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.
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
December 08, 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.
December 02, 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.
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.
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.
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 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.
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
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?
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.
October 06, 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 Lassiter, M.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.
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.
July 15, 2009
Texas Mom Seeks Civil Right to Counsel at Supreme Court
Tracey Rhine, a Texas mother who lost custody of her child to temporary foster parents in a private custody dispute in the Texas courts, filed a cert. petition with the U.S. Supreme Court to challenge the Texas courts' denial of appointed counsel, according to the Texas Lawyer.
The Texas Department of Protective and Regulatory Services removed Rhine's child from Rhine's custody and placed the child with a temporary foster couple. After Rhine and the Department agreed upon conditions, the Department placed the child back with Rhine. The foster couple then sought custody in the Texas courts, and Rhine moved for court-appointed counsel. The Texas courts rejected Rhine's request for appointed trial counsel and awarded custody to the foster parents. The state appellate court rejected Rhine's request for appointed appellate counsel and remanded the case to the trial court. The trial court found that Rhine was indigent, but did not qualify for court-appointed counsel, because the underlying custody case was not initiated by the state (it was initiated by the foster parents).
Texas law provides for court-appointed counsel for indigent litigants in state-initiated deprivation-of-parental-rights proceedings, but not in private custody disputes. The differential treatment raises equal protection concerns, and Rhine argued in her cert. petition that the Texas courts' denial of appointed counsel in her case violated the Fourteenth Amendment Equal Protection Clause.
Rhine's argument is not without precedent--but it's state constitutional precedent. The Illinois and North Dakota courts have ruled that state equal protection doctrine mandates appointment of counsel under similar circumstances. California courts have gone the other way under their state constitution.
Rhine's argument on equal protection grounds also sidesteps the major hurdle that plaintiffs face in seeking a civil right to counsel: the Supreme Court's 1981 case Lassiter v. Department of Social Services. In that case, the Court ruled that an indigent litigant had no categorical right to counsel under the Due Process Clause--that due process demanded a balance (the Mathews v. Eldridge balance) to determine whether an indigent litigant qualified for appointed counsel in any particular case. Oddly--and without citation to authority--the Court in Lassiter established a presumption against appointed counsel except in cases where physical liberty was at stake.
Rhine's case avoids the Lassiter hurdle by arguing equal protection, not due process. And on the right to appellate counsel, Rhine's case at least potentially avoids the Lassiter hurdle by pursuing an argument tilted toward equal protection under Douglas v. California (establishing a right to appellate counsel for criminal defendants on equal protection grounds). (I made that argument here and here.) Thus Rhine doesn't appear to be taking on Lassiter--that could have been a tough case in the current political and economic environment, and with the current composition of the Court. Instead, Rhine is moving around Lassiter with an argument that worked under at least two state constitutions.
If the Court takes the case, three issues will be important to watch: first, the Court's treatment of the Fourteenth Amendment Equal Protection Clause; second, the Court's treatment of access to justice issues (and, possibly, how it treats the fundamental right to access in Tennessee v. Lane in this different context); and finally, the Court's treatment of state constitutional rulings on parallel provisions.
For more on the civil right to counsel movement, check out the National Coalition for a Civil Right to Counsel web-site.
May 25, 2009
Jawad, in Limbo at Guantanamo, Seeks Relief from Afghan Court
Mohammed Jawad, detained at Guantanamo at age 12 or 18 (depending on whom you talk to), is stuck in limbo at Guantanamo until the Obama administration works out its new detention and trial policies for Guantanamo detainees. Jawad's attorneys, frustrated by the delays and potential changes in policies just as Jawad's military trial started going his way, sought an order last week from Afghan courts to release Jawad, reports the NYT. The lawyers argue that Afghanistan's constitution at the time of Jawad's capture did not allow for the extradition of prisoners to another country.
Any order from the Afghan courts could only exert diplomatic pressure--not legal pressure--against the U.S. and U.S. courts. But Jawad's move to seek relief from the Afghan judiciary is also calculated to keep public attention on this troubling case of the (perhaps) youngest detainee, caught between an old military tribunal system and a (potentially) new one.
The case highlights the new due process problems arising from the administration's review of detention policy and potentially revamped military tribunals. As Jawad's military attorney said in the NYT piece: "We were in a winnning posture in the trial, so to now come along and change the rules in the middle of the game, who knows what's going to happen." Given the options President Obama set out in his speech last week, it's not even obvious that Jawad will be subject to a revamped military tribunal--especially because there may not be evidence to convict him. (Jawad's military judge threw out his confessions last October, because Afghan police threatened to kill his familly.) If not, and if he's not moved to an Article III court, he could fall into Obama's fifth category of detainees--those subject to (apparently) indefinite detention.
April 13, 2009
Loffredo and Friedman on Qualified Civil Gideon
Stephen Loffredo (CUNY) and Don Friedman (Empire Justice Center at the William Randolph Hearst Public Advocacy Center at Touro) recently published Gideon Meets Goldberg: The Case for a Qualified Right to Counsel in Welfare Hearings as part of the Touro Law Review issue on the right to counsel in civil cases, "Civil Gideon," in New York. This is a fresh perspective on a critically important issue; I highly recommend it.
Loffredo and Friedman's piece joins an increasing academic and practice-oriented literature and a coordinate body of litigation that sometimes goes under the name "Civil Gideon" and sometimes under "civil right to counsel." In truth, "Civil Gideon" doesn't quite capture the movement--this is really about more than simply applying the right to counsel established in Gideon v. Wainwright to civil litigants. "Civil right to counsel" is a broader, better name to capture a movement that seeks counsel for poor litigants in an orchestrated effort in state legislatures, administrative agencies, bar associations, law firms, legal services offices, and even law schools, as well the courts.
Insofar as the movement seeks to establish a constitutional right to counsel through the courts, however, it continually runs up against Lassiter v. Dep't of Social Services. That case held that a poor parent didn't have a categorical right to counsel in a state-initiated proceeding to terminate parental rights under the Due Process Clause. The Court weighed the balancing factors in Mathews v. Eldridge against a newly created presumption against counsel in civil cases. Given the importance of parental rights (Mathewsfactor 1.) and the high probability of an erroneous termination of parental rights without counsel (Mathews factor 2.), a parental rights case seemed the best type of case through which to press a civil right to counsel under a procedural due process theory. The Court's rejection in Lassiter therefore poses a significant barrier for poor litigants seeking counsel in other kinds of claims (like welfare) and, more generally, a significant barrier for the civil right to counsel movement.
Loffredo and Friedman argue that Lassiter and Goldberg v. Kelly representan underenforced constitutional norm for the right to counsel. That is: The Court's refusal to declare a due process right to counsel "stems principally from institutional and separation of powers concerns pertaining to the limited role and capacity of the judiciary," and that it therefore "ought not be regarded as [a] definitive statement of the full meaning and scope of constitutional due process."
Loffredo and Friedman argue that legislatures are not so constrained. Their move, then, is to turn their argument to the legislature. They argue that the state legislature, as a matter of procedural due process, should provide counsel to the poor in particular welfare cases where the Mathews factors align most obviously in favor of counsel. These include cases where "[a]n impoverished family threatened with termination or reduction of subsistence benefits faces the severest sorts of injury and privation," where counsel is particularly necessary for a poor litigant to protect his or her rights, and where the government's interest in saving money aligns with the poor litigant's interest in resolving the matter quickly and correctly.
By presenting this constitutional argument to the legislature (and not the courts) under an underenforced constitutional norm theory, Loffredo and Friedman bypass the Lassiter presumption and Goldberg's modesty, the most significant barriers to claims for a constitutional right to counsel in the courts. Loffredo and Friedman:
Lassiter recognized that certain alignments of the Mathews factors in the parental rights setting would tip the scales decisively enough to overcome the Court's presumption against a right to counsel. As demonstrative above, at least some welfare cases present a comparably decisive alignment of Mathews factors that would warrant a judicially ordered assignment of counsel. But regardless of whether the courts would enforce a due process right to representation in the welfare context, the legislature bears a broader, independent obligation to ensure that individuals receive the full protection of that constitutional right, undiminished by limiting constructions that the judiciary, for separation of powers or related institutional reasons, may adopt as a matter of prudential self-restraint. Even if one regards the full measure of the due process norm as extending no further than the Mathewsanalysis, shorn of Lassiter's presumption, that analysis makes plain that the absence of counsel from particular welfare hearings denies due process to many thousands of the state's poorest and most vulnerable families. The legislature is therefore duty-bound to act.
Loffredo and Friedman conclude with specific recommendations for identifying cases that meet their standard and qualify for a right to counsel. (They also include as an Appendix two transcripts of pro se hearings that are quite convincing on the problems litigants face without counsel.)
Moral, economic, and policy arguments to state legislatures haven't always been successful, and that's why the civil right to counsel movement has so often turned to the courts. But Loffredo and Friedman offer a new constitutional argument. It's appealing on moral, economic, and policy grounds; but, they argue, it's compelled on constitutional grounds.
This is an important contribution to this area. I highly recommend it.
February 24, 2009
Civil Right to Counsel
Professor Clare Pastore (USC) published an op-ed in the LA Times yesterday arguing for a right to counsel for indigents in eviction proceedings, employment and healthcare disputes, custody proceedings, and other disputes involving basic human needs.
Every day, Americans without access to legal counsel unnecessarily lose homes, jobs, retirement benefits, healthcare and custody of their children. This is because in American, we have not yet recognized a right to counsel in civil cases, except in a tiny number of narrow areas. Indigent clients with the law on their side often find themselves losing to well-funded opponents simply because they have no means of fighting back.
The problem is particularly acute in the current housing and financial crises. I previously posted on this here, with links to the ABA, the Brennan Center, and the National Coalition for a Civil Right to Counsel.
January 16, 2009
Right to Counsel in Truancy Proceedings
The Washington Court of Appeals--Washington's intermediate appellate court--ruled this week that children in truancy proceedings have a right to counsel (appointed by the district) as a matter of due process. The opinion is here.
The court used the familiar Mathews v. Eldridge Fourteenth Amendment procedural due process balancing test, but there are several notable points in the court's analysis (bulleted below). Washington, like many other states, adopts the federal due process test, but puts their own gloss on it--often opening additional space for claims of individual rights. In this case, Washington's gloss--leading to the right to counsel--is characterized by these points:
- The court recognized that the truancy proceeding itself could not lead to a deprivation of physical liberty (although a subsequent contempt proceeding for violation of the truancy proceeding terms could). But the court nevertheless credited the child's liberty interest, because the child is, well, a child (and therefore cannot seek counsel or defend rights on his or her own). In adult cases (like child support enforcement proceedings) the Washington courts had previously ruled that physical liberty was not a serious interest, because the underlying proceeding couldn't result in a deprivation of physical liberty (even if subsequent contempt proceedings could). The court thus recognized that the claimant's capabilities matter--enough to alter the traditional rule on physical liberty once removed.
- The court also credited interests in privacy and bodily integrity (because a truancy proceeding could result in mandatory drug or alcohol tests) and education (because a truancy proceeding could result in a mandatory change of schools), thus recognizing more than merely physical liberty as an important interest. (Federal procedural due process cases on the right to counsel simply compare the level of deprivation of physical liberty to the possibility of an absolute deprivation (as, e.g., in Gideon v. Wainwright). If physical liberty (at any level) isn't in play, the right-to-counsel claim is a nonstarter.) The court's discussion of these interests here marks a move toward recognizing a wider range of important interests in the due process calculus.
- The court ruled that the possibility of error in a truancy proceeding was magnified significantly because the target was a child. This was so even though the child's parent could attend the truancy hearing. The procedural rules--relatively simple, compared with rules of civil or criminal procedure--were complicated enough that a child would have a hard time protecting his or her interests. Combined with the court's attention to the child's capabilities (discussed above), this means that the court will hold up the procedures to the claimant's capabilities and ask whether a particular claimant can proceed effectively under particular procedures--a comparison that we don't often see in procedural due process right-to-counsel cases.
- The court ruled that the state's interest in saving money--the ubiquitous state interest in right-to-counsel cases--was simply insufficient to outweigh these other considerations, even though counsel for truancy proceedings could impose an "extreme burden" on districts.
We'll report if this goes to the Washington Supreme Court. For more on the right to counsel, see the web-site for the National Coalition for a Civil Right to Counsel. I've posted on the right to counsel in home mortgage foreclosures here.
December 08, 2008
En Banc Second Circuit to Hear Canadian's Rendition Case Tuesday
The full Second Circuit will hear oral arguments tomorrow in Arar v. Ashcroft, the civil action by a Canadian detained at JFK, held in solitary confinement for two weeks in the U.S. without access to an attorney or the courts, and rendered to Syria for, um, "enhanced interrogation techniques." (After a year of in Syria, Syrian officials released Arar, stating that he had no connection to any criminal or terrorist activity. The Canadian government, after an exhaustive inquiry, concluded the same.) This is another case that a new Obama administration may be able to influence. I blogged on the other, Al-Marri, a couple days ago. The NYT ran an editorial on both today.
Arar originally claimed Due Process violations for the government's denial of counsel, denial of access to the courts, and subjecting him to torture by the Syrian government. He also claimed a violation of the Torture Victim's Protection Act, which allows a person tortured by a foreign government to bring suit against that government in U.S. courts. Arar claimed that Ashcroft, et al., were complicit in his torture. Arar's original complaint is here.
An earlier split 3-judge panel of the Second Circuit ruled against Arar. The majority held that Arar's claims would interfere with national security and foreign policy, that as a Canadian he was not entitled to Due Process, and that federal officials weren't sufficiently under the control of the Syrian government to support his TVPA claim. The Second Circuit decision is here.
The Center for Constitutional Rights, which represents Arar, has an excellent resource page here.
The en banc hearing tomorrow is notable because the Second Circuit granted it sua sponte, signalling either the case's important, its unhappiness with the panel decision, or both.
We'll keep you updated.
November 28, 2008
Right to Counsel in Home Foreclosures
NPR reports that legal aid programs are unable to keep up with the rising demand for legal representation in home foreclosure cases, raising questions about the right to counsel in such cases. NPR:
Everyone accused of a crime is entitled to a lawyer, whether they can afford one or not. But in civil cases, such as home foreclosures, there is no right to an attorney.
Is this true under the federal constitution? As a matter of Fourteenth Amendment procedural due process, the Court ruled in 1981 in Lassiter v. Department of Social Services that civil litigants had no categorical right to counsel. The Lassiter court held that such claims would be subject to the procedural due process balancing test in Mathews v. Eldridge, and that anything short of a personal interest in physical liberty would almost certainly fail to support a constitutional right to counsel. These cases--and the Court's later right-to-counsel jurisprudence--suggest that NPR is right: "in civil cases . . . there is no right to an attorney."
But a growing movement--call it the "Civil Gideon Movement"--is challenging this conclusion. In cases where important interests like housing are at stake, civil litigants, lawyers, and institutions like the ABA are pressing for a categorical right to counsel.
And they've seen some success. Several state constitutions now recognize a categorical right to counsel in certain civil cases (like deprivation of parental rights proceedings, where the interest in parenthood is quite high), and many states provide a right to counsel to civil litigants in certain cases by statute.
The issue provides a nice case study in-progress in organized movements to promote constitutional and policy changes. As is so often the case, the states provide some of the most interesting fodder.
Here are some resources. The National Coalition for a Civil Right to Counsel--a well organized effort that includes attorneys, advocates, and academics--has been at the forefront of the civil right to counsel effort; link to the Coalition web-site here. The American Bar Association resolution urging a civil right to counsel is here. The Brennan Center page on civil right to counsel is here.