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.
Thursday, October 3, 2013
The Idaho Supreme Court ruled today that a magistrate judge's order dismissing a party's motions because the party had been found guilty of contempt for for failing to pay child support violated the party's right to access the courts.
The case is notable because it invokes the Idaho Constitution's "Open Courts" provision--a common provision in state constitutions, but one that's relatively rarely litigated and has spawned a notoriously confused jurisprudence in the state courts. More: the court apparently reached out for the issue.
The case, State of Idaho Department of Health and Welfare v. Slane, involved a father's motions for child custody and modification of child support. The father had been previously judged in contempt of court for failing to pay court-ordered child support, and he was unable to purge the contempt when he filed his motions. A magistrate judge then dismissed the motions because of the father's inability to purge the contempt and pay back child support. A lower court upheld the magistrate's ruling.
The Idaho Supreme Court reversed for reasons dealing with the details of the contempt and the details of the magistrate's order. But then it added an alternative basis for its ruling: the magistrate's order violated the state constitutional open courts provision.
Article I, Section 18 of the Idaho Constitution says that "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice."
This kind of "open courts" provision is common in state constitutions. Open courts provisions first appeared in early state constitutions (borrowing from language in Magna Carta), and later state constitutional drafters appear to have simply lifted the text--sometimes modifying it slightly, but without any real thought about what it means.
That's led to a notoriously confused jurisprudence among state courts in interpreting state constitutional open courts provisions. In short, many states have an open courts provision, but courts across states can't seem to agree on exactly what "open courts" means.
So the Idaho Supreme Court's ruling is notable for dealing with open courts--for giving it some dimension and definition, at least in this context. But it's notable for a couple other reasons, too. For one, the court seems to have reached for the issue. Neither party seems to have argued it (based on the briefs, at least), and it's dicta. (The court could have hung its hat on its analysis of the details of the contempt and the magistrate's order, but it added this alternative reason for striking the magistrate's order.) Moreover, in ruling the way that it did, the court overruled three of its own opinions (from the mid-twentieth century) "to the extent that they are inconsistent with this opinion."
The upshot of all this is that the father gets his motions reinstated.
Friday, September 27, 2013
In a 55 page opinion today in Garden State Equality v. Dow, Mercer County Superior Court Judge Mary Jacobson granted summary judgment to the plaintiffs finding that NJ's same-sex marriage ban violated the state constitution. The judge held that New Jersey's civil union scheme, considered an acceptable remedy for any violation of the state's equal protection clause by the NJ Supreme Court in Lewis v. Harris (2006), was no longer sufficient to satisfy state constitutional law given the United States Supreme Court's invalidation of DOMA last June in Windsor v. United States.
Judge Jacobson concluded:
Because plaintiffs, and all same-sex couplies in New jersey, cannot access many federal marital benefits as partners in civil unions, this court holds that New Jersey's denial of marriage to same-sex couples now violates Article 1, Paragraph 1 of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis v. Harris.
This is an interesting - - - but totally predictable - - - use of Windsor to undermine the very rationales of the state's highest court's determination that civil unions would satisfy equality concerns.
The judge admits that the doctrinal landscape is murky, but also that it is rapidly changing. For this judge, effectuating the holding of the New Jersey Supreme Court in Lewis v. Harris that the state constitution required same-sex couples to be able to obtain all the same rights and benefits available to opposite sex couples compels the extension of marriage to same-sex couples.
In only a very few other states would similar reasoning be applicable: Illinois, Hawai'i, and Colorado have civil union laws but not same-sex marriage. Other states having civil unions also allow same-sex marriages or are "converting" civil unions to marriages.
As for New Jersey, odds are the state will appeal, although political considerations might weigh heavily.
Sunday, August 11, 2013
The Sixth Circuit on Friday ruled in City of Pontiac Retired Employees Association v. Schimmel that the Michigan state legislature may have violated the state constitution in approving the state's emergency manager law for immediate effect. The court remanded the case to the district court for consideration of that claim. If the district court holds that the law violates the state constitution, and if that ruling is upheld on appeal, the actions of the emergency manager for the City of Pontiac will be void.
The 2-1 ruling is notable insofar as a federal appeals court took it upon itself to rule on a state constitutional claim not raised by the parties, relating to state legislative procedure--all to avoid the plaintiffs' federal constitutional claims. The next steps in the case, the remand to the district court and the appeal that will surely follow, will be important because those rulings could put in jeopardy any action by any state emergency manager under a state law giving emergency managers broad powers.
The case arose after the Michigan state legislature approved Public Act 4, authorizing an emergency manager to temporarily reject, modify, or terminate existing collective bargaining agreements. Pursuant to this power, the City of Pontiac's emergency manager, Louis Schimmel, modified the collective bargaining agreements and severance benefits, including pension benefits, of Pontiac's retired employees. The employees sued, arguing Schimmel and Pontiac violated their federal constitutional rights, including rights under the Contracts Clause, the Due Process Clause, and the Bankruptcy Clause. They did not raise state law claims.
Still, there may have been state law problems with Schimmel's actions. First, the legislature approved Public Act 4 for immediate effect with less than a 2/3 vote, despite a state constitutional provision that requires a 2/3 vote for immediate effect. (Without a 2/3 vote, a legislative act takes effect 90 days after the end of the legislative session in which it was passed.) If the legislature enacted Public Act 4 in violation of the state constitution, Schimmel's actions pursuant to it are void.
Next, even if the state legislature complied with the state constitution, Public Act 4 may still be invalid. That's because Michigan voters rejected Public Act 4 in a citizen-initiated referendum in 2012. The legislature later enacted a law substantially similar to Public Act 4, but insulated from a voter referendum under the state constitution because it contains an appropriation provision. All this means that the emergency manager authority under Public Act 4 and its successor is questionable.
But the parties didn't raise or argue these state law issues. Instead, the Sixth Circuit did.
The Sixth Circuit dodged the plaintiffs' federal constitutional arguments (in the name of constitutional avoidance) and ruled that the lower court should consider the state law claims. In particular, the Sixth Circuit said that the state legislature's practice, across political parties, of approving laws for immediate effect even when they don't get the constitutionally required 2/3 vote may raise constitutional problems:
Apparently, a two-thirds vote occurs whenever the presiding officer says it occurs--irrespective of the actual vote. This authority is unchecked and often results in passing motions for immediate effect that could not receive the constitutionally required two-thirds vote. Apparently, the Michigan Legislature believes the Michigan Constitution can be ignored.
There's a state intermediate appellate court ruling that seems to say that this kind of action doesn't violate the state constitution. But there's no determinate state supreme court ruling on the issue.
For now, the case goes back to the district court for consideration of the state law issues raised by the Sixth Circuit.
Tuesday, July 30, 2013
The super-size soda ban, a program advocated by NYC Mayor Michael Bloomberg, is not constitutional according to the unanimous opinion from a state appellate court in New York Statewide Coalition of Hispanic Chambers of Commerce v. NYC Department of Health and Mental Hygiene.
The court affirmed a state trial court's decision that the NYC regulation prohibiting sugary drinks in restaurants, movie theaters and arenas that exceed 16 ounces was an unconstitutional exercise of power by a city agency, as well as arbitrary and capricious. A good discussion of the trial court's decision is here.
Essentially, the issue is whether NYC Health Code §81.53, known as the "portion cap rule" is within the power of the Department of Health. The short answer by the judicial branch: no.
In today's opinion, the court held that the NYC
Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion Cap Rule to curtail the consumption of soda drinks. It therefore violated the state principle of separation of powers. In light of the above, we need not reach petitioners' argument that the subject regulation was arbitrary and capricious. Before concluding, we must emphasize that nothing in this decision is intended to circumscribe DOHMH's legitimate powers. Nor is this decision intended to express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so. Within the limits described above, health authorities may make rules and regulations for the protection of the public health and have great latitude and discretion in performing their duty to safeguard the public health.
Doctrinally, the decision is most pertinent to New York state constitutional law and administrative law scholars and practitioners. It has broader interest, however, to those interested in the powers of governments to enact regulations that (arguably) promote health.
Tuesday, July 23, 2013
In a fifteen page opinion, federal district judge Timothy Black enjoined the application of Ohio's state DOMA provisions - - - both statutory and the state constitutional amendment - - - to a same-sex couple married out of state. In Obergefell v. Kasich, the judge adapted the reasoning of the United States Supreme Court's June opinion in Court's United States v. Windsor, declaring section 3 of the federal Defense of Marriage Act, DOMA unconstitutional. Judge Black's opinion is part of the aftermath of Windsor that we most recently discussed here.
Judge Black's opinion has a succinct discussion of equal protection doctrine and concludes,
Under Supreme Court jurisprudence, states are free to determine conditions for valid marriages, but these restrictions must be supported by legitimate state purposes because they infringe on important liberty interests around marriage and intimate relations.
In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal.
Judge Black's opinion has a brief explicit mention of "animus," but the concept permeates the opinion. For example, he notes that before the state enacted its DOMA provisions:
Longstanding Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. This legal approach is firmly rooted in the longstanding legal principle of “lex loci contractus” -- i.e., the law of the place of the contracting controls. Ohio has adopted this legal approach from its inception as a State.
Thus, for example, under Ohio law, as declared by the Supreme Court of Ohio in 1958, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins.
To be sure, the injunction is a limited one applicable to sympathetic facts. One of the partners is a hospice patient and the relief requested regards the martial status and surviving spouse to be recorded on the death certificate. Yet Judge Black's reasoning is not limited and opens the door to rulings that Ohio's DOMA provisions limiting state recognition of marriages to only opposite-sex marriages fails constitutional scrutiny under the Fourteenth Amendment's equal protection clause.
July 23, 2013 in Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Opinion Analysis, Recent Cases, Sexual Orientation, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 29, 2013
Reversing a lower court, the Colorado Supreme Court upheld the constitutionality of the state's financing of public schools in its opinion in State v. Lobato.The underlying problem at issue in the contentious case is exemplified by a chart that appears in one of the two dissenting opinions, demonstrating that "education funding in Colorado has been in steady decline" in recent decades:
The majority of the state supreme court concluded:
The public school financing system enacted by the General Assembly complies with the Colorado Constitution. It is rationally related to the constitutional mandate that the General Assembly provide a “thorough and uniform” system of public education. Colo. Const. art. IX, § 2 (the “Education Clause”). It also affords local school districts control over locally-raised funds and therefore over “instruction in the public schools.” Colo. Const. art. IX, § 15 (the “Local Control Clause”).
The meaning of "thorough and uniform" in the state constitution was discussed by the majority through reference to dictionary definitions and limited precedent. The court concluded it did not require equality, but only a rational relationship test. Under this test, the plaintiffs did not "establish beyond a reasonable doubt that the system fails to pass constitutional muster."
The majority's 26 page opinion was countered by more than 40 pages in the two dissenting opinions by Justices Bender and Hobbs (each joining in the other Justice's opinion). These opinions argue that the majority "abdicates this court’s responsibility to give meaningful effect" to the state constitution's education clause and failed to guarentee that students receive their constitutional right to education.
Like so many other constitutional challenges to state educational systems, this one revolves around vague state constitutional provisions and legislative choices that many view as underfunding education on a state-wide basis. Surely, this decision in Colorado will be contentious.
Tuesday, May 7, 2013
The Louisiana Supreme Court today ruled that the state's school voucher program violates the state constitution. In particular, the court ruled that the voucher program tapped the constitutionally protected per pupil state fund for public education and that the legislature passed the funding mechanism in violation of state constitutional procedural requirements.
The ruling deals a fatal blow to this funding mechanism for the state's voucher program. But the state could probably create a voucher program and fund it through a different budget mechanism (e.g., a regular line item, instead of the state's specifically reserved per pupil fund for public education). The ruling thus puts the ball back in the governor's and legislature's court--to create a new mechanism for the voucher program, and to come up with the money to fund it. (Here's Governor Jindal's statement in reaction to the ruling.) Even if this happens, the ruling underscores the constitutional protection for separately allocated per pupil fund for public education in the state.
The ruling, Louisiana Federation of Teachers v. State of Lousiana, arose out of state constitutional challenges to the state's recently encacted voucher program. That program diverted state funds separately allocated for public education (under the "minimum foundation program," or MFP) to private schools "on behalf of each student awarded a scholarship" under the voucher program. The program came in two parts: Act 2 created the voucher program; and Senate Concurrent Resolution No. 99 approved the MFP line-item but diverted MFP funds to support Act 2 vouchers.
The court ruled that the provisions violated Louisiana Constitution Article VIII, Sec. 13(B), which requires the legislature to "fully fund the current cost to the state" of "a minimum foundation program of education in all public elementary and secondary schools," and the "funds appropriated shall be equitably allocated to parish and city school systems." According to the court, Section 13(B) requires that MFP funds be used to support public education only, even if some of the students used to calculate the MFP base elected to go to private school. In short, when Section 13(B) says that MFP funds "shall" be allocated to public schools, it means they shall be allocated only to public schools--and can't be diverted to private schools.
The court also ruled that SCR 99 violated Article III, Sec. 2(A)(3)(a), which says (in relevant part):
No new matter intended to have the effect of law shall be introduced or received by either house after six o'clock in the evening of the twenty-third calendar day.
After some analysis of "the effect of law," the court concluded that SCR 99 violated this provision, because it was introduced in both houses after the twenty-third calendar day of the regular session. (The court ruled that it also violated a related provision, requiring a 2/3 vote after a certain date. Ultimately the court noted that in the House it didn't even get a "majority of the members elected," as required by Article III, Sec. 15(G).)
At the same time, the court ruled that the voucher package didn't violate the constitution's "one-object" rule, requiring each piece of legislation to deal with just one object. The court said the legislation was indeed quite lengthy, but still it all went to the same general object--promoting school choice.
Friday, May 3, 2013
The hunger strike amongst prisoners at Guantanamo Bay has led to force-feeding, a situation prompting the Office of the High Commissioner for Human Rights at the UN to issue a statement reiterating the disapproval of Guantanamo and remind the United States that:
in cases involving people on hunger strikes, the duty of medical personnel to act ethically and the principle of respect for individuals’ autonomy, among other principles, must be respected. Under these principles, it is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.
New York's highest court, in its opinion in Bezio v. Dorsey regarding a state prisoner on a hunger strike reached an opposite conclusion. The court's majority stated:
The issue before us is whether Dorsey's rights were violated by a judicial order permitting the State to feed him by nasogastric tube after his health devolved to the point that his condition became life-threatening. We answer that question in the negative.
Yet the question of Dorsey's "rights" that were properly before the court occupied the bulk of the majority and dissenting opinions. The state Department of Corrections and Correctional Services (DOCCS) had originally sought the judicial order relating to Dorsey, a "serial hunger striker," which Dorsey resisted with pragmatic rather than constitutional arguments. But the state relied heavily on previous New York law - - - including a case involving Mark Chapman, the man convicted of murdering John Lennon - - - to support the constitutionality of forced-feeding.
Chief Judge Lippman, dissenting (and joined by Judge Rivera) argued that there were too many factual distinctions, including any finding that the prisoner or the institution was actually in danger.
As noted, DOCCS's own consulting psychiatrist stated flatly in his assessment that Mr. Dorsey was not suicidal. He was undoubtedly manipulative [as the doctor had stated], but all civil disobedience is manipulative. Manipulativeness, obviously, is not a sufficient predicate for forced feeding by the State.
While concluding that the issues are not properly before the court, and that the case is moot under state constitutional doctrine, the dissenting judges nevertheless concluded
The right to refuse treatment, we have held, is a kind of liberty interest within the protective ambit of the Due Process Clause of the State Constitution. While the right may be overcome in compelling circumstances justifying the state's resort to its police power and the state may thus intervene to prevent suicide, the individual's basic prerogative to make decisions affecting his or her own personal health and right to be left alone, i.e. to personal privacy, ordinarily will trump even the best intended state intervention.
For the majority of the court, however, the balance articulated in Turner v. Safley (1987) was easily resolved in favor of the legitimate penological interests of the prison, including the risk of a "significant destabilizing impact on the institution" by an inmate hunger strike, to allow force feeding an inmate.
May 3, 2013 in Due Process (Substantive), First Amendment, Fourteenth Amendment, International, Medical Decisions, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Monday, April 1, 2013
In her opinion in American Atheists v. Port of Authority of NY and NJ Judge Deborah Batts of the Southern District of New York rejected a challenge to the plan to include a seventeen foot cross (pictured) in the National September 11 Memorial and Museum.
Judge Batts, however, did hold that the actions of the Memorial and Museum were subject to constitutional constraints. The defendants had argued that the "National September 11 Memorial and Museum at the World Trade Center Memorial Foundation" was not a state actor and thus the complaint against it, and the Port Authority, should be dismissed. Batts dispatched this argument with a rehearsal of the causal connections:
But for the Port Authority’s donation of the cross, but for the Port Authority granting the Foundation a property interest at the WTC Site, but for the Port Authority’s aid in constructing the Museum, and but for their continuing financial and operating relationship, the Foundation would not be able to include the artifact in the Museum.
She also found that the Foundation could be deemed a state actor because of its "pervasive entwinement" with the government.
The American Atheists were far less successful on their federal and state constitutionallaw arguments based on the Establishment Clause and Equal Protection.
In the more serious Establishment Clause challenge, Judge Batts concluded that the planned use of the cross passed the test of Lemon v. Kurtzman (1971). The placement of the cross in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” part of the September 11 historical narrative, was not an endorsement of religion. Judge Batts found it important that
there will be numerous secular artifacts around the cross, as well symbol steel with depictions of a Star of David, a Maltese cross, the Twin Towers, and the Manhattan skyline, which will reinforce to the reasonable observer that they are perceiving a historical depiction of some people’s reaction to finding the cross at Ground Zero.
She disagreed that the size of the cross was determinative. First, the plaintiffs were mistaken that it was the largest object in the museum at seventeen feet; the "Last Column," also to be included, is thirty-seven feet tall. Second, she observed that the artifact’s size was a function of its size when it was found; "Defendants did not create the cross to be such an imposing figure."
As for the Equal Protection challenge, Judge Batts found that there was not even an allegation of intentional discrimination or animus, and that the Foundation's act would easily survive rational basis review. The Museum is merely telling the history surrounding September 11 and the cross, and its meaning for some, is part of that history. The museum has the choice whether or not to include atheistic symbols.
Because the cross is situated among other artifacts and it is in a museum, any appeal from Judge Batts' grant of summary judgment for the defendants would most likely be unsuccessful. It looks as if the September 11 Museum will include the seventeen foot cross.
Friday, March 22, 2013
A state judge ruled that a Lousiana statute that criminalizes gun possession by felons violated the state's new and enanced right to bear arms, according to the Times-Picayune. The judge ruled the criminal ban unconstitutional and dismissed the felon possession charge against the defendant in the case. The ruling will go directly to the state supreme court.
Louisiana voters last year overwhelmingly passed a proposed state constitutional amendment, Proposed Amendment 2, that made "the right to keep and bear arms . . . fundamental" and explicitly provided for strict scrutiny review of any restriction of that right. The amendment also did away with previous language that permitted the state to prohibit the carrying of a concealed weapon. Here's the Lousiana SOS backgrounder; here are the ballot measures.
Under the new amendment, courts faced with a restriction on "the right to keep and bear arms" must apply strict scrutiny review. According to Judge Darryl Derbigny, Louisiana's statute criminalizing felon possession of guns just didn't cut it.