Monday, May 15, 2017
A panel of the Ninth Circuit - - - Judge Ronald Gould, Judge Richard Paez, and Senior Judge Michael Hawkins - - - heard oral arguments in Hawai'i v. Trump, the appeal from the preliminary injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (colloquially known as the revised travel ban or "Muslim Ban 2.0").
Arguing for the DOJ in favor of the United States was Acting Solicitor General Jeffrey Wall, who also argued the same position a week ago in the Fourth Circuit en banc argument in Trump v. International Refugee Assistance Project (IRAP). Indeed, there were specific references in the Ninth Circuit argument to that argument with regard to the scope of the injunction in Hawai'i v. Trump. The argument spent a fair amount of time on the statutory claims, which were a basis of Maryland District Judge Theodore Chuang's injunction on appeal to the Fourth Circuit, but were not the basis of the injunction by Hawai'i District Judge Derrick Watson, who ruled on the basis of the Establishment Clause. The issue of standing also peppered the arguments. Wall's argument in the Ninth Circuit seemed less emphatic about the "presumption of regularity" entitled to the President than the argument last week, perhaps because of intervening events. Wall certainly did, however, hammer the Government's point that the deferential standard of Kleindienst v. Mandel (1972) should apply. And although it was not specifically referenced, the dissent from en banc review in a Ninth Circuit precursor case, Washington v. Trump, which largely rested on Mandel, implicitly shaped the arguments.
For his part, arguing for Hawai'i, Neal Katyal, formerly with the Department of Justice, stressed that the Ninth Circuit's panel opinion in Washington v. Trump should be the model. Katyal argued that the EO was unprecedented.
The video of the argument is worth watching, not only for its explication of the issues, but also as examples of excellent appellate advocacy.
However, there was a quite odd interchange regarding Neal Katyal's previous litigation stances. At around 52:03 in the video above, Senior Judge Hawkins said to Katyal, "You have argued in the past to give deference to the Executive in immigration matters." After Katyal's acknowledgement, Judge Hawkins refers to an amicus brief in United States v. Texas and reads a passage. The brief to which Hawkins seems to have been referring is Brief of Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae In Support Of Petitioners and the portions seem to be from page 12 of the brief, supporting the Congressional grant of wide authority to make decisions regarding deferred action in immigration deportations. After Katyal's response, Judge Hawkins made a second reference: "You also wrote a brief in Flores-Villar." The brief to which Hawkins refers is Katyal's brief as Acting Solicitor General for the Respondent United States in Flores-Villar v. United States, involving a mother-father differential for unwed parents. Judge Hawkins reads the following passage without the case references or citations:
[T]he United States’ “policy toward aliens” is “vitally and intricately interwoven with * * * the conduct of foreign relations,” a power that likewise is vested in the political Branches. Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). “Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.” Mathews v. Diaz, 426 U.S. 67, 81 (1976).
Katyal responds that when he was with the United States Government he tried to convince the United States Supreme Court of this, but the Court "did not bite." Recall that Flores-Villar was a 4-4 affirmance of the Ninth Circuit.
Certainly, both United States v. Texas, which has usually surfaced in the context of a state's standing, and Flores-Villar are somewhat pertinent immigration cases involving the scope of judicial deference. Nevertheless, specific references to an individual attorney's briefs does seem unusual.
May 15, 2017 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Establishment Clause, Executive Authority, First Amendment, Oral Argument Analysis, Recent Cases, Standing | Permalink | Comments (0)
Sunday, May 7, 2017
Comedian Stephen Colbert has drawn ire and FCC scrutiny for a joke in his monologue implying the President of the United States is in a specific sexual position vis-a-vis the President of Russia.
The remark, which occurred on "The Late Show with Stephen Colbert" is within the so-called safe harbor provisions of the FCC regulation of indecent speech by "radio communication" (including traditional television such as CBS).
The constitutionality of such regulation was upheld by the Court in FCC v. Pacifica Foundation (1978), involving comedian George Carlin's "Seven Dirty Words" monologue, which had provoked complaints to the FCC by listeners. But Pacifica's continued viability seems questionable. Justice Ruth Bader Ginsburg, concurring in FCC v. Fox Television Stations II (2012), which did not reach the First Amendment issues involving fleeting expletives, argued that Pacifica "was wrong when it issued," and further that time, technological advances, and FCC's "untenable rulings" show why Pacifica "bears reconsideration." Ginsberg cites the concurring opinion of Justice Thomas in the FCC v. Fox Television Stations I, decided three years earlier, in which Thomas highlights the "dramatic technological advances" that "have eviscerated the factual assumptions" underlying Pacifica: traditional broadcast media is no longer pervasive or even dominant.
Some might argue that the Colbert remark is “obscene” and that obscenity is categorically excluded from First Amendment protection. But to be obscene, speech must meet the classic test from Miller v. California (1973), requiring that the average person find the speech appeals to the prurient interest, describes in a patently offensive way sexual conduct specifically defined by the applicable state law, and that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Here, Colbert’s comment would not likely to be found obscene. It does not appeal to the prurient interest, meaning some excessive or unhealthy interest in sex; it is not sexually arousing.
Perhaps more importantly, it would be very difficult to find that the Colbert monologue “taken as a whole” lacks serious “political value.” In Hustler Magazine v. Falwell (1988), based on a parody about evangelist Jerry Falwell implying that his first sexual experience was with his mother in an outhouse, Justice Rehnquist, wrote for the nearly unanimous Court about the importance of caustic humor for free political speech:
Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's characterization of Presidential candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The Royal Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln's tall, gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them.
Colbert's remark, subject to critique as crude as well as homophobic, is nevertheless the type of political discourse protected by the First Amendment.
Here's the full clip, with the relevant passage starting at about 11:40, albeit with the offending language bleeped out as it was in the broadcast.
Friday, April 21, 2017
In its opinion in CTIA - The Wireless Ass'n v. City of Berkeley, a panel of the Ninth Circuit rejected First Amendment and preemption challenges to an ordinance requiring retailers to provide notices to consumers about their cell phone purchase. The notice, to be on a poster or handout, with the seal of the city, must read:
The City of Berkeley requires that you be provided the following notice:
To assure safety, the Federal Government requires that cell phones meet radiofrequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation. Refer to the instructions in your phone or user manual for information about how to use your phone safely.
As the notice implies, the FCC disclosures required to be included with the phone are similar if more extensive.
Affirming the district judge, the divided Ninth Circuit panel found that the required notice did not violate the First Amendment. As a compelled disclosure in a commercial context, the choice of standards was between the commercial speech test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York (1980) or the more lenient test for disclosure of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985). Writing for the majority, Judge William Fletcher found that the Zauderer test was appropriate, despite the fact that the disclosure did not involve "consumer deception." Judge Fletcher agreed with "sister circuits that under Zauderer the prevention of consumer deception is not the only governmental interest that may permissibly be furthered by compelled commercial speech," citing the D.C. Circuit's en banc opinion in American Meat Institute v. U.S. Department of Agriculture. Judge Fletcher's opinion reasoned that the Zauderer's language that the disclosure be “uncontroversial” should not be over-emphasized:
Given that the purpose of the compelled disclosure is to provide accurate factual information to the consumer, we agree that any compelled disclosure must be “purely factual.” However, “uncontroversial” in this context refers to the factual accuracy of the compelled disclosure, not to its subjective impact on the audience. This is clear from Zauderer itself.
Applying the deferential Zauderer standard, the court again confronted whether the disclosure was "purely factual" as well as being reasonably related to a substantial governmental interest. Judge Fletcher's opinion concluded the mandated notice was "literally true," based on FCC findings. The court rejected CTIA's argument that while it might be "literally true," the statement was "inflammatory and misleading." Judge Fletcher analyzed the compelled notice sentence by sentence, finding it true. For example, CTIA objected to the phrase “RF radiation,” but Judge Fletcher's opinion noted this is "precisely the phrase the FCC has used, beginning in 1996, to refer to radio-frequency emissions from cell phones," and that the city could not be faulted for using the technically correct term that the FCC itself uses.
It was on this point that the brief partial dissent by Judge Michelle Friedland differed. For Judge Friedland, consumers would not read the disclosure "sentences in isolation the way the majority does." She argues that taken as a whole,"the most natural reading of the disclosure warns that carrying a cell phone in one’s pocket is unsafe," and that "Berkeley has not attempted to argue, let alone to prove, that message is true." She accuses the city of "crying wolf" and advises the city if it "wants consumers to listen to its warnings, it should stay quiet until it is prepared to present evidence of a wolf."
In addition to the First Amendment claim, CTIA argued that the mandated disclosure was preempted by federal regulations. The court noted procedural problems regarding when the argument was advanced. Nevertheless, the court clearly concluded:
Berkeley’s compelled disclosure does no more than to alert consumers to the safety disclosures that the FCC requires, and to direct consumers to federally compelled instructions in their user manuals providing specific information about how to avoid excessive exposure. Far from conflicting with federal law and policy, the Berkeley ordinance complements and reinforces it.
But surely it is the First Amendment issues that are central to the case. The panel essentially divides on the limit to government mandated disclosures to consumers, an issue that vexed the DC Circuit not only in the American Meat Institute case mentioned above, but also in National Association of Manufacturers v. SEC (conflict minerals) and in R.J. Reynolds Tobacco Co. v. FDA (cigarette labeling), both of which held the labeling requirements violated the First Amendment. One measure of the importance of the issue is the attorneys who argued CTIA in the Ninth Circuit: Theodore Olsen for the trade association of CTIA and Lawrence Lessig for the City of Berkeley. The Ninth Circuit's majority opinion is careful and well-reasoned, but as the divided panel evinces, there are fundamental disputes about warning labels.
Sunday, April 16, 2017
In an opinion in excess of 100 pages in McGehee v. Hutchinson, United States District Judge Kristine Baker enjoined the scheduled execution of McGehee and eight other plaintiffs based on their likelihood to succeed on their Eighth Amendment and First Amendment claims.
The case arises from a highly unusual compressed execution schedule: "Governor Hutchinson set eight of their execution dates for an 11-day period in April 2017, with two executions to occur back-to-back on four separate nights." Judge Baker rejected the claim that the schedule alone violated any "evolving standards of decency" under the Eighth Amendment.
However, this unusual schedule did play some part in Judge Baker's conclusion that there was a likelihood of success on the merits of the plaintiffs' Eighth Amendment challenge to the use of midazolam as cruel and unusual punishment.
In a detailed recitation of the facts, including expert testimony rendered by both the plaintiffs and the State, Judge Baker noted that she "received much evidence in the last four days " and "filtered that evidence, considerable amounts of which involved scientific principles," and converted it into lay terms in the opinion. At times, Judge Baker's assessment of the expert testimony is quite precise: "Defendants’ witness Dr. Antognini’s reliance on animal studies while defense counsel simultaneously challenged plaintiffs’ witness Dr. Steven’s reliance on animal and in vitro studies seems inconsistent. This inconsistency went largely unexplained."
This factual record is important for applying the test for a challenge to a method of execution as the United States Supreme Court articulated in Glossip v. Gross (2015). As Judge Baker explained, plaintiffs have the burden of proving that “the State's lethal injection protocol creates a demonstrated risk of severe pain” and “the risk is substantial when compared to the known and available alternatives.” On the first prong, Judge Baker concluded there is a "significant possibility" that plaintiffs will succeed in showing that the use of midazolam in the Arkansas Department of Corrections (ADC) "current lethal injection protocol qualifies as an objectively intolerable risk that plaintiffs will suffer severe pain." She continued that the
risk is exacerbated when considering the fact that the state has scheduled eight executions over 11 days, despite the fact that the state has not executed an inmate since 2005. Furthermore, the ADC’s execution protocol and policies fail to contain adequate safeguards that mitigate some of the risk presented by using midazolam and trying to execute that many inmates in such a short period of time.
The second prong under Glossip requires plaintiffs to show that “the risk is substantial when compared to the known and available alternatives.” Judge Baker stated that the "Supreme Court has provided little guidance as to the meaning of 'availability' in this context, other than by stating that the alternative method must be 'feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.’" She then discussed the conflicting standards in the Circuits, concluding that the "approach taken by the Sixth Circuit provides a better test for 'availability' under Glossip," because the "Eleventh Circuit’s understanding of “availability” places an almost impossible burden on plaintiffs challenging their method of execution, particularly at the preliminary injunction stage." In deciding that there were alternatives available, Judge Baker found that "there is a significant possibility that pentobarbital is available for use in executions." The opinion noted that other states have carried out executions with this drug. The opinion also noted that "plaintiffs have demonstrated a significant possibility that the firing squad is a reasonable alternative."
Thus, Judge Baker found that both prongs of Glossip were likely to be satisfied under the Eighth Amendment claim.
On the First Amendment claim, the essence was that the limitations placed on counsel viewing the execution would deprive plaintiffs of their access to the courts during that time. Judge Baker noted there was some confusion regarding the actual viewing policy that would be operative, with the Director having "taken three or four different positions regarding viewing policies" during litigation. But, the "key aspect" of any policy "would force plaintiffs’ counsel to choose between witnessing the execution and contacting the Court in case anything should arise during the course of the execution itself."
In analyzing the First Amendment claim, Judge Baker used the highly deferential standard of Turner v. Safely (1987), with its four factors:
- First, “there must be a ‘valid, rational connection’ between the prison regulation and the legitimate government interest put forward to justify it.”
- Second, courts must consider “whether there are alternative means of exercising the right that remain open to prison inmates.”
- “A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.”
- Finally, “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.”
Judge Baker held that while there was a valid rational connection, there were alternative means and no impact on other prisoners. Thus, Judge Baker enjoined the Director "from implementing the viewing policies insofar as they infringe plaintiffs’ right to counsel and right of access to the courts," and charged the Director "with the task of devising a viewing policy that assures plaintiffs’ right to counsel and access to the courts for the entire duration of all executions."
Judge Baker issued her Preliminary Injunction on Saturday, April 15. Reportedly, there is already an emergency appeal to the Eighth Circuit, as well as an appeal of a stay by a state court judge to the Arkansas Supreme Court.
Monday, February 20, 2017
In its divided opinion in Bormuth v. County of Jackson (Michigan), a panel of the Sixth Circuit has concluded that the prayer practices of a county commission violate the First Amendment's Establishment Clause.
The constitutionality of legislative prayer has most recently been before the United States Supreme Court in the sharply divided opinion in Town of Greece v. Galloway upholding the practice of the town beginning its meetings with invited religious leaders providing prayers. The Court essentially extended Marsh v. Chambers (1983), regarding legislative prayer in the Nebraska legislature, to town meetings despite their quasi-legislative and quasi-adjudicative function.
The Sixth Circuit first held that the County of Jackson's Board of Commissioners’ practice strays from the traditional purpose and effect of legislative prayer:
A confluence of factors distinguishes the Jackson County practice from the practices upheld in Marsh and Town of Greece. These factors include the deliverance of the invocations by the Commissioners themselves in a local setting with constituent petitioners in the audience, as well as the Board’s intentional decision to exclude other prayer givers in order to control the content of the prayers.
Additionally, the Sixth Circuit in Bormuth was troubled by the issue of coercion raised by the plaintiff. The facts were not only that the Chair of the Jackson County Commission generally "directs those in attendance to “rise” and “assume a reverent position" before a County Commissioner delivers a Christian prayer, but that a Commissioner "made faces" and "turned his chair around" when Bormuth expressed concern about the prayers. One Commissioner later stated that Bormuth was attacking "my Lord and savior Jesus Christ," and another Commissioner remarked, “All this political correctness, after a while I get sick of it.” As Judge Karen Nelson Moore wrote for the panel majority:
Admittedly, the precise role of coercion in an Establishment Clause inquiry is unclear, especially within the context of legislative prayer. In that sense, both Justice Kennedy’s and Justice Thomas’s opinions involve at least some departure from the state of the law as it existed before Town of Greece. However, given that there is controlling precedent supporting Justice Kennedy’s opinion and no controlling precedent supporting Justice Thomas’s concurrence, Justice Thomas’s concurrence is neither the “the least doctrinally far-reaching-common ground among the Justices in the majority,” nor the “opinion that offers the least change to the law.” [citation omitted]. What is more, when viewed within the context of the majority’s holding, Justice Kennedy’s opinion clearly represents the narrowest grounds. The majority’s holding was that there was no coercion. According to Justice Kennedy, this was because there was no coercion in the record. According to Justice Thomas, this was because there could never be coercion absent formal legal compulsion. Within the context of a ruling against the respondents, therefore, the narrower opinion is Justice Kennedy’s, not Justice Thomas’s. Accordingly, Justice Kennedy’s conception of coercion is the holding of the Court under binding Sixth Circuit precedent.
In finding coercion in Bormuth, Judge Moore noted that Town of Greece ruled that “[t]he analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.” Judge Moore then detailed the presence of all three of these criteria in Bormuth.
Judge Moore discussed Lund v. Rowan County, North Carolina, in which a divided Fourth Circuit held that the identity of the person leading a prayer opening the county Board of Commissioners meeting was irrelevant and upheld a prayer led by a Board member. Dissenting Sixth Circuit Judge Griffin wrote at length and relied heavily on Lund. For her part, Judge Moore specifically stated that Judge Wilkinson’s panel dissent in Lund is much more convincing than the majority opinion, and noted that because Lund has been granted a rehearing en banc, this view is one that "a significant number of Fourth Circuit judges presumably share." Additionally, however, Judge Moore found that there are "significant factual differences" between the practice at issue in the Fourth Circuit and the one before the court in the Sixth Circuit.
The issue of legislative prayer in the context of local government continues to vex the courts; there is almost sure to be a petition for rehearing en banc in the Sixth Circuit mirroring the successful one in the Fourth.
image: Bernardo Strozzi, St Francis in Prayer, circa 1620, via National Gallery of Art
Thursday, February 16, 2017
The Ninth Circuit issued an Order staying the en banc consideration of Washington v. Trump based on the Department of Justice's representation that “the President intends to issue a new Executive Order” and has urging the Court to “hold its consideration of the case until the President issues the new Order.” Recall that the Executive Order at issue is Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban." (There have reportedly been conflicting versions of the EO). Recall also that the Ninth Circuit panel had issued an opinion in an emergency appeal denying a stay of the injunction from Washington District Judge Robarts in Washington (and Minnesota) v. Trump.
A week ago, the court had instructed the parties to file simultaneous briefs regarding en banc review, in response to a sua sponte request (by a judge who remains anonymous) that a vote be taken as to whether panel opinion should be reconsidered en banc.
The DOJ Brief on behalf of the United States argued that while the panel opinion "readily meets the normal standards for rehearing en banc,"
Nevertheless, the United States does not seek en banc review of the merits of the panel’s ruling. Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns. Cf. Op. 24 (declining to narrow the district court’s overbroad injunction because “[t]he political branches are far better equipped to make appropriate distinctions”). In so doing, the President will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation. Under the unusual circumstances presented here—including the extraordinarily expedited proceedings and limited briefing to the panel, the complexity and constitutional magnitude of the issues, the Court’s sua sponte consideration of rehearing en banc, and respect for the President’s constitutional responsibilities—the government respectfully submits that the most appropriate course would be for the Court to hold its consideration of the case until the President issues the new Order and then vacate the panel’s preliminary decision. To facilitate that disposition, the government will notify the Court of the new Order as soon as it is issued.
For his part, the President of the United States in a press conference, addressed the issue by claiming that a "bad court" from a circuit "in chaos" and "frankly in turmoil" and that issued a "bad decision." He insisted that the roll out of the Executive Order was "perfect." But although he did say "we are appealing that," he also said there would be a "new order" "sometime next week, toward the beginning or middle at the latest part. …….."
As far as the new order, the new order is going to be very much tailored to the what I consider to be a very bad decision.
But we can tailor the order to that decision and get just about everything, in some ways, more. But we’re tailoring it now to the decision, we have some of the best lawyers in the country working on it.
And the new executive order, is being tailored to the decision we got down from the court. OK?
Monday, February 13, 2017
The federal district judge in Aziz v. Trump, having previously granted the Motion of the State of Virginia to intervene, has granted a Preliminary Injunction against section 3(c) of the President's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban." The judge's order is supported by a 22 page Memorandum Opinion. Recall that the Ninth Circuit has also recently ruled on the matter (refusing to stay a district judge's injunction); our general explainer of the issues is here.
Judge Leonie Brinkema rested her opinion on the Establishment Clause, finding a likelihood of success on the merits on that claim, and thus not reaching the Equal Protection Clause and Due Process Clause or statutory claims.
Judge Brinkema found that the case was justiciable and that Virginia as a state has standing to raise claims based on the injuries to its universities. The judge rejected the contention that the President has unbridled power to issue the EO, stating that
Maximum power does not mean absolute power. Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights. It is a bedrock principle of this nation’s legal system that “the Constitution ought to be the standard of construction for the laws, and that wherever there is evident opposition, the laws ought to give place to the Constitution.” The Federalist No. 81, at 481 (Alexander Hamilton) (Clinton Rossiter ed., 1999). Defendants have cited no authority for the proposition that Congress can delegate to the president the power to violate the Constitution and its amendments and the Supreme Court has made it clear that even in the context of immigration law, congressional and executive power “is subject to important constitutional limitations.” Zadﬂdas v. Davis, 533 U.S. 678, 695 (2001).
As to whether or not the EO is a "Muslim ban," the judge relied on public statements by the President and his senior advisors, noting that although the Government disputes the relevancy of the statements, the government does not contest their accuracy. Among the statements the Judge found relevant are candidate Trump's campaign statements and Rudolph Guiliani's January 29, 2017 interview on Fox News.
Judge Brinkema's analysis of the Establishment Clause issue relies heavily on McCreary County v. ACLU of Kentucky in which the Court found unconstitutional the display of the Ten Commandments in a courthouse based in large part of the motive of the state actors. The judge also rejected the argument that the EO could not be a "Muslim ban" because it did not ban all Muslims:
The argument has also been made that the Court cannot infer an anti-Muslim animus because the E0 does not affect all, or even most, Muslims. The major premise of that argument—that one can only demonstrate animus toward a group of people by targeting all of them at once—is ﬂawed. For example, it is highly unlikely that the Supreme Court considered the displays of the Ten Commandments erected by the Kentucky counties in McCreary, which had a localized impact, to be targeted at all persons outside the Judeo-Christian traditions. Moreover, the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefﬁcient the execution. [citations omitted]
Thus, the judge entered a preliminary injunction of 3(c) of the EO against Virginia residents or those affiliated with Virginia's education institutions.
Thursday, February 2, 2017
There were some questions whether the seemingly hasty release late Friday afternoon of the Executive Order, Protecting the Nation From Foreign Terrorist Entry Into the United States, popularly called a "Muslim Ban," had been presented to the Office of Legal Counsel (OLC) as required by law.
Pursuant to a FOIA request, an OLC Memo has been released. It's seemingly a boilerplate memo, simply repeating the content of the EO and concluding "The proposed Order is approved with respect to form and legality."
It's a quick read at a bit over one page, with the EO appended afterwards. There is no legal analysis.
For comparison, the recent anti-nepotism OLC Memo, concluding that the President could appoint his son-in-law to a White House position runs about 14 single spaced pages.
Friday, December 9, 2016
In a closely divided (4-3) opinion in Smith v. Pavan, the Arkansas Supreme Court concluded that the state statutes governing the issuance of birth certificates to children could deny same-sex parents to be listed as parents.
Essentially, the majority opinion, authored by Associate Justice Josephine Hart found that the United States Supreme Court's 2015 decision in Obergefell v. Hodges declaring same-sex marriage bans unconstitutional was inapposite:
Obergefell did not address Arkansas’s statutory framework regarding birth certificates, either expressly or impliedly. Rather, the United States Supreme Court stated in Obergefell that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.
Justice Hart noted that the Court in Obergefell did mention birth certificates "only once" and quoted the passage, construing it being related "only" to the Court's observation that states conferred benefits on married couples, which in part demonstrated that “ the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”
Not surprisingly, dissenting justices construed this same passage as providing support for the opposite conclusion. In a well-wrought dissent by Justice Paul Danielson, he argues:
[T]he United States Supreme Court held in Obergefell that states are not free to deny same-sex couples “the constellation of benefits that the States have linked to marriage.” Importantly, the Court listed “birth and death certificates” specifically as one of those benefits attached to marital status. Thus, the majority is clearly wrong in holding that Obergefell has no application here. Indeed, one of the cases on review in Obergefell, Tanco v. Haslam, 7 F. Supp. 3d 759 (M.D. Tenn. 2014), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), involved a same-sex married couple who challenged the Tennessee law providing that their child’s nonbiological parent would not be recognized as the child’s parent, which affected various legal rights that included the child’s right to Social Security survivor benefits, the nonbiological parent’s right to hospital visitation, and the nonbiological parent’s right to make medical decisions for the child.
Furthermore, one of the four principles discussed by the Court in Obergefell, for purposes of demonstrating that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples, is that the right to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” The opinion makes clear that the protection of children and the stability of the family unit was a foundation for the Court’s decision.
[citations to Obergefell omitted].
For the majority, biology was the paramount "truth" that vital records should reflect. Moreover, this "truth" is evinced in dictionary definitions of words such as "husband" and "father," a strategy in cases that Obergefell rejected.
However, the relevance of Smith v. Pavan even in Arkansas is unclear. As Justice Rhonda Wood argued, the case may not have warranted a decision by the court:
Two key circumstances have developed since this litigation started. First, plaintiffs received relief in that the State has issued the appropriate birth certificates to them. Second, the State concedes that the relevant statutes involving determination of parentage must comply with Obergefell, including the statute governing the status of people born via artificial insemination. These developments render the majority’s decision provisional.
Moreover, there were (new) facts in dispute, despite the procedural posture of summary judgment:
First, according to the affidavit of the State Registrar of Vital Records, the Department of Health will issue birth certificates listing both same-sex parents if the hospital submits documentation reflecting that fact. However, the parties disputed at oral argument how the department’s decision is actually being applied. There are no facts in the record to resolve this dispute. Moreover, the State has now conceded that children born of artificial insemination should have both parents deemed the natural parents, whether same-sex or opposite sex, under Ark. Code Ann. § 9-10-201 (Repl. 2015) and asserts that it will place both same-sex parents on the birth certificate under the State’s new interpretation of this statute. This statute provides that “[a]ny child born to a married women by means of artificial insemination shall be deemed the legitimate natural child of the women and the women’s husband [read spouse] if the [spouse] consents in writing to the artificial insemination.” Ark. Code Ann. § 9-10-201(a). It is likely, therefore, that a same-sex couple will now have both spouses’ names listed on the original birth certificate without a court order, so long as the child was conceived via artificial insemination, the same-sex marriage occurred prior to the insemination, and the non-biological parent consented to the insemination. Appellants and appellees both conceded at oral argument this would resolve the challenge by two of the three same-sex marriage couples.
It is possible that Arkansas would revoke its concessions given the state supreme court's ruling, but if the state does, then this seems a clear case for a petition for certiorari to the United States Supreme Court.
[image: Arkansas Supreme Court building]
December 9, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Recent Cases, Reproductive Rights, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)
Wednesday, October 5, 2016
In a nearly 100 page complaint filed in the federal court in D.H. v. City of New York, the plaintiffs argue that New York's Loitering for the Purpose of Engaging in a Prostitution Offense, NY Penal Code § 240.37, is unconstitutional on its face and as applied. Represented by The Legal Aid Society, the central constitutional claims are that the statute is unconstitutionally vague under the due process clause and that its enforcement violates First Amendment rights to expression, Fourteenth Amendment rights to equal protection, and Fourth Amendment rights.
The intersections and distinctions between vagueness under the Due Process Clause and overbreadth under the First Amendment were elucidated by the United States Supreme Court in Holder v. Humanitarian Law Project (2010) and the complaint in D.H. might serve as a textbook example of these issues. Essentially, the complaint alleges that the NY Penal Code section, §240.37 , does not provide people with adequate notice of the conduct they should avoid to preclude arrest and results in the inclusion of First Amendment protected speech, expressive conduct, and association. Further, these lack of statutory guidelines have meant that law enforcement actions under the statute have been arbitrary as well as discriminatory on the basis of classifications involving race, ethnicity, gender, and gender identity.
In addition to the statutory arguments, plaintiffs allege that the NYPD guidelines and practices have failed to remedy the problems and have in fact exacerbated them. One central allegation regards attire:
Furthermore, the purported guidance provided in the NYPD Patrol Guide is equally vague and otherwise ﬂawed, thereby increasing arbitrary enforcement. For instance, the NYPD Patrol Guide instructs ofﬁcers that an arrestee’s “clothing” is “pertinent” to the probable cause inquiry. At the same time, the NYPD Patrol Guide does not provide any objective criteria regarding what types of attire may or may not have probative value for purposes of establishing probable cause, thus encouraging officers to make arrests based on individual, subjective opinions regarding what clothing someone who might be “loitering for the purpose of prostitution” would wear. In pre-printed affidavits provided by prosecutors (also referred to as supporting depositions), which prompt the arresting officer to describe “revealing” or “provocative” clothing, ofﬁcers often respond by citing a wide range of innocuous attire, such as “jeans,” a “black pea coat” or a pair of leggings.
[¶ 54]. The "black pea coat" as grounds supporting a solicitation for prostitution charge attracted attention in 2013 when a judge dismissed a charge which was based on the defendant "wearing a black peacoat, skinny jeans which revealed the outline of her legs and platform shoes."
The unconstitutional inequality in the application of NY Penal Code section, §240.37 is analogous to the equal protection problems in New York City's practice of stop and frisk. Recall that a federal judge found NYC's practices violated equal protection in her opinion in Floyd v. City of New York, later stayed - - - and thereafter clarified - - - by the Second Circuit, followed by the City's new administration agreeing with the decision and abandoning the appeals. One of the complaint's pendent state law claims is a violation of the city's own prohibition of bias-based profiling, NYC Admin. Code §14-151 (passed in 2013 by City Council overriding the then-mayor's veto).
Loitering statutes in general, and more specifically loitering (and even soliciting) for "criminal sex" statutes, whether that sex is criminalized because it is commercial, public, or "unnatural" (as in previous sodomy prohibitions), have always been constitutionally problematic. And the use of dress or appearance to establish "probable cause" or to constitute elements of a crime are constitutionally suspect. It will be interesting to see whether or not the City defends the action, and if it does, how vigorously.
[image: Moulin Rouge by Toulouse Latrec via]
October 5, 2016 in Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fourth Amendment, Gender, Interpretation, Race, Recent Cases, Sexual Orientation, Sexuality, Speech | Permalink | Comments (0)
Friday, July 29, 2016
In its extensive opinion in North Carolina State Conference of the NAACP v. McCrory, the Fourth Circuit has permanently enjoined the implementation of North Carolina SL 2013-381’s photo ID requirement and changes to early voting, same-day registration, out-of-precinct voting, and preregistration. The Voter Information Verification Act, the Fourth Circuit concluded, made a racial classification although it seemed neutral, reasoning that
on the day after the Supreme Court issued Shelby County v. Holder (2013), eliminating preclearance obligations, a leader of the party that newly dominated the legislature (and the party that rarely enjoyed African American support) announced an intention to enact what he characterized as an “omnibus” election law. Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.
In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications. Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation.
The Fourth Circuit concluded that the North Carolina Voter Information Verification Act violated both the Fourteenth Amendment's Equal Protection Clause and §2 of the Voting Rights Act. For both, the hurdle was finding the legislature acted with racially discriminatory intent. Most of the opinion is devoted to this discussion. The Fourth Circuit reversed the district judge on this basis, writing that the judge seemed "to have missed the forest in carefully surveying the many trees," and ignoring "critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina."
In the Equal Protection analysis, the Fourth Circuit applied the well-established requirement of racial intent (as well as effects) from Washington v. Davis. In considering whether the seemingly-neutral voting requirements were enacted “because of,” and not “in spite of,” their discriminatory effect, citing Pers. Adm’r of Mass. v. Feeney (1979), the Fourth Circuit discussed the factors of Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977):
In Arlington Heights, the Court set forth a nonexhaustive list of factors to consider in making this sensitive inquiry. These include: “[t]he historical background of the [challenged] decision”; “[t]he specific sequence of events leading up to the challenged decision”; “[d]epartures from normal procedural sequence”; the legislative history of the decision; and of course, the disproportionate “impact of the official action -- whether it bears more heavily on one race than another.”
The Fourth Circuit then discussed these factors individually. Importantly, on the sequence of events, the opinion stated that
the General Assembly’s eagerness to, at the historic moment of Shelby County’s issuance, rush through the legislative process the most restrictive voting law North Carolina has seen since the era of Jim Crow -- bespeaks a certain purpose. Although this factor, as with the other Arlington Heights factors, is not dispositive on its own, it provides another compelling piece of the puzzle of the General Assembly’s motivation.
But, as the Fourth Circuit noted - - - and for which it faulted the district court - - - the factors should not be considered in isolation. Instead, Arlington Heights requires a totality of circumstances analysis.
The Fourth Circuit having found that race was a factor in the enactment of the Voter Information Verification Act (emphasis in original), the burden shifted to the state to demonstrate that the law would have been enacted without this factor, by assessing "whether a law would have been enacted without a racially discriminatory motive by considering the substantiality of the state’s proffered non-racial interest and how well the law furthers that interest." The Fourth Circuit faulted the district judge for conducting this analysis through a "rational-basis-like lens," when such deference is "wholly inappropriate."
The Fourth Circuit discussed each challenged provision of the Voter Information Verification Act. On the voter identification requirement specifically, the Fourth Circuit found Crawford largely inapplicable given that Crawford did not involve even an allegation of intentional race discrimination. It found that while preventing voter fraud is a valid government interest, the means chosen are both too narrow and too broad. Similarly, the Fourth Circuit found that the other provisions could not satisfy the standard:
In sum, the array of electoral “reforms” the General Assembly pursued in SL 2013-381 were not tailored to achieve its purported justifications, a number of which were in all events insubstantial. In many ways, the challenged provisions in SL 2013-381 constitute solutions in search of a problem. The only clear factor linking these various “reforms” is their impact on African American voters. The record thus makes obvious that the “problem” the majority in the General Assembly sought to remedy was emerging support for the minority party. Identifying and restricting the ways African Americans vote was an easy and effective way to do so.
The Fourth Circuit panel was unanimous to this point, but divided as to the relief. Judge Diana Gribbon Motz, wrote the panel's opinion except to Part V.B., from which she dissented. Her dissent is from a permanent injunction as to the photo identification requirement given that the North Carolina legislature passed a "reasonable impediment exception" from that requirement. She would"only temporarily enjoin the photo ID requirement and remand the case to the district court to determine if, in practice, the exception fully remedies the discriminatory requirement or if a permanent injunction is necessary."
The dissenting point is a small one. The Fourth Circuit panel unanimously held that the North Carolina Voter Information Verification Act violates both the Equal Protection Clause and §2 of the Voting Rights Act.
Monday, July 11, 2016
In its opinion in Lone Star Security and Video v. City of Los Angeles, the Ninth Circuit upheld L.A.'s mobile billboard ordinances against a First Amendment challenge distinguishing the United States Supreme Court's 2015 Reed v. Town of Gilbert.
Recall that in Reed, Justice Kagan separately concurred in the unanimous decision to warn that strict scrutiny was not always appropriate and that "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive." Here, it seems that the Ninth Circuit panel has taken that advice, applying the relaxed standard of time, place, and manner doctrine rather than content-discrimination meriting strict scrutiny.
The L.A. ordinances are directed at "advertising signs" on vehicles or attached to vehicles. Signs on vehicles - - - painted or permanently affixed - - - are allowed as long as they do not extend beyond the vehicle or make the vehicle unsafe. Signs that attached to non-motorized vehicles, such as those on standalone trailers, are prohibited from parking on city streets.
Judge Mary Murguia, writing for the unanimous panel, concluded that the ordinances applicability to "advertising" did not render the ordinances content-based. The opinion relied on a state case that construed advertising as displaying any message to the public rather than the content of that message and upheld an ordinance as applied to a nonprofit organization protesting animal cruelty. Moreover,
The Supreme Court’s recent decision in Reed does not alter our conclusion. Unlike Reed, the mobile billboard ordinances do not single out a specific subject matter for differential treatment, nor is any kind of mobile billboard exempted from regulation based on its content. There has been no suggestion that the ordinances apply differently to Lone Star Security’s political endorsements than to its commercial promotional campaigns, for example. Rather, an officer seeking to enforce the non-motorized billboard ordinances must decide only whether an offending vehicle constitutes a prohibited “advertising display” because its primary purpose is to display messages, as opposed to transporting passengers or carrying cargo. . . . In the case of the motorized billboard ordinance, an enforcing officer would simply need to distinguish between signs that are permanent or non-permanent, and larger or smaller than the vehicles to which the signs are affixed to determine whether the vehicle violates the ordinance.
[ellipses added; citations omitted]. Once having determined the correct standard was not strict scrutiny, the panel easily found that the ordinances survived review.
The parties do not dispute that the cities’ stated interests in traffic control, public safety, and aesthetics are sufficiently weighty to justify content-neutral, time, place, or manner restrictions on speech, nor could they.
As for the "narrow tailoring" required, the panel found that none of the ordinances were broader than necessary. Additionally, the panel found that there were ample alternative channels for communication, including advertising.
Appellants are free to disseminate their messages through myriad other channels, such as stationary billboards, bus benches, flyers, newspapers, or handbills. Appellants may also paint signs on vehicles and attach decals or bumper stickers. Although mobile billboards are a unique mode of communication, nothing in the record suggests that Appellants’ overall “ability to communicate effectively is threatened.”
The last quotation is from the United States Supreme Court's City of Los Angeles v. Taxpayers for Vincent (1984), on which Judge Murguia heavily relied. However, for Judge John Owens, Taxpayers for Vincent has its own flaws. In a brief concurrence, Judge Owens suggested that the United States Supreme Court should take a "second look" at Taxpayers for Vincent.
This case is about ugly signs on vehicles, and no doubt I would not want these vehicles and their signs parked in front of my house. But under the ordinances at issue, a car with equally ugly decals—including a decal of a vehicle with an ugly sign—would not “go to jail,” but instead treat my curb like the upper left corner of a Monopoly board.
If “aesthetics” are to play a part in speech restriction, then such aesthetics should apply equally, decal or sign. Yet under Taxpayers for Vincent, the Court rejected the very point that I now make. See 466 U.S. 810–12 (rejecting the Ninth Circuit’s holding that “a prohibition against the use of unattractive signs cannot be justified on esthetic grounds if it fails to apply to all equally unattractive signs wherever they might be located”). I think our court was right then, and the Supreme Court should reconsider this portion of Taxpayers for Vincent. As it currently stands, politicians can use Taxpayers for Vincent and its beholderish “aesthetics” to covertly ensure homogeneous thinking and political discourse. That is a dimension we should avoid. See The Twilight Zone: Eye of the Beholder (CBS television broadcast Nov. 11, 1960).
Judge Owens was not part of the Ninth Circuit panel that the Court reversed, although the third member of this Ninth Circuit panel - - - Judge Stephen Reinhardt - - - was. Judge Reinhardt, born in 1931, may also have seen the original episode of The Twilight Zone to which Judge Owens, born more than a decade after its original airing, refers.
Friday, July 1, 2016
Federal Judge Issues Preliminary Injunction Against Mississippi Law Seeking to Protect LGBT Discrimination
In a 60 page opinion in Barber v. Bryant, United States District Judge Carlton Reeves (pictured below) found Mississippi HB 1523, set to become effective July 1, constitutionally problematical under both the Establishment Clause and the Equal Protection Clause, and thus preliminary enjoined its enforcement.
The bill, Protecting Freedom of Conscience from Government Discrimination Act," sought to insulate the specific "sincerely held religious beliefs or moral convictions" that:
(a) Marriage is or should be recognized as the union of one man and one woman;
(b) Sexual relations are properly reserved to such a marriage; and
(c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.
Judge Reeves characterized HB 1523 as a predictable overreaction to the Court's same-sex marriage opinion in Obergefell v. Hodges a year ago. In discussing the debates around the HB 152 and its texts, Judge Reeves also noted that the challenges to HB 1523 were also predictable, providing his rationale for consolidating the four cases.
Judge Reeves then considered standing of the various plaintiffs as well as Eleventh Amendment immunity, followed by the established preliminary injunction standards which have at their heart the "substantial likelihood of success on the merits."
On the Equal Protection claim, Judge Reeves relied on Romer v. Evans, and found that the legislative history established animus in intent:
The title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell. The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions. LGBT Mississippians, in turn, were “put in a solitary class with respect to transactions and relations in both the private and governmental spheres” to symbolize their second-class status.
Judge Reeves also found that the law would have a discriminatory effect. Judge Reeves applied the lowest level of scrutiny, but found that even "under this generous standard, HB 1523 fails." He agreed with the State's contention that HB 1523 furthers its “legitimate governmental interest in protecting religious beliefs and expression and preventing citizens from being forced to act against those beliefs by their government" is a "legitimate governmental interest." But concluded that the interest is "not one with any rational relationship to HB 1523." Indeed, the court declared that "deprivation of equal protection of the laws is HB 1523’s very essence."
On the Establishment Clause claim, Judge Reeves rehearsed the history of the Clause before focusing on two conclusions: HB 1523 "establishes an official preference for certain religious beliefs over others" and "its broad religious exemption comes at the expense of other citizens."For this latter point, Judge Reeves interestingly relied on and distinguished the recent controversial Burwell v. Hobby Lobby construing RFRA to confer a religious conscience accommodation to closely-held corporations:
The difference is that the Hobby Lobby Court found that the religious accommodation in question would have “precisely zero” effect on women seeking contraceptive coverage, and emphasized that corporations do not “have free rein to take steps that impose disadvantages on others.” The critical lesson is that religious accommodations must be considered in the context of their impact on others.
Unlike Hobby Lobby, HB 1523 disadvantages recusing employees’ coworkers and results in LGBT citizens being personally and immediately confronted with a denial of service.
Judge Reeves opinion is careful and well-reasoned, but is nevertheless sure to be appealed by Mississippi officials unless they alter their litigation posture.
July 1, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0)
Friday, June 3, 2016
Republican Presidential Candidate Donald Trump has made news by charging that United States District Judge Gonzalo Curiel has “an absolute conflict” in presiding over the litigation about Trump University because Curiel is of Mexican heritage and Trump proclaims he is "building a wall" between the United States and Mexico: "It’s an inherent conflict of interest.” Trump's comments are reported in The Wall Street Journal here and The Washington Post (with video) here.
Recall the motions and eventual ruling regarding the federal district judge who heard the same-sex marriage trial, Perry v. Schwarzenegger; there was an argument he should be disqualified when he revealed he was gay. As the court stated, "The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself." Moreover, these allegations of bias usually seem to be leveled against persons who have not traditionally been members of the judiciary.
This is distinct from situations such as Caperton v. Massey Coal Co., a divided opinion in which the Court's majority held that the financial campaign contributions to an elected judge on the state's highest court mandated the judge's recusal as a matter of due process when the contributor was a litigant.
And it is distinct from the decision due this Term from the Court, Williams v. Pennsylvania, argued in February, in which the bias involves a justice on the state's highest court reviewing a habeas petition that includes allegations of prosecutorial misconduct when that justice happened to be the District Attorney.
The notion of an independent - - - and impartial - - - judiciary, whether state or federal, is fundamental, but where and how the lines should be drawn can be difficult. Chief Justice Roberts's dissenting opinion in Caperton illustrated the difficulties of line-drawing with 40 numbered issues (often containing multiple questions).
No one, however, seems to have argued that a litigant's beliefs, for example about Mexico, that have nothing to do with the actual matter of litigation, for example about alleged fraudulent practices at Trump University, could lead to a credible claim that of judicial bias because the judge happens to have Mexican heritage. If this were to be the rule, then some litigants with unsavory ideas would be able to claim bias against every judge.
Saturday, May 7, 2016
The continuing saga of the controversial Chief Justice of the Alabama Supreme Court, Justice Roy S. Moore, has taken another turn with a complaint against him filed by the Judicial Inquiry Commission of the State of Alabama, in the special Court of the Judiciary. [While the entire complaint is almost 300 pages, more than 250 pages are devoted to the 17 appendixes of supporting documents including opinions and letters].
As the complaint notes, this is not the first time that Justice Roy Moore has been before the Court of the Judiciary: the court removed him from office in 2003 for violation of the Alabama Canons of Judicial Ethics for failure to obey an injunction from a federal district court. (He was re-elected in 2013.) While that earlier controversy revolved around the placement of the Ten Commandments in the courthouse, the present one concerns Justice Moore's actions on same-sex marriage. As the complaint summarizes it, Chief Justice Moore's pertinent conduct "involves the interplay of four cases":
- Searcy v. Strange, before the federal district court, finding Alabama's same-sex marriage ban unconstitutional in January 2015;
- Strawser v. Strange, before the federal district court, reiterating the previous finding and making a direct order in February 2015, after the United States Supreme Court had refused to grant a stay of the earlier Order.
- Obergefell v. Hodges, decided by the United States Supreme Court and requiring states to grant same-sex marriages;
- Ex parte State ex rel Alabama Policy Institute (API) (March 2015), and the certificate of judgment and dismissal of petitions on March 4, 2016.
The complaint gives a good chronology of the various events which have been contentious. As we previously noted, the Southern Poverty Law Center filed a judicial ethics complaint after Chief Justice Moore penned a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order on same-sex marriage.
One of the more interesting aspects of the ethics charges is this:
On January 6, 2016—despite the United States Supreme Court's ruling in Obergefell, despite the United States District Court's injunction against all Alabama probate judges that specifically enjoined them from obeying any contrary order of the Alabama Supreme Court, and despite the Eleventh Circuit's October 20, 2015 order recognizing the abrogation of API by Obergefell—Chief Justice Moore, under the guise of his administrative authority as Chief Justice, unilaterally issued an Administrative Order to all probate judges that they continue to have a ministerial duty under API to enforce the Alabama marriage laws against same-sex couples. His Administrative Order states in part:
IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.
[paragraph 38]. In paragraph 3, the complaint stated "Significant to the context of this matter is that the vast majority of probate judges in this state are not licensed to practice law." However, the probate judges would be bound by the Canons of Judicial Ethics; the complaint alleges that Moore "flagrantly disregarded and abused his authority as chief administrative officer of Alabama's judicial branch by "ordering or appearing to order" the probate judges not to obey the federal district court's injunction and thus ordering the probate judges to commit violations of the Canons of Judicial Ethics "knowingly subjecting them to potential prosecution and removal from office."
Thus, it is not only Moore's own refusal to abide by federal interpretations of the United States Constitution, but his ordering of subordinates to do so that are included in the six specific charges against him, all of which involve alleged violations of Canons 1, 2, and 3 of the Alabama Canons of Judicial Ethics, which, broadly stated are:
- Canon 1. A judge should uphold the integrity and independence of the judiciary.
- Canon 2. A judge should avoid impropriety and the appearance of impropriety in all his activities.
- Canon 3. A judge should perform the duties of his office impartially and diligently.
Chief Justice Moore has reportedly been suspended, pending the decision of the Alabama Court of the Judiciary, which is composed of judges, lawyers, and lay persons, and has the power to remove the Justice. Interestingly, appeal from the Alabama Court of the Judiciary is to Supreme Court of Alabama.
May 7, 2016 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, State Constitutional Law, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)
Friday, April 22, 2016
Divided Second Circuit Upholds New York's "Maintain an Office" Requirement for Nonresident Attorneys
In the divided panel opinion in Schoenefeld v. Schneiderman, a Second Circuit panel majority upheld the constitutionality of a requirement that attorneys who practice law in New York but do not reside within the state be required to maintain an office in New York.
The statute, N.Y. Judiciary Law §470, provides:
A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.
Schoenefeld, admitted to practice in New York but who lived in New Jersey and maintained her main office in New Jersey, wished to practice law in New York without having the expense of a separate office in New York. She challenged §470 on several constitutional grounds. The district judge found that the statute violated the Privileges and Immunities Clause, Art. IV, §2, cl.1. The lack of clarity in the statute caused the Second Circuit on appeal to certify the question of the "minimum requirements" to satisfy §470 to New York's highest court. The New York Court of Appeals answered the certified question: §470 "requires nonresident attorneys to maintain a physical office in New York."
Writing for the Second Circuit panel majority, Judge Reena Raggi, who was joined by Judge Susan Carney, concluded that §470 had no discriminatory or protectionist purpose. Instead, §470 - - - with "its origins in an 1862 predecessor law" - - - was actually enacted to reverse a court ruling that had barred a nonresident attorney from practicing law at all given the difficulties of service of process. Despite changes and recodifications, the majority concluded that there was no showing that the current §470 was "being maintained for a protectionist purpose." Again, the majority found that §470 was enacted for "the nonprotectionist purpose of affording such attorneys a means to establish a physical presence in the state akin to that of resident attorneys, thereby eliminating a court‐identified service‐of‐process concern."
The majority relied in large part on the Supreme Court's unanimous 2013 decision in McBurney v. Young holding that a state can restrict its own freedom of information law, FOIA, to its own citizens without violating the Privileges and Immunities Clause.
In his vigorous dissenting opinion, Judge Peter Hall argued that the real import of §470 is that resident attorneys need not maintain an office while nonresident attorneys must maintain an office, thus discriminating. The next step in the analysis, Judge Hall contended, should be to consider the state's justification for such discrimination. Judge Hall distinguished McBurney based on the "simple reason that the Virginia FOIA is not an economic regulation, nor does it directly regulate the right to pursue a common calling." Hall's dissent criticized the majority for imposing a requirement of discriminatory intent as part of a prima facie case that would be appropriate under the Equal Protection Clause but is not under the Privileges and Immunities Clause. Moreover, Judge Hall concluded that New York's "proffered justifications for the in‐state office requirement— effectuating service of legal papers, facilitating regulatory oversight of nonresident attorneys’ fiduciary obligations, and making attorneys more accessible to New York’s courts—are plainly not sufficient."
Thus, New York can constitutionally compel attorneys who do not reside in New York to maintain a physical office in New York.
April 22, 2016 in Courts and Judging, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Recent Cases, Supreme Court (US) | Permalink | Comments (0)
Thursday, April 14, 2016
In its opinion in Vergara v. California today, the Court of Appeal for the Second Appellate District of California reversed the conclusion of Los Angeles Superior Court Judge Rolf Treu that the state tenure statutes for public school teachers violate the California Constitution's provisions on equal protection and provision of education. California's so-called teacher tenure statutes challenged in the action are provisions of California's Education Code governing teacher employment, including the permanent employment statute (§44929.21(b)); dismissal statutes (§§ 44934; 44938(b)(l) and (2) and 44944); and a seniority statute, "Last In First Out" or "LIFO" statute (§44955).
In a nutshell, the appellate court found:
Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.
The appellate court implied that the trial judge had misconstrued his constitutional task:
With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are “a good idea.” (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 388.) Additionally, our review is limited to the particular constitutional challenge that plaintiffs decided to bring. Plaintiffs brought a facial equal protection challenge, meaning they challenged the statutes themselves, not how the statutes are implemented in particular school districts. Since plaintiffs did not demonstrate that the statutes violate equal protection on their face, the judgment cannot be affirmed.
The appellate court's 36 page opinion contains a careful rehearsal of the evidence before the trial judge as well as a discussion of his opinion. In its own analysis, the appellate court considered the plaintiffs' original contentions that:
the challenged statutes create an oversupply of grossly ineffective teachers because (i) the tenure statute’s probationary period is too short, preventing the identification of grossly ineffective teachers before the mandated deadline for reelection; (ii) when grossly ineffective tenured teachers are identified, it is functionally impossible to terminate them under the overly burdensome and complicated dismissal statutes; and (iii) when reductions-in-force are required, the statute requires the termination of junior, competent teachers while more senior, grossly ineffective teachers keep their jobs only because they have seniority. Plaintiffs argued, and the trial court agreed, that two distinct classes of students—Group 1 (an “unlucky subset” of students within the population of students at large) and Group 2 (poor and minority students)—were denied equal protection because the challenged statutes led members of these groups to be assigned to grossly ineffective teachers.
The unanimous panel found that there was no "identifiable class" for equal protection purposes: the group of "unlucky students" who are allegedly harmed by being assigned to grossly ineffective teachers have only one defining characteristic - - - they are assigned to grossly ineffective teachers. As for the second group - - - identified as poor and minority students - - - the appellate court found that there was insufficient causation for a facial constitutional violation: "the statutes do not differentiate by any distinguishing characteristic, including race or wealth." While it is possible, the appellate court noted, that the plaintiffs could have shown that the implementation of the statutes inevitably resulted in "consequential assignment of disproportionately high numbers of grossly inefficient teachers to schools predominantly serving low-income and minority students," the plaintiffs here did not make such a showing.
While the appellate court recognized there were "deplorable staffing decisions made by some local administrators," this was not sufficient to support a facial challenge to teacher tenure statutes.
The appellate decision is much better reasoned than the trial judge's opinion, which derided the "uber due process" provided by the statutes and did not elaborate on the facts and evidence. It is likely to stand.
Monday, March 7, 2016
United States Supreme Court Reverses Alabama Supreme Court's Denial of Full Faith and Credit to Lesbian "Second-Parent" Adoption
In a brief and straightforward per curiam opinion today in V.L. v. E.L., the United States Supreme Court granted certiorari and reversed the Alabama Supreme Court's denial of full faith and credit to a Georgia adoption involving a lesbian couple.
As we discussed last September when the Alabama Supreme Court's opinion was rendered, it relied in large part on the dissenting opinion of a Georgia Supreme Court in a different case to support its conclusion that the Georgia courts did not have proper "jurisdiction" over the adoption.
The United States Supreme Court stated that the Alabama Supreme Court's "analysis is not consistent with this Court's controlling precedent." It continued:
Indeed, the Alabama Supreme Court’s reasoning would give jurisdictional status to every requirement of the Georgia statutes, since Georgia law indicates those requirements are all mandatory and must be strictly construed. That result would comport neither with Georgia law nor with common sense.
As Justice Holmes observed more than a century ago, “it sometimes may be difficult to decide whether certain words in a statute are directed to jurisdiction or to merits.” Fauntleroyv. Lum, 210 U. S. 230, 234–235 (1908). In such cases, especially where the Full Faith and Credit Clause is concerned, a court must be “slow to read ambiguous words, as meaning to leave the judgment open to dispute, or as intended to do more than fix the rule by which the court should decide.” Id., at 235. That time-honored rule controls here. The Georgia judgment appears on its face to have been issued by a court with jurisdiction, and there is no established Georgia law to the contrary. It follows that the Alabama Supreme Court erred in refusing to grant that judgment full faith and credit.
That the parties to the case are lesbians - - - "two women who were in a relationship" - - - is made apparent by the United States Supreme Court. This fact most likely figured largely in the Alabama Supreme Court's original majority ruling given the well-known hostility of its controversial chief justice to sexual minority rights. However, given Friday's odd dismissal of the same-sex marriage litigation by the Alabama Supreme Court and today's United States Supreme Court definitive and unanimous reversal, it seems as if the opinions of Alabama Supreme Court Justice Greg Shaw (pictured below), who dissented in E.L. as well as the earlier same-sex marriage opinions, has been vindicated.
Friday, January 15, 2016
New York State Appellate Court Rejects First Amendment Claim in Same-Sex Wedding Discrimination Case
In its opinion in Gifford v. McCarthy, an appellate court in New York upheld the decision of the State Division of Human Rights that the owners of Liberty Ridge Farm, a wedding venue, were guilty of an unlawful discriminatory practice based upon sexual orientation when they refused to provide services for a same-sex wedding. Writing for the unanimous five judge panel, Presiding Justice Karen Peters concluded that the venue was clearly a place of public accommodation within the anti-discrimination law and that discrimination based upon sexual orientation clearly occurred.
On the constitutional issues, Justice Peters found the arguments under both the First Amendment and New York's similar provisions without merit. Regarding the First Amendment Free Exercise of religion claim, Justice Peters concluded that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his [or her] religion prescribes (or proscribes)," citing Employment Div., Dept. of Human Resources of Ore. v Smith (1990). She noted that the "fact that some religious organizations and educational facilities are exempt from the [state] statute's public accommodation provision does not, as petitioners claim, demonstrate that it is not neutral or generally applicable."
Applying New York's Free Exercise provision under which the infringement is balanced against the state interests, and Justice Peters wrote:
While we recognize that the burden placed on the Giffords' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the Giffords' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination."
Thus the court rejected the free exercise claims. Similarly, the court rejected the free speech claims of compelled speech and free association. On compelled speech, Justice Peters' opinion for the court concluded that the provision of a wedding venue was not expressive:
Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would "broadcast to all who pass by the Farm" their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage. Like all other owners of public accommodations who provide services to the general public, the Giffords must comply with the statutory mandate prohibiting discrimination against customers on the basis of sexual orientation or any other protected characteristic. Under such circumstances, there is no real likelihood that the Giffords would be perceived as endorsing the values or lifestyle of the individuals renting their facilities as opposed to merely complying with anti-discrimination laws.
The court also held that Liberty Farms was not an "expressive association" but a business with the "purpose of making a profit through service contracts with customers." However, the court added that even if Liberty Ridge were to be deemed an expressive enterprise, "a customer's association with a business for the limited purposes of obtaining goods and services – as opposed to becoming part of the business itself – does not trigger" expressive association.
In upholding the application of the anti-discrimination law against First Amendment challenges, the New York appellate opinion joins other courts that have reached the same conclusion: the New Mexico courts in Elane Photography to which the United States Supreme Court denied certiorar and the Colorado courts in Masterpiece Cakeshop. The UK Supreme Court's decision in Bull v. Hall is also consistent with this trend. Nevertheless, the issue is far from settled and more decisions likely.
UPDATE: The owners of Liberty Ridge will reportedly not appeal.
January 15, 2016 in Association, Cases and Case Materials, Current Affairs, Family, First Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Religion, Speech, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1)
In its opinion in United States v. Swisher authored by Judge Sandra Ikuta, the en banc Ninth Circuit found that the provision in 18 USC §704(a) that criminalized the unauthorized wearing of any military medal violates the First Amendment. Swisher was photographed wearing "the Silver Star, Navy and Marine Corps Ribbon, Purple Heart, Navy and Marine Corps Commendation Medal with a Bronze “V,” and UMC Expeditionary Medal," none of which he ever received.
The Court's opinion occurs in the shadow of the United States Supreme Court's 2012 decision in United States v. Alvarez which held that 18 USC §704(b) - - - prohibiting false statements about military medals - - - violated the First Amendment. A panel of the Ninth Circuit had previously held in United States v. Perelman that Alvarez was not dispositive regarding §704(a) because wearing the medal was conduct rather than speech, akin to "impersonation" rather than expression. The en banc opinion in Swisher explicitly overruled Perelman "to the extent inconsistent with this opinion."
The en banc opinion in Swisher held that while wearing the medal may have been expressive conduct, the government's purpose in regulating that conduct was aimed at regulating the message conveyed by the expressive conduct rather than the conduct itself. Judge Ikuta's opinion interestingly relied upon the Court's decision last Term in Reed v. Town of Gilbert as "authoritative direction for differentiating between content-neutral and content-based enactments."
Thus, Judge Ikuta's opinion determined that the lenient standard of United States v. O'Brien for expressive conduct was not the correct analysis and instead the standard as articulated in Alvarez should apply. But what is the Alvarez standard, given that Justice Kennedy's opinion for a plurality applied an exacting scrutiny standard and Justice Breyer's concurring opinion applied more of an intermediate scrutiny test? The en banc Ninth Circuit adroitly circumvented the need to decide the United States Supreme Court's holding by beginning with Justice Breyer's "less demanding standard": consideration of the seriousness of the speech related harm the provision will likely cause; evaluating the nature and importance of the provision's countervailing objectives; and the extent to which the provision will tend to achieve those objectives and whether there are other, less restrictive means, of doing so." The en banc Ninth Circuit found that the criminalizing of inappropriately wearing military medals failed the intermediate Breyer standard and thus would obviously fail the stricter more exacting scrutiny standard of the plurality.
Not surprisingly Judge Bybee, who wrote a vigorous dissent in 2010 when a panel of the Ninth Circuit held the provision in Alvarez unconstitutional, dissented in Swisher, joined by Judges N.R. Smith and Watford.
The practical consequences of the Ninth Circuit's en banc opinion are marginal: the statute has already been amended and Swisher was also convicted on other provisions including fraud. However, the doctrinal consequences of the opinion include an important demonstration of an application of Alvarez and the even more important holding clarifying that "wearing" is not always mere conduct evaluated at the lowest levels of First Amendment scrutiny.