Friday, May 14, 2010

The Legality of Targeted Killings

It's well known by now that President Obama has ordered numerous drone attacks and ordered the killing of Anwar al-Awlaki, an American Muslim cleric allegedly living in Yemen and plotting terrorism against the United States.  The New York Times reports today that these orders are causing "unease."  We thought we'd elaborate.

The best legal justification offered by the administration is State Department Legal Adviser Harold Koh's speech in March to the American Society of International Law (below).  Koh argues that targeted killings are fully constitutional and within the President's powers as part of the United States's right under international law to defend itself (especially in time of war) and under the 2001 Authorization for Use of Military Force.

But Koh makes little mention of the assassination ban under long-standing executive order, E.O. 12333 (he concludes that it does not restrict lawful killings under the law of war), the Hague Convention's ban on "treacherous" killing of enemies, and the Army Field Manual's interpretation of the Hague Convention's ban (in paragraph 31) to prohibit assassination (to say nothing of the Due Process Clause)--all of which seem relevant, even if ultimately deemed inapplicable.  ("Assassination" is nowhere well defined and is subject to some dispute.  But, as the Congressional Reserach Service writes in this post-9/11 report on E.O. 12333 and the assassination ban, an Army memo issued in the process of reauthorizing the Army Field Manual defines "assassination" as a "surprise" attack during peacetime and notes that the Hague Convention does not preclude defining assassination this way also in wartime.)

Koh's justifications for tageted killings--and his omission of limitations upon targeted killings, as above--seem surprising, given his critiques of the Bush administration justifications for everything from warrantless wiretaps to torture.  For example, Koh testified before the Senate Judiciary Committee in 2008 that the AUMF was too vague an authority upon which to base these Bush administration policies.  He also argued for a more robust role for Congress and the courts.  Koh argued against inherent executive authority to conduct these programs, instead referring to Justice Jackson's three-part framework in Youngstown.

But if, as Koh argued, e.g., FISA limited President Bush's power to conduct warrantless wiretaps (or domestic and international law limited President Bush's power to torture, etc., etc.), why don't E.O. 12333, the Hague Convention, and the Army Field manual (and the Due Process Clause) limit President Obama's power to authorize targeted killings, putting the President's power at its lowest ebb under Jackson's framework?  Or at least, why aren't these sources of law even worthy of mention up against the inherent right of self defense, the law of war, and the AUMF (which was too vague for many presidential actions, by Koh's own reckoning)?  (Related: If the President's authority is at all in doubt, why not go to Congress and get specific authorization for them?)

There may be three reasons.

First, the administration may be relying upon inherent Article II, Commander in Chief, authority.  This seems unlikely, however, given the administration's repeated rejections of this position by the Bush administration.  In this area and others, Prsident Obama has gone out of his way to say that his actions are not based upon inherent Article II authority.

Second, Koh may have made the judgment that the nation's right to self-defense and the AUMF outweigh these restrictions.  But this seems implausible, given Koh's testimony to the Senate Judiciary Committee (above, and on other matters) carefully considering both the authorities and the restrictions upon presidential action under Jackson's framework (in a Hamdan-like way).

Finally, and most likely, Koh may have judged these authorities inapplicable--that President Obama's ordered killing of al-Awlaki was not an "assassination."  But this seems reminiscent of the Bush administration OLC memos defining around "torture."  Given the widespread critiques of the torture memos, we might have expected a little bit more from this administration about why a targeted killing isn't an "assassination."

Whatever the answer, Koh's positions seem to lead to the surprising result that there are greater protections against warrantless wiretapping and torture than against a targeted killing.

In any event, Koh's statement to the ASIL may not represent the administration's legal analysis.  But the problem is that we don't know.  The administration hasn't publicized its legal reasoning, even with the wide-spread reporting of the drone attacks and the ordered killing of al-Awlaki.  There can be little down-side to publicizing the reasoning, especially for an administration committed to transparency, unless the administration worries that it is a little too close to Bush administration positions on the constitutionality of presidential actions during wartime. 

SDS

May 14, 2010 in Congressional Authority, Executive Authority, Fundamental Rights, News, Procedural Due Process, War Powers | Permalink | Comments (3) | TrackBack (0)

Wednesday, May 12, 2010

Indiana Supreme Court Takes Up Civil Right to Counsel

The Indiana Supreme Court recently agreed to hear a case in which an indigent mother was denied counsel on appeal after the trial court entered an order terminating her parental rights.  (The mother was represented at trial, but the appellate court denied her motion for appointed counsel on appeal.)

The case, In the Matter of the Termination of the Parent-Child Relationship of I.B. v. Indiana Dep't of Child Services, raises state and federal constitutional issues related to civil right to counsel.  But this is no "Civil Gideon."  The claimed constitutional right is a right to counsel on appeal--a "Civil Douglas."

"Civil Douglas" refers to Douglas v. California, the 1963 Supreme Court case establishing a right to counsel on appeal for poor criminal appellants.  Douglas came down the same day as Gideon v. Wainwright, the case establishing a right to counsel at trial for poor criminal defendants.  But despite their obvious similarities, Douglas and Gideon were rooted in different constitutional principles: Gideon was based on procedural considerations under the Sixth Amendment; Douglas was based on equal access to the courts under equal protection.  Although the cases came down one right after the other, they didn't even cite each other. 

Gideon and Douglas planted the seeds for subsequent access-to-justice cases at trial and on appeal--even civil cases.  Thus subsequent cases dealing with all manner of barriers to access at trial (fee barriers, lack of appointed counsel) are based primarily on due process considerations, but subsequent cases dealing with the same barriers on appeal are based primarily on equal protection considerations. 

The difference is critical in civil right to counsel cases.  The Supreme Court ruled in Lassiter v. Dep't of Social Services in 1981 that poor civil litigants had no categorical right to counsel at trial in cases involving an interest other than physical liberty.  The Court ruled that the three-part procedural due process balancing test in Mathews v. Eldridge must overcome a Court-created presumption against counsel in cases not involving physical liberty.  The test makes it very difficult for poor civil litigants to get a court-appointed attorney at trial in parental rights cases, housing cases, and other cases involving basic human needs other than physical liberty.

But, under Douglas and its progeny, there is no presumption against counsel on appeal.  In fact, there's no necessary consideration of the underlying interests at all.  Instead, the courts look to equal access and equal protection considerations, not the interest-bound due process test.  As a result, civil right to counsel on appeal may well be easier to establish (as I argue here and here).

Petitioner in the Indiana case puts Civil Douglas squarely before the Indiana Supreme Court.

Petitioner also makes a state constitutional "open courts" argument.  The jurisprudence among the several states of state constitutional open courts provisions--which require "justice" to be administered "freely and fairly," "speedily," "without denial," and variations on those terms--is notoriously inconsistent and confused.  (I tried to make some sense of it in the context of access and right-to-counsel here.)  Indiana may have a cleaner open courts jurisprudence by focusing on "fundamental fairness" in process--a test that sounds like a combination of due process and equal protection.

At the end of the day, though, it's not clear that the court will address any of the constitutional arguments.  Indiana has a statute that says that "[a] parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship."  The court might well dodge the constitutional questions by interpreting "proceedings" to include appeals.

The "petition to transfer" (the cert. petition) is here.

SDS

May 12, 2010 in Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Procedural Due Process, Recent Cases, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, April 30, 2010

Constitutional Challenges to Arizona Immigration Law SB 1070

Two more complaints have been filed in federal courts challenging the constitutionality of Arizona Immigration Law SB 1070.   In addition to the complaint filed by the Tucson police officer Martin Escobar we discussed previously, Phoenix police officer David Salgado has filed a complaint with similar allegations and arguments.

The more lengthy complaint filed by National Coalition of Latino Clergy and Christian Leaders (CONLAMIC) is filed as a class action of "all persons who currently reside in Arizona and find themselves to be negatively affected by the proposed unconstitutional law." (para 51).   The claims of unconstitutionality include substantive due process under the Fourteenth Amendment, violations of the Supremacy Clause; First Amendment; and violations of the Fourth Amendment and procedural due process. 

Other constitutional arguments are being put forward in a nonjudicial forum, spearheaded by Professor Ediberto Roman:

 Immigration and Constitutional Law Experts Against SB 1070

The undersigned law professors, immigration experts, and interested organizations write this petition requesting the Governor and the Legislature of the State of Arizona to repeal SB 1070, or in the alternative, calling upon Congress to conduct hearings on Arizona’s ultra vires act of authorizing local police to enforce federal immigration laws without an express delegation from Congress. The petitioners also urge President Obama to direct the Justice Department Civil Rights Division to mobilize quickly to educate the public how to report civil rights violations associated with SB 1070. With the passage of SB 1070, the state of Arizona has ignored legal precedent striking down similar state encroachments on federal supremacy relating to immigration. Moreover, courts have held similar encroachments to be violative of Due Process and Equal Protection.

  [remainder of statement and more information here]

{Update: Arizona immigration statute partially enjoined; here}

RR

April 30, 2010 in Cases and Case Materials, Current Affairs, Federalism, Fourteenth Amendment, Fundamental Rights, News, Preemption, Procedural Due Process, Race, Reconstruction Era Amendments, Supremacy Clause | Permalink | Comments (3) | TrackBack (0)

Saturday, April 3, 2010

A Second Chance at Equal Access to Justice

The Supreme Court has a second opportunity this term to rule on the right to counsel for indigents in civil cases, sometimes called “Civil Gideon,” with a cert. petition filed last week by an indigent state prisoner who brought a pro se civil rights case in federal court against state officials.  The case, Wilson v. Johnson, involves the federal statute that authorizes federal courts to appoint counsel to indigent civil litigants. The case raises the question: Is a federal court’s refusal to appoint counsel to an indigent civil plaintiff immediately appealable, or must the indigent litigant wait until the final judgment in the pro se case before appealing?

The issue is critical for indigent civil litigants seeking equal access to the federal courts.

Sct_equal_justice_facade_2

The case arises from petitioner Lee Wilson’s federal civil rights suit against state officials under 42 U.S.C. Sec. 1983 for misreading his sentencing order and wrongfully incarcerating him five months beyond the end of his sentence.  Wilson moved twice for appointment of counsel pursuant to 28 U.S.C. Sec. 1915; the district court judge in the Eastern District of Virginia denied the motions (even after the Fourth Circuit appointed appellate counsel for Wilson in his appeal of the court’s earlier dismissal of his case). Wilson sought to appeal the denial, but the Fourth Circuit ruled that it lacked appellate jurisdiction, because the denial was neither a final order nor an appealable interlocutory or collateral order. Wilson filed his cert. petition with the Supreme Court last week.

The problem for Wilson and other civil litigants under the Fourth Circuit approach is that they have to wait until the district court enters a final order in the case until they can appeal the court’s order denying the motion to appoint counsel.  In the meantime, they have likely been out-gunned by an adversary represented by counsel—and thus denied equal access to justice.  Wilson’s case provides a good example.  He had to deal with an answer to his complaint that included 14 defenses and a 17-page legal memorandum supporting a motion for summary judgment without the assistance of counsel.  He could appeal the court’s denial of appointment of counsel only after he lost his case.  (Many unrepresented indigent civil litigants wouldn’t even make it that far.  Some would be bullied into an unfavorable settlement, others would not know how to appeal, and others would simply give up.)

Circuits are split on the question of immediate appealability.  Some, like the Fourth Circuit, hold that denial of appointment of counsel is not immediately appealable.  Others hold that it is.  The Ninth Circuit holds that denial of counsel is immediately appealable in some cases, but not in others.  The issue is unique in that every circuit has ruled on it.

However a circuit has ruled, however, the issue evades Supreme Court review.  In circuits that reject immediate appealability, the pro se litigant is unlikely to know that the circuit court’s dismissal for lack of appellate jurisdiction is appealable to the Supreme Court.  In circuits that permit immediate appealability, the pro se litigant has no reason to appeal, and the opposing party is unlikely to appeal.  (The opposing party’s only injury is the interlocutory appeal on whether the indigent party is entitled to representation.)  The case is thus an excellent candidate for Supreme Court review.

The case makes an appealing candidate for Supreme Court review for another reason.  The Court earlier this term denied cert. in Rhine v. Deaton, the Texas case involving an unrepresented mother and her quest for counsel in a private custody dispute with temporary foster parents.  (We posted on that case here and here.)  That case would have required the Court to reassess its ruling in Lassiter v. Department of Social Services (holding that indigent parents do not have a categorical right to appointed counsel under procedural due process).  Wilson, on the other hand, would allow the Court to validate the fundamental right to equal access to justice in a low-impact way, without taking on its own precedent.

SDS

April 3, 2010 in Due Process (Substantive), Equal Protection, Fundamental Rights, News, Procedural Due Process, Recent Cases | Permalink | Comments (3) | TrackBack (0)

Wednesday, March 17, 2010

Wash U. Colloquium on Equal Justice

Washington University Law School is hosting its 10th Annual Access to Equal Justice Colloquium on Friday, March 19.  The Colloquium, "Challenging Structural Impediments to Substantive Justice," will dedicate its morning session to a keynote by Professor Martin Guggenheim (NYU) titled Exploring the Right to Counsel: Separation of Powers and Fact-Finding Capture and to an exploration of "a new theory for right to counsel in a variety of civil matters," or Civil Gideon.

SDS

March 17, 2010 in Conferences, Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Procedural Due Process, Scholarship | Permalink | Comments (1) | TrackBack (0)

Sunday, March 7, 2010

Torture Case Against Rumsfeld to go Forward

Judge Wayne R. Anderson of the Federal District Court for the Northern District of Illinois on Friday denied former Defense Secretary Donald Rumsfeld's motion to dismiss and allowed the case for authorizing cruel and inhuman treatment to go forward.

The case, Vance v. Rumsfeld, involves two American employees of a private Iraqi security firm who alleged that they were wrongly held and mistreated by the U.S. military for revealing questionable payments and purchases by their firm.  Judge Anderson ruled that the plaintiffs sufficiently plead their case against Rumsfeld to overcome the pleading standards set in Twombly and Iqbal:

According to plaintiffs' allegations in their second amended complaint, Rumsfeld was personally involved in their unconstitutional treatment by his decision to approve the adoption of harsh treatment methods that were utilized at Camp Cropper during plaintiffs' confinement.

The ruling goes on to recount those allegations in some detail.  (Pages 9 through 12.)  (We've posted quite a bit on Twombly and Iqbal, most recently here.)

Judge Anderson wrote that "[t]wo federal courts forced to address similar issues share our conclusion": the courts in al-Kidd v. Ashcroft (9th Cir.) and Padilla v. Yoo (N.D. Cal.) both denied motions to dismiss based on Iqbal.

Judge Anderson also ruled against Rumsfeld on his qualified immunity defense (page 15) and argument that there was no Bivens remedy for the plaintiffs (page 26).  On the latter issue, Judge Anderson rejected Rumsfeld's argument that separation-of-powers provided a "special factor" counseling against a Bivens remedy.

Judge Anderson, citing Hamdi, dismissed the plaintiffs' procedural due process claim.  He also dismissed their access-to-courts claim, writing that the period of detention--six weeks for one plaintiff, three months for the other--were unreasonable amounts of time to make status determinations in Iraq.

SDS

March 7, 2010 in Due Process (Substantive), Executive Authority, Fundamental Rights, Jurisdiction of Federal Courts, Procedural Due Process, Recent Cases, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, February 14, 2010

Court Orders Briefing on Kiyemba, Uighurs' Case

The Supreme Court on Friday ordered new briefing in Kiyemba v. Obama, the case testing the government's ability to detail the remaining Chinese Muslims, or Uighurs, at Guantanamo Bay even after everyone agreed--and a federal district court ruled on habeas--that there is no basis for detaining them.  The move comes after the government earlier this month found a new home (outside the U.S.) for the remaining Uighurs, thus mooting the case.  We most recently posted on the case here; Linda Greenhouse provides background and commentary for the NYT here.

Recall that Judge Urbina on the U.S. District Court for the District of Columbia ruled in the Uighurs' favor and ordered their release into the United States (because at that time the government found no other country to take them).  The circuit court reversed, however, ruling that release into the U.S. was an immigration matter and therefore an issue for the political branches (and not the courts) under the Constitution.  Under the circuit court ruling, if the Uighurs were to be freed in the U.S., Congress and the president would have to authorize it.  (This the government refused to do for any number of political reasons.  The government's official position at one point in the litigation was that the Uighurs posed a threat because they were angry that the government wrongly held them so long.)  The ruling effectively negated any habeas remedy the Uighurs had, as long as the government had no place to send them.  This was illustrated by the government's position in the wake of the ruling: The Uighurs were free to leave Guantanamo; they just didn't have any place to go.

If the Supreme Court now rules the case moot (and thus declines to review the circuit court case), it would leave intact the circuit court ruling, eviscerating any remedy on habeas (and thus eviscerating habeas itself) for any class of detainees that the government cannot relocate (and refuses to relocate within the U.S.).  This may be a narrow class of detainees, or it may be broad; this all depends on how toxic any particular detainee becomes merely as a result of their detention.  (Recall that the government at one point considered the Uighurs a threat merely because it detained them (!).  The government couldn't return them to their home country, China, because of a continuing threat of persecution because of their beliefs.) 

SDS 

February 14, 2010 in Congressional Authority, Executive Authority, Foreign Affairs, Fundamental Rights, Jurisdiction of Federal Courts, News, Procedural Due Process, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, February 8, 2010

Mayer on KSM's Trial

Jane Mayer, author of The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals, wrote an excellent piece in the New Yorker detailing Attorney General Eric Holder's decision to try Khalid Sheikh Mohammed in the regular federal courts (and not before a military commission).

Mayer's article comes as the administration is more aggressively defending its decision to deal with some alleged terrorists through the regular criminal justice system and in Article III courts.  (We posted on Holder's letter to Senator McConnell outlining the reasons for dealing with the December 25 would-be bomber through the regular criminal justice system last week.)

A good part of the administration's case is based on the prior administration's practices:  The Bush administration similarly treated a number of terrorist suspects through the regular criminal justice system.

SDS

February 8, 2010 in Due Process (Substantive), Executive Authority, Foreign Affairs, Fundamental Rights, International, Jurisdiction of Federal Courts, News, Procedural Due Process, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 3, 2010

AG Holder Defends Criminal Justice System for Terrorist Suspect

Attorney General Eric Holder today wrote to Senator Mitch McConnell defending the Justice Department's use of the regular criminal justice system--and not military tribunals--to arrest, detain, charge, and try Umar Farouk Abdulmutallab in connection with his attempted bombing of Northwest flight 253 near Detroit on December 25, 2009.

The letter is largely a political response to criticism of the administration for using the regular criminal justice system and Article III courts instead of military tribunals for suspected terrorists.  But Holder includes a couple paragraphs on Constitutional issues related to detention and interrogation of terrorist suspects, defending current policies in part because they are consistent with past practice (of the Bush administration).

Here's a sample related to detention authority and what Holder calls "law of war" custody:

Since the September 11, 2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States. . . .

In fact, two (and only two) persons apprehended in this country in recent times have been held under the law of war.  Jose Padilla was arrested on a federal material witness warrant in 2002, and was transferred to law of war custody approximately one month later, after his court-appointed counsel moved to vacate the warrant.  Ali Saleh Kahlah Al-Marri was also initially arrested on a material witness warrant in 2001, was indicted on federal criminal charges (unrelated to terrorism) in 2002, and then transferred to law of war custody approximately eighteen months later.  In both of these cases, the transfer to law of war custody raised serious statutory and constitutional questions in the courts concerning the lawfulness of the government's actions and spawned lengthy litigation.  In Mr. Padilla's case, the United States Court of Appeals for the Second Circuit found that the President did not have the authority to detain him under the law of war.  In Mr. Al-Marri's case, the United States Court of Appeals for the Fourth Circuit reversed a prior panel decision and found in a fractured en banc opinion that the President did have authority to detain Mr. Al Marri, but that he had not been afforded sufficient process to challenge his designation as an enemy combatant.  Ultimately both Al-Marri (in 2009) and Padilla (in 2006) were returned to law enforcement custody, convicted of terrorism charges and sentenced to prison.

Letter at 2-3 (emphasis in original).  We covered Al-Marri's case most recently here.

Here's a sample related to detention authority of "enemy combatants":

Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney.  But the government's legal authority to do so is far from clear.  In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer.  Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General.  In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney . . . .

Letter at 5. 

SDS

February 3, 2010 in Executive Authority, Foreign Affairs, Fundamental Rights, News, Procedural Due Process, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 20, 2010

Symposium: Civil Legal Representation and Access to Justice

The Fred T. Korematsu Center for Law and Equality at Seattle University School of Law, the University of Washington School of Law, and Gonzaga University School of Law are co-sponsoring a symposium and CLE on Friday, February 19, at Seattle University School of Law titled Civil Legal Representation and Access to Justice: Breaking Point or Opportunity for Change.  Click here for the program and registration.

This looks like an outstanding program, with a very impressive line-up.  It includes some of the leading advocates and academics on the civil right to counsel.  Washington State Supreme Court Chief Justice Barbara Madsen will deliver the keynote.

The symposium comes in the wake of ABA President Carolyn Lamm's call last year for a constitutional right to counsel in civil cases involving basic human needs.  We posted on her call here.

SDS

January 20, 2010 in Conferences, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Privileges and Immunities, Procedural Due Process, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, December 31, 2009

State AGs Lay Out Constitutional Case Against "Cornhusker Kickback"

Thirteen state AGs--all Republicans--sent a letter to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid setting out their constitutional objections to the provision in the Senate health care reform legislation that exempts Nebraska from paying costs of new enrollees in the Medicaid program.  (Instead, under the provision, the federal government would pick up these additional costs.  Senator Ben Nelson is the only senator to have successfully negotiated such an arrangement for his state.)  We most recently posted on this here.

From the letter:

In Helvering v. Davis . . . the United States Supreme Court warned that Congress does not possess the right under the Spending Power to demonstrate a "display of arbitrary power."  Congressional spending cannot be arbitrary and capricious.  The spending power of Congress includes authority to accomplish policy objectives by conditioning receipt of federal funds on compliance with statutory directives, as in the Medicaid program.  However, the power is not unlimited and "must be in pursuit of the 'general welfare.'"  South Dakota v. Dole . . . .  In Dole the Supreme Court stated, "that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs." . . .  It seems axiomatic that the federal interest in H.R. 3590 is not simply requiring universal health care, but also ensuring that the states share with the federal government the cost of providing such care to their citizens.  This federal interest is evident from the fact this legislation would require every state, except Nebraska, to shoulder its fair share of the increased Medicaid costs the bill will generate.  The provision of the bill that relieves a single state from this cost-sharing program appears to be not only unrelated, but also antithetical to the legitimate federal interests in the bill.

This seems deeply confused on a number of points.  First, both Helvering and Dole emphasize the expansive nature of the spending power and Congress's--not the courts'--discretion in determining what constitutes the "general welfare."  From Helvering

Congress may spend money in aid of the "general welfare." . . . There have been great statesmen in our history who have stood for other views.  We will not resurrect the contest.  It is now settled by decision.  United States v. Butler. . . .  The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents.  Yet difficulties are left when the power is conceded.  The line must still be drawn between one welfare and another, between particular and general.  Where this shall be placed cannot be known through a formula in advance of the event.  There is a middle ground, or certainly a penumbra, in which discretion is at large.  The discretion, however, is not confided to the courts.  The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.  This is now familiar law.

Next, the AGs ask too much of the "arbitrary" standard.  This is a very low standard, not requiring much.  Surely the Nebraska compromise cannot be "arbitrary."  This is especially true in light of the all-too-numerous state-specific benefits that we see in any major piece of legislation--any one of which is at least as "arbitrary" as the Nebraska compromise. 

Third, it's not clear how or why conditional spending plays any part in a constitutional analysis of the Nebraska compromise.  Nothing's conditioned here.

Finally, it's not at all obvious that a part of the purpose of the legislation is to get states to pay jointly with the federal government.  As Professor Mark Tushnet said, the legislation could ultimately aim to get the federal government to pay all of the increased costs; Nebraska simply represents the first step.

The other points in the letter seem equally confused.  For example, the Privileges and Immunities Clause of Article IV has been interpreted as a restriction only against the states, not Congress.  (The Privileges or Immunities Clause of the Fourteenth Amendment obviously doesn't apply at all--by its plain terms it restricts only the states.)  There's no Due Process problem here.  And any Equal Protection problem would get only rational basis review.  The courts would almost certainly uphold the provision for the reasons that Professor Tushnet articulated, among others.

The AGs dropped the Port Preferences Clause claim.

SDS

December 31, 2009 in Congressional Authority, Due Process (Substantive), Equal Protection, Federalism, Fundamental Rights, News, Privileges and Immunities, Procedural Due Process, Spending Clause | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 8, 2009

Court Rules Alvarez v. Smith Moot

The Supreme Court yesterday ruled that the plaintiffs' procedural due process claim in Alvarez v. Smith was moot, after the parties resolved their property disputes during the course of the litigation.

The case involved the Illinois Drug Asset Forfeiture Procedure Act ("DAFPA"), which authorizes local law enforcement to seize vehicles, aircraft, vessels, and money involved in certain drug crimes.  Under DAFPA, authorities can hold property worth more than $20,000 for up to 97 days after the seizure and before the state's attorney files judicial forfeiture proceedings.  Authorities can hold property worth less than $20,000 for up to 187 days before the state's attorney files forfeiture proceedings.

Six plaintiffs who had cars and cash seized under the DAFPA sued the Cook County State's Attorney under 42 U.S.C. Sec. 1983, arguing that the DAFPA violated, on its face, the three-part procedural due process balancing test in U.S. v. James Daniel Good Real Property and Mathews v. Eldridge.  The Seventh Circuit ruled for the plaintiffs.

The Supreme Court asked the parties to brief mootness, and, at oral argument, learned that the parties resolved the property dispute: the state returned all seized cars, and individual property owners either forfeited the cash or accepted the state's partial return as final.  A unanimous Court rejected the plaintiffs' argument that they sought certification as a class (because plaintiffs did not appeal the denial of class certification) and the argument that the practice was "capable of repetition" while "evading review" (because the plaintiffs failed to show that they were likely again to be subject to the DAFPA, citing Los Angeles v. Lyons) and ruled the claim moot.

Justice Stevens filed a partial dissent in the case, arguing that the Court should not have vacated the Seventh Circuit's judgment.

SDS

December 8, 2009 in Fourteenth Amendment, Mootness, Procedural Due Process, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 2, 2009

Senate Judiciary Committee Hears Testimony on Iqbal, Twombly

The Senate Judiciary Committee heard testimony today from three witnesses on the impact of Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, the two Supreme Court cases that heightened the federal pleading standard and resulted in a rash of dismissed suits and Senator Specter's bill, S. 1504, to undo those cases.  We most recently covered this here; the Blog of the Legal Times covered the hearing here.

John Payton, President and Director-Counsel of the NAACP LDF, urged the Committee to act immediately to undo the cases.  In contrast, Gregory Garre, former SG who argued Iqbal, testified that we can't yet know Iqbal's impact, and that any moves to undo that case are premature.  Stephen Burbank (Penn) proposed substitute legislation (in Appendix A, page 23 of his testimony) that would return the pleading standard to its level before Iqbal and Twombly, would declare those cases "inconsistent with the fundamental premises underlying the Federal Rules of Civil Procedure, with the Court's previous decisions interpreting those rules, and with congressional expectations formed and relied upon over a period of more than seventy years," and would provide for a "thorough study by appropriate institutions through processes that are open and inclusive."

According to the BLT, only one Committee member, Jeff Sessions, supported Garre's position urging caution.

SDS

December 2, 2009 in Due Process (Substantive), Fundamental Rights, Procedural Due Process, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 24, 2009

Movement Grows to Undo Iqbal, (Re)Open Access to Federal Courts

With the introduction last week of a bill in the House to overturn Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, the movement among plaintiffs' and open-courts advocates to re-set the pleading standard in federal courts is gaining momentum.  The American Association for Justice, which is leading a broad coalition in support of the bill, released this statement last week. 

A 5-4 Supreme Court ruled last term in Iqbalthat allegations in an ex-detainee's complaint against former AG Ashcroft and FBI Director Mueller for constitutional torts while in custody after 9/11 were too conclusory to withstand a motion to dismiss.  The Court, applying its new pleading principles set in Twombley, ruled that Iqbal had to plead more than "bare assertions amount[ing] to nothing more than a 'formulaic recitation of the elements' of a constitutional discrimination claim"--that he had to plead a "plausible" claim for relief that the courts could evaluate based on "judicial experience and common sense." 

The standards effectively heightened the 50-year-old notice pleading standard set in Conley v. Gibson.  That case held that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

Soon after Iqbal came down last spring, defendants' "Iqbal motions" proliferated in federal court, and numerous complaints were dismissed for failure to meet the new heightened pleading standard. 

This past summer, Senator Specter introduced legislation (aptly titled the "Notice Pleading Restoration Act") to re-set the pleading standard at the old level under Conley v. Gibson.  The House Judiciary Committee held a hearing last month here.  And most recently--just last week--Rep. Jerrold Nadler introduced legislation (the "Open Access to Courts Act") in the House.  Unlike Specter's bill, which sets the standard as that "set forth . . . in Conley v. Gibson," Nadler's bill includes specific language from Conley v. Gibson:

A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief.  A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.

The American Association for Justice coalition last month wrote to the Senate Judiciary Committee couching its claims in constitutional terms:

The new standards substantially hamper access to the courts for people who are harmed by illegal conduct, undermine the fundamental right to a jury trial, and infringe the rights of civil plaintiffs to due process of law, fundamental fairness and their day in court.

SDS

November 24, 2009 in Due Process (Substantive), Fundamental Rights, Procedural Due Process, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, November 23, 2009

Panel Debates Constitutional Right to Health Care in Prisons

The American Constitution Society (Chicago Lawyer Chapter and John Marshall Law School Student Chapter) and the ACLU hosted a panel discussion on health care in prisons last week titled Health Care Behind Bars: Are Inmates' Health Care Needs Being Met?  The panel featured Judge Easterbrook (7th Cir.), Dr. Michael Puisis (Cermak Health Services), and Benjamin Wolf (ACLU) in a lively discussion about the constitutional rights to health care of prisoners.

The recording is here.

Prisoners, by virtue of their incarceration and dependency on the state, have a right to health care under the Eighth Amendment.  The Court wrote in Estelle v. Gamble:

These elementary [Eighth Amendment] principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration.  An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.  In the worst cases, such a failure may actually produce physical "torture or a lingering death" . . . the evils of most immediate concern to the drafters of the Amendment.  In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. . . .  The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common-law view that "[i]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself."

The panel conversation at one point (around 40:00 in the recording) turned to the nature of negative (not positive) rights in our constitutional tradition and the state's obligations to provide care and protection (or not) to those in its custody (or not) under DeShaney v. Winnebago.

The discussion added a dimension to my own lessons on DeShaney and Castle Rock v. Gonzales.  Perhaps you can use it, too.

SDS

November 23, 2009 in Due Process (Substantive), Fourteenth Amendment, Interpretation, Procedural Due Process, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 21, 2009

ABA President Calls for Civil Gideon

ABA President Carolyn Lamm called for a constitutional right to counsel in civil cases involving basic human needs, a "Civil Gideon," in the President's Message in the October 2009 ABA Journal.

Lamm argues that Civil Gideon is a part of a broader strategy, including increased pro bono efforts and increased legal aid funding, in meeting dire legal needs in the current economic crisis:

But we must do much more. Lawyers and advocates nationwide have been working hard, with ABA support, for the right to counsel in civil matters where basic human needs are at stake—a “civil Gideon” policy. They are making progress case by case, state by state, jurisdiction by jurisdiction. Most recently, in the Alaska Supreme Court case of Office of Public Advocacy v. Alaska Court System, the ABA filed an amicus brief supporting civil Gideon. This fundamental right must be recognized by courts and legislatures—and fully funded.

The ABA's amicus brief in Office of Public Advocacy is here.  See more here on the effect of the economic crisis on access to justice issues.

The issue may come to the Supreme Court this term.  Earlier this month, in a highly unusual move, the Court asked the Texas Solicitor General for views at the cert. stage on Rhine v. Deaton, a civil right to counsel case involving a Texas mother's private custody dispute with temporary foster parents.  See more here and here.  The Court has not previously recognized a categorical right to counsel under the federal Constitution; instead, it created a barrier to such a right under Fourteenth Amendment procedural due process in Lassiter v. Department of Social Services

Lamm's article comes the same month that the state of California enacted legislation to provide for a pilot program providing a civil right to counsel in cases involving basic human needs.  In the bill, the California legislature made its own finding that a civil right to counsel in these cases is supported by constitutional demands for equality and equal access to justice.

California now joins several states that, through their judiciaries or state legislatures, have arrived at similar conclusions.  Perhaps the time is right for Civil Gideon to bubble up to the Fourteenth Amendment in Rhine.

SDS

October 21, 2009 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, News, Procedural Due Process, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 13, 2009

Due Process and Seizure of Property Related to Drug Crimes

The Supreme Court will hear arguments tomorrow in Alvarez v. Smith, a case involving competing due process tests when law enforcement seize property related to crimes.

At issue is the Illinois Drug Asset Forfeiture Procedure Act ("DAFPA"), which authorizes local law enforcement to seize vehicles, aircraft, vessels, and money involved in certain drug crimes.  Under DAFPA, authorities can hold property worth more than $20,000 for up to 97 days after the seizure and before the state's attorney files judicial forfeiture proceedings.  Authorities can hold property worth less than $20,000 for up to 187 before the state's attorney files forfeiture proceedings.  (Claimants may reduce that time to 142 days under certain circumstances.)

Claimants sued the Cook County State's Attorney under 42 U.S.C. Sec. 1983, arguing that the DAFPA violated, on its face, the three-part procedural due process balancing test in United States v. James Daniel Good Real Property and Mathews v. Eldridge.

The state argued that the Seventh Circuit's ruling in Jones v. Takaki governed.  That case relied upon United States v. $8,850 and Barker v. Wingo in ruling that criminal property seizures are governed by the test for speedy trial: "The Barker test requires consideration of the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant."  Smith v. City of Chicago, at 4.

A three-judge panel of the Seventh Circuit (Bauer, Posner, and Evans) sided with the claimants and ruled that the DAFPA violated the Fourteenth Amendment Due Process Clause.  The court aligned the case with Krimstock v. Kelly, a Second Circuit ruling by then-Judge Sotomayor that applied Mathews v. Eldridge, not $8,850:

[A] warrantless arrest by itself does not constitute an adequate, neutral "procedure" for testing the City's justification for continued and often lengthy detention of a vehicle which may be owned by the arrestee or by someone entirely unconnected with the conduct that gave rise to the arrest.  Further, to say that the forfeiture proceeding, which often occurs more than a year after a vehicle's seizure, represents a meaningful opportunity to be heard at a meaningful time on the issue of continued impoundment is to stretch the sense of that venerable phrase to the breaking point.  We also consider it a non sequitur to hold . . . that because postponing the commencement of a forfeiture action pending the underlying criminal proceeding may not offend due process, retention of the seized vehicle without a hearing throughout that same period, or longer, is constitutionally permissible.  The issues of a speedy trial and a prompt retention hearing are not parallel in this context, particularly when less restrictive methods for protecting the City's interest in the alleged offending res are available.

Krimstock, at 18.  The Seventh Circuit similarly distinguished $8,850: "$8,850 concerns the speed with which the civil forfeiture proceeding itself is begun--a different question from whether there should be some mechanism to promptly test the validity of the seizure."  Smith, at 6.

Thus the issue before the Court tomorrow is which test governs: the Mathews v. Eldridge procedural due process test; or the Barker speedy trial test, applied in $8,850?

The ACLU, the Cato Institute, and the Legal Aid Society, among others, have weighed in on the side of the claimants/respondents.  The United States filed an amicus brief in support of the state.

SDS

October 13, 2009 in Procedural Due Process, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, October 12, 2009

Schwarzenegger Signs Equal Access to Justice Bill

California Governor Arnold Schwarzenegger early today signed AB 590, the California Assembly bill directing court fees and fines to services designed to promote and enhance access to the judiciary and to a pilot project to appoint legal counsel to low-income parties in "civil matters involving critical issues affecting basic human needs . . . ."  I posted on this last month, after the Assembly passed the bill, here.

The bill includes findings that the civil right to counsel is supported by "[t]he doctrine of equal justice under law" and that "[e]qual access to justice without regard to income is a fundamental right in a democratic society."

For more on the civil right to counsel movement in California and around the country, check out the National Coalition for a Civil Right to Counsel web-site.

SDS

October 12, 2009 in Equal Protection, News, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 6, 2009

The Civil Right to Counsel in Foreclosures, Termination of Parental Rights

The Brennan Center for Justice (NYU) today issued an outstanding report on the lack of legal representation for those facing foreclosures.  (I previously posted on this issue here.)  The report, titled Foreclosures: A Crisis in Legal Representation, offers a sobering look at this critical problem:

In Connecticut, over 60 percent of defendants facing property foreclosure in 2007-08 did not have counsel.

In New York, 84 percent of defendants in proceedings in Queens County involving foreclosures on "subprime," "high cost" or "non-traditional" mortgages (which are mortgages disproportionately targeted to low-income and minority homeowners) proceeded without full legal representation.  In Richmond County (Staten Island), 91 percent of such defendants were unrepresented, and in Nassau County, 92 percent were unrepresented.

In Stark County, Ohio, heavily impacted by foreclosures, data suggests that 86 percent of defendants facing property foreclosures did not have counsel in 2008. 

The report argues that "[u]nless and until the foreclosure process and laws are simplified to the point where legal counsel is not necessary, each homeowner facing foreclosure should be provided with an opportunity to consult with a trained counselor and then to receive fuller representation by a lawyer where necessary to ensure just and fair proceedings."

Such a civil right to counsel may not be far off.  The Supreme Court yesterday took the exceedingly unusual step of asking the Texas Solicitor General for his views on a civil right to counsel case coming out of that state.  The case, Rhine v. Deaton, involves a biological mother's private custody dispute with temporary foster parents.  The Texas courts denied appointed counsel to the mother, and she filed for Supreme Court review.  The parties have filed their cert. briefs, and the Court invited the Texas SG to provide his views.

I posted an analysis of the case this summer, suggesting that the mother faces a major hurdle in Lassiter v. Department of Social Services, a 1981 case denying a right to counsel for a poor mother in similar circumstances.  The Court in that case used the three-factor procedural due process balancing test in Mathews v. Eldridge and weighed the balance against a newly discovered presumption against appointed counsel in cases where physical liberty is not at stake.  (A claimed right to counsel in foreclosure cases would face the same burden under Fourteenth Amendment Due Process.  Some litigants have seen success, however, using state constitutional provisions.  Rhine's case comes up under the Fourteenth Amendment.) 

M.L.B. v. S.L.J., a 1996 case involving a poor mother's ability to appeal an order terminating her parental rights, may have partially eroded Lassiter's foundations--or at least it may have given plaintiffs a new set of constitutional tools to work with.  The Court in that case held that the mother had a right under Equal Protection and Due Process to appeal the order, even though she couldn't pay the appellate fees.  Unlike LassiterM.L.B. thus wasn't tethered only to procedural due process.  It gives litigants much more to work with.  (As I argue here and here, it gives litigants very much more.)

The Court's consideration of Rhine suggests that it may be willing to reconsider the Lassiter analysis and its groundless presumption in light of M.L.B.  It's not clear what the Court seeks from the Texas SG, but it may be seeking more information on the procedural complexities in Texas termination-of-parental rights proceedings--information that goes directly to one of the Mathews factors and would be relevant to an M.L.B.-type analysis. 

This is one to watch.

SDS

October 6, 2009 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, Procedural Due Process, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Monday, September 28, 2009

Equal Access to Justice in California

The California Assembly earlier this month passed a bill, AB 590, to direct court fees and fines to services designed to promote and enhance access to the judiciary and to a pilot project to appoint legal counsel to low-income parties in "civil matters involving critical issues affecting basic human needs . . . ."  Under the pilot project, "proposals to provide counsel in child custody cases should be considered among the highest priorities for funding, particularly when one side is represented and the other is not."  The LA Times on Friday encouraged the governor to sign the bill.

In passing the bill, the legislature made several key constitutional findings, including these: 

The doctrine of equal justice under the law is based on two principles.  One is that the substantive protections and obligations of the law shall be applied equally to everyone, no matter how high or low their station in life.  The second principle involves access to the legal system.  Even if we have fair laws and an unbiased judiciary to apply them, true equality before the law will be thwarted if people cannot invoke the laws for their protection.  For persons without access, our system provides no justice at all, a situation that may be far worse than one in which the laws expressly favor some and disfavor others.

Many judicial leaders acknowledge that the disparity in outcomes is so great that indigent parties who lack representation regularly lose cases that they would win if they had counsel.  A growing body of empirical research confirms the widespread perception that parties who attempt to represent themselves are likely to lose, regardless of the merits of their case, particularly when the opposing party has a lawyer, while parties represented by counsel are far more likely to prevail. . . .

Equal access to justice without regard to income is a fundamental right in a democratic society.

The U.S. Supreme Court has never gone so far.  The Supreme Court has treated claims for civil counsel under the procedural due process test in Mathews v. Eldridge.  The Court in Mathews determined the constitutionally mandated process by balancing the litigant's interest, the government's interest, and the risk that the process used would lead to an erroneous deprivation.

The leading case on the civil right to counsel is Lassiter v. Department of Social Services.  In Lassiter, the Court rejected a poor litigant's claim for appointed counsel in a termination-of-parental-rights case.  The Court ruled that poor litigants have a right to appointed counsel in civil cases only when the Mathews factors weigh so heavily in favor of appointment as to overcome a presumption that there is a right to appointed counsel only when personal freedom is at stake.  (The Lassiter Court created this presumption; it nowhere existed as such in the Court's cases.)

Federal constitutional claims for civil right to counsel have always run up against Lassiter and its presumption.  But litigants have successfully won a state constitutional right to counsel in several states under state due process and equal protection principles. 

California, through its majoritarian processes and not its courts, now is poised to add itself to the growing list of states that recognize a constitutional civil right to counsel. 

For more on the civil right to counsel movement, check out the National Coalition for a Civil Right to Counsel web-site

SDS

September 28, 2009 in Equal Protection, Fundamental Rights, News, Procedural Due Process | Permalink | Comments (1) | TrackBack (0)