal defendants, providing no opportunity for misdemeanor convictions, and excluding all but claims for actual innocence.  

Justice Thomas, also writing only for himself, issued a dissenting opinion, arguing that the issue is whether the petitioners can show a "substantive" entitlement to a return of the money they paid.  He concludes that they have no "substantive" right because once the petitioners paid the money - - - however wrongly - - - it became public funds to which they had no entitlement. Thus, because the "Due Process Clause confers no substantive rights," the petitioners have no right to a refund, despite the "intuitive and rhetorical appeal" of such a claim.

While the statute was amended to include vacated convictions effective September 2017, such an amendment may not be comprehensive enough to save the statutory scheme.  While the Court does not discuss the widespread problem of carceral debt, there is a burgeoning scholarship on this issue.

[image: "A debtor in Fleet Street Prison, London" by Thomas Hosmer Shepherd, circa first half of the 19th century, via].

April 19, 2017 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Opinion Analysis, Procedural Due Process, Scholarship, Supreme Court (US) | Permalink | Comments (0)

Wednesday, February 15, 2017

Habeas Petition by DACA Recipient Detained by ICE Agents

A habeas petition filed in Ramirez Medina v. US Department of Homeland Security avers constitutional violations of procedural due process and substantive due process under the Fifth Amendment as well as unlawful seizure under the Fourth Amendment.

The petition comes amidst reported "raids" by Immigration and Customs Enforcement (ICE) across the country.  Ramirez, who is a 23 year old non-citizen, had been granted employment authorization under the Deferred Action for Childhood Arrivals (DACA) program in 2014, and it was renewed in 2016.  According to the allegations in the petition, he was not the target of ICE agents, but encountered them when the agents arrested his father.  When the ICE agents asked him if he was "legally here," Mr. Ramirez responded that was, relying on his employment authorization under DACA.  Nevertheless, as the petition alleges

ICE agents then took Mr. Ramirez to a processing center in Seattle, Washington. When he again informed them about his work permit, one of the ICE agents stated: “It doesn’t matter, because you weren’t born in this country.” At this point, the ICE agents had Mr. Ramirez’s wallet, which contained his work permit, which clearly identified him as a DACA recipient with a “C-33” code, which reflects a work authorization issued pursuant to DACA. Despite this fact, Mr. Ramirez was questioned further, fingerprinted, booked, and taken to a detention center in Tacoma, Washington.

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image: ICE agent making arrest via

The first count argues that the detention (apparently still continuing) is a violation of procedural due process rights.  Ramirez alleges an interest in his liberty, but also alleges a property interest by virtue of the promises made in the DACA program.  Thus, the Matthews v. Eldridge balancing test should apply, affording Ramirez both notice and hearing, as well as application of the extant policies - - - which provide he should not be detained - - - given his DACA status.  The second count of substantive due process alleges that Ramirez's liberty is a fundamental interest of which he has been wrongly deprived.  And lastly, the Fourth Amendment claim alleges an absence of probable cause for his arrest.

The Western District of Washington Magistrate has set a hearing for the morning of Friday, February 17, with briefs due the previous day.  The Magistrate has ordered the brief of DHS to answer, with an opportunity for Ramirez to respond, to the following questions:

  • a. Is petitioner still detained? What is the basis for his detention, given that he has been granted deferred action under the Deferred Action for Childhood Arrivals program?
  • b. Has petitioner been placed in removal proceedings? What was the result of ICE’s initial custody determination? Has petitioner requested a bond hearing before an Immigration Judge? When is any bond hearing scheduled to occur?
  • c. Does the Court have the authority to order an Immigration Judge and the Board of Immigration Appeals to consider any challenge to petitioner’s detention status on an expedited basis?
  • d. If petitioner is still detained and removal proceedings have not been initiated against him, what is the basis for ICE’s authority to detain him? What limitations are there, if any, on the Court’s ability to hold a detention hearing for petitioner before the merits of his habeas petition have been decided?

 

 

February 15, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Family, Fifth Amendment, Fourth Amendment, Procedural Due Process | Permalink | Comments (0)

Saturday, February 4, 2017

Federal District Judge Enjoins "Muslim Ban" in Washington v. Trump

In a Temporary Restraining Order, United States District Judge James Robart enjoined the federal government from enforcing sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban." 

Judge Hobart's Order is brief and concludes that there is a likelihood of success on the merits, although it does not specify which of the claims is likely to succeed.  Washington State's complaint contains 7 counts claiming violations of constitutional guarantees of Equal Protection, Establishment Clause, and Procedural Due Process, as well as statutory violations of the Immigration and Nationality Act (2 counts), Foreign Affairs and Restructuring Act, the Administrative Procedure Act (2 counts), and the Religious Freedom and Restoration Act (RFRA).

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Mt. Baker, Washington, by Murray Foubister via

The Judge's finding that Washington faces the "immediate and irreparable injury" requirement for preliminary relief might also be a comment on the merits of Washington's standing (which we first discussed here) to bring the suit, and would be pertinent to the standing of the state of Hawai'i, which has also sued. Judge Robart found:

The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders.  In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States" operations, tax bases, and public funds.

Additionally, in the Order's one paragraph Conclusion, Judge Robart implicitly invokes the Marbury v. Madison aspects of the controversy.  Here is the entire last paragraph:

Fundamental to the work of this court is a vigilant recognition that it is but one of   three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this   country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. The narrow question the court is asked to consider today is whether it is appropriate to enter a TRO against certain actions taken by the Executive in the context of this specific lawsuit. Although the question is narrow, the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government. Accordingly, the court concludes that entry of the above-described TRO is necessary, and the States’ motion (Dkt. ## 2, 19) is therefore GRANTED.

 The morning after the Judge's Order, the President from his vacation home "tweeted" his disapproval, maligning the judge but seemingly committed to pursue further judicial process.
 

February 4, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Procedural Due Process, Race, Separation of Powers, Standing | Permalink | Comments (2)

Monday, January 30, 2017

Washington State AG Sues Trump for Immigration EO

Washington State Attorney General Robert Ferguson has filed suit on behalf of the State in Western District of Washington, arguing that President Trump's immigration EO violates various constitutional provisions (including equal protection, due process, and establishment of religion). The State also moved for a nationwide temporary restraining order.

Check out our analysis of the equal protection issues in the EO here.

As to standing, the state argues that the EO interferes with its interests in protecting the health, safety, and well-being of residents (including about 7,280 non-citizen immigrants from the seven countries identified in the EO) and its interests in economic activity and growth. (The State points out that it's the home of Microsoft, Amazon, Expedia, and Starbucks, among others, and that those companies rely on the H-1B visa program.)

January 30, 2017 in Cases and Case Materials, Equal Protection, Executive Authority, News, Procedural Due Process, Standing | Permalink | Comments (0)

Wednesday, October 26, 2016

Divided Eighth Circuit Upholds Nursing Student's Dismissal for Facebook Posts

In its opinion in Keefe v. Adams, a divided panel of the Eighth Circuit upheld the dismissal of a student from the Associate Degree Nursing Program at Central Lakes College (CLC) in Minnesota.  Other students had complained about posts on Craig Keefe’s Facebook page and he was eventually removed from the program for :behavior unbecoming of the profession and transgression of professional boundaries."  Keefe challenged the constitutionality of the dismissal based on the First Amendment and procedural due process.  The district judge granted summary judgment for the university officials and the majority opinion, authored by Judge James Loken for the Eighth Circuit panel, affirmed.

The concerning posts involved other students in the class and group projects, including his objection to a fellow student changing the group presentation - "Not enough whiskey to control that anger" and calling another student a "bitch" for presumably reporting his Facebook posts.

Principles_of_modern_biology_(1964)_(20711036786)There was also this:

Doesnt anyone know or have heard of mechanical pencils. Im going to take this electric pencil sharpener in this class and give someone a hemopneumothorax with it before to long. I might need some anger management.

In a footnote, the court helpfully explains:

a hemopneumothorax is a “trauma” where the lung is punctured and air and blood flood the lung cavity; it is not a medical procedure.

College officials discussed the posts and Keefe originally deflected.  He was dismissed from the program under specific provisions in the Nursing Program Student Handbook which also refers to the Nurses Association Code of Ethics, including professional boundaries and "behavior unbecoming."  He appealed within the the college, citing failures of procedural due process, but his appeal was denied.

On the procedural due process issue, the majority concluded:

Viewing the summary judgment record as a whole, we conclude that Keefe was provided sufficient notice of the faculty’s dissatisfaction, an explanation of why his behavior fell short of the professionalism requirements of the Program, an opportunity to respond to the initial decision-maker, and an opportunity to appeal her adverse decision. Nothing in the record suggests that Keefe’s removal from the Nursing Program was not a careful and deliberate, genuinely academic decision.

Dissenting in part, Judge Jane Kelly argued that the dismissal decision was not "academic."  Instead, it was a disciplinary dismissal for which he argued the due process standard should be higher.  Judge Kelly highlighted one of the meetings with Keefe in which he was not given all the posts beforehand with "time to review the posts and formulate a response."  However, Judge Kelly contended that the college administrators were entitled to qualified immunity on the due process claim.

The First Amendment issue is the central one.  As Judge Loken's opinion for the majority notes, Keefe frames the issue categorically: "a college student may not be punished for off-campus speech," unless that speech is "unprotected by the First Amendment."  Judge Loken characterized this as an "extreme position" not adopted by any court.

The Eighth Circuit majority rehearsed some of the cases involving academic requirements for professionalism and fitness, including cases such as Ward and Keeton involving professional students' failure to comply with anti-bias requirements.  These principles, the court held, were equally pertinent to off-campus speech, especially given that the off-campus speech was "directed at classmates, involved their conduct in the Nursing Program, and included a physical threat related to their medical studies."

For the dissenting judge, it was important that Keefe's Facebook posts "were not made as part of fulfilling a program requirement and did not express an intention to break specific curricular rules."  As to the "threat," the dissenting judge argued that the district judge had failed to make findings that Keefe's statement qualified as a true threat.  For the dissenting judge, summary judgment was improper.

The split opinion might indicate that the case is a good candidate for en banc review and there were First Amendment groups as amici on behalf of the dismissed student.  Nevertheless, the Eighth Circuit opinion does comport with the trend of allowing professional educational programs latitude to "professionalize" students and to dismiss those who do not conform.

October 26, 2016 in First Amendment, Fundamental Rights, Opinion Analysis, Procedural Due Process, Speech | Permalink | Comments (0)

Wednesday, September 21, 2016

Immigrant Children Between a Rock and a Hard Place on Right to Counsel Claims

The Ninth Circuit ruled yesterday that a federal district court lacked jurisdiction to hear a class-action claim by immigrant children that they have a right to counsel in deportation proceedings.

While the judges on the panel wrote separately to acknowledge the challenging barriers for unrepresented child-immigrants in the deportation process, the upshot of the ruling is that immigrant children remain between a rock and a hard place in lodging a right-to-counsel claim, and, thus, in the deportation process itself.

The case arose when immigrant children aged 3 to 17 filed suit in federal district court arguing that they had a constitutional and statutory right to counsel in deportation proceedings. The problem was that the Immigration and Naturalization Act provides for an appeal process in administrative deportation proceedings that permits an immigrant to appeal to a federal circuit court and consolidates "all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien .  .  only in judicial review of a final order . . . ." This means that an immigrant can raise deportation-related claims only in his or her direct appeal of an administrative deportation order, and not in a collateral process (like a separate case in district court).

The children argued that the INA's jurisdictional provision means that, as a practical matter, they could never raise a right-to-counsel claim on direct appeal of a deportation order. That's because one of two things could happen in deportation proceedings. First, an immigrant could have an attorney, in which case they wouldn't have standing to raise a right-to-counsel claim on direct appeal. Alternatively, an immigrant could not have an attorney. But in that case, given the complexities of the immigration process, a child couldn't adequately develop a record to successfully appeal (if they could even figure out how to appeal). (Immigration judges won't deal with the issue, so the children really would have to raise it on appeal to the federal circuit court.) So, they argued, they should be able to file a collateral class action in federal district court on the right-to-counsel claims.

The Ninth Circuit disagreed. The court ruled that the INA's jurisdictional provision directly answered the question: the children could only raise their right-to-counsel claims through the administrative deportation process and on direct appeal to the federal circuit court.

The panel judges wrote separately to acknowledge the unique challenges that immigrant children face in this labyrinthine process, and the practical difficulties in raising a right-to-counsel claim. They also wrote that there's wide agreement that children need an attorney in deportation proceedings. But in the end, according to the court, right to counsel is an issue to raise only on direct appeal.

Or: Congress could simply fix it by providing a statutory right to counsel for children in deportation proceedings.

September 21, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Tuesday, March 15, 2016

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)

Thursday, August 6, 2015

Federal Judge Allows Steven Saliata's Constitutional Claims to Proceed

In an over 50 page decision in Salaita v. Kennedy, United States District Judge Harry D. Leinenweber largely denied the University of Illinois Defendants' Motion to Dismiss the compliant filed by Steven Salaita regarding his employment at the university.  Recall that last August, University of Illinois at Urbana-Champaign officials rescinded the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin based on his "tweets" on the subject of Gaza.  Recall also that in January, Salaita filed a nine count complaint including constitutional claims of First Amendment and procedural due process violations.

SalaitaJudge Leinenweber's decision does grant the motion to dismiss with regard to a few state law claims, but allows the constitutional claims and the breach of contract and promissory estoppel claims to proceed.  (ContractsLawProfs might be interested in the judge's analysis of the contract claim, including his conclusion that if this were not a contract it would "wreak havoc" on academic hiring and that the university is essentially seeking a "get-out-of-contract-free card.")

The judge's analysis of the procedural due process claim flows from the contract claim. The university argued that Salaita had no sufficient "property interest" to entitle him to due process because there was no contract.  Having found a sufficient contract claim, the judge finds the procedural due process claim sufficiently pleaded.

On the First Amendment claim, the judge rejected the university's argument is that its action was not motivated by the content or viewpoint of Dr. Salaita’s tweets, and that even if it was, its interest in providing a disruption-free learning environment outweighs Dr. Salaita’s free speech interest under the balancing test in Pickering v. Board of Education (1968).

The first part of the argument is premature; summary judgment or trial will reveal the University’s actual motivation, but the facts viewed in Dr. Salaita’s favor amply support a claim that the University fired Dr. Salaita because of disagreement with his point of view. The University’s attempt to draw a line between the profanity and incivility in Dr. Salaita’s tweets and the views those tweets presented is unavailing; the Supreme Court did not draw such a line when it found Cohen’s “Fuck the Draft” jacket protected by the First Amendment. Cohen v. California (1971).

Additionally, the judge noted that even if he were to engage in Pickering balancing at this stage, the facts conflict as to whether actual disruption would have occurred.

Interestingly, the judge's rationale for granting the motion to dismiss as to the complaints counts six and seven rely on First Amendment grounds.  In these counts, the complaint alleged tortious interference by unnamed donors who threatened to withdraw support should Salaita teach at the university.  Judge Leinenweber concluded that the donor defendants had a First Amendment right to express their displeasure, even through a quid pro quo threat: "The First Amendment is a two-way street, protecting both Dr. Salaita’s speech and that of the donor Defendants."

Finally, Judge Leinenweber rejected the university's argument that its officials and itself were entitled to Eleventh Amendment immunity, noting that the difficult issue regarding whether the university board is an arm of the state is irrelevant since Saliata is requesting injunctive relief.  The judge resolves the more perplexing state law immunity issue, under the Illinois Court of Claims Act, also in favor of Salaita.

In sum, this is an important victory for Professor Salaita as this closely-watched litigation continues. 

August 6, 2015 in Current Affairs, Eleventh Amendment, First Amendment, Procedural Due Process, Scholarship | Permalink | Comments (3)

Monday, June 15, 2015

The Supreme Court on Marriage, Procedural Due Process, Terrorism, and Immigration: Kerry v. Din

The Court today issued its closely divided opinion in Kerry v. DinOn this 800th anniversary of Magna Carta, both the plurality opinion by Justice Scalia and the dissenting opinion by Justice Breyer referenced the great charter's protection of what the Constitution's Fifth Amendment termed "due process of law." In Din, the due process rights of a citizen who obtained preferred immigration status for her spouse are at stake. Certainly the case is important in the immigration context, but how important might it be as a harbinger of the Court's impending decision in the consolidated same-sex marriage cases, Obergefell v. Hodges, argued in late April?  What Kerry v. Din might say about Obergefell is discussed here.

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Charles Hawthorne, "Young man and woman in a dark, moody landscape," 1915, via 

In Kerry v. Din, a naturalized citizen, petitioned to have her husband, Berashk, classified as an “immediate relative” entitled to priority immigration status, and although this was approved, Berashk’s visa application was denied under §1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the consular officer provided no further information. Unable to obtain a more detailed explanation for Berashk’s visa denial, Din filed a complaint in federal court which was dismissed.  The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons.

In the plurality opinion joined by Chief Justice Roberts and Justice Thomas, Justice Scalia has harsh words for Din's claim of any right of "life, liberty, or property" to which due process would attach.  It is "absurd" and nothing in the caselaw "establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection."  He characterizes her right as one to live in the United States with one's spouse, and concludes that such a right fails the Washington v. Glucksberg test requiring that any implicit right be "deeply rooted in this Nation's history and tradition."  Indeed, he argues that the history is exactly the opposite and discusses laws that mandated women "take the nationality of her husband on marriage."  While noting that modern " equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order," nevertheless, he concludes that "this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is 'deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.'"

Justice Kennedy, joined by Justice Alito, firmly rejects Justice Scalia's conclusion: "Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse." Instead, Kennedy concludes that the "Court need not decide that issue," for "even assuming she has such an interest, the Government satisfied due process when it notified Din’s husband that his visa was denied under the immigration statute's terrorism bar."  For Kennedy and Alito, the citation of the statute seemingly satisfies all the process that is due.

Dissenting, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, argues that there is a liberty interest flowing from the Due Process Clause itself and from the statutory scheme establishing immigration preferences.  In his critique of the plurality opinion, Breyer reminds readers that it "is not controlling."  He discusses a number of cases in which the Court has recognized liberty interests, perhaps most compellingly Goss v. Lopez (1975), involving students' interest in attending school and not being suspended, and which the plurality opinion seeks to distinguish. Regarding the "process due," Breyer notes that a statement of the reasons for a government action is an essential part of due process and one that a recitation of the statute in this case cannot satisfy given that it contains "dozens" of reasons.  Moreover, the government offered no factual basis. He argues:

The generality of the statutory provision cited and the lack of factual support mean that here, the reason given is analogous to telling a criminal defendant only that he is accused of “breaking the law”; telling a property owner only that he cannot build because environmental rules forbid it; or telling a driver only that police pulled him over because he violated traffic laws. As such, the reason given cannot serve its procedural purpose. It does not permit Ms. Din to assess the correctness of the State Department’s conclusion; it does not permit her to determine what kinds of facts she might provide in response; and it does not permit her to learn whether, or what kind of, defenses might be available. In short, any “reason” that Ms. Din received is not constitutionally adequate.

Thus, the dissenters would recognize both the liberty interest of a spouse in her partner's visa denial and that procedural due process requires something more than the recital of a statute; Kennedy and Alito find that the statutory referral is sufficient process; and the plurality finds that there is no liberty interest of a spouse in her partner's visa denial.  It's a fragmented set of conclusions and its predictive value for the same-sex marriage cases raises some interesting possibilities.

June 15, 2015 in Due Process (Substantive), Opinion Analysis, Procedural Due Process, Supreme Court (US), Travel | Permalink | Comments (0)

Tuesday, February 10, 2015

Massachusetts Extends Right to Counsel in Private Guardianship

The Massachusetts Supreme Judicial Court ruled today that a parent in a private guardianship proceeding is entitled to counsel as a matter of due process. (The court previously ruled that a parent in a private adoption proceeding enjoyed that same right.) The case provides a categorical right to counsel under Massachusetts law, and thus stands in contrast to the case-by-case approach to a parent's federal due process right to counsel in Lassiter v. Department of Social Services.

The case, Guardianship of V.V., involved a guardianship proceeding between a minor's mother and great-grandmother. The mother was not initially represented by counsel when the lower courts awarded guardianship to the great-grandmother, although the mother obtained a lawyer later in the proceedings.

By the time the Supreme Judicial Court had a chance to rule, the case had become moot. That's because the minor was back with the mother. (The court said that the case was not moot on account of the mother obtaining a lawyer later in the proceeding. The court said the point was that the mother didn't have an attorney at the initial guardianship proceeding.) Still, the court said that the issue was capable of repetition but evading review--that it was an issue sure to come up again, and, because of the quick turn-around in guardianship cases, likely to evade appellate review.

The court held that the weighty interests and due process considerations in guardianship proceedings meant that parties to a guardianship proceeding had a categorical right to counsel. The court also noted that the state, by statute, provided counsel to parties to a guardianship proceeding where the state is a party, and that the same interests are at stake in a private guardianship proceeding.

February 10, 2015 in Cases and Case Materials, Comparative Constitutionalism, Fundamental Rights, News, Opinion Analysis, Procedural Due Process, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, January 22, 2015

No Remedy for Inmate when Authorities take Medical Settlement for Cost of Incarceration

The Ninth Circuit ruled in Shinault v. Hawks that a state has to provide pre-deprivation notice and hearing before it freezes funds in an inmate's trust account to recover the cost of his incarceration. But at the same time, the court said that this rule wasn't "clearly established" at the time, so the defendants enjoyed qualified immunity. The court also rejected the inmate's Eighth Amendment claim.

The upshot is that prison authorities took more than $60,000 of an inmate's money--money from a settlement for a medical liability claim--in violation of procedural due process. But according to the Ninth Circuit, the inmate has no recourse against the officers.

Lester Shinault received a $107,417.48 settlement from a medical claim against a drug manufacturer who products (prescribed while Shinault was not in custody) caused him to develop diabetes. Shinault's attorney deposited the money in his inmate trust account.

Prison authorities then ordered Shinault to pay $65,353.94 to cover the cost of his incarceration. On the same day that Shinault requested a hearing, authorities transferred this amount from his trust account into a "reserved miscellaneous" sub-account in Shinault's name, but which Shinault could not access. An ALJ ruled against Shinault (in a hearing where Shinault didn't have an attorney and struggled mightily to represent himself), and about a year later authorities withdrew $61,352.39.

Shinault sued, arguing that the withdraw violated procedural due process and the Eighth Amendment. The district court granted summary judgment against him.

The Ninth Circuit held that authorities violated procedural due process under the Mathews v. Eldridge balancing test, because they failed to provide a pre-deprivation hearing prior to freezing the funds. But it also held that the violation wasn't "clearly established" at the time (because it couldn't find precedent directly on point, and because it said that procedural due process questions were fact specific, that is, not determined until a particular case is litigated), so the officials enjoyed qualified immunity.

In other words, the court said it wasn't "clearly established" that authorities had to provide a pre-deprivation hearing before freezing over $60,000.00 that Shinault obtained from a settlement with a drug company whose products caused him to develop diabetes. Because this wasn't "clearly established," the defendants enjoyed immunity, and Shinault has no claim against them for return of his money.

The court also held that authorities did not violate Shinault's Eighth Amendment rights, because "no authority supports the notion that freezing or withdrawing funds from an inmate account constitutes deliberate denial of care under the Eighth Amendment."

January 22, 2015 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process | Permalink | Comments (1) | TrackBack (0)

Friday, December 12, 2014

Ninth Circuit Affirms $300K in Punitives in Title VII Case with only Nominal Damages

The Ninth Circuit, sitting en banc, this week affirmed a lower court's $300,000 puntive damage verdict in a Title VII sexual harassment case in which the court awarded no compensatory damages and just $1 in nominal damages.

The ruling distinguishes BMW v. Gore, the 1996 case in which the Supreme Court ruled that excessive punitives could violate due process. Gore involved a common law tort claim with no statutory cap on punitive damages. This case, State of Arizona v. ASARCO LLC, in contrast, involved a Title VII claim with a statutory cap on both compensatories and punitives. That difference, the statutory cap, drove the result.

The case arose out of a sexual harassment complaint by an employee at ASARCO's Mission Mine complex in Sahuarita, Arizona. The plaintiff alleged that during her time at ASARCO she was subjected to sexual harassment, retaliation, intentional infliction of emotional distress, and was constructively discharged.

The jury awarded no compensatory damages, but awarded $1 in nominal damages and $868,750 in punitives. The trial court later reduced the punitives to $300,000, the statutory max for a Title VII claim. (The court also awarded attorneys' fees and costs in the amount of $350,902.75.) ASARCO appealed, arguing that the punitive damage award violated Gore.

The Ninth Circuit rejected that argument. The court said that because Title VII caps both compensatories and punitives, a punitive damage award within the statutory cap satisfies the underlying constitutional considerations that animated Gore (even if the punitives amounted to 300,000 times the damages). In particular, the statutory cap gave the defendant fair notice of the severity of a penalty for a Title VII violation (where the defendant in Gore, a tort case, had no such fair warning), the cap sets out a clear amount, and it states the degree of culpability a defendant must have had, thus reducing the chance of random or arbitrary awards. Moreover, "Gore's ratio analysis has little applicability in the Title VII context," because the statutory cap doesn't lend itself to a ratio analysis the way a common law damage award does. (Under Title VII's caps, the punitive damages can't increase proportionally to the harm, because they're capped.)

December 12, 2014 in Cases and Case Materials, Due Process (Substantive), News, Opinion Analysis, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 25, 2014

Federal Judge Declares No-Fly List Process Unconstitutional

In her  opinion in Latif v. Holder, Judge Anna Brown of the District of Oregon concluded that the "no-fly list" violates the Fifth Amendment's guarantee of due process.

Judge Brown's well-crafted 65 page opinion applies the well-established "balancing test" for  procedural due process first articulated by the United States Supreme Court in 1976 in Mathews v. Eldridge.  Under this test, a court weighs several factors to determine "how much process is due":

  • the interests of the individual and the injury threatened by the official action;
  • the risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
  • the costs and administrative burden of the additional process, and the interests of the government in efficient adjudication
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image via


After analyzing the factors and weighing the government's interest in preventing terrorism heavily, Judge Brown considered similar "terrorism" cases and noted that the

Plaintiffs in this case were not given any notice of the reasons for their placement on the No—Fly List nor any evidence to support their inclusion on the No—Fly List. Indeed, the procedural protections provided to Plaintiffs through the DHS TRIP process fall substantially short of even the notice that the courts found insufficient [in another case].

Moreover, the government's failure to provide any notice of the reasons for Plaintiffs’ placement on the No—Fly List

is especially important in light of the low evidentiary standard required to place an individual in the TSDB in the first place. When only an ex parte showing of  reasonable suspicion supported by "articulable facts . . . taken together with  rational inferences” is necessary to place an individual in the TSDB, it is certainly possible, and probably likely, that “simple factual errors” with “potentially easy, ready, and persuasive explanations” could go uncorrected.

[ellipses in original].  Thus, she concludes that "without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the no-fly list."

In granting partial summary judgment in favor of the Plaintiffs, Judge Brown directed the government defendants to "fashion new procedures" that provide the Plaintiffs with the requisite due process "without jeopardizing national security."

Certainly this litigation, which already has an extensive history, is far from over, but Judge Brown's finding of a lack of procedural due process in the government's no-fly lists is exceedingly important.

 

June 25, 2014 in Fifth Amendment, Opinion Analysis, Procedural Due Process, State Secrets, Travel | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 24, 2013

Tweet by University of Kansas Professor Results in Suspension: First Amendment Ramifications

According to a report in the Kansas City Star, David Guth, a journalism professor at University of Kansas has been placed on "administrative leave" for his tweet about after last week's shooting leaving 13 dead at the DC Navy Yard. 

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Guth tweeted:

"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”

While there is an implication that some in the KU Administration might believe this constitutes advocacy of violence, it's doubtful that the tweet would rise to this level. It certainly does not rise to the level of a threat: Compare the Ninth Circuit in United States v. Bagdasarian and a finding of true threats in a blog post by the Second Circuit in United States v. Turner.

There is also the question of  the lack of due process accorded to Professor Guth, as some have noted.

But perhaps most relevant is the Ninth Circuit's recent opinion in Demers v. Austin.  Certainly Guth's tweet is a matter of public concern and he was speaking as a private citizen rather than as a public employee.  On this view, his speech should be protected under the First Amendment.  Moreover, Guth's tweet does not present the kind of close case presented in Demers and there should be little credit to claims of qualified immunity.

Guth's "personal blog" (as the blog itself proclaims) deserves similar First Amendment protection. (The blog entry for September 16, 2013 entitled "Where Do You Stand?" discusses the Navy Yard incident).

Like the so-called "political rant" last week by another academic, this would make a terrific in class exercise for those teaching First Amendment.

 

 

 


Read more here: http://www.kansascity.com/2013/09/19/4494140/ku-rebukes-journalism-professor.html#storylink=cpy
The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf
The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf
The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf
The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf

September 24, 2013 in Current Affairs, First Amendment, Fourteenth Amendment, News, Procedural Due Process, Second Amendment, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Sunday, September 1, 2013

Federal Judge Allows Lawsuit for Unconstitutional Sex Assignment Surgery to Proceed

In the closely watched case of M.C. v. Aaronson,  a minor claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care).    We discussed the case when the complaint was filed in May.

IntersexualflagIn a 15 page order United States District Judge David Norton denied the motions to dismiss by the various defendants.  With regard to the substantive due process right, the judge found that "M.C. has articulated that defendants violated his clearly established constitutional right to procreation.," and as a "result, defendants’ assertion of qualified immunity must fail at this stage in the litigation."  Given this conclusion, the judge stated he "need not consider M.C.’s arguments that defendants also violated his rights to privacy and bodily integrity."

As for the procedural due process rights, the judge again found that M.C. stated a claim, and that further analysis of the Matthews v. Eldridge factors was not appropriate at this stage.

But as the judge's opinion made clear, the hurdle of summary judgment looms:

Underlying this case’s complex legal questions is a series of medical and administrative decisions that had an enormous impact on one child’s life. Details of how those decisions were made, when they were made, and by whom are as yet unknown to the court. Whether M.C.’s claims can withstand summary judgment challenges, or even the assertion of qualified immunity at the summary judgment stage, is not for the court to hazard a guess at this time. It is plain that M.C. has sufficiently alleged that defendants violated at least one clearly established constitutional right – the right to procreate – when they recommended, authorized, and/or performed the sex assignment surgery in April 2006.

Indeed, this same order included a grant of M.C.'s request for expedited discovery.

RR
[image via]

September 1, 2013 in Due Process (Substantive), Fourteenth Amendment, Gender, Medical Decisions, Opinion Analysis, Privacy, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Sunday, August 18, 2013

How to Think About Drones

Mark Bowden writes in the current issue of The Atlantic about the moral, military, and legal aspects of U.S. drone strikes against alleged terrorists.  The article came out just as U.N. Secretary General Ban Ki-Moon criticized the use of armed drones and argued that they must be controlled by international law.  We posted most recently on drones here--on the Al-Awlaki case, with links to the leaked DOJ white paper providing the legal justification for drone attacks.

Bowden surveys some of the legal landscape and concludes that drone attacks are legal.  But:

Once the "war" on al-Qaeda ends, the justification for targeted killing will become tenuous.  Some experts on international law say it will become simply illegal.  Indeed, one basis for condemning the drone war has been that the pursuit of al-Qaeda was never a real war in the first place.

He also quotes John Yoo on the relative legality of drone attacks:

I would think if you are a civil libertarian, you ought to be much more upset about the drone than Guantanamo and interrogations. . . .  Because I think the ultimate deprivation of liberty would be the government taking away someone's life.  But with drone killings, you do not see anything, not as a member of the public.  You read reports perhaps of people who are killed by drones, but it happens 3,000 miles away and there are no pictures, there are no remains, there is no debris that anyone in the United States ever sees.  It's kind of antiseptic.  So it is like a video game; it's like Call of Duty.

SDS

August 18, 2013 in Executive Authority, International, News, Procedural Due Process, War Powers | Permalink | Comments (2) | TrackBack (0)