Friday, May 9, 2014
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).
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.
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.
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.
Tuesday, April 15, 2014
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.
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.
The 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.
Tuesday, March 18, 2014
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.
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.
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]
Thursday, March 6, 2014
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.
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.
Monday, March 3, 2014
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.
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
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).
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]
Monday, February 10, 2014
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.
Sunday, February 9, 2014
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.
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.
Saturday, January 18, 2014
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
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."
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.
Friday, January 10, 2014
Rachel Maddow posits the possibility that the scandal surrounding New Jersey Governor Chris Christie and the traffic jam by the city of Fort Lee at the George Washington Bridge may have less to do with the election than with the New Jersey Supreme Court.
Much of Maddow's conjecture rests on the timing of the now infamous email "Time for some traffic problems in Fort Lee," sent on the morning of August 13, 2013 by a top Christie aide from her private email account to a Port of Authority official who responded "Got it."
But to understand the Maddow theory, one needs to return to 2010. Recall that as we discussed in May 2010, there was a potential "constitutional conflict" brewing over Governor Christie's non-"reappointment" of John Wallace, then the only African-American of the seven state justices on the New Jersey Supreme Court. And recall also that despite objections from retired members of the judicary, Christie reportedly found "laughable" any notion that politics was not part of the judicial appointment process, pointing to the fact that there would be another election in 2013.
But John Wallace was not the only NJ Supreme Court Justice whose reappointment would be at issue during Christie's first term. Another Justice, supported by Christie, was due before the Senate. And the NJ Senate Democrats - - - led by a legislator from Fort Lee - - - may not have been being co-operative. In any case, Christie withdrew his reappointment of that Justice the evening before the GW Bridge lane closures began.
Here's the video from the Rachel Maddow Show:
Worth a read with details is the discussion of MSNBC's Steve Benen.
Thursday, December 19, 2013
In its unanimous opinion in Griego v. Oliver, the New Mexico Supreme Court has declared that the state must recognize same sex marriages. The court found that
barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution. We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.
Interestingly, the court concluded that any prohibition of same-sex marriage raised a classification based on sexual orientation (and not sex), although its rationale raised the specter of the kind of formal equality at issue in Plessy v. Ferguson:
We do not agree that the marriage statutes at issue create a classification based on sex. Plaintiffs have conflated sex and sexual orientation. The distinction between same- gender and opposite-gender couples in the challenged legislation does not result in the unequal treatment of men and women. On the contrary, persons of either gender are treated equally in that they are each permitted to marry only a person of the opposite gender. The classification at issue is more properly analyzed as differential treatment based upon a person’s sexual orientation.
Nevertheless, the court found that the appropriate level of scrutiny was intermediate:
because the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination. . . . the class adversely affected by the legislation does not need to be “completely politically powerless, but must be limited in its political power or ability to advocate within the political system.” Nor does intermediate scrutiny require the same level of extraordinary protection from the majoritarian political process that strict scrutiny demands. It is appropriate for our courts to apply intermediate scrutiny, “even though the darkest period of discrimination may have passed for a historically maligned group.”
The court notes that its "decision to apply intermediate scrutiny is consistent with many jurisdictions which have considered the issue," citing the Second Circuit in Windsor, as well as the same-sex marriage cases from Iowa and Connecticut.
The court found that the same-sex marriage ban did not survive intermediate scrutiny. It considered three governmental interests advanced for prohibiting same-gender couples from marrying in the State of New Mexico:
- promoting responsible procreation
- responsible child-rearing
- preventing the deinstitutionalization of marriage
As to the last interest, the court noted that the defendants conceded there was no evidence that same-sex marriages would result in the deinstitutionalization of marriage, and the court implied this interest was "intended to inject into the analysis moral disapprobation of homosexual activity and tradition" and flatly rejected it.
As to procreation and child-rearing, the court rejected these interests as the governmental interests underlying New Mexico's marriage laws: "It is the marriage partners’ exclusive and permanent commitment to one another and the State’s interest in their stable relationship that are indispensable requisites of a civil marriage." But the court also found that neither interest would be substantially served by the prohibition of mariage to same-sex partners.
Thus, by a relatively brief opinion (approximately 30 pages) the New Mexico Supreme Court has unanimously ruled that same-sex marriages must be allowed in the state. Because the decision rests on the state constitution, it is not subject to review by the United States Supreme Court and New Mexico becomes the 17th state to allow same-sex marriages on the same terms as other marriages.
December 19, 2013 in Courts and Judging, Current Affairs, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)
Tuesday, December 10, 2013
In its opinion in In the Matter of James Holmes v. Jana Winter, the New York Court of Appeals (NY's highest court) today concluded that it would violate New York's public policy to issue a subpoena directing a New York reporter (Jana Winter) to appear at a judicial proceeding in Colorado in which there is a substantial likelihood that she will be directed to disclose the names of confidential sources or be held in contempt of court.
The underlying facts involve the prosecution of Holmes for the Aurora, Colorado "Batman" movie shooting in which 12 people died and 70 people were wounded. During the investigation, law enforcement took possession of a notebook that Holmes had mailed to a University of Colorado psychiatrist. The court issued a general order limiting pretrial publicity, including law enforcement, as well as a specific order relating to the notebook (as a privileged communication). However, Jana Winter, a reporter employed by Fox News, published an online article entitled "Exclusive: Movie Massacre Suspect Sent Chilling Notebook to Psychiatrist Before Attack." She describes the notebook and states she learned about it from "two unidentified law enforcement sources." Holmes sought sanctions against law enforcement officers and in a court hearing, the 14 officers who had knew about the notebook each testified they did not leak the information and did not know who had. Holmes thereafter sought to subpoena Winter.
Winter argued that the identity of her sources was absolutely privileged under New York's Shield Law, NY Civil Rights §79-h[d], adopted in 1970. The court agreed, noting that
New York has a long tradition with roots dating back to the colonial era, of providing the utmost protection of freedom of the press. Our recognition of the importance of safeguarding those who provide information as part of the newsgathering function can be traced to the case of "John Peter Zenger who . . . was prosecuted for publishing articles critical of the New York colonial Governor after he refused to disclose his source.
Moreover, "Article I, § 8 of the New York Constitution -- our guarantee of free speech and a free press -- was adopted in 1831, before the First Amendment was rendered applicable to the states" and the "drafters chose not to model our provision after the First Amendment, deciding instead to adopt more expansive language"
Every citizen may freely speak, write and publish his or her sentiments on all subjects . . . and no law shall be passed to restrain or abridge the liberty of speech or of the press
As for the Shield Law itself, it expresses the notion that protection of a reporter's sources is "essential to maintenance of our free and democratic society," an idea supported by "several luminaries" of the profession, including "Walter Cronkite, Eric Severied, and Mike Wallace."
New York public policy as embodied in the Constitution and our current statutory scheme provides a mantle of protection for those who gather and report the news -- and their confidential sources -- that has been recognized as the strongest in the nation. And safeguarding the anonymity of those who provide information in confidence is perhaps the core principle of New York's journalistic privilege, as is evident from our colonial tradition, the constitutional text and the legislative history of the Shield Law.
The court also noted that this strong public policy has "played a significant role in this State becoming the media capital of the country if not the world."
The court clarified its holding near the end of the opinion:
And lest there be any confusion, we reiterate that the issue we confront is whether a New York court should issue a subpoena compelling a New York journalist to appear as a witness in another state to give testimony when such a result is inconsistent with the core protection of our Shield Law. Thus, the narrow exception we recognize today, which permits a New York court to consider and apply New York's journalist's privilege in relation to issuance of its own process -- a subpoena -- in a narrow subset of cases, is not tantamount to giving a New York law extraterritorial effect.
The opinion seeks to be somewhat narrow, and it is by a narrow majority, 4-3. Yet it is a resounding articulation of a reporter's right to maintain the anonymity and confidential of sources under state law without reference to the First Amendment.
[image: Juan Gris, Still Life With Newspaper, 1916, via]
Tuesday, October 22, 2013
Georgia Supreme Court Upholds Constitutionality of Solicitation for Sodomy Statute - As "Narrowly Construed"
The Supreme Court of Georgia has upheld the constitutionality of the state statute criminalizing the solicitation of sodomy, even as it narrowly construed it, and even as it reversed the conviction based upon insufficiency of the evidence.
- Powell v. State (1998), limiting the construction of the sodomy statute pursuant to the "fundamental privacy rights under the Georgia Constitution" and
- Howard v. State (2000), upholding the sodomy solicitation statute against a free speech challenge by narrowly construing "the solitication of sodomy statute to only punish speech soliciting sodomy that is not protected by the Georgia Constitution's right to privacy."
Thus, the rule the court articulates is that
an individual violates the solicitation of sodomy statute if he (1) solicits another individual (2) to perform or submit to a sexual act involving the sex organs of one and the mouth or anus of the other and (3) such sexual act is to be performed (a) in public; (b) in exchange for money or anything of commercial value; (c) by force; or (d) by or with an individual who is incapable of giving legal consent to sexual activity.
Under this redefined "scope of the statute," the court then finds that Watson's actions did not satisfy any of the possibilities required by the third element: it was not to take place in public, it was not commercial, was not by force (although Watson was a police officer) and was not to a person incapable of giving consent (although solicited person was 17, the age of consent in the state is 16). In addition to reversing the conviction for solicitation of sodomy, the court reversed the conviction for violation of oath of office (of a police officer) that rested on the solicitation conviction.
While the Georgia Supreme Court's opinion is correct, redrafting a statute that remains "on the books" for prosecutors, defense counsel, and perhaps even judges who are less than diligent can result in a denial of justice.
The better course would have been to declare the solicitation of sodomy statute unconstitutional, requiring the legislature to do its job and pass a constitutional statute. This was the option followed by the New York Court of Appeals - - - New York's highest court - - - when presented by a similar issue in 1983. Having previously declared the state's sodomy statute unconstitutional in People v. Onofre (1980), when the court was presented with a challenge to a prosecution under the solicitation of sodomy statute, the court in People v. Uplinger stated:
The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy. Inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose. This statute, therefore, suffers the same deficiencies as did the consensual sodomy statute.
The United States Supreme Court granted certiorari in Uplinger, and then dismissed certiorari as improvidently granted, in part because of the intertwining of state and federal constitutional issues and in part because there was not a challenge to the underlying decision that held sodomy unconstitutional, six years before Bowers v. Hardwick, the case in which the United States Supreme Court upheld Georgia's sodomy statute.
October 22, 2013 in Criminal Procedure, Due Process (Substantive), Opinion Analysis, Sexual Orientation, Sexuality, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Friday, October 18, 2013
The New Jersey Supreme Court today, in its unanimous opinion in Garden State Equality v. Dow, denied a stay of a trial judge's order that same-sex marriages be allowed to begin in New Jersey on October 21. The trial judge's order was supported by an extensive opinion we discussed here. Essentially, the trial judge considered the NJ Supreme Court's previous ruling in Lewis v. Harris (2006), that led to civil unions, and reasoned that by declaring section 3 of DOMA unconstitutional, the United States Supreme Court in in Windsor v. United States had altered the legal landscape: NJ civil unions were now "unequal" because they would not be recognized by the federal government while marriages would be.
Interestingly, the State argued to the New Jersey Supreme Court that the federal government might - - - would? - - - recognize civil unions and thus the constitutional question remained unsettled. The NJ Supreme Court rightly rejected this contention as not based upon the language of Windsor or the realities of the manner in which the federal government was implementing Windsor. Additionally, the NJ Supreme Court rejected as inapplicable the State's argument that a statute is presumed constitutional, noting that the trial judge's order does not declare the civil union unonstitutional and that civil unions would still be available.
Having found that Garden State Equality was likely to prevail on the merits - - - a sure sign that the NJ Supreme court would so hold - - - the NJ Supreme Court considered the other equitable considerations regarding a stay, and found that none supported a stay.
Thus, in a unanimous 20 page opinion, the NJ Supreme Court has given a green light to same-sex marriages in the Garden State.
Tuesday, October 15, 2013
Federalism and state constitutionalism took center stage today, as Judge Steven Rhodes opened hearings on Detroit's eligibility for bankruptcy. Detroit's filing, on July 18, is the largest municipal bankruptcy petition in U.S. history.
According to the Free Press, attorneys for the creditors objecting to bankruptcy argued that federal bankruptcy law "allows the U.S. government to infringe on state rights and gives 'political cover' to Detroit emergency manager Kevyn Orr to pursue pension cuts":
I'd ask your honor to come back with me to elementary and high school when we first talked about what the Constitution means. By turning over Chapter 9 to the federal government and being able to hide behind the bankruptcy process, we lose that accountability that's a cornerstone of what our constitution requires of us.
Creditor attorneys also argued that bankruptcy violates the Michigan Constitution's protection of public pension benefits. Article IX, Section 24 says,
The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.
The hearing on eligibility is slated to go through Wednesday; Judge Rhodes will start an eligibility trial on October 23.
Friday, October 11, 2013
The Wayne Law Review (at Wayne State U. Law) is hosting a symposium today titled A Wave of Change: Celebrating the 50th Anniversary of Michigan's Constitution and the Evolution of State Constitutionalism.
This symposium seeks to evaluate the progress of state constitutions over the past 50 years. The symposium will also expose students, practitioners, academics, and the community to the unique and important qualities of state constitutions that are largely overlooked and undervalued.
Speakers will include national scholars on state constitutionalism as well as Michigan judges, practitioners, and community members.