Monday, July 28, 2014

Fourth Circuit: Virginia's Same-Sex Marriage Ban is Unconstitutional

Affirming the federal district judge's decision in February, a panel of the Fourth Circuit in a divided opinion has held in Bostic v. Schaefer that Virginia's same-sex marriage prohibitions are unconstitutional.

The majority opinion, authored by Judge Henry Floyd and joined by Judge Roger Gregory, notably finds marriage to be a fundamental right that encompasses same-sex marriage and applies strict scrutiny. 

Fourth Circuit map
The court's conclusion is that the "Virginia Marriage Laws" (including statutes and a state constitutional amendment)

violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages.

At various times, the court blends Due Process and Equal Protection analysis and precedent, but both spring from its conclusion that "marriage" is a fundamental right and that "marriage" includes same-sex marriage.    After discussing Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley, the court notes:

These cases do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry.” Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right. The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of “freedom of choice,” Zablocki, 434 U.S. at 387, that “resides with the individual,” Loving, 388 U.S. at 12. If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.

The court's use of "couplings" implicitly addresses a portion of the oft-called slippery slope argument that is raised by Judge Paul Niemeyer in his dissent: what would prevent this rationale from extending to polygamy?  The dissent also invokes incest, accusing the majority of "dictionary jurisprudence" when it (re)defines marriage to include same-sex marriage.  But of course, the definitional conundrum plagues the dissent as well, when it argues that certain qualities are "foundational" to marriage and other qualities are "irrelevant."  For the dissent, this is the "biological link between procreation and marriage," a link that does exist in the polygamous and incestuous marriages the dissent disapproves.

For the majority, after finding marriage a fundamental right deserving of strict scrutiny, the five governmental interests argued as supporting the marriage laws not surprisingly fail to pass constitutional muster:

  • (1) Virginia’s federalism-based interest in maintaining control over the definition of marriage within its borders,
  • (2) the history and tradition of opposite-sex marriage,
  • (3) protecting the institution of marriage,
  • (4) encouraging responsible procreation, and
  • (5) promoting the optimal childrearing environment.

 More surprising is that although these interests are raised by the parties the court calls the  "Proponents" of the Virginia marriage laws, there is little in the court's opinion that analyzes their standing to appeal.  The court does analyze the standing of the plaintiffs to sue the defendants George Schaefer III (in his official capacity as Clerk of Court for Norfolk Circuit Court) and Janet Rainey (in her official capacity as State Registrar of Vital Records).  And since these parties were indeed defendants, there may be little need for an extensive analysis of appellate standing as was necessary in the same-sex marriage cases decided by the United States Supreme Court in June 2013. Nevertheless, recall that the (new) Virginia Attorney General had decided during the district court litigation that the Virginia laws were unconstitutional and filed a notice of change of position; however the laws continued to be enforced. 

The Fourth Circuit thus joins the Tenth Circuit in holding that a state's same-sex marriage ban violates the Fourteenth Amendment.   While these circuit court opinions are divided, the dozen or so federal district judges who have considered the issue have been unanimous in reaching the same conclusion.

 

July 28, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, State Constitutional Law, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

New York's Highest Court Finds Cyberbullying Law Violates First Amendment

In its opinion in People v. Marquan M, the New York Court of Appeals (NY's highest court), found that Albany Local Law 11 (2010)  criminalizing cyberbullying was unconstitutional under the First Amendment. 

The local law for Albany County criminalized cyberbullying against any "minor or person" (with "person" interestingly defined as including corporations) with cyberbullying defined as:

any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.

450px-Bully_Free_ZoneThe majority opinion, authored by Judge Victoria Graffeo for four additional judges over a two-judge dissent, found that the law was overbroad under the First Amendment: "the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult." 

The defendant and his actions here - - - a 15 year old who used Facebook to anonymously post "photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information," with "vulgar and offensive" "descriptive captions" - - -  were within the "cyberbullying" that the Local Law intended to proscribe.  But even Albany County agreed that the local law was overbroad.  However, the County argued that the severability clause of the local law should be employed to excise the word "person" so that the only covered victims were minors.  But the court found that even that would not "cure all of the law's constitutional ills."   The dissenters would have engaged in saving constructions.

In ruling that a local law intended to criminalize as a misdemeanor cyberbullying did not survive the First Amendment because it was overbroad, New York's highest court left open the possibility that a prohibition of cyberbullying could be more narrowly crafted to survive First Amendment review:  "the First Amendment does not give defendant the right to engage in these activities." 

However, the court's opinion offers little guidance about how such a law or policy should be drafted.  New York's Dignity for All Students Act  as amended in 2012 places the responsibility for developing "policies and procedures intended to create a school environment that is free from harassment, bullying and discrimination" on school boards.  While Albany's law was a general criminal statute, school boards will undoubtedly be considering Marquan M. as they review their current "cyberbullying" prohibitions in light of the First Amendment.  They may also be recalling the Third Circuit's unhelpful intervention in a pair of "My Space" cases in which principals were arguably "bullied. 

And undoubtedly, those interested in cyberbullying in and out of schools will be watching the "true threats on Facebook case," Elonis v. United States, to be heard by the United States Supreme Court next Term.

 [image via]

July 3, 2014 in Courts and Judging, First Amendment, Interpretation, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Louisiana Supremes Uphold Ban on Firearms for Ex-Felons

The Louisiana Supreme Court this week upheld the state's prohibition on the possession of firearms by convicted felons against a challenge that the law violated the state's gun-rights amendment.  The court described the prohibition as "effective, time-tested, and easily understandable," and said that "[c]ommon sense and the public safety allow no other result."

Lousisiana's gun-rights amendment is notable because it explicitly sets strict scrutiny as the standard for laws infringing on the right to keep and bear arms:

The right of each citizen to keep and bear arms is fundamental and shall not be infringed.  Any restriction on this right shall be subject to strict scrutiny.

Article I, Section 11.  Louisiana voters enacted the amendment to ensure that laws regulating guns are subject to the strictest standard of review (and not some lower standard that the courts might have used under the Second Amendment and Heller.)  The previous version of the state constitution read, "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person." 

The court, with little analysis, concluded that Louisiana's law banning the possession of guns by convicted felons for a period of 10 years after their release met strict scrutiny.  The court said that the state had a compelling interest in public safety, and that this ban was easily narrowly tailored to meet that interest (again, with little serious analysis).  The court also looked to legislative history of the amendment that suggested that the amendment wouldn't affect gun laws already on the books at the time of the amendment.

The court's cursory analysis (under strict scrutiny, no less) says that certain gun restrictions get a free pass, and that provisions like Louisiana's amendment are strong on paper but but weaker in application.  It also suggests that the amendment, with its strict scrutiny test, bit off more than it can chew.

July 3, 2014 in Cases and Case Materials, Comparative Constitutionalism, Fundamental Rights, News, Second Amendment, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2014

Seattle's Minimum Wage Challenged in Federal District Court

Seattle - - - a "progressive and expensive city" - - - "struck a blow against rising income inequality" by raising its municipal minimum wage to $15 per hour earlier this month, as Maria La Ganga reported in the LA Times. Seattle Ordinance 12449 becomes effective in 2015, with a phase-in schedule of pay rates dependent on type of employer.   But it has already been challenged as unconstitutional.

The complaint in International Franchise Association, Inc. v. City of Seattle challenges the ordinance on a variety of constitutional grounds: (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment and state constitution, the state constitutional privileges or immunities provision, preemption under the Lanham Act (trademarks), the contract clauses of the federal and state constitutions, and the First Amendment. 

1024px-Seattle_4
skyline of Seattle via

A central issue in this complaint is the Ordinance's definitions of schedule 1 and schedule 2 employers as the definitions relate to franchises.  As paragraph 50 provides:

The Ordinance provides that, for purposes of determining whether an employer is a Schedule 1 or Schedule 2 employer, “separate entities that form an integrated enterprise shall be considered a single employer ... where a separate entity controls the operation of another entity,” but this test applies only to a “non-franchisee employer.” Under the Ordinance, if a small franchisee is associated with a franchise network that employs more than 500 workers, the small franchisee is deemed a Schedule 1 Employer even if it is not part of an “integrated enterprise” as so defined.

Filed by Bancroft LLC and signed by Paul Clement, the pleading contains various arguments detailing why such a distinction is unconstitutional, largely revolving around the competitive disadvantage the ordinance will place on franchised and parent businesses by requiring higher wages.  

LawProf David Ziff of University of Washington School of Law in Seattle has some helpful discussions of the complaint on his blog, including an overview and a specific discussion of the "classes of corporations" argument under the state constitution's privileges or immunities clause.

Certainly this is litigation to watch.  And certainly cities across the United States that are considering similar measures will be looking closely.  Cities are often rightly concerned with state constitutional powers of "home rule" allowing municpalities to vary from the state mandated wage; for example,  the courts declared the 1964 attempted minimum wage raise from 1.25 to 1.50 in NYC to be beyond the powers of the city. But the Seattle challenge raises federal constitutional issues that are necessarily obvious.

June 12, 2014 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, Federalism, Privileges and Immunities, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 11, 2014

California State Trial Judge Declares Teacher Tenure Provisions Unconstitutional

In a 16 page "tentative decision" in Vergara v. California, Los Angeles Superior Court Judge Rolf Treu has declared that the state tenure statutes for public school teachers violate the California Constitution's provisions on equal protection and provision of education.

The so-called "tenure statutes" challenged in the action are provisions of California's Education Code governing teacher employment, including

The California constitutional provisions at issue include the state's equal protection clause in Article I §7, and the Article IX provisions relating to Education, including the "general diffusion of knowledge" section, §1 and the requirement that the legislature "shall provide for a system of common schools by which a free school shall be kept up and supported,"§5.

Students matter
image via "Students Matter" the organization funding Vergara

Judge Treu based his decision largely on equality grounds, but noted that the California Supreme Court had previously held education to be a fundamental right.  Importantly, the judge found that the trial showed that "there are a significant number of grossly ineffective teachers currently active in California classrooms."  Judge Treu also found, although did not elaborate, that there was a "disproportionate impact on poor and minority students."  The judge applied strict scrutiny to the challenged statutes.

As to the permanent employment statute,  Judge Treu found that it disadvantaged both students and teachers, noting that California's short time frame for tenure - - - less than two years - - - was an outlier: the vast majority of states (32) have a three year time frame. 

Regarding the dismissal statutes, Judge Treu noted that dismissal of a teacher could take two to ten years and "cost $50,000 to $450,000," and that while due process for teachers was an "entirely legitimate issue" these statutes provided "uber due process."  The judge found that the provisions were "so complex, time consuming and expensive" that the statutes violated the state constitutional equal protection rights of the student plaintiffs.

Likewise, Judge Treu found that the LIFO statute violated the state constitutional equal protection rights of the student plaintiffs.  Judge Treu again noted that California was in a distinct minority of 10 states in which this seniority system was absolute and allowed no consideration of teacher effectiveness, with 20 states providing that seniority was a factor, and 19 states leaving the decision to the discretion of government. 

Judge Treu's relatively brief decision followed a rather high profile trial financed by a tech entrepreneur.  The opinion does not have a full discussion of the facts, especially those supporting the impact on poor and racial minority students. 

Vergara is heir to cases such as San Antonio School District v. Rodriguez (1973),  in which the United States Supreme Court rejected a challenge to school financing as disadvantaging students of color, and Edgewood Independent School District v. Kirby, in which the Texas Supreme Court found the school financing scheme unconstitutional under the state constitution, including a "general diffusion of knowledge" provision.   Yet Vergara turns the focus from state resources to "bad teachers" and can tap into anti-teacher and anti-union and anti-government worker sentiments.

Judge Treu concludes his decision with an invocation of Alexander Hamilton's Federalist Paper 78 on separation of powers, noting that it is not the task of the judiciary to advise the legislature on a solution.  But as the history of  Texas' Edgewood Independent School District v. Kirby demonstrates, legislative solutions in school equality can have an extended career in the courts.

Most likely, Judge Treu's Vergara decision will itself be subject to further judicial interpretations in the appellate process.

June 11, 2014 in Courts and Judging, Equal Protection, Opinion Analysis, Race, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, June 5, 2014

Governor Lacks Authority to Revoke Commutation

The Michigan Supreme Court ruled this week in Makowski v. Governor that former Michigan Governor Jennifer Granholm lacked authority under the state constitution to revoke her valid commutation of a prisoner's sentence.  The ruling means that the prisoner, whose sentence was first commuted but whose commutation was later revoked, is now eligible for parole.

The Michigan constitution gives the governor the power "to grant reprieves, commutations and pardons after convictions for all offenses . . . ."  Art. 5, Sec. 14.  Governor Granholm exercised this authority when she granted a commutation on the recommendation of the parole board to an individual who was serving a life sentence for felony murder.  But when the family of the victim contacted her office to express its dissatisfaction after the commutation was signed and sealed, she instructed the parole board to halt all commutation proceedings and revoked the commutation.

The Michigan Supreme Court ruled that she couldn't do that it.  The court first said that the case did not present a political question, because the state constitution limits the governor's power to commute "to those procedures and regulations that the Legislature enacts," and "[a]ccordingly, the distribution of power between the Legislature and the Governor regarding commutations creates a legal question that this Court must answer."  The court said that legislative silence as to those procedures did not mean that the court should defer; instead, the court said that it had a duty to determine the extent and limits of executive authority regarding commutations.  The court also ruled that its determination of the merits did not violate the separation of powers, because "this Court may review the Governor's exercise of power to ensure that it is constitutional."

As to the merits, the court held that the text and context of the commutation document indicated that it was final, and that the state constitution provided no power to revoke a commutation. 

June 5, 2014 in Cases and Case Materials, Comparative Constitutionalism, Executive Authority, News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

Massachusetts High Court Says Pledge Does Not Violate Equal Protection

The Supreme Judicial Court of Massachusetts ruled last week that the daily recitation in school classrooms of the Pledge of Allegiance, with the words "under God," did not violate the state constitutional equal rights amendment.   The case, Doe v. Acton-Boxborough Regional School District, was brought by a group of atheist and Humanist students, who claimed that the words "under God" alienated them and caused them to become outsiders because of their religion.  (The plaintiffs only argued equal protection; they did not bring a religion clause claim.)

The Massachusetts high court rejected the argument.  It said that the Pledge was voluntary; that reciting the Pledge was a "patriotic exercise," not a "religious exercise," even with the words "under God"; and that in any event the plaintiffs didn't show that they had been treated differently because of their religion.  On that last point, the court said that the practice or reciting the Pledge treated all students the same: each student, regardless of religion, could say it along with the rest of the class, or not.  Here's the court:

Where the plaintiffs do not claim that a school program or activity violates anyone's First Amendment religion rights (or cognate rights under the Massachusetts Constitution), they cannot rely instead on the equal rights amendment, and claim that the school's even-handed implementation of the program or activity, and the plaintiffs' exposure to it, unlawfully discriminates against them on the basis of religion.  [Citing Harris v. McRae and San Antonio v. Rodriguez.]  Where the program or activity is applied equally to all students, and where those who object to it are not required to participate, or may choose to participate in all parts of it that they do not find objectionable, the feeling of "stigma" caused by seeing or hearing the program being provided to others is not legally cognizable for purposes of the equal rights amendment.  Any claim that, by conducting the program or activity for others who do not choose to participate, the school has publicly repudiated a plaintiff's beliefs and thereby rendered him or her a "second-class citizen" or "outsider" is not tenable, and we decline to apply [state constitutional equal protection] in this fashion.

May 13, 2014 in Cases and Case Materials, Comparative Constitutionalism, Equal Protection, News, Opinion Analysis, Religion, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, May 9, 2014

Arkansas State Judge Declares Same-Sex Marriage Ban Unconstitutional

In an opinion issued late today in Wright v. Arkansas, Circuit Judge Charles Piazza declared unconstitutional Arkansas Act 144 and Arkansas Amendment 83, both of which define marriage as limited to one man and one woman.  The decision rests on the  Fourteenth Amendment's Equal Protection and Due Process Clauses, as well as on ARK. Const., art 2 §2, with equality and liberty provisions.  

The relatively brief opinion - - - 13 pages single spaced - - - tracks familiar ground, highlighting Windsor v. United States and the post-Windsor cases, emphasizing Kitchen v. Herbert and Bishop v. United States.  Judge Piazza also points to Justice Scalia's dissenting language as other cases have done; Judge Piazza bolsters his finding that "tradition" is not a legitimate state interest by stating:

And, as Justice Scalia has noted in dissent, " 'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." Lawrence, 539 U.S. at 601 (Scalia, J., dissenting).

741px-Collier's_1921_Arkansas
Judge Piazza also confronts possible charges of judicial activism with a reference to Dred Scott v. Sandford (1856), including an extensive quote from Justice Taney's opinion, before moving onto Loving v. Virginia and Griswold v. Connecticut.  He also relies on Arkansas' precedent:

The Arkansas Supreme Court has previously addressed the right to privacy as it involves same-sex couples. ln Jegley v. Picado, the Arkansas Supreme Court struck down the sodomy statute as unconstitutional in violating Article 2, §2 and the right to privacy. 349 Ark. 600, 638 (2002). Justice Brown, in Arkansas Dep't of Human Services v. Cole, noted "that Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution." 2011 Ark. 145, 380 S.W. 3d. 429, 435 (2011) (citing Jegley, id. at 632). The Arkansas Supreme Court applied a heightened scrutiny and struck down as unconstitutional an initiated act that prohibited unmarried opposite-sex and same-sex couples from adopting children. Id at 442. The exclusion of same-sex couples from marriage for no rational basis violates the fundamental right to privacy and equal protection as described in Jegley and Cole, supra. The difference between opposite-sex and same-sex families is within the privacy of their homes.

The judge did not stay the opinion; it may be that some attorneys for the state of Arkansas will have a very busy weekend.

{UPDATE here}

May 9, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 7, 2014

New Hampshire Supreme Court: Vanity License Plate "Not Offensive to Good Taste" Requirement Violates First Amendment

Relying on its state constitution, the New Hampshire Supreme Court's opinion today in Montenegro v. New Hampshire DMV held that the regulation prohibiting vanity license plates that are "offensive to good taste" was unconstitutional.

David Montenegro, who represented himself, appealed an order denying him a vanity registration plate reading "COPSLIE" and argued that the "offensive to good taste" exclusion in the regulation violated his speech rights under Part I, Article 22, New Hampshire Constitution as well as the First Amendment. 

New_Hampshire_License_Plate

The unanimous court considered the relationship between vagueness and overbreadth, which it contended may certainly overlap, but ultimately settled on vagueness.  The court ultimately concluding that

Because the "offensive to good taste" standard is not susceptible of objective definition, the restriction grants DMV officials the power to deny a proposed vanity registration plate because it offends particular officials’ subjective idea of what is “good taste.”

This vague standard thus violated the New Hampshire guarantee of free speech according the supreme court.

From the news report, Montenegro seems as "colorful" as his predecessor George Maynard, whose challenge to New Hampshire's "live free or die" motto on its license plates was resolved by the United States Supreme Court in Wooley v. Maynard (1977).  And this case will take its place in developing "license plate jurisprudence":  the "infidel" license plate denial; the unsucessful challenge to the Native American image on the Oklahoma license plate; and the unconstitutional "choose life" license plate offering.

May 7, 2014 in Due Process (Substantive), First Amendment, Speech, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

State Constitutional Paramount Allegiance

Matt Ford writes over at The Atlantic that there's an irony in rancher Cliven Bundy's land claim against the federal Bureau of Land Management, now brewing in Nevada.  That's because the very state constitution that Bundy so forcefully defends (in the spirit of states' rights, state sovereignty, and the like) contains a "paramount allegiance" clause, enshrining federal supremacy right there in the document.  Here it is, from Article I, Section 2, in the Declaration of Rights:

All political power is inherent in the people.  Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it.  But the Paramount Allegiance of every citizens is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States.  The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existence, and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.

Ford explains that the clause originated in Nevada's first constitutional convention in 1863, and that state constitutional framers, overwhelmingly unionists, retained it in 1864. 

Nevada isn't the only state with a Paramount Allegiance Clause.  As Ford explains, Reconstruction-era state constitutions throughout the South had one.  While most were dropped in subsequent revisions, some states, like Mississippi and North Carolina, still have it.

April 15, 2014 in Comparative Constitutionalism, Federalism, News, State Constitutional Law | Permalink | Comments (2) | TrackBack (0)

Saturday, March 22, 2014

Delaware Supreme Court Interprets State Constitutional "Second Amendment" Provision to Protect the Right to Firearms in Public Housing Common Areas

Responding to a certified question from the Third Circuit, the Delaware Supreme Court interpreted its state constitutional "right to bear arms" provision expansively in its opinion in Doe v. Wilmington Housing Authority.

At issue were two policies of the housing authority.  The first, the Common Area Provision,  prohibited "residents, household members, and guests from displaying or carrying a firearm or other weapon in a common area, except when the firearm or other weapon is being transported to or from a resident’s housing unit or is being used in self-defense."  The second, the Reasonable Cause Provision,  required "residents, household members, and guests to have available for inspection a copy of any permit, license, or other documentation required by state, local, or federal law for the ownership, possession, or transportation of any firearm or other weapon" if there was reasonable cause to believe there was a violation.

800px-Rifle_in_poznanThe court interpreted Article I §20 of the Delaware Constitution as inconsistent with the housing authority policies.  The constitutional provision provides: “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.” As the court noted, this was not adopted as part of the state constitution until 1987, given concerns of the original state constitutional framers because of concerns "over groups of armed men," but nevertheless "Delaware has a long history, dating back to the Revolution, of allowing responsible citizens to lawfully carry and use firearms in our state."

Importantly, the Delaware Supreme Court clearly stated that it was interpreting Article I §20 as an independent ground and did not base its opinion on the Second Amendment.  It considered its four previous cases, noting that only in one did it cite Second Amendment cases.  Interestingly, however, in three of the four cases, the court rejected the Article I §20 claim, and in one it remanded the case on the basis of the jury instructions in the criminal trial. 

Here, however, the court found that the "common areas" in public housing deserved special consideration.  Applying the "intermediate scrutiny" standard developed in its precedent, the court reasoned that even "active and retired police officers who are residents, household members, or guests are disarmed by the Common Area Provision," and that an "individual’s need for defense of self, family, and home in an apartment building is the same whether the property is owned privately or by the government."  Thus, the court concluded that

the Common Area Provision severely burdens the right by functionally disallowing armed self-defense in areas that Residents, their families, and guests may occupy as part of their living space.

As to the Reasonable Cause Provision, the court found that it was not severable from the Common Areas provision, and was therefore also unconstitutional.

The Delaware Supreme Court's unanimous opinion clearly articulates the adequate and independent state grounds of Article I §20of the state constitution, but less clearly articulates and supports its reasoning for interpreting the state constitutional provision to invalidate the public housing prohibitions of firearms. 

[image via]

March 22, 2014 in Federalism, Opinion Analysis, Second Amendment, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 18, 2014

Alabama Justices Chill State Constitution Revisions

Alabama Supreme Court Chief Justice Roy Moore and Justice Tom Parker issued advisory opinions to the state legislature last week that said that the legislature's article-by-article approach to amending the state constitution is unconstitutional.

The opinions came after the legislature began an organized effort in 2010 to rewrite the state's 1901 constitution.  That constitution is widely considered an outdated relic crafted to perpetuate white supremacy in the state.  (The document still contains provisions for a poll tax and segregated schools.  It also sharply limits home rule for local governments--so that local governments dominated by African Americans couldn't gain political power.  But that's part of why the document is now so long, and so amended: In order to get anything done at the local level, the state has to change the constitution.)  It's also quite long: with over 800 amendments, it's the longest constitution in the United States, and one of the longest in the world.

The constitution allows for amendment by way of the state legislature and Alabama voters.  It also allows for a constitutional convention if the legislature and voters agree to hold a constitutional convention.  Several efforts to overhaul the entire document have failed, however.

So the Constitutional Revision Commission, a panel formed in 2011, began an article-by-article rewrite.

Chief Justice Moore's and Justice Parker's advisory opinions said that the article-by-article approach was an unconstitutional side-step around the requirement for a constitutional convention in order to change the whole document.  Those opinions appear to have chilled the rewrite effort--at least temporarily. 

Here's more from The Gadsden Times, The Ledger-Enquirer, The Anniston Star, and AL.com (and here).

March 18, 2014 in Comparative Constitutionalism, News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, March 13, 2014

Florida Supreme Court Finds Statutory Wrongful Death Damages Cap Violates State Constitution's Equal Protection Clause

Responding to a certified question from the Eleventh Circuit, the Florida Supreme Court's opinion in Estate of McCall v. United States held that the statutory cap on wrongful death noneconomic damages, Fla. Stat. § 766.118, violates the right to equal protection under Article I, Section 2 of the Florida Constitution.

The statute put a cap in medical malpractice cases, providing that

  • Noneconomic damages shall not exceed $500,000 per claimant;
  • No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants; and
  • The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate.

The Florida Supreme Court's plurality opinion applied the rational basis test to this statutory scheme (given that there were no suspect or quasi-suspect classes or fundamental rights involved).  But it nevertheless found that the

statutory cap on wrongful death noneconomic damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants. In such circumstances, medical malpractice claimants do not receive the same.

The plurality found that the damages cap "bears no rational relationship to a legitimate state objective." 

In a subsection tellingly entitled "The Alleged Medical Malpractice Crisis," the plurality rejected the legitimacy of the government interest.  It essentially rejected the Report of Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force Report), issued in January 2003, on which the Legislation relied.   The opinion dismantles specifics of the Report, ultimately concluding that "the finding by the Legislature and the Task Force that Florida was in the midst of a bona fide medical malpractice crisis, threatening the access of Floridians to health care, is dubious and questionable at the very best."

As to the rational relationship of the means chosen to address the government interest, the plurality reasoned that

Even if these conclusions by the Legislature are assumed to be true, and Florida was facing a dangerous risk of physician shortage due to malpractice premiums, we conclude that section 766.118 still violates Florida’s Equal Protection Clause because the available evidence fails to establish a rational relationship between a cap on noneconomic damages and alleviation of the purported crisis.

Finally, the plurality reasoned that

even if a “crisis” existed when section 766.118 was enacted, a crisis is not a permanent condition. Conditions can change, which remove or negate the justification for a law, transforming what may have once been reasonable into arbitrary and irrational legislation.

464px-Henri_Geoffroy_-_Visit_day_at_the_Hospital_-_Google_Art_Project
The disagreement in the concurring opinion found fault with the court's power to "engage in the type of expansive review of the Legislature’s factual and policy findings" although not questioning the "plurality’s excellent scholarship regarding the flaws in the Legislature’s conclusions as to the existence of a medical malpractice crisis."  However, the concurring Justices agreed that if there were a crisi, there was not one any longer, and emphasized that "the arbitrary reduction of survivors’ noneconomic damages in wrongful death cases based on the number of survivors lacks a rational relationship to the goal of reducing medical malpractice premiums."

The dissenting opinion stressed the deference due to the legislature in the rational basis test.

As the plurality noted, other courts have similarly found damages caps in medical malpractice cases unconstitutional.  Such cases demonstrate that equality claims under state constitutions can prove a potent limit on legislation.

[image: Henri Geoffroy, "Visit day at the Hospital" via]

March 13, 2014 in Equal Protection, Medical Decisions, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Thursday, March 6, 2014

Massachusetts Supreme Court on Upskirting

In its unanimous opinion in Commonwealth v. Robertson, the Supreme Judicial Court of Massachusetts avoided the constitutional challenge to the state's statutory prohibition of "secretly photographing or videotaping a person 'who is nude or partially nude,'" G.L. c. 272, § 105 (b ), by interpreting the statute not to apply to taking photographs at the areas under women's skirts ("upskirting").

The defendant had argued that if § 105 (b ) "criminalizes the act of photographing a fully clothed woman under her skirt while she is in a public place, it is both unconstitutionally vague and overbroad," but because the court "concluded that § 105 (b ) does not criminalize the defendant's alleged conduct," it did not reach the constitutional questions.

Cameralucida01

Yet, as in many cases, the court's statutory interpretation does occur in the shadow of the constitutional challenge.  The court reasoned that the statute "does not penalize the secret photographing of partial nudity, but of "a person who is ... partially nude" (emphasis in original).  Courts have long struggled with definitions of "nudity" - - - recall the United States Supreme Court's recent foray into this area in FCC v. Fox with an oral argument that drew attention to the nude buttocks in the courtroom decor.

Additionally, the court reasoned that the statutory element of in "such place and circumstance [where the person] would have a reasonable expectation of privacy in not being so photographed" did not cover the alleged acts of photography in a public place, such as the Massachusetts Bay Transportation Authority (MBTA) trolley.  The court rejected the Commonwealth's argument emphasizing the "so" in "so photographed" - - - that "because a female MBTA passenger has a reasonable expectation of privacy in not having the area of her body underneath her skirt photographed, which she demonstrates by wearing the skirt" by interpreting "so" as simply referential.

The court concluded that at the

core of the Commonwealth's argument . . . is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but § 105 (b ) in its current form does not address it.

And the court noted that in the past legislative session proposed amendments to § 105 were before the Legislature that appeared to attempt to address precisely the type of "upskirting" conduct at issue in the case.  Given the court's opinion in Robertson, this issue will most likely be again before the Massachusetts legislature.

[image via]

March 6, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Gender, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2014

Justice Scalia's Dissents and the Post Windsor Same-Sex Marriage Cases

There have been a spate of federal judges declaring state constitutional or statutory provisions banning recognition of same-sex marriage unconstitutional under the Fourteenth Amendment: 

De Leon v. Perry, from the Western District of Texas;
Bostic v. Rainey  from the Eastern District of Virginia;
Bourke v. Beshear from the Western District of Kentucky; 
Bishop v. United States from the Northern District of Oklahoma;
Obergefell v. Wymyslo from the Southern District of Ohio;
Kitchen v. Herbert, from the District of Utah;
Lee v. Orr applicable only to Chicago.

Other than Lee v. Orr, in which the judge was only ruling on an earlier start date for same-sex marriage than the Illinois legislature had declared, the judges in each of these cases relied on Justice Scalia's dissenting opinions.

In "Justice Scalia’s Petard and Same-Sex Marriage," over at CUNY Law Review's "Footnote Forum," I take a closer look at these cases and their relationship to Shakespeare's famous phrase from Hamlet.

 

350px-Petardsketch2
"A petard, from a seventeenth century manuscript of military designs" via

 

 

March 3, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Sexual Orientation, State Constitutional Law, Supreme Court (US), Theory, Weblogs | Permalink | Comments (0) | TrackBack (0)

Saturday, February 22, 2014

Same-Sex Marriage in Chicago, but not all of Illinois until June 1

In her very brief opinion and order in Lee v. Orr, United States District Judge Sharon Johnson Coleman found that Illinois' same-sex marriage ban - - - already changed by the legislature but not effective until June 1, 2014 because of state constitutional requirements  - - - was unconstitutional.  

The judge's reasoning was understandably scanty: Not only did the parties' agree that summary judgment was appropriate because there was no disputed issues of fact, but they essentially agreed that there were not disputed issues of law:

There is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs’ fundamental right to marry. Indeed, the defendant and intervenor have joined in plaintiffs’ motion, with the caveat the defendant David Orr is bound to follow the law in Illinois.

The sticking points were the remedies.

First, and less sticky, was the timing.  The judge quoted Martin Luther King for her reasoning to extend previous rulings:

the focus in this case shifts from the “we can’t wait” for terminally ill individuals to “why should we wait” for all gay and lesbian couples that want to marry. To paraphrase Dr. Martin Luther King, Jr.: the time is always ripe to do right. MARTIN LUTHER KING JR., WHY WE CAN’T WAIT 74 (1964).

Chicago map 1871

 

Second, and stickier, was the place:

The plaintiffs are asking this Court to strike down a state statute, although they have brought suit solely against the Cook County Clerk. . . . Although this Court finds that the marriage ban for same-sex couples violates the Fourteenth Amendment’s Equal Protection Clause on its face, this finding can only apply to Cook County based upon the posture of the lawsuit.

Absent additional litigation - - - and different lawyering - - - same-sex marriage in Illinois is available in Chicago now and the rest of the state starting June 1.

[image: map of Chicago, circa 1871, via]

February 22, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Fundamental Rights, Sexual Orientation, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

Michigan Supremes Uphold Medical Marijuana, Strike Local Ban

The Michigan Supreme Court last week unanimously upheld Michigan's medical marijuana law, and struck a Michigan town's ordinance that purported to apply the federal Controlled Substances Act against it, in a two-step, federal-state-local preemption ruling.  The net result: Michigan's medical marijuana law stays on the books exactly as is, and the City of Wyoming's ordinance against it is struck.  And of course: Michigan medical marijuana users could still be prosecuted by federal authorities under the Controlled Substances Act. 

The case, Ter Beek v. City of Wyoming, involved a challenge to Wyoming's ordinance that was adopted to allow city authorities to enforce the federal Controlled Substances Act (the "CSA") against Michigan's medical marijuana law.  Wyoming's ordinance read:

Uses not expressly permitted under this article are prohibited in all districts.  Uses that are contrary to federal law, state law or local ordinance are prohibited.

That last sentence would ban marijuana that violates the CSA in the city.

But a city resident challenged it as preempted by the Michigan medical marijuana law under the Michigan Constitution.  The city argued in reply that Michigan's medical marijuana law was itself preempted--by the CSA under the federal Constitution.

The court ruled first that the CSA did not preempt the Michigan medical marijuana law.  The reason is simple: nothing in the Michigan law prohibits federal enforcement of the CSA.  There's no conflict preemption and no obstacle preemption.  Moreover, the CSA "explicitly contemplates a role for the States" in regulating medical marijuana.

The court held next that the Michigan medical marijuana law did preempt Wyoming's ordinance.  Again, the reason is simple: the ordinance, by allowing enforcement of the terms of the CSA by local officials, conflicts with the Michigan law.  The Michigan Constitution says that the City's "power to adopt resolutions and ordinances relating to its municipal concerns" is "subject to the constitution and the law."  Art. 7, Sec. 22.  That means that local laws can't conflict with state laws.  And the court said that Wyoming's did.

February 10, 2014 in Cases and Case Materials, Comparative Constitutionalism, Federalism, News, Opinion Analysis, Preemption, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Sunday, February 9, 2014

Daily Read: Sara Rankin's Homeless Bill of Rights

Given that the extant constitutional rights have proven ills-suited toward recognizing the rights of homeless persons (even to have a blanket or to be fed), Professor Sara Rankin's article, "A Homeless Bill of Rights (Revolution)," available in draft on ssrn, is an important look at state constitional efforts.  Rankin surveys current efforts to advance homeless bills of rights in nine states and Puerto Rico, concluding that such efforts are likely to have more of an incremental social impact than any immediate legal impact.

RankinsRankin (pictured right)  highlights the aspirational aspects of such bills, arguing

Homeless bills of rights present an important opportunity to impact American rights consciousness. The emergence of these new laws may encourage housed Americans to confront—and perhaps one day, overcome—our persistent, deeply-rooted biases against the homeless. Regardless of whether homeless advocates’ ideal provisions are enacted, enforced, or implemented in the near future, even modest versions of these new laws can stake an important claim in the movement building process. After all, the U.S. Declaration of Independence and the Bill of Rights remained dormant and aspirational for years after their enactment, but like all declarations of fundamental rights, these documents set crucial goals for society to achieve over time.

Certainly, however, such laws would counteract the increasing "ciminalization" of homelessness that she discusses:

Of 234 cities surveyed by the National Law Center on Homelessness and Poverty (NLCHP), 53 percent prohibited begging or panhandling in public places, 40 percent prohibited camping in public places, and 33 percent prohibited sitting or lying down in public places. These laws authorize police to perform “sweeps” to clear public areas of homeless people. Police sweeps often result in the confiscation and destruction of personal belongings, including identification, documentation, medications, and other property of sentimental value.

Rankin's article is an important read for anyone considering the constitutional parameters of addressing homelessness.

 

February 9, 2014 in Fundamental Rights, Scholarship, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Saturday, January 18, 2014

State Constitutional Challenge to Dual System of Voter Registration

Julie Ebenstein of the ACLU writes on Jurist.org that the dual system of voter registration in Kansas unlawfully denies citizens the right to vote.  Ebenstein outlines the Kansas case challenging the dual system under state constitutional provisions, filed last November and now pending in state court.

As we wrote, two states, Arizona and Kansas, adopted a dual system of voter registration in the wake of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona.  In that case, the Court held that the requirement under the National Voter Registration Act that states "accept and use" an approved and uniform federal form for registering voters preempted Arizona's requirement that voters present evidence of citizenship at registration.  (The NVRA form requires applicants simply to attest to their citizenship, not to provide additional documentation.) 

Arizona and Kansas then announced that they would require voters to register separately for state and federal elections.  This created a dual system of voter registration: NVRA and state-form registrants before January 1, 2013, can vote in both state and federal elections; but NVRA registrants after January 1, 2013, can vote in only federal elections.  (NVRA registrants after that date also can't sign petitions.)  Now only state-form registrants who provide the additional proof of citizenship can vote in state elections.  State-form registrants who fail to provide the additional proof of citizenship cannot vote at all.

The ACLU and ACLU of Kansas filed suit last November challenging the dual registration system.  The complaint, filed in state court, alleges that the system violates state constitutional equal protection by distinguishing between classes of voters in the state, that state officials exceeded their state constitutional authority, and that the system wasn't properly promulgated as a rule or regulation under Kansas law.

January 18, 2014 in Cases and Case Materials, Comparative Constitutionalism, Congressional Authority, Elections and Voting, Equal Protection, Federalism, News, Preemption, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, January 16, 2014

Equality and Statutes of Limitations in the Washington State Supreme Court

In its opinion today in Schroeder v. Weighall, the Washington Supreme Court held a medical malpractice statute of limitations violated the state constitution's equality provisions. 

The statute at issue, RCW 4.16.190, tolls the statute of limitations during the time a person suffers from a disability, including being a minor.  However, subsection (2) of the statute is an exemption only for persons under the age of 18 and only with respect to actions under RCW 4.16.350, the statute governing claims for medical malpractice.  

The court found the exemption provision unconstitutional under Washington Constitution Art. 1 §12 :

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

While the court noted that this provision could be "substantially similar" to the Fourteenth Amendment's Equal Protection Clause, it was also different and more protective and paid special attention to "undue political influence" that was "exercised by a privileged few." 

Washington Supreme Court
Justices of the Washington Supreme Court


The court applied a two prong test, first looking at whether there was a "privilege or immunity," at stake, easily concluding that the benefit in the statutory exemption was  "limited liability-an immunity from suits pursued by certain plaintiffs."  The court quickly turned to the mirror image of this benefit, concluding that the right to sue for what is essentially common law negligence was within these definitions.

The court then turned to the second prong of the test, considering whether there is a "reasonable ground" for "limiting medical malpractice defendants' liability to patients injured during minority," and noting that "reasonableness" under the state constitution was more rigorous that rational basis.  The court carefully looked at the purported interests of the statute, and noted an inconsistency:

 If the statute is to be justified on the basis that it will greatly reduce medical malpractice claims, it cannot also be justified on the ground that it will not prevent very many plaintiffs from having their day in court. If it is to be justified on the basis that it is a substantial wrong to permit even one stale medical malpractice claim to proceed, then there can be no rational explanation for the legislature's failure to eliminate tolling for other incompetent plaintiffs.

 Again, however, the court indulged in a mirror image discussion, looking at the statutory scheme's affect on a "particularly vulnerable population not accountable for its status.  While children are not a suspect or even semi-suspect class, the court did note that "the group of minors most likely to be adversely affected" by the statutory exemption are those "whose parent or guardian lacks the knowledge or incentive to pursue a claim on his or her behalf" or who are in state care.

 While 7 of the 9 justices of the court assented to this opinion, authored by Justice Gordon McCloud, there was a dissenting opinion by Justice James M. Johnson, joined by Justice Susan Owens, arguing that the most deferential standard of scrutiny should apply and accepting the claims of legislative interest in reducing claims of medical malpractice.

The Washington Supreme Court's majority opinion is a well-reasoned example of the vibrancy of state constitutional equality provisions, including a somewhat unusual application to a statute of limitations provision. 

January 16, 2014 in Courts and Judging, Disability, Equal Protection, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)