Tuesday, March 1, 2011

Right to Counsel in India

The Supreme Court of India ruled last week in Ali v. State of Assam that a criminal defendant has a right to counsel under Article 21 of the Constitution of India.

IndiaFlag 

Article 21, Protection of life and personal liberty, provides:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

The Court described Article 21 as the "heart and soul" of fundamental rights and "the most important feature of our Constitution."  But the Court also cited Article 22(1), Protection against arrest and detention in certain cases; U.S. Supreme Court cases Powell v. Alabama, Gideon v. Wainwright, and Brewer v. Williams; its own precedent; and a treatise.

The Court even drew on its own brand of originalism:

The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long periods under the formula Na vakeel, na daleel, na appeal (No lawyer, no hearing, no appeal).  Many of them were lawyers by professor, and knew the importance of counsel, particularly in criminal cases.  It was for this reason that they provided for assistance by counsel under Article 22(1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.

The Court extended the right to appeals, even though the case involved only the right to counsel at trial.  In the U.S., it took a second case, Douglas v. California, to extend the right to counsel to appeals.  Douglas and Gideon came down the same day, March 18, 1963, but Douglas was announced from the bench first.  As Anthony Lewis wrote in Gideon's Trumpet:

A fourth state criminal case came from California, and Justice Douglas for a six-three majority said poor prisoners were entitled to free counsel for their appeals.  To any informed listener it was obvious that the same rule must apply at trials . . . .  Those who had before them the printed opinions in the California case--page boys bring them around to a few newspaper reporters and the Solicitor General as they read--knew from the text that they were about to hear the Gideon case decided, because there was a reference to "Gideon v. Wainwright, decided today."

But unlike Gideon and Ali, which both sounded in process, Douglas sounded in equal protection.  Citing and quoting Griffin v. Illinois, the Court in Douglas wrote:

In either case, the evil is the same: discrimination against the indigent.  For there can be no equal justice where the kind of an appeal a man enjoys "depends on the amount of money he has."

SDS

March 1, 2011 in Comparative Constitutionalism, Criminal Procedure, Equal Protection, International, News, Opinion Analysis, Procedural Due Process, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 15, 2011

New York Chief Judge Calls for Equal Access, Civil Counsel

New York Chief Judge Lippman today delivered the State of the Judiciary address--a speech dominated by calls for open courts and access to justice.  (Click on the link for the 2011 State of the Judiciary web-cast.)

We posted on Chief Judge Lippman's address on the same issues earlier this month at CUNY here.

Chief Judge Lippman focused on dramatically increased legal needs of the poor in a struggling economy and in a resource-strained judiciary.  Drawing parallels to the right to counsel for indigent criminal defendants in Gideon v. Wainwright, he called for counsel in all civil cases in which fundamental human needs are at issue, including home foreclosures. 

Chief Judge Lippman's comments come in the wake of the November 2010 report of the New York Task Force to Expand Access to Civil Legal Services in New York, which reported on unmet legal needs and made recommendations to expand access to justice in civil cases involving fundamental human needs.

We posted on the Maryland Commission on Access to Justice report also calling for civil counsel in cases involving basic human needs here.

SDS

February 15, 2011 in Courts and Judging, Equal Protection, Fundamental Rights, News, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Monday, January 24, 2011

Actualizing a Civil Right to Counsel

The Maryland Access to Justice Commission recently released its report Implementing a Civil Right to Counsel in Maryland, a strategy paper for implementing a state-paid civil right to counsel, or Civil Gideon, in that state.

The report advocates for a civil right to counsel in cases involving basic human needs--shelter, sustenance, safety, health, child custody, and others.  (This approach is consistent with a 2010 recommendation of the ABA.)  It also advocates for a right to counsel on appeal in these cases.

The report comes seven years after a sharply divided Maryland Court of Appeals, the state's high court, declined to rule on a claimed right to counsel in Frase v. Barnhart, a child custody case.  (The court agreed on the result in the case, but the dissent would have reached the right-to-counsel issue.)  The petitioner in Frase argued that the Declaration of Rights in the Maryland Constitution required court-appointed counsel (under the "law of the land" clause, the "open courts" provision, and the due process clause), thus sidestepping the Fourteenth Amendment Due Process Clause and Lassiter v. Dep't of Social Services (holding that the Due Process Clause does not require appointed counsel in all civil cases, and that there's a presumption that there is no right to appointed counsel where physical liberty is not at stake).

The report also looks to the need for legal services in basic human needs cases and estimates that 344,470 poor Marylanders have unmet legal needs.  According to the report, it would cost $106.6 million to provide them with an attorney.

For more on the civil right to counsel, check out the National Coalition for a Civil Right to Counsel.

SDS

January 24, 2011 in Comparative Constitutionalism, Fourteenth Amendment, Fundamental Rights, News, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Monday, October 25, 2010

Kansas Court Extends Right to Counsel to Habeas Petition

The Kansas Court of Appeals (the state's intermediate appellate court) ruled last week in Merryfield v. Kansas that a person involuntarily confined in the Kansas Sexual Predator Treatment Program has a right to counsel under due process and equal protection in a habeas petition that is not subject to summary dismissal under state law.

Dustin Merryfield filed his habeas petition alleging that conditions of confinement were unconstitutional.  He also requested court-appointed counsel for his petition.  Under Kansas law, his petition was not subject to summary dismissal.  The Court of Appeals therefore remanded the case for a hearing and granted his request for counsel.

The court ruled that both due process and equal protection support a right to counsel.  The court wrote that while Merryfield's habeas petition did not involve an initial deprivation of liberty (which triggers a constitutional right to counsel, as in In re Gault), it also did not involve a collateral attack on a criminal conviction (which does not trigger a constitutional right to counsel, as in Pennsylvania v. Finley).  Merryfield's liberty interest was different, but sufficient:

His liberty interest is manifest, and he contends--with sufficient basis to warrant an evidentiary hearing--that the treatment provided to him is so ineffective that it could never give him the help he would need to regain his freedom.  A person like Merryfield, who has been involuntarily committed in a civil proceeding that explicitly recognizes that the detention may be for a long-term period--more than a decade so far for Merryfield--must be entitled to the assistance of counsel in the resolution of such substantial claims. . . .

Merryfield's claim that the treatment program is so poor that he will never regain his liberty is certainly among the most significant that could be brought by a person confined under the Kansas program for treatment of sexually violent offenders.

Op. at 12.

The court wrote that equal protection also compels appointment of counsel.  The court wrote that Kansas law provides court-appointed counsel for inmates who have been imprisoned after felony convictions when their habeas petitions cannot be summarily dismissed.  If Kansas law provides counsel for this class, under equal protection it must also provide counsel for the similarly situated class that includes Merryfield. 

For more on right to counsel in civil proceedings, check out the National Coalition for a Civil Right to Counsel.

SDS

October 25, 2010 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, Procedural Due Process, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 28, 2010

New Civil Gideon Resource

The Philadelphia Bar Association recently launched its Civil Gideon Corner, an on-line resource page for all things Civil Gideon (including activities of the Bar Association's Civil Gideon Task Force).

According to the site,

The term "civil Gideon" refers to a growing national movement that has developed to explore strategies to provide legal counsel, as a matter of right and at public expense, to low-income persons in civil legal proceedings where basic human needs are at stake, such as those involving shelter and child custody.

The new site complements the site for the National Coalition for a Civil Right to Counsel.

We've covered issues related to Civil Gideon here, here, and here.

SDS

September 28, 2010 in Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Sunday, September 26, 2010

Government Moves to Dismiss Targeted Killing Case

The government on Friday filed its legal arguments in support of its motion to dismiss Nasser Al-Aulaqi's case against it for allegedly designating his son Anwar Al-Aulaqi, a U.S. citizen living in Yemen and allegedly supporting al Qaeda in the Arabian Peninsula, for targeted killing.  Thanks to Rachel Mabbott for the heads-up.

The government proffers three principal arguments, each of which reveals a little more about the legal authority it claims for targeted killings in the first place.  Thus, the government argues that Nasser Al-Aulaqi, as Anwar's next-of-friend, lacks standing.  The government argues that Nasser failed to show the imminence of harm necessary to support standing (because, after all, the whole program is secret--see below) and that Anwar could access the courts by turning himself over to U.S. authorities.

Next, the government argues that the case is barred by the political question doctrine.  The government argues that judicial action in the case would intrude upon the foreign affairs and national security powers of the President in violation of separation-of-powers principles.  In short, the courts are not well suited to evaluate this kind of claim.  Moreover, the government argues that it has clear authority to engage in targeted killing (without admitting that it has targeted Al-Aulaqi) under the AUMF and international law.

Finally, the government argues that its assertion of the state secrets privilege requires complete dismissal.  Emboldened by the recent Ninth Circuit decision in Mohamed v. Jeppesen, the government argues that the case should be dismissed on the pleadings based on its assertion of the privilege and the court's ex parte and in camera review of it own affidavits supporting the assertion.  The government goes one step farther than the Ninth Circuit's ruling in Mohamed, however, and argues that the privilege is rooted in constitutional principles (citing the Fourth Circuit's decision in El-Masri)--a dangerous argument not supported by Mohamed (or any other authority except El-Masri, for that matter) and taking the courts out of the equation entirely (as I argue in detail here).  While the government is careful to argue the privilege as a last resort--and with all the procedural protections built in by the Holder Justice Department--its claim here is still breathtaking and means that the government could order the targeted killing of a U.S. citizen on its own say-so, with no judicial oversight.  The government gives a glimpse of the kind of information it seeks to protect here:

Resolution of the plaintiff's claim therefore would require the Court to answer a range of questions, even apart from the question of whether the plaintiff's son has been targeted: What kind of threat, if any, does plaintiff's son pose?  If there is a threat, how imminent is it, and how continuing is it?  How many innocent people are threatened by the danger plaintiff's son might pose?  In the totality of the circumstances does the United States have the capability and access to capture plaintiff's son safely?  In trying to capture him, how many innocent people or military personnel would likely be killed or injured in the process?  It is self-evident that all the above questions (and more) directly implicate information protected by the military and state secrets privilege, at a minimum because those facts would require the examination of any available and pertinent classified intelligence that might exist on the subject, as well as the sources or methods for gathering that intelligence, and any related information concerning foreign relations and diplomatic communications.

. . .

Finally, plaintiff also raises a claim under the Fifth Amendment that expressly seeks disclosure of alleged secret criteria governing the targeting of U.S. citizens engaged in terrorist activities with lethal force.  Such a disclosure would reveal not only whether such targeting has occurred or been considered in any given case but would disclose to the plaintiff and any potential target the criteria utilized by the Government to make this determination.  It strains credulity to argue that the Due Process Clause requires the Government to disclose to Answer al-Aulaqi, an operational leader of the [al Qaeda in the Arabian Peninsula], whatever criteria it may be applying to respond to his activities.

Thus the government follows the Ninth Circuit's lead in invoking the privilege quite carefully, with protections (or saying that it's invoking the privilege carefully with protections), but in the end its sweep is every bit as broad as the more cavalier invocations by the prior administration and the Fourth Circuit in El-Masri

SDS

September 26, 2010 in Executive Authority, Fundamental Rights, International, Jurisdiction of Federal Courts, News, Political Question Doctrine, Procedural Due Process, Recent Cases, Separation of Powers, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, June 10, 2010

D.C. Circuit Rejects Guantanamo Habeas Claim

The D.C. Circuit on Tuesday released an opinion rejecting the claims of Adham Mohammed Ali Awad, a Yemeni detainee at Guantanamo Bay who was surrendered to Afghan forces in 2001, and immediately turned over to U.S. forces in Afghanistan, after a two-month allied siege of a hospital occupied by al Qaeda fighters.

The D.C. Circuit ruled in Awad v. Obama that the government satisfied due process by proving its authority to continue to detain Awad with a mere preponderance of the evidence--not requiring the higher standard of clear and convincing evidence, as Awad argued.  The D.C. Circuit wrote that this holding reaffirms its January 2010 ruling in Al-Bihani v. Obama, which followed the plurality decision in Hamdi v. Rumsfeld.  The court also rejected Awad's arguments that the government failed to show that he would continue to pose a threat if released and that he was in the "command structure" of al Qaeda.  The court ruled that under Al-Bihani and the Authorization for Use of Military Force (AUMF), the government need not show either.  Instead, under Al-Bihani the government satisfied its burden by showing continued hostilities, and under the AUMF the government satisfied its burden by showing that Awad was "part of" al Qaeda.

SDS

June 10, 2010 in Congressional Authority, Executive Authority, News, Procedural Due Process, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, May 24, 2010

Court Declines to Address Private Prosecution

A sharply divided Supreme Court today dismissed cert. in Robertson v. United States ex rel. Watson as improvidently granted.  The majority issued a one-line dismissal; Chief Justice Roberts wrote a 12-page dissent for himself and Justices Scalia, Kennedy, and Sotomayor.

The case involved Ms. Wykenna Watson's criminal contempt case against Mr. John Robertson in the D.C. courts for violation of a civil protection order after Robertson beat Watson (for a second time).  The D.C. court judged Robertson guilty of violation of three counts of criminal contempt and sentenced him to prison plus restitution.

The problem: The AUSA had already entered into a plea agreement with Robertson for the underlying assault, and the D.C. courts already sentenced him to one to three years. 

The D.C. courts upheld Robertson's sentence imposed in Ms. Watson's criminal contempt case.  Robertson argued to the Supreme Court that that violated due process and separation-of-powers considerations, because he had already been sentenced for the underlying assault (the due process claim) and because private parties lack authority to prosecute criminal cases (the core separation-of-powers claim--that only the executive can bring criminal charges).

The Supreme Court granted cert. against the advice of the U.S. government and today dismissed cert. as improvidently granted.  (The government argued that the D.C. court ruling didn't conflict with Supreme Court precedent and that, in any event, this case was a poor vehicle for deciding the important and complex constitutional issues.)

Chief Justice Roberts wrote in dissent that "[o]ur entire criminal justice system is premised on the notion that a criminal prosecution pits the government against the governed, not one private citizen against another." 

Alas, the case was never that simple.  The parties' arguments on the constitutional text, the history, and the practice of private prosecution (Robertson's here; Watson's here) gives just a glimpse of how complicated the questions are.  This case only added to the complexities: The private criminal contempt case grew out of an assault that was already punished by the government (adding to the due process concerns), and in an area of the law--domestic violence--that often relies on private enforcement but also demands a stronger public response.  As the government argued at the cert. stage, this was, indeed, a bad case to address these issues.

SDS

May 24, 2010 in Procedural Due Process, Recent Cases, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Friday, May 21, 2010

Rand Paul and Federal Civil Rights

Rand Paul, the Republican nominee for U.S. Senate from Kentucky, seems to have reconsidered his distinction between public discrimination and private discrimination in taking on the Civil Rights Act of 1964.  (In this clip from the Rachel Maddow show, Paul argued against federal the federal anti-discrimination law insofar as it applies to places of private accommodation.)

 



But his constitutional claims may nevertheless be worth considering.  He makes three:

1.  The Civil Rights Act of 1964 Violates Property Rights.  Paul's claim is that a federal prohibition on private discrimination amounts to a violation of private property rights--a Due Process or regulatory takings claim.  But the Supreme Court in 1964 rejected precisely this kind of challenge to the Civil Rights Act of 1964 in Heart of Atlanta Motel v. U.S.  In just four or five paragraphs, the Court wrote that it had repeatedly rejected property rights claims against civil rights legislation, going back to The Civil Rights Cases, that anti-discriminatory legislation was common among the states, and that the federal law posed no particular threat to property or liberty.  (The Court mentioned a rational basis test, but barely applied it, instead deferring to Congress's judgments in passing the Civil Rights Act of 1964.)  The Court also flatly rejected a challenge based on the Thirteenth Amendment, that the private anti-discrimination provisions of the Civil Rights Act of 1964 amounted to involuntary servitude.

2.  The Civil Rights Act of 1964 Violates the First Amendment.  Paul's claim here is that Congress can't prohibit individuals from advancing discriminatory or racist views without violating the First Amendment's Speech Clause.  But his First Amendment claim is perhaps better thought of as an argument against forced inclusion of an unwanted person in a group that engages in "expressive association," as in Boy Scouts of America v. Dale.  In that case, the Court ruled that New Jersey's Law Against Discrimination, which prohibited discrimination against gays and lesbians, violated the First Amendment as applied against the Boy Scouts.  But there's no indication that most private corporations engage in expressive association under the Boy Scouts test; it's simply inapplicable to an organization that doesn't, as an organization, engage in "expressive activity" with a purpose of excluding or discriminating.  (Your local grocery, favorite restaurant, and book store probably don't fit this description.)

3.  Congressional Authority Could Be Used in Other Ways.  Paul argues that a Commerce Clause that would support federal anti-discrimination legislation against private actors could also support federal gun-rights legislation against private actors--a result, he claims, that some supporters of the Civil Rights Act of 1964 may not favor.  For example, there are now several bills before Congress that would provide reciprocity for legal concealed weapons carriers and thus allow them to carry their weapons in states without a concealed weapon law.  See, e.g., H.R. 197.  But this is no constitutional argument.  It simply shows that an expansive federal Commerce Clause can support a wide range of federal action.  As the Court in Katzenbach v. McClung wrote:

The power of Congress [under the Commerce Clause] is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitations it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere.  The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude.  We find in it no violation of any express limitations of the Constitution and we therefore declare it valid.

SDS

May 21, 2010 in Congressional Authority, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, News, Procedural Due Process, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

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)