Friday, February 17, 2012
A broad statute banning persons convicted of certain sex offenses from accessing "social media" has been held unconstitutionally overbroad under the First Amendment in Doe v. Jindal, by Judge Brian Jackson, Chief Judge of the Middle District of Louisiana.
Louisiana Revised Statute §14:91.5, passed in 2011, provides that the "using or accessing of social networking websites, chat rooms, and peer-to-peer networks by a person who is required to register as a sex offender and who was previously convicted" of specified crimes involving minors. The penalties are severe:
(1) Whoever commits the crime of unlawful use or access of social media shall, upon a first conviction, be fined not more than ten thousand dollars and shall be imprisoned with hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence.
(2) Whoever commits the crime of unlawful use or access of social media, upon a second or subsequent conviction, shall be fined not more than twenty thousand dollars and shall be imprisoned with hard labor for not less than five years nor more than twenty years without benefit of parole, probation, or suspension of sentence.
The federal judge first found that John Doe and James Doe had standing to challenge the act. In construing the overbreadth challenge under the First Amendment, the judge looked to the Court's recent pronouncements in US v. Stevens, and similarly found that the statutory ban reached a substantial number of unconstitutional applications. The judge noted that the statute reached many commonly read news and information sites and interpreted the offense to be completed once a user accessed the website, whether intentionally or by mistake. The judge found the definition of "chat room" particularly problematic, as its ban would reach "the website for this Court."
While the state's interest in protecting children was undoubtedly "legitimate," the statute was not sufficiently precise or narrow.
As Louisiana officials consider an appeal to the Fifth Circuit, the legislature might also consider statutory revision.
[image: "Facebook man" via]
Tuesday, February 7, 2012
The Ninth Circuit panel has rendered its opinion in Perry v. Brown, on the constitutionality of California's Proposition 8 that prohibited same-sex marriage, affirming 2-1 Judge Vaugn Walker's extensive opinion based on the trial (our recap here) the videotapes of which will not be released as the Ninth Circuit ruled recently.
The Ninth Circuit Judges on panel, Stephen Reinhardt (middle), NR (Randy) Smith (right, and Michael Hawkins (left) disagreed on the major constitutional issue.
The panel was unanimous that the proponents had standing and that Judge Walker's opinion should not be vacated on the basis of his sexuality. The majority opinion, authored by Reinhardt concluded that Proposition 8 was unconstitutional. Judge Smith, dissented as to the constitutionality of Proposition 8, arguing that it was rationally related to a legitimate government interest.
MORE ANALYSIS HERE.
Wednesday, February 1, 2012
In what the First Circuit calls the "second chapter" of challenges to the constitutionality of Maine's registration and disclosure laws regarding election-related advocacy, the court in National Organization for Marriage [NOM] v. McKee, essentially reaffirms its opinion last August in a case by the same name (and now to be known as NOM I). The cases stem from the hard-fought same-sex marriage ballot initiative in Maine in 2009. NOM II involves both NOM and American Principles in Action [APIA], although the court expressed doubt regarding APIA's standing as to some of the claims, and the principle arguments revolve around NOM.
The unanimous panel decision, authored by Judge Kermit Lipez, focuses on the "only substantively distinct issue" raised by this appeal as contrasted to NOM I: the constitutionality of the definition of "contribution" in the "ballot question committee" [BQC] provision, Me. Rev. Stat. tit. 21-A, §1056-B. The court concludes that the BQC provision, like the PAC provision at issue in NOM I survives the constitutional challenge.
The court quickly disposed of the First Amendment claims, on the basis of NOM I, but paid more attention to the assertion that the term "contribution" was unconstitutionally vague as a matter of due process, and that any reliance on subjective beliefs of a contributor were likewise void for vagueness. At issue were email communications such as:
"You can fight back! Can you help defend marriage in Maine and across the country, by donating $5, $10, or even, if God has given you the means, $100 or $500?"
The panel found that Maine can constitutionally require parties to determine whether or not a "reasonable listener would understand their advocacy as an invitation to contribute to a specific ballot question campaign"- - - such as that in Maine - - - based upon the specific earmarking words of the solicitor, in this case NOM.
The court engaged in such reasoning after specifically faulting the appellants' attorneys for poor lawyering in terms of the as-applied challenges:
Appellants, however, do not address in their brief the vagueness problem with respect to donations received following any specific communication they distributed or proposed. Rather, they assert in conclusory language that subsections B and C of section 1056-B "are unconstitutionally vague as applied to most of Plaintiffs' speech." They make glancing reference to the content of the emails, noting that "some of NOM's solicitations mentioned Maine," and query whether, as a result of those mentions, donors' knowledge of the Maine ballot measure would be enough to make their donations covered "contributions" and NOM a BQC. They do not explain why they were unable, or would be unable, to link particular contributions received to their advocacy efforts on the Maine referendum, focusing their arguments instead on the language of the statute generally.
Thus, appellants are not only unable to bring a facial vagueness challenge to section 1056-B, but their failure to develop their as-applied challenges also would allow us to reject those claims summarily if we were so inclined. [citations omitted]. Given the importance of the issues raised, however, and the resources expended by all parties in this extensive litigation, we choose to explain why their vagueness contentions would in any event be substantially, if not entirely, unavailing. [citations omitted].
As the panel succinctly stated, it saw "no constitutional problem with expecting entities like appellants to make pragmatic, objective judgments about the nature of the contributions they receive where their own conduct and communications are the primary elements in the determination."
While NOM's attorney has reportedly vowed to take the case to the United States Supreme Court, there seems to be little here that would merit a grant of a writ of certiorari.
However, with the same-sex marriage issuepossibly again on the ballot in Maine in 2012, there may certainly be more litigation.
February 1, 2012 in Campaign Finance, Due Process (Substantive), Elections and Voting, First Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
Sunday, January 15, 2012
Republican Presidential Candidate Rick Perry has appealed from the district court's order denying his First Amendment claim for a preliminary injunction.
In the emergency motion for injunction pending appeal, Perry's attorneys argue that the requirements for laches - - - lack of diligence by plaintiff and prejudice to defendant - - - were not satisfied.
[image: Governor Rick Perry, 2006, via]
Saturday, January 14, 2012
In the opinion in Perry v. Judd (with Gingrich, Huntsman, and Santorum as intervenors), Judge John Gibney of the Eastern District of Virginia denied the motion for preliminary injunction seeking to allow the Republican candidates on the ballot on the grounds of laches.
Perry and the other candidates not on the ballot argue that the Virginia process violates the First and Fourteenth Amendments. Virginia Code, §24.2-545(B), requires that the required petitions be "signed by at least 10,000 qualified voters, including at least 400 qualified voters from each congressional district in the Commonwealth." Additionally, the provision gives the State Board authority over the petition process: the Board has mandated that the petition be circulated by a registered (or eligible) voter in Virginia and the circulator must sign the petition in the presence of a notary.
In considering the First Amendment merits of the challenge, the judge found the Supreme Court's 1999 decision in Buckley v. American Law Foundation "instructive," especially regarding Virginia's requirement that the petition circulator be a resident of Virginia (as part of the "eligible voter" requirement). While the Virginia requirement is less restrictive, it nevertheless "limits the number of voices who can convey the candidates' messages, thereby reducing 'the size of the audience [the candidates] can reach.' " (Opinion at 16). Applying strict scrutiny to this political speech, the judge was "skeptical" that the state's proferred interest (the ability to subpoena petition circulators) was compelling.
On the other hand, the judge found the statute's 10,000 signature requirement would likely survive First Amendment scrutiny. He reasoned that such a number - - - 0.2% of the state's registered voters and 0.5% of the voters who voted in the last statewide election - - - cannot be seriously argued to be "unduly burdensome." In further support, he noted that six Republican candidates complied with the same rules four years ago for the 2008 primary election.
The judge's opinion conducts a separate analysis for laches - - - noting that it is an affirmative defense - - -rather than including it within the standards for preliminary injunction. (Recall that the last two factors of the established four-factor test are whether the equities tip in the movant's favor and whether the injunction is in the public interest.) Laches as an affirmative defense to equitable relief is well-established; as relief for a First Amendment violation, less so. However, considering the requirements of lack of diligence and prejudice to the respective parties, Judge Gibney found that the Candidates were not diligent - - - they should have "brought in an army of out-of-state circulators" as soon as possible (July 1 for Huntsman, Santorum, and Gingrich; August 13 for Perry who did not declare his candidacy until that date).
The judge rejected the candidates' argument that they did not have standing until the State Board rejected their ability to appear on the ballot. The Board rejected their claim because they did not have the 10,000 required signatures. But Judge Gibney essentially states that they should have disregarded (or perhaps challenged) the petition circulator qualification that arguably prevented them from obtaining the 10,000 signatures well before failing to obtain the 10,000 signatures. As Judge Gibney phrases it, the candidates "slept on their rights to the detriment of the defendants."
Thus, had the candidates "filed a timely suit," the judge would have granted a motion on the residency required and allowed non-residents to gather signatures, the candidates would have presumably been able to obtain 10,000 signatures, and Perry, Huntsman, Santorum, and Gingrich would be on the Virginia presidential Republican primary ballot.
Although an appeal seems likely, as of now, Virginia Republicans will have a choice between Ron Paul and Mitt Romney.
[image: Republican Candidates, 2012, via]
January 14, 2012 in Association, Current Affairs, Elections and Voting, Federalism, Fifteenth Amendment, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 3, 2012
The Civil Unions Law, Act 1, of Hawai'i became effective January 1, 2012.
In the last days of 2011, several religious groups sued for a Temporary Restraining Order (TRO) to stop the Act's implementation and prevent any enforcement against them. In a relatively brief opinion, federal district judge J. Michael Seabright denied the TRO in Emmanuel Temple v. Abercrombie.
The complaint seeking the TRO alleged that because Act 1 does not have a "religious exemption," the plaintiffs could suffer a First Amendment injury. However, the judge found that the claim was not justiciable because the plaintiffs lacked standing and their challenge was not ripe, noting that in many cases the "injury in fact" prong of the standing analysis coincides with an inquiry regarding ripeness.
The judge found that any threat of enforcement of Act 1 against the plaintiffs was "highly speculative." A number of unforseeable events would have to occur:
- A couple would have to ask plaintiffs to use a particular facility of theirs - - - which presumably would have to be a "public accomodation" - - - for a civil union made possible by Act 1;
- Plaintiffs would have to wrongly refuse based upon a protected ground;
- The couple, having been denied, would have to file a complaint with the Hawaii Civil Rights Commission;
- The state authorities would have to decide to proceed against plaintiffs.
The judge found it was equally speculative that a couple, having been denied, would chose to file a judicial action rather than an action with the Commission.
For ConLawProfs starting the semester with Article III justiciability, this could be the basis of a great class problem.
Situating the case outside that doctrinal framework, it is an example of religious groups filing federal actions against same-sex relationship recognition, as in New York, despite that state's religious exemption in the statute.
Further, it is yet another incident in the saga of same-sex marriage in Hawai'i; a good review and the latest litigation by same-sex couples challenging the civil union law for not providing marriage is here.
[image: Kahaluʻu Fishpond seawall and wedding chapel, Oahu, Hawaii, on National Register of Historic Places, via]
January 3, 2012 in Cases and Case Materials, Equal Protection, First Amendment, Fourteenth Amendment, Gender, Religion, Ripeness, Sexual Orientation, Standing, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 28, 2011
The Ninth Circuit ruled last week in Drake v. Obama that a group of plaintiffs lacked standing to challenge President Obama's qualifications to be President under Article II, Section 1, on the ground that he is not a "natural born Citizen." The ruling affirms the earlier district court ruling, although for somewhat different reasons.
The case involves six categories of plaintiffs. Here's what the court said, one group at a time:
Active Military Personnel. The court ruled that an active duty officer failed to allege sufficiently concrete harm when he claimed that his failure to obey orders from President Obama, his Commander in Chief, would result in disciplinary action against him. Instead, the court said, the alleged harm is speculative, and easily avoidable: "he can obey the orders of the Commander-in-Chief." Op. at 11.
Former Military Personnel. The court ruled that this group's claim--that it could be called back into duty and subject to orders of President Obama--was "far too speculative and conjectural." Op. at 12.
State Representatives. The court held that state representatives, who claimed that they could be harmed because "receipt of funds from any officer without legal authority [like President Obama, under their theory] would be complicity in theft or conversion," also claimed a far too speculative harm. Op. at 13.
Federal Taxpayers. The court ruled that taxpayers generally do not have standing.
Relatives of President Obama. The court ruled that plaintiff Kurt Fuqua failed to allege an injury in fact based only on his familial relationship to President Obama. The fact that he's family does not bolster his otherwise standing-less claims.
Political Candidates and Electors in the 2008 Election. The court ruled that plaintiffs Alan Keyes and Wiley Drake, the Presidential and Vice Presidential candidates, respectively, of the American Independent Party, a write-in candidate for President, and a certified California elector all lacked standing based on their allegation that they were denied a fair competition for the presidency. The court recognized that some courts, including the Ninth Circuit, have recognized something like "competitive standing." But here the plaintiffs' complaint came in only after President Obama was officially sworn in as President. The court said that after President Obama was sworn in, the plaintiffs were no longer candidates in the 2008 general election, and they have no alleged any interest in running against President Obama in the future. (In contrast, the district court assumed, without deciding, that political candidates had some form of "competitive standing," but that they lacked redressability, because the federal courts could not grant their requested remedy--ousting President Obama--without running afoul of the political question doctrine and separation of powers.)
The court also rejected the plaintiffs' quo warranto claims, ruling that those claims have to be brought in the D.C. district and by the Attorney General or the U.S. Attorney for D.C. It's no excuse that those officers have declined to bring a quo warranto case.
Finally, the court rejected the plaintiffs' novel FOIA and RICO claims.
Thursday, November 17, 2011
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure [PROPOSITION 8] possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.
The short answer from the California Supreme Court today is "Yes." Or, as the conclusion to the court's opinion in Perry v. Brown states:
when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
It takes the court some 60 pages to reach this conclusion in an unanimous opinion written by the new Chief Justice Cantil-Sakauye, with an additional 7 page concurring opinion by Justice Kennard. Kennard wrote to "highlight the historical and legal events that have led to today‘s decision and to explain why I concur in that decision," and reiterated her position that is it is the judicial role to decide whether "excluding individuals from marriage because of sexual orientation can be reconciled with our state Constitution‘s equal protection guarantee." On the contrary, the main opinion de-emphasized Proposition 8: "the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter."
The California Supreme Court states that "past official proponents of initiative measures in California have uniformly been permitted to participate as parties — either as interveners or as real parties in interest — in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored," and without any specific showings. The opinion, it seems, could have ended there but the California Supreme Court stated it felt it was "useful and appropriate briefly to set forth, at the outset, our understanding of the federal decisions that discuss the role that state law plays in determining whether, under federal law, an individual or entity possesses standing to participate as a party in a federal proceeding." Although the opinion emphasized that its "discussion of federal decisions is not intended to, and does not purport to, decide any issue of federal law, and we fully recognize that the effect that this opinion‘s clarification of the authority official proponents possess under California law may have on the question of standing under federal law is a matter that ultimately will be decided by the federal courts," certainly its analysis will be carefully considered by the Ninth Circuit.
The court's major analytic attention, however, was devoted to matters of state constitutional law focused on the initiative process. In these cases, non-state actors have had the ability to defend the initiative from challenges. Additionally, the court noted that "even outside the initiative context it is neither unprecedented nor particularly unusual under California law for persons other than public officials to be permitted to participate as formal parties in a court action to assert the public‘s or the state's interest in upholding or enforcing a duly enacted law."
If the Ninth Circuit fully credits the California Supreme Court's opinion and finds it sufficient to confer Article III standing, the court will proceed to the merits and review Judge Walker's opinion in Perry v. Brown (f/k/a Perry Schwarzenegger) that Proposition 8 violates the Constitution.
[image: Pro and anti-Proposition 8 protesters rally in front of the San Francisco City Hall via].
Saturday, October 22, 2011
United States District Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, dismissed the counterclaims filed by Arizona and Governor Jan Brewer in a 22 page Order late Friday.
Arizona's Count One, failure and refusal to achieve and maintain “operational control” of the Arizona-Mexico borde, Count Three, abdication of statutory responsibilities (enforcement of the federal immigration laws), and Count Four, declaratory relief regarding State Criminal Alien Assistance Program (“SCAAP”) reimbursement obligations were each denominated as "statutory claims."
The constitutional counterclaims - - - Count One, the failure and refusal to protect Arizona from invasion and domestic violence under Article IV, Section 4 and Count Five, declaratory relief under the Tenth Amendment - - - were analyzed as subject to issue preclusion given Bolton's previous order, but the Judge also further considered the claims. As to the "invasion and domestic violence" counterclaim, Judge Bolton found that the claim was nonjusticiable because it was a political question and cited the "six factors" from Baker v. Carr (1962):
 a textually demonstrable constitutional commitment of the issue to a coordinate political department;
 a lack of judicially discoverable and manageable standards for resolving it;
 the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
 the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
 an unusual need for unquestioning adherence to a political decision already made;
 the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Bolton emphasized the lack of "judicially discoverable and manageable standards" for determining what constituted an invasion and domestic violence.
Regarding the Tenth Amendment counterclaim, Judge Bolton found that Arizona was not being "comandeered" :
Arizona does not point to any federal immigration policy that mandates or compels
Arizona to take any action. The complained of expenditures arise entirely from Arizona’s
own policy choices and independent constitutional obligations and are not incurred as a result
of any federal mandate. These state costs do not give rise to a claim under the Tenth
While the ruling was not unexpected, it further focuses attention on the petition for writ of certiorari filed by Arizona and Jan Brewer, seeking review of the Ninth Circuit opinion which upheld Judge Bolton's preliminary injunction against SB1070.
Thursday, October 20, 2011
Judge Reggie B. Walton (D.D.C.) ruled today in Kucinich v. Obama that ten members of the United States House of Representatives lack standing to sue President Obama for violating the War Powers Clause of the Constitution and the War Powers Resolution for the President's commitment of U.S. forces to Libya without explicit congressional consent. We previously posted on the issue here (OLC memo concluding that the President has authority without congressional consent); here, here, and here (congressional responses to the administration's campaign in Libya); here (administration's answers on claims that it lacks authority without congressional consent); and here (Kucinich's case).
Judge Walton wrote that the group lacked both legislative standing and taxpayer standing. Legislative standing is foreclosed by Kucinich v. Bush, a similar case from the same court in 2002 by the very same lead plaintiff--a fact not overlooked by Judge Walton, who wrote with some frustration that this case was a waste of the court's time. Taxpayer standing is foreclosed by basic taxpayer standing principles and the fact that the plaintiffs can't shoehorn it into the narrow exception in Flast v. Cohen. Judge Walton didn't even get to the administration's argument that this also a nonjusticiable political question.
The ruling is hardly a surprise. But, as Judge Walton noted, it obviously doesn't mean that Congress lacks a check on the President. It can still use its power of the purse, its oversight power, the Senate's advice-and-consent power to hold up appointments (a power it's demonstrated some competence wielding), and, ultimately though unlikely, its impeachment power.
October 20, 2011 in Cases and Case Materials, Congressional Authority, Courts and Judging, Foreign Affairs, News, Opinion Analysis, Separation of Powers, Standing, War Powers | Permalink | Comments (1) | TrackBack (0)
Wednesday, October 5, 2011
On Monday the Court heard oral argument in Reynolds v. United States on whether a sex offender convicted, sentenced, and released before the federal Sex Offender Registration and Notification Act passed had standing to challenge the Attorney General's interim rule under SORNA that SORNA's registration requirements applied to pre-enforcement offenders. The following argument review is cross-posted at SCOTUSblog; the argument preview on SCOTUSblog is here.
We knew going into oral argument this week that the statute at issue in Reynolds v. United States was hazy. After all, what does it mean for Congress to authorize the Attorney General to “specify the applicability of” the registration requirements for pre-enforcement sex offenders under the federal Sex Offender Registration and Notification Act (SORNA)? There seems to be no precedent for this kind of delegation, and any interpretation raises significant problems. But even as the argument on Monday highlighted these ambiguities and problems, it also revealed the factors that the Court will balance to navigate them, and suggested the likely result.
On the one side, the Court seemed acutely aware that Reynolds’s preferred interpretation – that as a pre-enforcement offender, he was subject to SORNA’s registration requirements only after the Attorney General issued regulations – raised serious potential constitutional problems. In particular, the Court recognized that Reynolds’s interpretation means that SORNA delegates to the Attorney General the complete and awesome authority to determine whether registration applies at all to pre-enforcement offenders. Counsel for the government put it this way: According to Reynolds, the Attorney General has complete control over the light switch. Thus by Reynolds’s reckoning, SORNA veers toward a violation of the non-delegation doctrine and separation-of-powers principles. Chief Justice Roberts and Justice Ginsburg both raised this issue, but Justice Scalia put perhaps the finest point on it:
My problem is that it’s very strange. I find it very strange to leave it up to the Attorney General whether something will be a crime or not. It will be a crime if the Attorney General says so and it won’t be a crime if he doesn’t. I mean, especially leave it up to the Attorney General, for pete’s sake; he’s the prosecutor. You know, it will be a crime if the prosecutor thinks it is and it won’t be a crime if the prosecutor thinks it isn’t. I don’t know of any parallel, and I think it’s sailing close to the edge of constitutionality.
And there’s another, practical problem: Under Reynolds’s interpretation, SORNA would create a registration vacuum for pre-enforcement offenders, at least until the Attorney General “specified the applicability of” its registration requirements. That’s because, according to Reynolds, state registration doesn’t satisfy SORNA registration, and SORNA itself does not require pre-enforcement offenders to register. Thus SORNA wouldn’t touch pre-enforcement offenders until the Attorney General acted. But some Justices suggested that this kind of vacuum would frustrate congressional purpose – to unify the national registration of sex offenders and to re-locate and register those many offenders that were lost under previous state and national registration schemes. Counsel for the government argued that this approach unnecessarily and wrongly complicates registration; instead, state registration (which was mandatory for Reynolds himself, and which he skipped) also satisfies SORNA’s requirements for pre-enforcement offender registration. There was some sympathy for this more simple approach on the bench, underscoring this practical problem with Reynolds’s position.
But on the other hand, the government’s position – that SORNA itself requires pre-enforcement offenders to register, irrespective of any regulation from the Attorney General – has its own problems. For one, it would have been easy for Congress to do this with plain language in the statute; but it didn’t. In fact, as Justice Sotomayor pointed out, Congress rejected an alternative version of the bill that would have plainly required pre-enforcement offenders to register. (Justice Sotomayor was careful to remind us that not all of her colleagues would be persuaded by this kind of legislative history.)
Moreover, the government’s understanding of the Attorney General’s authority – the “safety valve,” as counsel called it – may have gone too far. Justices Scalia and Kagan both seemed taken aback by the government’s claim that the Attorney General’s authority to “specify” the requirements would allow the Attorney General to entirely exempt all pre-enactment offenders from SORNA’s registration requirements. This seems to swing from Reynolds’s position too far the other way.
Finally, and perhaps most importantly, the government’s interpretation leads to confusion, even incoherence, between SORNA’s requirement for initial registration and its requirement for keeping registration current for pre-enforcement offenders. In a lengthy exchange between Justice Breyer and counsel for the government, sometimes joined by Justices Scalia and Kagan, the Justices suggested that the government’s position could leave some pre-enforcement offenders without any idea what the law required and no way to comply. Counsel for the government, assisted at one point by Chief Justice Roberts, argued that SORNA’s structure suggested otherwise and that its criminal provision was tailored around these problems.
If the argument is any prediction, the Court will likely balance worries about an unconstitutional construction that undermines legislative purpose (if it adopts Reynolds’s interpretation) against concerns that SORNA’s registration requirements are incoherent for some pre-enforcement offenders and that SORNA gives too much power to the Attorney General to nullify registration (if it adopts the government’s understanding). For a majority on this Court, this balance probably favors the government: the government’s position both avoids a constitutionally questionable interpretation of the statute and would read SORNA to sweep in all pre-enforcement offenders – a read that seems more natural in light of SORNA’s overall structure, and a read that is consistent with a plausible understanding of congressional purposes.
But even this wouldn’t necessarily close the case. Reynolds raised an alternative argument that he still would have standing to challenge the Attorney General’s interim rule, even if SORNA itself required him to register. This is because the Attorney General issued the rule without notice and comment, which would have allowed Reynolds to persuade the Attorney General why he should be exempted from the registration requirements under the rule. Because the interim rule did not exempt him, he has standing to challenge it. This seems a too-clever turn to have any real traction, but it serves as a useful final reminder that this is one dodgy statute.
Monday, October 3, 2011
Philip Alston (NYU) recently posted his now-even-more-timely article The CIA and Targeted Killings Beyond Borders late last month on SSRN. In it, Alston argues that there's no effective check on CIA targeted killings, and that this undermines the international rule of law. From the abstract:
The CIA's internal control mechanisms, including its Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a "free pass" to the CIA in this area; judicial review has been effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself. As a result, there is no meaningful domestic accountability for a burgeoning program of international killing. This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL. The result is the steady undermining of the international rule of law, and the setting of legal precedents which will inevitably come back to haunt the United States before long when invoked by other states with highly problematic agendas.
Thursday, September 29, 2011
The Ninth Circuit issued a per curium opinion today in Log Cabin Republicans v. United States dismissing the case as moot. This is absolutely predictable.
Despite extensive litigation which we last mentioned here, with the repeal of 10 U.S.C. § 654(b) effective September 20, 2011, the policy known as DADT, "don't ask, don't tell," regarding sexual minorities in the military was no longer law. Thus, a challenge to the statute's constitutionality is no longer a live "cae or controversy" under Article III.
The Ninth Circuit opinion, however, is no so simple. The panel considered and rejected two arguments by Log Cabin Republicans that the case should not be dismissed as moot.
First, the panel rebuffed the argument that while the injunctive relief might be moot, the declaratory relief might not be. The speculation that "a future Congress whose composition, agenda, and circumstances we cannot know—will reenact Don’t Ask, Don’t Tell," or that the same Congress that enacted the Repeal Act could change course, was mere speculation and "our speculation cannot breathe life into this case."
Second, the panel strongly repudiated the claim of “collateral consequences” from a challenged statute even when the statute is repealed. The panel resolved this issue by simply stating that any missed benefits discharged service members may have lost as a result of their separation pursuant to DADT were not legal penalties from past conduct, they did not fall within collateral consequences exception. However, the panel went farther:
Because Log Cabin has stated its intention to use the district court’s judgment [holding DADT unconstitutional] collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings—to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect. The repeal of Don’t Ask, Don’t Tell provides Log Cabin with all it sought and may have had standing to obtain.
Judge Diarmuid O'Scannlain wrote a specially concurring opinion, as lengthy as the per curium decision, devoted not to the question of mootness, but to share his thoughts about Lawrence v. Texas: "I write separately because our inability to reach the merits may leave uncertainty about the role Lawrence v. Texas, 539 U.S. 558 (2003), may have in substantive due process challenges. Although Congress spared us the need to reach the merits in this case, other such challenges will come to the courts."
Judge O'Scannlain, widely regarded as exceedingly conservative, thus wrote an essentially advisory opinion, violating the basic premise of the Article III case and controversy requirement. It seems a bit paradoxical that he wrote this in a case in which the panel dismissed the claim as moot, lest the court render an advisory opinion in contravention of the Article III case and controversy requirement.
September 29, 2011 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Mootness, Opinion Analysis, Sexual Orientation, Sexuality, Standing | Permalink | Comments (1) | TrackBack (0)
Wednesday, September 28, 2011
UPDATE: ELEVENTH CIRCUIT INJUNCTION PENDING APPEAL HERE.
Accompanying her opinion in United States v. Alabama issued today [discussed in part I], Judge Blackburn a while later issued a 100 plus page Memorandum opinion in Hispanic Interest Coalition of Alabama v. Bentley enjoining other portions of the controversial HB56.
Some of the Hispanic Interest Coalition of Alabama's (HICA) challenges were moot by the Judge's opinion in United States v. Alabama issued earlier today. However, Judge Blackburn found that none of the HICA plaintiffs had standing to challenge HB56 in its entirety, and that HICA did not have standing as an association. Thus for each challenge, the judge considered standing. The judge found that HICA plaintiffs did not have standing to challenge one of the more controversial sections, section 28, regarding enrollemnt of students in public schools.
The Judge did grant a preliminary injunction of three separate provisions.
First, Judge Blackburn issued a preliminary injunction of Section 8 of HB56, as preempted by federal immigration law. HB56 §8 provides:
An alien who is not lawfully present in the United States shall not be permitted to enroll in or attend any public postsecondary education institution in this state. An alien attending any public postsecondary institution in this state must either possess lawful permanent residence or an appropriate nonimmigrant visa under 8 U.S.C. § 1101, et seq. For the purposes of this section, a public postsecondary education institution officer may seek federal verification of an alien’s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c). A public postsecondary education institution officer or official shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States. Except as otherwise provided by law, an alien who is not lawfully present in the United States shall not be eligible for any postsecondary education benefit, including, but not limited to, scholarships, grants, or financial aid.
The judge found that Congressional intent was contrary and clear, and thus the state law was preempted. Only Congress, the judge stated, may "classify aliens" including for postsecondary education.
Second, the judge issued a preliminary injunction of the last sentences of Sections 10(e), 11(e), and 13(h) based on the Compulsory Process Clause of the Sixth Amendment. These sentences provide that "A court of this state shall consider only the federal government’s verification in determining whether an alien is lawfully present in the United States." The judge found that to the extent Sections 10(e), 11(e), and 13(h) of H.B. 56 are interpreted as allowing a defendant to be convicted based on a certificate of nonexistent record (CNR) without testimony from the clerk or officer preparing the report, these sections violate the Confrontation Clause, but because there is no evidence this has occurred, the Confrontation Clause argument does not merit a preliminary injunction. As to the Compulsory Process Clause challenge, however, Judge Blackburn ruled that by "limiting evidence admissible in a state-court proceeding to “only” the federal government verification of lawful presence, Sections 10(e), 11(e), and 13(h) deny every person accused of violating Sections 10, 11 or 13 of H.B. 56 the constitutionally-protected right to present a defense. By denying accused individuals the opportunity to prove lawful presence, Alabama has denied all individuals charged under these sections with their right to compulsory process."
Third, the judge issued a preliminary injunction of Sections 11 (f) and (g) based on the First Amendment. These provision provide:
(f) It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
(g) It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.
The judge found that these provision were not content nuetral because they applied to a particular subject matter of expression - - - solitication of employment - - - rather than to partcular conduct, such as blocking traffic. Yet the judge also analyzed the provisions under the commercial speech doctrine Alabama advocated, finding them failing to satify that lower standard.
Like US v. Alabama, this is sure to be appealed to the Eleventh Circuit, and Judge Blackburn's opinions might not be affirmed in all respects, but its careful analysis is sure to be accorded respect.
September 28, 2011 in Congressional Authority, Criminal Procedure, Current Affairs, First Amendment, Opinion Analysis, Preemption, Standing, Supremacy Clause, Travel | Permalink | Comments (0) | TrackBack (0)
Thursday, September 15, 2011
The name of the Florida Law is "An act relating to the privacy of firearm owners": it prohibits medical care providers from asking their patients about gun ownership and recording such information. The Act, passed in 2011 and signed by controversial Florida Governor Rick Scott, was touted as preventing doctors from asking questions about a constitutional right and therefore protecting that right.
Judge Cooke rejected the relevancy of the Second Amendment argument of the State of Florida: "The State has attempted to inveigle this Court to cast this matter as a Second Amendment case. Despite the State's insistence that the right to "keep arms" is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights."
Instead, Judge Cooke analyzed the law under the First Amendment. The statute, Judge Cooke observed, curtails medical practitioners' ability to inquire about whether patients own firearms and burdens their ability to deliver a firearm safety message to patients, under certain circumstances, and thus implicates practitioners' First Amendment rights of free speech. She also observed that the statute also implicates patients' freedom to receive information about firearm safety, which the First Amendment protects."
Judge Cooke analyzed the standing issues, quickly and accurately determining the plaintiffs had standing, rejecting the State's argument that the statute was merely horatory. She then discussed the First Amendment arguments, situated within the discussion of the likelihood of success on the merits in the preliminary injunction standard.
At the center of Cooke's analysis was the Court's decision last term in Sorrell v. IMS, in which the Court held unconstitutional a state statute seeking to regulate datamining of prescription information. However, Cooke clearly viewed the Florida statute as meriting strict scrutiny, holding that it directly targets speech based on its content. Judge Cooke also analogized to the "hate speech" case of R.A.V. v. City of St. Paul (1992), noting that Florida has prohibited "harassment and discrimination" by doctors only on the subject of firearm ownership.
As for satisfying the compelling interest prong of the strict scrutiny test, Judge Cooke wrote that the State "provides no case law indicating that preventing practitioners from harassing or discriminating against a patient based on firearm ownership constitutes a compelling government interest. Further, the State "fails to provide any specific evidence, beyond anecdotal information, that such "harassment" and "discrimination" is widespread or pervasive. It is unlikely that a concern for some patients who may be offended or uncomfortable by questions regarding firearm ownership could justify this law."
As for the "least restrictive means" prong, the Judge held that the State does not explain why the extant state and federal laws protecting patient privacy are insufficient to protect the privacy interests, and discussed various other suggestions by the health practitioners.
Judge Cooke explicitly refused to "speak to the wisdom of the legislation now before me," given her judicial role. And indeed, her opinion is a fine exemplar of judicial craft. At 22 pages, it is succinct yet sufficient, well-written and well-organized. Sure to be appealed, it is likely to be upheld, if the Eleventh Circuit Judges exercise good judgment.
[image: The Doctor's Visit by Jane Steen, circa 1714, via, with antique gun overlay].
Thursday, September 8, 2011
The same day that a unanimous three-judge panel ruled that the State of Virginia lacks standing to challenge the individual health insurance mandate in the Affordable Care Act, the same three-judge panel ruled by a vote of 2-1 in Liberty University v. Geithner that the Anti-Injunction Act bars individual plaintiffs from challenging the mandate as exceeding congressional taxation authority. (The AIA bars preenforcement suits challenging "any tax." The ACA imposes a tax penalty on anyone who doesn't obtain health insurance and on employers who get notice that an employee received a government subsidy for health insurance.) The ruling means that the AIA bars the suit (the first ruling of this kind by a circuit court). But it says nothing about the merits (although Judge Wynn in concurrence and Judge Davis in dissent both got to the merits--and both would have upheld the mandate).
Judge Motz wrote for herself and Judge Wynn on the AIA question. She looked to the plain language of the ACA to determine that the mandate was a tax for AIA purposes, and therefore that the AIA barred a preenforcement challenge to it. She rejected arguments that the ACA operated as a "penalty," not a "tax," that Congress intended it to operate as a penalty, and that it wasn't designed to raise revenue. But because she ruled that the AIA barred the suit, she said nothing about the underlying issue--whether Congress had authority to enact the mandate under its taxing power under the General Welfare Clause.
The ruling was (oddly) a loss for both the plaintiffs and the government on this narrow AIA question. The government previously argued that the AIA barred the suit, but it abandoned its previous position presumably to get a ruling on the merits. It didn't get such a ruling from this panel. But Judge Wynn, in addition to agreeing with Judge Motz that the AIA barred the suit, also wrote that Congress had authority to enact the health mandate under its taxation authority under the General Welfare Clause. And while Judge Davis dissented on the AIA point, he wrote that Congress had authority to enact the mandate under the Commerce Clause.
All this means that two judges on this Fourth Circuit panel would have ruled that the government had power to enact the mandate under some authority. That's the real story of the case.
A unanimous three-judge panel of the Fourth Circuit ruled today in Virginia v. Sebelius that the State of Virginia lacked standing to challenge the individual health insurance mandate under the federal Affordable Care Act. The pointed language in the ruling only underscored the fact that states can't simply manufacture standing by enacting declaratory law in opposition to a federal statute.
Virginia based its standing argument on its statute, the Virginia Health Care Freedom Act, which it enacted in the wake of the ACA and which purported to shield Commonwealth residents from the ACA's requirement that they obtain health insurance. The VHCFA thus declares that "[n]o resident of this Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage."
The VHCFA was a transparent attempt to manufacture standing for a state that otherwise couldn't show a concrete, particularized harm to challenge the mandate. But that didn't stop the lower court from ruling in the state's favor.
The Fourth Circuit saw through the gambit, though. In a terse and sharp analysis, Judge Motz wrote that states can't manufacture standing simply by enacting legislation that objects to federal law. Instead, states have standing only when federal law interferes with a state's power to enact and enforce its law. But VHCFA was merely declaratory; there was nothing to enforce. Because the State of Virginia wasn't harmed by any interference with its ability to enforce its law, it lacked standing on that basis.
It also lacked standing as protecting its citizens from employers and localities enforcing the ACA's individual mandate. Judge Motz wrote that the individual mandate regulates individuals, not employers and localities, and so there was nothing to protect against.
Judge Motz wrote that Virginia's theory of standing runs up against citizenship and federalism considerations--that state's can't move to protect their citizens from the federal government:
[Virginia's] claim would run afoul of the prohibition against states suing the United States on behalf of their citizens. This prohibition rests on the recognition that a state possesses no legitimate interest in protecting its citizens from the government of the United States. With respect to the federal government's relationship to individual citizens, "it is the United States, and not the state, which represents [citizens] as parens patriae." When a state brings a suit seeking to protect individuals from a federal statute, it usurps this sovereign prerogative of the federal government and threatens the "general supremacy of federal law."
Op. at 22-23 (citations omitted). She also highlighted the Article III problems with allowing states to manufacture standing to challenge federal law:
To permit a state to litigate whenever it enacts a statute declaring its opposition to federal law, as Virginia has in the VHCFA, would convert the federal judiciary into a "forum" for the vindication of a state's "generalized grievances about the conduct of government." Under Virginia's standing theory, a state could acquire standing to challenge any federal law merely by enacting a statute--even an utterly unenforceable one--purporting to prohibit the application of the federal law. . . .
Thus, if we were to adopt Virginia's standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state's power to litigate in federal court.
Op. at 29-30 (citations omitted).
The case is unlikely to go anywhere, especially since other circuits have now weighed in on the merits. This "case" is--and always was--only Virginia's ill-conceived effort to showcase its political opposition to the individual mandate. As the panel ruled, it never belonged in court.
Tuesday, September 6, 2011
On Justice Goodwin Liu's first day sitting as a justice on the California Supreme Court, the matter before the court was one the court has encountered several times before: same-sex marriage. However, Liu is not the only new Justice; the Chief Justice, Tani Gorre Cantil-Sakauye, pictured right, assumed her post in January 2011.
The extended history of same-sex marriage and Proposition 8 before the California Supreme Court is complicated, but today's hearing also involves the federal litigation surrounding Proposition 8. The California Supreme Court's task in Perry v. Brown (previously Perry v. Schwarzenegger) is to answer a question of state law certified to the court by the Ninth Circuit; a certification that the California Supreme Court accepted.
The question is this:
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure [PROPOSITION 8] possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.
The Ninth Circuit wants the question answered in order to assist it in determining whether the proponents, who seek to appeal the decision of federal district court judge Vaughn Walker, have Article III standing to invoke the power of the federal judiciary on appeal.
The general rule for Article III standing requires satisfaction of several elements. First, the moving party must have "injury in fact" by suffering injury to a “legally cognizable interest," and the injury must be concrete and particularized as well as actual or imminent. Secondly, there is a causation element: the injury in fact has to be fairly traceable to the challenged action of the opposing party. Finally, there must be a substantial likelihood that the injury would be redressed if the party were awarded a favorable decision by the court. This is not an examination of the merits, but requires a finding that the injury is capable of being redressed assuming the party prevailed.
The California Supreme Court is thus not determining the issue of federal court standing and its opinion will not be outcome determinative for the Ninth Circuit. However, if the California Supreme Court holds that the proponents do not have a "particularized interest in the initiative's validity" and that the proponents do not have "authority to assert the State's interest in the initiative's validity" under state law, this would mean that the proponents will have great difficulty satisfying the "injury in fact" element of Article III standing.
From the oral argument webcast, there is little indication of the California Supreme Court's views. Under state rules, the court must render its decision in 90 days.
UPDATE: Watch the full video of the oral argument:
Thursday, August 18, 2011
With all the to-do this week about the Eleventh Circuit's ruling in State of Florida v. HHS that the individual health insurance mandate in the Affordable Care Act exceeds congressional Commerce Clause power, it was easy to overlook the Ninth Circuit's ruling in Baldwin v. Sebelius last Friday that the plaintiffs lacked standing to challenge the mandate.
The Ninth Circuit's ruling comes just a couple weeks after the Third Circuit denied standing in a similar challenge. But the plaintiff's case in the Ninth Circuit was even weaker. The plaintiffs in Baldwin were an individual and the Pacific Justice Institute. The individual, Baldwin, alleged only that he would have to research whether he'd be covered by the mandate--not that he currently lacks health insurance and would therefore have to purchase it, e.g. The court said this wasn't enough to show a concrete injury in fact.
The court also ruled that the Pacific Justice Institute lacked standing. The court said that the individual mandate doesn't apply to employers, that the Institute failed to allege that it had over 50 employees so as to fall within the employer shared responsibility provision, and that the Institute raised its associational standing claim too late in the game (only in its reply brief).
[Image: Frank Duveneck, Nude Standing, 1892, Wikimedia Commons]
Friday, August 12, 2011
National Organization for Marriage ("NOM"), a New Jersey-based nonprofit corporation organized for the purpose of providing "organized opposition to same-sex marriage in state legislatures," challenged state laws from both Maine and Rhode Island that require it to disclose its expenditures in the respective states.
Both federal district judges considering the actions largely rejected NOM’s challenges and the First Circuit has also rejected the challenges in a lengthy opinion in National Organization for Marriage v. McKee, regarding the Maine laws, and a much more brief opinion on the Rhode Island statute in National Organization for Marriage v. Daluz, which relies upon McKee. In addition, NOM wanted the trial proceedings to be sealed, which the court also rejected.
In part, NOM challenged Maine’s definition of NOM as a PAC (political action committee), arguing that “any law defining an organization as a PAC is subject to strict scrutiny" because as "a matter of law, not fact," PAC status is burdensome and subjects an entity to "extensive regulations." The First Circuit found the argument unpersuasive, and further distinguished Citizens United, because Maine's provision does not condition political speech on the creation of a separate organization or fund, establishes no funding or independent expenditure restrictions, and imposes three simple obligations on an entity qualifying as a PAC: filing of a registration form disclosing basic information, quarterly reporting of election-related contributions and expenditures, and simple recordkeeping.
The First Circuit therefore applied exacting scrutiny - - - rather than strict scrutiny - - - requiring a "substantial relation" between the law and a "sufficiently important governmental interest." Again citing Citizens United, the panel concluded that the goal of providing "the electorate with information as to where political campaign money comes from and how it is spent" to be such a "sufficiently important" governmental interest capable of supporting a disclosure law.
Regarding the substantial relationship, the court considered various provisions in the Maine statutory scheme separately. The court roundly rejected NOM’s contention that to be substantially related, the disclosure requirement could only be imposed upon a PAC that had as its “major purpose” the nomination or election of a candidate. Quoting District Judge Hornsby, the panel agreed that NOM’s interpretation would "yield perverse results" :
Under NOM's interpretation, a small group with the major purpose of re-electing a Maine state representative that spends $1,500 for ads could be required to register as a PAC. But a mega-group that spends $1,500,000 to defeat the same candidate would not have to register because the defeat of that candidate could not be considered the corporation's major purpose.
NOM also argued that the $100 threshold for disclosure was unconstitutional - - - as too low and as unchanging. The First Circuit noted that it had upheld a $50 threshold a decade ago, and saw no need to depart from that view.
The panel agreed with the district court that "Citizens United has effectively disposed of any attack on Maine's attribution and disclaimer requirements.” NOM had argued that the required disclosures will "distract readers and listeners from NOM's message." Instead, the court held that the “requirements are minimal, calling only for a statement of whether the message was authorized by a candidate and disclosure of the name and address of the person who made or financed the communication, and again relying on Citizens United, stating that these were precisely the same requirements approved in Citizens United, and that indeed, the statute at issue in Citizens United was slightly more prescriptive.
The panel also rejected NOM’s arguments that the Maine statutory scheme was unconstitutionally vague. Specifically, NOM posed challenges to three sets of terms: (1) "promoting," "support," and "opposition"; (2) "influencing"; and (3) "initiation." In addition, NOM claims that the definition of "expressly advocate" is unconstitutionally vague because it invites the use of context to determine the purpose of a communication. The court upheld all of these terms, including reversing the district judge’s finding that “influencing” suffered from vagueness. The panel considered state law, as it said it must, that had provided a limiting construction to the term.
Regarding NOM's final complaint - - - that the district judge erred in not sealing the proceedings - - - the First Circuit reasoned that
NOM's argument flips the proper analysis on its head. The presumption here favors openness, and a court need make no finding, let alone one of "true necessity," in order to make the proceedings and documents in a civil trial public. Instead, it is the party seeking to keep documents sealed who must make a showing sufficient to overcome the presumption of public access.
There was only minimal reliance by the First Circuit on Doe v. Reed, the decision by the Supreme Court last year regarding disclosure of names on a petition in Washington state. The panel noted that NOM did not contend that it would be subject to threats or harassment given its disclosure. In the context of the request to have the trial record sealed, the court stated that "NOM's claims that its contractors and service-providers could be subject to harassment also lack support, resting upon allegations of harassment against a vendor that performed work for supporters of California's Proposition 8." Clearly, this was insufficient.
[image:Victor Dubreuil, Money to Burn,1893, via]