Thursday, October 17, 2013

Government to Disclose Eavesdropping, Sets up Challenge to FISA

The Department of Justice will tell a criminal defendant in coming weeks that evidence used against him derived from eavesdropping, The New York Times reports.  The disclosure--the first in a criminal case--will give the defendant standing to challenge the government's authority under the Foreign Intelligence Surveillance Act to conduct surveillance against non-U.S. persons outside the United States, even when they're communicating with people within the United States.

Recall that the Court ruled earlier this year in Clapper v. Amnesty International that human rights and media organizations and attorneys lacked standing to challenge Section 702 of the FISA, which authorizes the surveillance, because they couldn't show that they had been, or would be, targets of surveillance.  Solicitor General Donald Verrilli represented to the Court in the case that prosecutors tell defendants when they're using evidence derived from FISA surveillance.  In particular, he wrote in the government's opening brief in the case,

If the government intends to use or disclose any information obtained or derived from its acquisition of a person's communications under [FISA Section 702] in judicial or administrative proceedings against that person, it must provide advance notice of its intent to the tribunal and the person, whether or not the person was targeted for surveillance . . . .  That person may then challenge the use of that information in district court by challenging the lawfulness of the . . . acquisition.

Government's Opening Brief at 8 (emphasis added).

But this turns out to be false, according to the NYT.  The Times reports that SG Verrilli discovered that prosecutors weren't telling defendants, after all.  

The discovery came in the fallout of a speech by Senator Dianne Feinstein.  That speech, touting FISA, suggested that the government used FISA-derived communications successfully in several cases.  But when defendants in two of those cases pressed prosecutors, the prosecutors said that they didn't have to say whether they used FISA-derived communications.  

This prompted SG Verrilli to ask national security lawyers why nobody told him before he filed his brief (and made similar comments at oral argument).  Government lawyers then argued over whether they had to disclose, with SG Verrilli taking the position that do.  Verrilli's position apparently prevailed, and the government will disclose to a defendant in coming weeks.

The move will give standing to the defendant to challenge Section 702, notwithstanding Clapper.  That's because the defendant will be able to show, with certainty, that he was subject to FISA surveillance--something the Court said that the Clapper challengers couldn't do.  

But it's not clear whether prosecutors will disclose to already-convicted defendants who were convicted on FISA-derived communications, and, if so, what will happen in those cases.  It's not even clear how many of those defendants there are.

October 17, 2013 in Cases and Case Materials, Criminal Procedure, Fundamental Rights, News, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 8, 2013

Ninth Circuit Holds Haboring and Transporting Provision of SB1070 Unconstitutional

800px-Immigration_Reform_Leaders_Arrested_4Passed in 2010, Arizona's SB 1070 has been controversial since the beginning.  Recall that some portions of Arizona's attempt to control immigration and immigrants in SB 1070 reached the United States Supreme Court in Arizona v. United States, with a majority holding major portions of the state law were preempted by the federal statutory immigration law and thus invalid under the Constitution's Supremacy Clause, Article VI.  The Court, however, upheld section 2(B), perhaps the most controversial aspect, often known as the "show me your papers" provision.  

But preemption was not the only constitutional attack on SB1070; and these challenges are slowly but surely making their way to the Ninth Circuit.  In March, a panel of the Ninth Circuit rendered its opinion in Valle Del Sol v. Whiting and upheld District Judge Susan Bolton's preliminary injunction against enforcement of the day labor regulations of SB 1070 as violative of  the First Amendment. 

Today, the Ninth Circuit again rendered an opinion upholding Judge Bolton's preliminary injunction; and although the case is again styled Valle Del Sol v. Whiting, the provisions of SB 1070 at issue, codified as Arizona Revised Statutes §13-2929, are the ones that attempted to "criminalize the harboring and transporting of unauthorized aliens" within Arizona.

Authored for the panel by Judge Richard Paez, and joined by John T. Noonan, with a concurring opinion and minimal dissent by Judge Carlos Bea, the opinion devoted about 10 of its 45 pages to the issue of standing, concluding that there was both individual and organizational standing.

On the merits, the panel found a due process violation:

Section 13-2929 states that “[i]t is unlawful for a person who is in violation of a criminal offense” to knowingly or recklessly transport, conceal, harbor, or shield an unauthorized alien. We conclude that the phrase “in violation of a criminal offense” is unintelligible and therefore the statute is void for vagueness.

Interestingly, the footnote to this passage explains:

The plaintiffs did not originally raise this issue. But in order to address the plaintiffs’ preemption claim, we must first interpret the statute’s provisions. In attempting to do so, we are confronted with this incomprehensible element of § 13-2929. Thus, we resolve the vagueness issue because it is both “antecedent to . . . and ultimately dispositive of” the appeal before us.

The court stated that "Arizona makes no claim that 'in violation of a criminal offense' makes any sense as written." The panel rejected Arizona's arguments to "save" the statute's wording, stating that Arizona would have the court "replace a nonsensical statutory element with a different element" rather than engage in the more permissible approach of adopting a limiting construction.

The court then engaged with the preemption challenge, stating that even if it were to accept Arizona's proposed interpretation of the statute, the statute is also preempted by federal law, under the doctrines of field preemption and conflict preemption.  It was from this analysis that Judge Bea dissented, saying that because the case is "resolved  on other grounds, namely vagueness, I believe the court should not reach the preemption issue."

The mistake - - - carelessness? - - - in the drafting of this provision was a fatal flaw.  While the legislature could redraft legislation, as the court notes, perhaps the political will in Arizona for bills such as SB1070 has diminished.

October 8, 2013 in Due Process (Substantive), Federalism, Fourteenth Amendment, Interpretation, Preemption, Race, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 18, 2013

Sixth Circuit Rejects Secular For-Profit Company's Claim Challenging ACA Under RFRA

The Sixth Circuit's succinct and unanimous opinion in Autocam Corporation v. Sebelius sided with the Third Circuit's July opinion in Conestoga Wood Specialties and against the en banc Tenth Circuit's June majority opinion in Hobby Lobby on the issue of whether a for-profit secular business has a free exercise of religion right (as a person) under RFRA, the Religious Freedom Restoration Act.  There is some intertwining of the First Amendment free exercise of religion claim, but the Autocam decision rests on RFRA.

Autocam, like Conestoga Wood and Hobby Lobby, and its owners, argue that the regulations under the Patient Protection and Affordable Care Act of 2010 (“ACA”) requiring employers cover contraceptive methods for their employees - - - often called the contraceptive mandate - - - infringes on their religious rights.  Autocam, like the others, is a large corporation.  And a quick look at Autocam's "mission" on its website indicates no expression of a religious purpose, but only providing superior products. 

Autocam

 

The Sixth Circuit interestingly found that while Autocam as a corporation had standing to assert its claims, the Kennedy family as members (owners?) of a "closely held corporation" did not have shareholder standing:  "Generally, shareholders of a corporation cannot bring claims intended to redress injuries to a corporation, even when the corporation is closely held."  The Kennedys argued that this rule should not apply in RFRA claims, but the court found nothing in RFRA to support their view.  Further, the court rejected their claims they were individually harmed or that a "pass through" theory could be applied.

As to the merits of the corporation's assertion of personhood under RFRA, the court found that RFRA did not support such an interpretation, and moreover, "Reading the term “person” in the manner suggested by Autocam would lead to a significant expansion of the scope of the rights the Free Exercise Clause"  protected prior to Employment Division v.  Smith and the enactment of RFRA. 

By affirming the denial of the preliminary injunction by the district judge, the Sixth Circuit panel has entered the fray of a circuit split on the issue.   With its unamious opinion, it does tilt the "count" toward a nonrecognition of religious rights of secular for proft corporations (recall that the en banc Tenth Circuit opinion was closely divided and the Third Circuit panel opinion was also split; additionally earlier this month a senior district judge in the Tenth Circuit applied applied Hobby Lobby to a for-profit nursing home chain.)  However, the Sixth Circuit opinion adds little new to the analysis of this issue increasingly ripe for Supreme Court review.

September 18, 2013 in Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Medical Decisions, Opinion Analysis, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, August 30, 2013

ACLU, Government File Motions in NSA Call-Tracking Case

The ACLU earlier this week filed a motion for a preliminary injunction in ACLU v. Clapper, the case in the Southern District of New York challenging the NSA's mass collection of Americans' telephone data.  We most recently posted on the NSA program, in EFFs suit against it, here.

The ACLU argues that it has a substantial likelihood of success on its Fourth and First Amendment challenges to the NSA program.  The group also argues that the government exceeded its statutory authority under Section 215 of the Patriot Act in collecting telephony metadata.

At the same time, the government filed a motion to dismiss.  The government claims that the ACLU lacks standing (under Clapper v. Amnesty International), that Congress impliedly precluded judicial review of the NSA program, that the NSA program is authorized by Section 215 of the Patriot Act, and that the program doesn't violate the Fourth and First Amendments.

Standing will certainly be an important threshold issue in the case, especially after the Court's ruling in Amnesty International.  In that case, the Court ruled that a group of attorneys and organizations didn't have standing to challenge the FISA Amendments Act, which allowed the Attorney General and the DNI to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be outside the United States.  The Court said that the plaintiffs' alleged injury-in-fact was too speculative--that the plaintiffs couldn't show that they'd be targets of surveillance under this FISA authority, that the FISA court would necessarily approve the surveillance of them, or that the government would succeed in its surveillance of them. 

Here, in contrast, the ACLU alleged in its complaint that its telephone communications were and are monitored, that this monitoring would reveal privileged and sensitive information between the ACLU and its clients, and that the monitoring will likely have a chilling effect on the group's communications with clients.  In other words, the ACLU tried to navigate the Amnesty International barrier and show with more determinacy that it has suffered a sufficient injury in fact.

August 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, August 26, 2013

No Standing to Challenge U.S. Funding of Palestinian Authority

Judge Ellen Segal Huvelle (D.D.C.) ruled today in Bernstein v. Kerry that a group of Americans living in Israel lacked standing to challenge the U.S. government's funding of the Palestinian Authority.  Relying heavily on Clapper v. Amnesty International (2013), Judge Huvelle ruled that the plaintiffs' fear of terrorist attacks was not a sufficient injury, that it wasn't fairly traceable to U.S. funding of the Palestinian Authority, and that changing U.S. funding policies wouldn't necessarily reduce their fears.

The ruling means that the case is dismissed.  Judge Huvelle didn't rule on the government's political question defense or its its argument that the plaintiffs had no clear right to relief under the Mandamus Act, the basis for their suit.  

The plaintiffs argued that the government violated laws that barred the use of U.S. funds to support a Palestinian state unless the Secretary of State determined and certified to Congress that the Palestinian Authority and any governing entity of a new Palestinian state satisfied certain requirements to pursue regional peace and to counter terrorism and that funding was in the U.S. interest.  

Judge Huvelle held that the plaintiffs had no support for their view that "subjective emotional response to the possibility of an invasion of a legally-protected interest constitutes an injury-in-fact."  Op. at 6.  Indeed, she wrote that "a host of cases . . . hold the opposite."  Id. (quoting Clapper (a "subjective fear of surveillance does not give rise to standing")).  Judge Huvelle also held that the plaintiffs' "standing canot be based on plaintiffs' interest, common among all citizens, in the government following the law."  Op. at 8.

Judge Huvelle also held that the plaintiffs failed to show causation and redressability.

SDS

August 26, 2013 in Cases and Case Materials, Courts and Judging, Foreign Affairs, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0) | TrackBack (0)

Friday, August 2, 2013

No Standing for Nader in FEC Suit

The D.C. Circuit ruled today in Nader v. FEC that Ralph Nader lacked standing to sue to compel FEC enforcement against various organizations for violating election laws during their efforts to keep him off the presidential ballot in 2004.

Nader filed an administrative complaint with the FEC alleging that these organizations violated election laws in trying to keep him off the ballot.  The FEC dismissed the complaint, and Nader sued.  The district court granted summary judgment against Nader.  In its ruling today, the D.C. Circuit held that he lacked standing to sue.  

The court said that Nader lacked competitor standing, because he couldn't show that the FEC's determination injured his ability to fight the next election--becuase he didn't allege with certainty that he would actually run in the next election.  The court said that he lacked informational standing, because he wasn't seeking information "related to [his] informed participation in the political process."  Op. at 5.  Instead, he was seeking to force the FEC to "get the bad guys," op. at 5, and to support his on-going litigation growing out of the 2004 election.

SDS

August 2, 2013 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0) | TrackBack (0)

Friday, July 12, 2013

No Standing to Challenge None-of-the-Above Votes

The Ninth Circuit ruled this week in Townley v. Miller that plaintiffs lacked standing to challenge a Nevada law that allows voters to choose "None of these candidates," but does not count those votes in determining an election winner.

The ruling means that the case is dismissed and the challenge to the NOTC law goes away.  NOTC stays on the books in Nevada.  It's not obvious that the plaintiffs had any serious claim on the merits, anyway.

Nevada's NOTC law allows voters to register their preference for none-of-the-above by ticking the box for "none of these candidates" on an election ballot.  The state counts these votes and reports them, but it doesn't use them to determine the winner of the election.  Instead, these votes are treated as blank votes.  Their value is in publicizing the extent of voter discontent with the named options on the ballot.

Plaintiffs challenged that portion of the NOTC law that says that NOTC votes aren't counted in determining the winner of an election.  They said that this provision disenfranchises them--because it means that their NOTC votes don't count.

The Ninth Circuit dismissed the case, ruling that the plaintiffs lacked standing.  Seven of the plaintiffs didn't say in the complaint that they had or would vote NOTC, and the court concluded that they didn't assert a sufficient injury in fact.  Two plaintiffs said they would vote NOTC, but the court said that their case wouldn't redress their alleged harm.  Those two plaintiffs asked the court to strike the NOTC option from the ballot entirely, and not just to order the state to count NOTC votes.  The court said that this would only disenfranchise them more, not redress their claimed disenfranchisement.  The remaining plaintiffs alleged competitive standing--standing based on a candidate's or party's challenge to the inclusion of an ineligible rival on the ballot--but the court said that their injuries (if any) were not caused by the NOTC law and that their cases wouldn't redress any of their alleged injuries.  The problem was that these plaintiffs conceded the legality of the NOTC option on the ballot--"the voter option that would have a siphoning effect," op. at 16--and therefore failed to connect their injuries to their claim and requested relief.

SDS

July 12, 2013 in Cases and Case Materials, Elections and Voting, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 3, 2013

Fourth Circuit En Banc on Baltimore's Disclaimer Mandate for Limited-Service Pregnancy Centers

Baltimore_SealThe Fourth Circuit en banc today issued its opinion in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore reversing the district court's granting of a preliminary injunction against the ordinance requiring a limited-service pregnancy center "provide its clients and potential clients with a disclaimer substantially to the effect that the center does not provide or make referral for abortion or birth-control services."  Essentially, the city's concern is that certain pregnancy centers can be mistaken (or even masquerade as) reproductive medical centers but only offer specific counseling that women not terminate their pregnancies.

The challengers argued that the ordinance was facially unconstitutional under the First Amendment and the district judge granted summary judgment in their favor.  For the en banc majority, however, "the summary judgment decision was laden with error, in that the court denied the defendants essential discovery and otherwise disregarded basic rules of civil procedure." 

The majority opinion, authored by Judge King, in which Chief Judge Traxler and Judges Motz, Duncan, Keenan, Wynn, Floyd, and Thacker joined, stressed that its conclusion was procedural and that it did not express a view on the ultimate merits.  Nevertheless, as in most cases, the merits and procedural issues are intertwined.  For example, one of the crucial issues here is whether the speech being regulated is commercial or not.  As the majority stated,

The district court’s denial of discovery and failure to adhere to the summary judgment standard marred its assessment of, inter alia, the City’s contention that the Ordinance targets misleading commercial speech and thus is subject to rational basis (rather than strict) scrutiny. While the strict scrutiny standard generally applies to content-based regulations, including compelled speech, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-42 (1994), less-demanding standards apply where the speech at issue is commercial. Disclosure requirements aimed at misleading commercial speech need only survive rational basis scrutiny, by being “reasonably related to the State’s interest in preventing deception of consumers.” Zauderer v. Office of Disciplinary Counsel of the Supreme Court, 471 U.S. 626, 651 (1985) (explaining that, “because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception” (alterations and internal quotation marks omitted)); accord Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1339-40 (2010).

There are two dissenting opinions.  The first, by Judge Wilkinson, derides the majority for failing to acknowledge "the dangers of state-compelled speech."  He notes that the Supreme Court "only recently reiterated" the importance of the doctrine in Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., the prostitution pledge case.  Wilkinson accuses the majority of being enchanted with "extended procedures" and argues that it only authorizes a "fishing expedition" against the plaintiffs.  The second dissent, authored by Judge Niemeyer, and joined by Judges Shedd, and Agee, as well as Wilkinson, contends that the ordinance governs noncommercial speech, mandates specific speech, and should be subject to strict scrutiny. 

The judges did agree - - - amongst themselves and with the district judge - - - that St. Brigid’s Roman Catholic Congregation Incorporated and Archbishop William E. Lori lacked standing to be co-plaintiffs, but this issue is a divisive one.  Indeed, there is an overdue Second Circuit panel opinion in the appeal of a district judge's conclusion that NYC's similar Local Law 17 was unconstitutional

Moreover, the First Amendment challenges to pregnancy center "disclosures" as compelled speech mirror the First Amendment challenges to abortion provider "disclosures" as compelled speech, as in statutes from Kansas and South Dakota.  The government's interest in preventing "misleading" speech or in providing full disclosure is exceedingly similar in both situations.

For scholars (including student scholars) looking for a terrific topic combining the First Amendment and reproductive rights, theses cases offer much.

RR

 

July 3, 2013 in Abortion, Courts and Judging, Family, Federalism, First Amendment, Interpretation, Opinion Analysis, Sexuality, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 2, 2013

What if Supreme Court Opinions Were Anonymous?

Last Term's opinions - - - especially its opinions regarding the constitutionality of the VRA in Shelby, of DOMA and Prop 8 in Windsor and Perry, and of UT's affirmative action plan in Fisher - - - continue to spark debate and commentary.  As well they should.  But much of our discussions focus on individual Justices:  Is Justice Kennedy the "first gay Justice?"   Is Justice Alito really rude?   Is Chief Justice Roberts playing a "long game?"  And what about the tumblr "Notorious R.B.G.?  Or @SCOTUS_Scalia, a twitter account?  

DonkeyHoteySCOTUS
 
  

In their 2010 law review article, Judicial Duty and the Supreme Court’s Cult of Celebrity, available on ssrn, Craig Lerner and Nelson Lund observed that there was a huge dissonance between the personality portrayed in confirmation hearings and the outsized personality on the bench and suggested four Congressional reforms.  Their first proposal: 

Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.

They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."

Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals.  Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge.  Although who would have standing?  And what about recusal?

 RR

 [image DonkeyHotey via]

July 2, 2013 in Affirmative Action, Cases and Case Materials, Congressional Authority, Courts and Judging, Current Affairs, Elections and Voting, Equal Protection, Gender, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Friday, June 28, 2013

Ninth Circuit Dissolves Stay in Prop 8 After Supreme Court's Decision in Perry

In a one line order in Perry v. Hollingsworth, the Ninth Circuit Perry panel has lifted its stay of District Judge Walker's 2010 opinion holding Proposition 8 unconstitutional. 

800px-Prop8templeProtest

The order provides in full:

The stay in the above matter is dissolved effective immediately.

Thus, as we discussed here, it looks as if Proposition 8 is unconstitutional in California and same-sex marriages are valid.

RR
[image via]

June 28, 2013 in Cases and Case Materials, Courts and Judging, Equal Protection, Family, Sexual Orientation, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 26, 2013

Court Decides Same Sex Marriage Cases: DOMA (Windsor) and Proposition 8 (Perry)

The Court decided both cases presenting the issue of the constitutionality of bans on same-sex marriage.

In the DOMA - - - Defense of Marriage Act - - - case,  the Court's  5-4 opinion by Justice Kennedy in United States v. Windsor, argued in March, affirmed the Second Circuit's finding  that section 3 of  DOMA is unconstitutional.

In its relatively brief opinion (26 pages), the majority first found that BLAG, the Bipartisan Legal Advisory Group of the House of Representatives, had sufficient status to confer standing, or at least the case provided "sufficient adversarial presentation for the Court to decide to get to the merits."   Recall that BLAG formed to defend the statute  after the Obama Administration decided not to defend the constitutionality of DOMA in February, 2011  and that the Court appointed ConLawProf Vicki Jackson to brief and argue BLAG's standing.  Dissenting, Justice Scalia argued that the standing and merits decisions by the Court "both spring from the same diseased root: an exalted notion of the role of this court in American democratic society," not referencing his position in yesterday's decision in Shelby County v. Holder holding a different act of Congress unconstitutional. 

On the merits and holding section 3 of DOMA unconstitutional, Kennedy articulates the federalism rationales so central to the First Circuit's holding that DOMA was unconstitutional.

The opinion then reaches the equal protection issue (under the Fifth Amendment given that DOMA is a federal statute) and concludes:

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

Importantly, the decision seems to be applying rational basis review, although it does little to provide a clear analytic framework or solve problematics of rational basis review. Indeed, it introduces a notion of "careful consideration" which is certainly not strict scrutiny, but likewise eschews the intermediate scrutiny favored by the Second Circuit's decision in Windsor  and seems to apply to the "animus" aspect of rational basis with "bite."

In the Proposition 8 case, Hollingsworth v. Perry, also argued in March, and also reltively brief at 17 pages, the Court's opinion by Chief Justice Roberts and joined by - - - Scalia, Ginsburg, Breyer and Kagan  - - - held that there was no standing for the "proponents" to appeal and thus vacates the Ninth Circuit panel opinion that held Proposition 8 unconstitutional.   The Ninth Circuit, in a careful opinion, had affirmed the opinion of Judge Vaughn Walker who presided over an extensive trial in federal district court, after which he held Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause.  (Recall that Judge Walker's own sexuality became an issue in the case, but both a district judge and the Ninth Circuit rejected claims of bias).   Although the case attracted much scholarly attention, many commentators believed that standing was problematic.

The Court concluded:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

The dissenting Justices - - - Kennedy, Thomas, Alito, and Sotomayor - - - credited the California Supreme Court's opinion on standing (answering the certified query from the Ninth Circuit) and Kennedy's dissenting opinion noted that the initiative process made the "proponents" not mere private parties:

In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century.

The dissenters also noted the "irony" in the majority's position: "A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference is to lose the case."

The familiar liberal/conservative split of Justices is not apparent in Perry, since the issue os resolved on standing, but dominates Windsor.  Yet in both cases, sharp disagreements about the democratic process are apparent.

RR

June 26, 2013 in Equal Protection, Family, Fifth Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 24, 2013

Utility Group Lacks Standing to Intervene to Stop EPA Clean Water Rulemaking

A three-judge panel of the D.C. Circuit ruled this week in Defenders of Wildlife v. Perciasepe that a utility industry group lacked Article III standing to intervene in a case brought by Defenders against EPA in which the parties entered into a consent decree establishing a schedule for EPA to initiate notice-and-comment rulemaking on certain effluent limitations and effluent limitations guidelines.  

The ruling means that the EPA will move forward with notice-and-comment rulemaking pursuant to the consent decree, and that the utility group's challenge is dismissed.

The case arose when Defenders and the Sierra Club reached an agreement with the EPA to establish a schedule for notice-and-comment rulemaking to review and possibly rewrite Steam Electric effluent limitations and effluent limitations guidelines under the Clean Water Act.  Defenders filed suit and simultaneously filed a consent decree.  Eight days later, the Utility Water Act Group, or UWAG, an association of energy companies, moved to intervene (in opposition to the consent decree).  The district court denied the motion, and UWAG appealed.

The D.C. Circuit ruled that UWAG lacked standing, a requirement for intervention.  The court first held that UWAG didn't assert a procedural injury.  In particular, UWAG didn't have any claim that it should be "subject to such rulemaking only to the extent the statute commands it or authorizes EPA, in its informed discretion, to undertake it," because UWAG didn't identify a statutory procedure that the consent decree required EPA to violate.  Moreover, UWAG didn't have a procedural injury flowing from the consent decree's short notice-and-comment schedule: UWAG couldn't cite any authority that the 13-month schedule was too short.

The court next said that the consent decree didn't require EPA to promulgate new rules.  Instead, the decree simply required EPA to conduct a rulemaking and then decide whether to issue a new rule.  The court held that this wasn't enough to meet the imminent harm requirement for standing.

Assuming no successful appeal, the next step is for EPA to start its notice-and-comment procedure pursuant to the consent decree.

SDS

April 24, 2013 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, April 18, 2013

Bradley Manning's "Secret" Trial

In its sharply divided opinion in Center for Constitutional Rights v. United States, the United States Court of Appeals for the Armed Forces rejected a claim that of public access to the trial and documents regarding the Bradley Manning court martial.

We've previously discussed the contentious Bradley Manning prosecution here, here, here, here, and here.

In this case, the appellants - - Center for Constitutional Rights, Glenn Greenwald, “Salon.com,” Jeremy Scahill, “The Nation,” Amy Goodman, “Democracy Now!,” Chase Madar, Kevin Gosztola, Julian Assange, and Wikileaks - - - sought press access.  The three-judge majority noted that the court "invited counsel for the accused to file a brief on the issues but they declined to do so."  It concluded that the court did not have the "jurisdiction" to grant the relief requested.

 

Bradley Manning
Bradley Manning reading his plea statement in court, sketched by Clark Stoeckley via

 

The two dissenting opinions - - - each judge authoring an opinion that the other joined - - - reject the majority's disinclination to assert its own power.

A dissenting opinion, by Chief Judge Baker joined by Senior Judge Cox, begins by centering the First Amendment concerns:

The general public has a qualified constitutional right of access to criminal trials. Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555 (1980) (plurality opinion). Public access to a criminal trial includes appropriate access to filings. Nixon v. Warner Commc’ns , Inc. , 435 U.S. 589 , 597 (1978) . “Congress intended that, to the extent ‘practicable,’ trial by court - martial should resemble a criminal trial in a federal district court.” United States v. Valigura , 54 M.J. 187, 191 (C.A.A.F . 2000). The right to a public trial is embedded in Rule for Court’s - Martial (R.C.M.) 806, which provides that “ [e]xcept as otherwise provided in this rule, courts - martial shall be open to the public.”

Judge Baker's opinion stops short of concluding that there should be press access to the proceedings and documents, but does conclude that the court should determine the specific contours of the First Amendment right.   

Judge Cox's dissenting opinion, joined by Baker, emphasized the court's role to assist the military trial judge, noting that the military judges " are in a better position to do that than is a federal district judge to solve the issues presented."

Thus, it seems as if it will continue to be difficult to determine what is happening in the court martial of Bradley Manning.

RR

April 18, 2013 in Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis, Standing, State Secrets | Permalink | Comments (0) | TrackBack (0)

Friday, March 29, 2013

Daily Read: The Humor in the Prop 8 Perry Arguments

There's a wonderful "reprise" of the arguments in Hollingsworth v. Perry is available at Courtney Milan's Tumblr.

 

KennedybyDonkeyHotey
Justice Kennedy Caricature by DonkeyHotey
Milan, now an author of historical romance fiction, once a law prof, hits precisely the right tones for those already acquainted with the material.  Here's a bit from Milan's "truncated transcript":

 

 

SOTOMAYOR: So let me ask a real question. If marriage is a fundamental right, is the state ever allowed to limit it?

OLSON: Er…yes?

KENNEDY: Enough about gays and lesbians. Can we talk about me for a minute? Because I feel a little uncomfortable with this discussion. In fact, I’m kind of feeling like taking my swing-voting ball and going home. Who wants to dig the case?

[note: dig=acronym for Dismissed as Improvidently Granted]

OLSON: Uh. Kinda staggered here. You want to dig the case? We…we spent weeks preparing for this, the entire country is watching, millions of people could have their lives changed, and you want to dig the case?

KENNEDY: I’m just saying. Oh, Olson, you’re all out of time. Nice ending note, though.

 

Worth a read in its entirety.

RR
[h/t Darren Rosenblum]

March 29, 2013 in Courts and Judging, Current Affairs, Family, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Wednesday, March 27, 2013

United States v. Windsor, DOMA Challenge Argued in United States Supreme Court

In the second of the same-sex marriage cases, after yesterday's Proposition 8 argument, the Court heard oral argument today in  United States v. Windsor, a grant of certiorari to the Second Circuit opinion holding DOMA unconstitutional and applying intermediate scrutiny to sexual orientation classifications.

Edie WindsorThe audio is here:

12-307


Edith Windsor (pictured) argues that DOMA - - - the Defense of Marriage Act - - -violates the equal protection component of the Fifth Amendment.  Recall DOMA is not being defended by the Obama Administration, but by BLAG - the Bipartisan Legal Advisory Group - - - at taxpayer expense which reportedly topped $3 million even before today's arguments. 

The extended two hour session had several attorneys arguing: LawProf Vicki Jackson, Court-appointed as amicus on the standing issue; Sri Srinivasan, Deputy Solictor General (supporting Windsor on the standing issue); Paul D. Clement on behalf of BLAG; Solicitor General Donald B. Verrilli (supporting Windsor); and Roberta A. Kaplan on Behalf of Windsor.

On the standing issue:

Similar to the Proposition 8 case argued yesterday, the fact that the government is not defending the constitutionality of the law raises a quetions about the Court's power under Article III to decide the issues.

Justice Kagan asked one of the most trenchant questions regarding standing and injury, especially given the Obama Administration's stated belief that DOMA is unconstitutional:

The Government is willing to pay that $300,000, would be happy to pay that $300,000, but whether the Government is happy or sad to pay that $300,000, the Government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury. Why isn't it here?

But Jackson answered that the federal government had not asked the Court to remedy that injury and that the Article III "case or controversy" requirement is "nested in an adversarial system." 

Throughout the arguments on standing there was a search for the most controlling precedent - - - with Justice Roberts' asking "is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction?
 Any case?"  The general consensus seemed to be that Windsor was distinct from the most similar case, INS v.Chadha decided in 1983. (Chadha involved the legislative veto and produced a very fractured set of opinions on the merits).  Justice Scalia had some barbs to throw at the present administration, contrasting it to when he was at the Office of Legal Counsel. 

 On the merits:

The challenge to DOMA is under the equal protection component of the Fifth Amendment, with the Solicitor General  arguing that the standard to be applied is intermediate scrutiny and Kaplan arguing that DOMA failed even rational basis scrutiny.  Yet the equal protection arguments were embroiled with the federalism and Congressional power to pass DOMA; Justice Kennedy stated that the federalism and equal protection issues were "intertwined."  [A good example this intertwinement occurred in the First Circuit opinion that held DOMA unconstitutional.]

For Solicitor General Verrilli, the intertwinement aspect was a cause of consternation and undercut his argument yesterday in the Proposition 8 case that even a state law denying same-sex marriage violated equal protection and that the correct standard was intermediate scrutiny as the Second Circuit held. 

The consistency principle of equal protection doctrine - - - that the same standard should apply no matter what classification was benefitted or burdened - - - was also a focus, with hypotheticals about the standard should Congress decide that it would provide federal benefits to same-sex couples even if the state did not recognize their marriages. [The question of who would have standing to challenge such a law did not arise]. 

Justice Roberts repeatedly brought up the question of animus as part of a rationality with bite inquiry, asking at least twice whether the 84 Senators who voted for DOMA and the President [Clinton] were motivated by animus.  Justice Roberts also raised the question of political powerlessness, often an inquiry in determining the level of equal protection scrutiny. Roberts echoed an opinion expressed by Justice Scalia in earlier cases that sexual minorities were anything but politically powerless when he told Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."

Justice Ginsburg probably uttered the most memorable quote of the day's arguments.  In her questioning of Paul Clement, who represented BLAG, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage."   Her remark would be even more noteworthy for people who recall that the scrutiny standard is often traced to the famous footnote 4 in Carolene Products, a case about - - - milk.

RR
[image via]

March 27, 2013 in Courts and Judging, Current Affairs, Equal Protection, Federalism, Fifth Amendment, Oral Argument Analysis, Standing | Permalink | Comments (1) | TrackBack (0)

Monday, March 11, 2013

Daily Read: Symposium Issue on Perry from NYU Review of Law & Social Change

Debuting on line today is volume 37:1 of the NYU Review of Law & Social Change, a symposium issue dedicated to Perry v. Brown, now Hollingsworth v. Perry that is scheduled to be heard by the United States Supreme Court in 15 days.

According to the Introduction, the Symposium editors sought to present the issue as a "time capsule," filled with "leading and emerging voices in the LGBTQ movement" as well as other scholars, "reflecting on Perry before the Court has its final say, before anyone gets the benefit of 20/20 hindsight."  The comments were "first drafted before the Court had even granted certiorari" on the premise that Perry was already an important case.

The Symposium participants were asked to address three queries.  Here are the questions and the participants:

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The Symposium will also be available as a print issue, but meanwhile having its full contents available before the arguments makes it more valuable as a daily - - - or weekly - - - read.

RR

March 11, 2013 in Family, Fundamental Rights, Gender, Race, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 26, 2013

No Standing to Challenge FISA Amendments on Domestic Surveillance, Supreme Court Holds

236px-EyeglassesdesignIn a 5-4 opinion this morning in Clapper v. Amnesty International USA, the Supreme Court rejected the standing of Amnesty International to challenge domestic surveillance under FISA, the Foreign Intelligence Surveillance Act of 1978 and its amendments, often called FAA (FISA Authorization Amendments).

The ruling puts an end to this challenge to the government's surveillance authority under FISA and ups the ante for any future challenge.  The case says that a plaintiff can't bring a challenge by merely alleging likely surveillance; instead, a person has to show literal "certainly impending" surveillance or actual surveillance.  Either way, the case is very tough.  The problem is that a targeted individual has a real hard time showing that they will be or were subject to FISA surveillance--because it's secret.  That's the whole point.  But the Court said that the ruling doesn't completely insulate FISA from challenge: a person could challenge it after information obtained from surveillance leads to judicial or administrative proceedings; and an electronic communications service provider could challenge a government directive to assist in FISA-authorized surveillance.  Still, even if today's ruling preserves those potential challenges, it almost certainly forecloses any pre-surveillance challenge by a target.

Recall that the Second Circuit held that Amnesty and the other organizations did have standing under Article III.  The unanimous panel rejected the government's contentions that the challengers fears were speculative, writing that "importantly both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur."

The Supreme Court reversed.  In an opinion by Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas), the Court wrote that the plaintiffs' claimed injuries were simply too speculative--at each link in the chain:

  • First, it's too speculative whether the government will imminently target communications to which the plaintiffs are parties (especially because the plaintiffs have no actual knowledge of the government's targeting practices under the FISA);
  • But even if, it's too speculative whether the government would use its FISA authority (as opposed to some other surveillance authority) to listen in on the plaintiffs' communications;
  • But even if, it's too speculative whether the FISA court would authorize surveillance on the plaintiffs; and
  • Finally even if, it's too speculative whether the government would succeed in surveillance under this authority.

The Court also rejected the plaintiffs' claim that they suffered harm because they already took measures to protect themselves against surveillance.  The Court said that plaintiffs can't sidestep the "imminent harm" requirement for standing (which they did not meet, as above) by claiming that they took steps to avoid a possible harm.

Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan.  Justice Breyer wrote that "there is a very high likelihood that Government, acting under the authority of [FISA], will intercept at least some of the [plaintiffs' communications.]"  Dissent at 6 (emphasis in original).  That's because the plaintiffs engage in communications that the government is authorized to intercept, there are strong motives to intercept, the government has intercepted similar communications in the past, and the government has the capacity to intercept.  Justice Breyer wrote that this "very high likelihood" is enough: the Court has never used the requirement for "certainly impending" harm according to its literal definition; instead, the Court's used this language more flexibly.

It's not clear whether the Court's ruling necessarily signals a tightening of standing requirements outside this unique context--a challenge to a government action, when, because of the very nature of the action, the target can't know with certainty that he or she has been subject to the government action.  Justice Breyer discusses Court cases (at length), including relatively recent cases, that employ a more flexible imminence requirement.  The Court did nothing to question the continued vitality of those cases.  Indeed, in footnote 5, page 16, Justice Alito wrote that to the extent that a "substantial risk" standard is different than a "clearly impending" standing for the imminence requirement, the plaintiffs here didn't meet either.

RR and SDS

[image via]

February 26, 2013 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, February 14, 2013

Daily Read: Dworkin on Winn and Bennett (and more)

Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad."  The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.

Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.

Dworkin's article is worth a (re)read.

For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?"  Dworkin wrote:

We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.

And for those interested in the Court's current docket, Dworkin's post-oral argument analysis of Fisher v. UT is a must-read.

Dworkin's voice will be missed.

RR

February 14, 2013 in Affirmative Action, Campaign Finance, Cases and Case Materials, Current Affairs, First Amendment, Religion, Speech, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Friday, January 25, 2013

Daily Read: Vicki Jackson on BLAG's Lack of Standing in Windsor, the DOMA Case

Jackson_VickiIn her amicus brief in United States v Windsor, submitted at the request of the United States Supreme Court, ConLawProf Vicki Jackson (pictured) vigorously argues that BLAG lacks Article III standing.  (For our previous discussions of standing in the DOMA and Prop 8 cases this week, see here and here).

Jackson explains that after Attorney General Holder notified Congress that the Executive would no longer enforce DOMA given its conclusion that the statute was unconstitutional,

the Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”) voted 3-2 to intervene in the litigation to defend the constitutionality of  DOMA.  As its title suggests, BLAG is an “[a]dvisory” body, that is to be “consult[ed]” by the Speaker of the House, who gives “direction” to the General Counsel of the House, according to Rule II.8 of the Rules of the U.S. House of Representatives during all periods of this litigation. 

[citations omitted].  The brief contends:

BLAG lacks standing for at least three reasons. First, BLAG has suffered no injury to a legally cognizable interest beyond the diffuse, generalized interests of all citizens that duly enacted and constitutional laws be enforced; no special prerogatives of BLAG, the House or Congress are threatened. Second, if there were any distinct legislative injury arising from the Executive Branch’s refusal to defend the constitutionality of this statute, that injury would afflict the Congress as a whole. A single house (or part thereof) does not have standing to assert that interest, and the Senate has not intervened. Third, BLAG is not the House, but an “[a]dvisory” body that lacked authority to represent the House when it moved to intervene, noticed its appeal to the Second Circuit, and petitioned this Court for certiorari.

Central to Jackson's argument is INS v. Chadha (1983).   She stresses that Chadha concluded that  “Congress [was] a proper party to defend [a] measure’s validity where both Houses, by resolution, had authorized intervention in the lawsuit,” and distinguishing the status of intervention in Windsor.  Additionally, Jackson analogizes to the primary holding in Chadha on the merits:

In Chadha, this Court emphasized that, when a house of Congress acts, it presumptively acts in a legislative capacity, that is, with “the purpose and effect of altering the legal rights, duties, and relations of persons *** outside the Legislative Branch.”  If BLAG’s intervention was a legislative act, it was plainly not done through the bicameralism and presentment procedure required for such acts. If, on the other hand, BLAG’s action was not a “legislative” act, it is hard to square with Chadha’s observation that, “when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action.”

[citations omitted].

The entire amicus brief casts considerable doubt on the status of BLAG as a proper party before the United States Supreme Court.  It is worth a read!

RR

January 25, 2013 in Congressional Authority, Sexual Orientation, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, January 24, 2013

Daily Read: Goldberg on Article III Standing in Prop 8 and DOMA Cases

Suzanne Goldberg (pictured) argues that the proponents of Prop 8 and BLAG supporting DOMA have serious standing problems in her piece Article III Double-Dipping: Proposition 8’s Proponents, BLAG, and the Goldberg_Suzanne_68x91Government’s Interest, available in draft on ssrn.

Recall yesterday we recommended Marty Lederman's extensive discussion of the Article III standing issues in Hollingsworth v. Perry (Perry v. Brown, "the Prop 8 case") and  United States v Windsor ("the DOMA case"), it directed the parties to brief and argue the issues of Article III standing. This question of standing arises because both California, initially under Governor Schwarzenegger, then Governor Brown, and the United States, under the Obama Administration, have concluded that the constitutionality of the laws should not be defended (given their conclusion that the laws were unconstitutional).  In the case of Prop 8, the trial proceeded with the intervenors, who lost.  In the case of DOMA, the statute was defended by BLAG, the Bipartisan Legal Advisory Group of the United States House of Representatives, losing in the District Court and again at the Second Circuit.

Professor Goldberg contends that the Prop 8 proponents and BLAG are in a "Janus-faced" position:  they purport to derive their Article III standing by asserting the governments’ interest in defending the challenged marriage laws, even as the governments in both cases, via their chief legal officers, have taken the position that excluding same-sex couples from marriage is unconstitutional.  She argues that this inconsistency renders the concept of the government interest incoherent for Article III standing purposes. She further argues that the Prop 8 proponents and BLAG lack a direct stake in the litigation because they lack enforcement powers.  If the Court were to reach the merits, it would essentially be issuing an advisory opinion.

Goldberg's essay is worth a read as a cogent argument for the lack of standing.

RR

 

January 24, 2013 in Scholarship, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)