Constitutional Law Prof Blog

Footnote of the Day: The Satisfaction of Michigan v. Long?

The footnote from the Tennessee Supreme Court seems rather innocuous:

The decision in Middlebrooks was required by Art. I, § 16 of the Tennessee Constitution. We reviewed federal constitutional law in our analysis to determine whether the duplication also violated the Eighth Amendment to the United States Constitution, but Middlebrooks was decided on separate and independent state constitutional grounds. See Middlebrooks, 840 S.W.2d at 346; Zant v. Stephens, 462 U.S. at 877.

State v. Howell, 868 S.W.2d 238, 259 n.7 (1993).  But the footnote is a dramatic one, as Neil Colman McNabe demonstrated in his article, A Rescue From The Jaws Of The Crocodile: The Post-Certiorari Plain Statement Footnote, 59 Albany Law Review 1737 (1996).  

The Middlebrooks case in the footnote was Middlebrooks v. State, in which the Tennessee Supreme Court vacated Donald Ray Middlebook's death sentence.  The state sought certiorari to the United States Supreme Court, which was granted, oral argument was heard, and then certiorari was dismissed as improvidently granted.  The reason for the dismissal of certiorari was that footnote 7 in Howell, rendered 9 days after the oral argument in Middlebrooks.  The footnote  was deemed to satisfy the rule of Michigan v. Long.  

The Court in Michigan v. Long, 463 U.S. 1032 (1983), enunciated its rule of judicial review for state decisions involving federal constitutional matters: the state court must include a "plain statement" that the decision rests on adequate and independent state grounds.  Otherwise, the Court will assume that the state court decided the way it did because it felt compelled to do so by federal constitutional law.  Interestingly, Michigan v. Long involved the state executive branch attempting to overrule its own state high court by seeking review from the United States Supreme Court.  Many other cases followed a similar pattern, as was the situation in State v. Middlebrooks.

However, as the Sixth Circuit opinion affirming a denial of habeas to Middlebrooks decided in September 2010 makes clear, the dismissal of certiorari did not end the matter.  After the Tennessee Supreme Court vacated the death sentence, "In 1995, a jury again sentenced Middlebrooks to death after finding that the murder was especially heinous, atrocious, or cruel and after weighing the aggravating and mitigating circumstances."   Middlebrooks then raised a number of constitutional claims in state postconviction proceedings, including ineffective assistance of counsel, and in the subsequent habeas petition in federal district court which was denied, and which the Sixth Circuit affirmed.

Meanwhile, Tennessee is one of several states that have turned over their supplies of sodium thiopental, a sedative widely used in lethal injections, to the federal drug enforcement officials because of controversies regarding the drug.

RR
(H/T J. Zak Ritchie)

Wisconsin Supreme Court Election Updated Again

UPDATE:
"The clerk in a Republican stronghold tilted the tight Supreme Court race in favor of Justice David Prosser by recovering thousands of untallied votes for the incumbent," according to the Milwaukee Journal Sentinal, which has been doing excellent reporting on the race.

Original post discussing the election, Prosser's judicial temperment, and possible litigation here.

RR

Footnote of the Day: Star Trek as a Citation for the State's Police Power

If there is one citation that best explains the constitutional "police power" of the state, it might be from well-established precedent, or perhaps even literature, but what about Star Trek? 

Here's the footnote:   

See Star Trek II: The Wrath of Khan (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book's opening and closing passages. Most memorable, of course, is Spock's famous line from his moment of sacrifice: “Don't grieve, Admiral. It is logical. The needs of the many outweigh ...” to which Kirk replies, “the needs of the few.”

Robinson v. Crown Cork & Seal Co., Inc., __ S.W.3d ___, 2010 WL 4144587  n.21 (Willet, J. concurring) (Tex. 2010). 

The case addressed whether a statute that limits certain corporations' successor liability for personal injury claims of asbestos exposure violated the prohibition against retroactive laws contained in article I, section 16 of the Texas Constitution as applied to a pending action.

The Texas Supreme Court held the statute unconstitutional, finding any public interest served by the statute to be "slight."

Justice Willet, concurring, viewed the case not merely about whether the statute “singled out Barbara Robinson and unconstitutionally snuffed out her pending action against a lone corporation,” but it is about delimiting “the outer edge of police-power constitutionality,” an issue that “has bedeviled Texas courts for over a century.”   Thus, Willet writes:

Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.” Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.

Footnote 21, of course, is to the word "Vulcan."

RR

with J. Zak Ritchie

[image: Star Trek Wrath of Khan uniform, via]

Arkansas Supreme Court Holds Ban on Adoption by Unmarried Couples Unconstitutional

Affirming a state trial judge's conclusion rendered almost a year ago, the Arkansas Supreme Court today declared the Arkansas law banning adoption by unmarried couples unconstitutional under the state constitution in a 25 page opinion, Arkansas Department of Human Services v. Cole.

The law, Act One, was passed by the voters in November 2008 and prohibited cohabiting same-sex couples and (unmarried) heterosexual couples from becoming foster or adoptive parents. 

 

The Arkansas Supreme Court held that there is a fundamental, if implicit, right of privacy in the state constitution: "under the Arkansas Constitution, sexual cohabitors have the right to engage in private, consensual, noncommercial intimacy in the privacy of their homes."  This right was infringed by Act One which "precludes all sexual cohabitors, without exception, from eligibility for parenthood, whether by means of adoption or foster care."   The court found it objectionable that under Act One state "agencies must 'police' couples seeking adoption or foster care to determine whether they are sexually involved in the event those couples represent that they are celibate."

Based on the existence of the fundamental right, the court applied a "heightened scrutiny" standard which it defined as requiring a compelling interest and least restrictive method to carry out that interest.

The court articulated the interests and concerns raised by the state and the intervenor, Family Council Action Committee, that has sponsored the ballot initiative. These concerns included arguments that unmarried cohabiting relationships are less stable, put children at higher risk for domestic violence and abuse, and have lower income rates, higher infidelty rates, and less "social support."  The court did not engage in any discussion about whether or not such propositions were true, but instead concluded that such concerns could be "addressed by the individualized screening process currently in place in foster and adoption cases."

Thus, the individualized assessments were the least restrictive means and the categorical ban failed to pass "constitutional muster." 

 RR

(H/T Tony Infanti, at Feminist Law Professors Blog)

 [image: by Moritz Pläschke, circa 1888) via]

Wisconsin Supreme Court Election Update

In the contentious Wisconsin election for Supreme Court Justice, the challenger JoAnne Kloppenburg has declared victory although she reportedly has a margin of approximately 200 votes. {UPDATE: vote count reversed and fluctuating}.

The incumbent,  David Prosser, currently a member of the state supreme court, has not conceded. 

The election is widely viewed as an example of the politicization of judicial elections.  In Wisconsin, the political issues revolve around Governor Walker’s proposal the elimination collective bargaining for public employees; an issue that is in litigation that could reach the state supreme court.  The Wisconsin election could be compared to the recent Iowa election which was seen as a referendum on same-sex marriage; the nomination process after that election resulted in an all-white all-male state supreme court.

Additionally, however, Prosser’s personal judicial temperament was a campaign issue.  Prosser reportedly called one of his fellow justices, a woman, a sexist slur.  In an interview with FoxNews, Prosser admited regret engaging in the name-calling, but says it was not all his fault and there was "some provocation."   A brief report with video clip is here; a longer video also discussing other issues is here.

The seemingly inevitable recount could result in litigation before the state supreme court.  However, the first step would be a trial.  And, according to the latest report from Milwaukee Journal Sentinel:

In one twist, state law calls for Chief Justice Shirley Abrahamson to appoint the state judge who would hear the case if the loser of a recount in a statewide election goes to court over the outcome. Abrahamson and Prosser have clashed on the court. Prosser's private remark calling Abrahamson a "total bitch" was the subject of a recent political ad attacking Prosser.

 

RR

Wisconsin Collective Bargaining Update (2)

The litigation surrounding the Wisconsin collective bargaining law continues.   

Since our last update, Judge Maryann Sumi has issued her brief written order enjoinging the enforcement of the 2011 Wisconsin Act 10 and declaring that 2011 Wisconsin Act 10 has not been published within the meaning of the Wisconsin statutes and is therefore not in effect.

RR

[image: Madison, Wi, 2011 via]

 

Wisconsin Collective Bargaining Law Enjoined Again and Other Updates

A separation of powers problem under the Wisconsin state constitution is continuing with a state judge again enjoing implementation of the anti-collective bargaining law and a member of the state executive again disputing the injunction's validity.

According to reporters Patrick Marley and Bill Glauber in their excellent article in the Milwaukee-Wisconsin Journal Sentinel, after a hearing today Dane County Judge Maryann Sumi announced: "Further implementation of the act is enjoined." The report continues:

Sumi noted her original restraining order issued earlier this month was clear in saying that the state should not proceed with implementing the law. The Walker administration did so after the bill was published Friday by a state agency not included in Sumi's earlier temporary restraining order.

"Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear," she said.

But minutes later, outside the court room, Assistant Attorney General Steven Means said the legislation "absolutely" is still in effect.

An appeal of Judge Sumi's original restraining order reached the Fourth District Court of Appeals by way of a motion on behalf of the Secretary of State to withdraw the appeal.  La Follette, the Secretary of State, argued that the appeal was moot because of the publication of the law by the Legislative Reference Bureau on March 25.  In an order today, the appellate panel declined jurisdiction to entertain the motion to wothdraw because it had already certified the matter to the state's Supreme Court, although the Wisconsin Supreme Court has not yet accepted the certitification.

Meanwhile, the GOP request for University of Wisconsin Professor Cronin's emails including words such as "collective bargaining" or "union" which we originally discussed here, has attracted a great deal of attention including a NYT Editorial which Cronin collects here.

RR

[image: Protesters outside Wisconsin State Capitol, March 2011, via]

The Original Tea Party and Regulating Food: WV Weekend Features the Forthcoming Work of Alison Peck

The regulation of food and its consumption have always posed constitutional issues - - - recall the "wheat case" of Wickard v. Filburn (1942) - - - and for the last several years, public health advocates, now prominently joined by First Lady Michelle Obama, have highlighted the need for vigorous public policy solutions to the increasing costs of obesity in America.  One of the most well-known policies aimed at adjusting Americans’ eating habits is the mandatory disclosure of nutritional information by restaurants.  Leading the way on such mandates include several of America’s largest cities, including New York, where Mayor Bloomberg has successfully advocated for the posting of calorie information in many of the city’s eateries; this policy ultimately survived a constitutional challenge.

In West Virginia, the efforts to mandate caloric information have been less successful.  During the 2009 Regular Session of the WV State Legislature, a bill was introduced and recommended for passage in the House of Delegates that would have required the posting of calorie counts of menu items in most restaurants throughout the state.  The bill died before making it to the House floor, perhaps because of the efforts of former state senator and statewide restaurateur, Oshel Cragio.  Craigo, who owns a popular fast-food chain of home-style breakfast restaurants named “Tudor’s Biscuit World,” buttered-up House committee members with free biscuit-style breakfast entrees on the morning in which the nutritional posting bill was being debated.  Perhaps unsurprisingly, members chose the biscuits over the bill.  However, a provision in the federal health care reform bill will likely require Cragio’s restaurants to post calorie counts.

Mandatory calorie disclosures typically provoke the anti-government sentiments often shared by members of the modern Tea Party, a movement we’ve covered here.  The rhetoric often invokes an originalist imagining of Revolutionary-era politics as championing individual liberty against government policies.

Professor Alison Peck at the WVU College of Law challenges the symbolism used by modern day Tea Party by arguing that early-American political groups associated with the Founding Fathers actually had more in common with contemporary advocates of food-consumption regulation than with the small-government Tea Party activists of today. 

Peck has posted an abstract of her article, Revisiting the Original “Tea Party”: The Historical Roots of Regulating Food Consumption in America, on ssrn here, but we've had a chance to read the entire draft manuscript.  It's a stellar argument supporting her central assertion that “opponents of modern food-consumer regulation misapprehend Revolutionary history. . . .”  Manuscript at 5. 

Specifically, the "non-importation and non-consumption agreements suggest that the colonists considered private consumption decisions to be fair subjects of coordinated public action where those decisions had negative public consequences.” Id. at 7.  Indeed, Peck argues that a close examination of those non-importation agreements and their context suggests that they arose, in principle, from many of the same forces driving food-consumer regulation today. These forces include shared public costs attributable to private consumption decisions; popular rhetoric linking private choices and public costs; sponsorship of restrictions by community leaders and elites; and collectively-enforced consequences for failure to conform. Id.

While the author admits the obvious difference between the modern regulations and the Revolution-era non-importation and non-consumption agreements—that the latter agreements had no force of law—Peck claims that the “disenfranchised colonists came as close as they could to replicating that effect: The increasingly coercive mechanisms of outing and ostracizing free riders, seizing and holding offending goods, and even using violence against offenders gradually served to raise the cost of non-compliance.” Id at 50.  Indeed, Professor Peck believes that it was “likely that the colonists would have given their agreements the force of law if they had had the constitutional power to do so.” Id.  Supporting this assertion, the author briefly discusses the imposition of the federal excise tax on whiskey in 1791—a tax that led to a brief but serious rebellion in the young nation.

Peck concludes by chiding the modern Tea Party for their claims that food-consumer regulation are “unprecedented or un-American,” as such regulatory forces are “far from novel.” Id. at 54.  She writes:

The idea that a society may regulate individual consumption choices in the name of the collective good was expressed as early as the pre-Revolutionary non-consumption and non-importation agreements. Although those agreements were quasi-legal instruments organized and enforced by the colonists outside of formal legislative bodies, their purpose was equivalent: to force accountability for private consumption decisions that had shared social costs.

Id.

The powers of governments (federal, state, and local) and individual liberties has been an ongoing balancing act in US legal history.  Peck's article will be an important contribution to our assessment of our understanding of that history.

RR

with J. Zak Ritchie

[image: Mary Cassat, American artist, "Afternoon Tea Party," 1891, via]

 

Local Government and Constitutional Funding: West Virginia Weekend

With the new "austerity" budgets as well as efforts to ban collective bargaining by government employees, local governments are considering their options.  In Ohio, The Local Government Fund Coalition launched this week.  The state legislatures of Wyoming, Nevada, South Dakota, and Minnesota are among those that are reportedly considering the issue. 

In West Virginia, a resolution calling for a constitutional amendment to address the ability of a local governments to raise funds was introduced during the Regular Session of the West Virginia State Legislature this term. Born of an idea researched and advanced by Matthew Delligatti, the former mayor of Fairmont, West Virginia, and current third-year law student at WVU College of Law, House Joint Resolution 9 attempts to present the voters with a constitutional amendment designated “The Silenced Majority Local Levy and Bond Amendment.” 

The resolution aims to amend the provisions of Article X of the West Virginia Constitution, which requires a 60% supermajority voter approval for the passage of municipal and county levies and bonds.  In 1982, voters amended this restriction by ratifying an amendment requiring only a simple majority for school levies and bonds.  However, the 60% threshold remains for all other local levies and bonds and continues to plague municipal and county leaders’ plans to raise revenue, including for recreational levies.  While the Resolution has not yet been approved by both houses of the state legislature, many observers expect the measure to pass and be sent on to the voters for ratification.  In fact, the State Senate unanimously passed the Resolution on Friday.   

 

As the "Silenced Majority Amendment" makes clear, local government reform must conform to restrictions in state constitutions.   Professor Robert Bastress at the WVU College of Law, is not only knowledgeable on the constitutionality of West Virginia statehood and the constitutionality of West Virginia's "Acting Governor" controversies, but also the challenge of local government reform under West Virginia's state constitution.  In “Constitutional Considerations for Local Government Reform in West Virginia,” 108 W. Va. L. Rev. 125 (2005), Bastress surveys the history of local government reform and constitutional revision in West Virginia and offers considerations for legislators concerned with the constitutionality of statutory reforms of local government.  In a follow-up article, Bastress addressed the principles underlying the need for vibrant, autonomous local government in “Localism and the West Virginia Constitution,” 109 W. Va. L. Rev. 983 (2007).  In both pieces, Bastress lays out a strong case for local government reform. 

He writes in Constitutional Considerations: “Moving toward consolidated governments and cooperative arrangements provides great opportunities to share resources, achieve efficiencies, and promote equity.  Any such effort, however, should include mechanisms to preserve the advantages of small government: local self-determination, diversity, governmental responsiveness to constituent concerns, citizen participation, and sense of community.” Id. at 169.  Bastress then argues in Localism that the West Virginia Constitution “provides considerably more local government discretion” than has been previously understood. Id. at 684.  Ultimately, Bastress links  localism to democracy:

By leaving important decisions to local governments, a state promotes self-determination, the rationale and foundation of democracy. The smaller the governmental unit, the more input and influence an individual citizen can have on her government. Then, too, the more discretion that local leaders have, the better they can address problems in a manner that is most suitable to the community’s particular needs. Local people know local conditions the best and can most effectively address them, if they have sufficient regulatory tools and the resources to do so. . . .

With enhanced local power also comes enhanced citizen participation in local government. Citizens participate in government when that participation can be meaningful. The smaller the governmental unit, the more likely a citizen’s participation will be meaningful. And the more autonomy that unit has, the more likely the participation will prove to be useful. Active citizen participation  in government improves the public debate, promotes better decision-making, advances the lives of the participants, and makes for a better polity and a better democracy.

Id. at 687 - 688.  Bastress' arguments extend well beyond West Virginia.

 

RR

with J. Zak Ritchie

(image: Monongahela River at Fairmont, WV, by Tim Kiser via)

NY's Chief Judge Lippman to Speak about Right to Counsel in Civil Cases

There is a growing movement for a right to an attorney in civil cases, sometimes known as a civil Gideon, coupled with increased funding for civil legal services and legal aid.  We've discussed the right to counsel in civil litigation here, here, here, here, here, and here.

Judge Jonathan Lippman has recently written in the NY Law Journal that:

At best, only 20 percent of the civil legal needs of low-income New Yorkers are being met today. Providers have no choice but to turn away vast numbers of eligible clients, including eight out of every nine in New York City.

One result of this deepening crisis is that the courts are seeing an ever-expanding number of unrepresented litigants. We heard testimony from judges, clients, lawyers and others about what happens when litigants try to navigate the courts without counsel.

Befitting his role as chief judge of New York's highest court, Lippman is not making any constitutional arguments.  Instead, he posits that there is a "moral and ethical obligation" as well as making efficiency and effectiveness claims.  He suggests that

the state begin to reduce the unmet civil legal services needs in those matters that concern the "essentials of life": a roof over one's head, family stability, personal safety free from domestic violence, access to health care and education, or subsistence income and benefits.

This is the recommendation in the Report issued by The Task Force to Expand Legal Services in New York; Judge Lippman presided over the hearings held throughout the state.   A New York Times Editorial essentially endorsed the Task Force's recommendation.

Lippman will be speaking at City University of New York School of Law on Thursday, February 3, about the right to an attorney in civil cases. 

 

 

Admission is free

RSVP required: alumnioffice@mail.law.cuny.edu

 

UPDATE: Discussion of event in New York Law Journal, February 7, 2011.

 RR

Onwuachi-Willig Among 9 Finalists for Iowa Supreme Court

The Judicial Nominating Commission in Iowa, the subject of a recent unsuccessful lawsuit regarding its composition, has sifted through the 60 applicants and sent 9 candidates for the 3 vacancies to the Governor. 

There is one woman, one racial minority, and one law professor - - - and then there are 8 other candidates.

Angela Onwuachi-Willig, Professor of Law at the University of Iowa College of Law (pictured left) is also the youngest candidate, at age 37, according to The Des Moines Register.

Onwuachi-Willig is a prolific scholar on race, class, and feminism, including their constitutional aspects.  One of Onwuachi-Willig's most influential articles is Just Another Brother on the Supreme Court?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity in which she argues that Thomas' ideology is deeply grounded in black conservative thought, which has a "raced" history and foundation that are distinct from white conservatism. She seeks to explain Justice Thomas's jurisprudence from a black, conservative perspective in cases concerning education and desegregation, affirmative action, and crime.

The current vacancies on the Iowa Supreme Court occurred when three Iowa Supreme Court justices stood for retention last November and were not retained by the voters of Iowa.  This result is widely assumed to be attributable to the campaign against the judges based upon the Iowa Supreme Court's unanimous opinion in Varum v. Brien holding that a denial of same-sex marriage is unconstitutional under the state constitution.

RR

Iowa District Judge Pratt Dismisses Challenge to Iowa Judicial Selection

 On November 2, 2010, three Iowa Supreme Court justices stood for retention and were not retained by the voters of Iowa.  This result is widely assumed to be attributable to the campaign against the judges based upon the Iowa Supreme Court's unanimous opinion in Varum v. Brien holding that a denial of same-sex marriage is unconstitutional under the state constitution. 

 

Filling those vacancies under the state constitutional process is done by the State Judicial Nominating Commission which accepts applications and create a list of three nominees for each vacancy for the Governor's appointment.  The Commission has 15 members, 7 of whom were appointed and 7 of whom were elected by members of the Iowa Bar, as well as the chair who is the Iowa Supreme Court justice “who is senior in length of service on said court, other than the chief justice."

The gravamen of the complaint is that the plaintiffs, who are not members of the Iowa Bar, are denied their Equal Protection rights and their voting rights because they are excluded from participating in the elections of the elective members of the Commission.

In a 35 page opinion Judge Pratt dismissed the Complaint.  He stated:

At base, Plaintiffs are asking this Court to recognize an entirely new substantive Fourteenth Amendment right.  The Court declines Plaintiffs’ invitation to do so.  It not the business of the federal courts “to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.”  See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973).  That is especially true, where, as here, Plaintiffs have failed to provide adequate legal support for their asserted “right to equal participation.”  The Court concludes that Plaintiffs do not have a right, let alone a fundamental right, to “equal participation” in the selection of state court judges—at least not as that “right” is conceptualized by Plaintiffs.

Interestingly, Pratt's language reverberates with the very accusations that were lodged against the unretained Iowa judges - - - creating new substantive rights and essentially being "activist."  The complaint was filed on behalf of four Iowans by James Bopp, Jr.

Judge Pratt's opinion analyzes whether or not the members of the Commission are representative of any constituencies and concludes they are not. His conclusion is straightforward:

Undoubtedly, the right to vote for political representatives is the bedrock of American
democracy.  In this case, however, Plaintiffs are asking the Court to radically expand the scope
of this fundamental right beyond all existing precedent and to recognize an entirely new
Fourteenth Amendment “right” to greater influence in the selection of judges.  Their claims,
therefore, are fatally flawed.  Plaintiffs may prefer that Iowa had a different method of judicial selection, but absent a violation of a clearly-established constitutional right, the people of Iowa are entitled to retain the judicial selection system they chose in 1962.

According to the Iowa Judicial Nominating Commission, more than 60 candidates have filed applications (and supporting materials) for the 3 vacancies.

Relatedly, there have been proposals to impeach the remaining Justices who joined the unanimous opinion in Varum v. Brien: Press Release from Iowa representative here; Des Moines Register reporting here; NYT editorial here.

RR

West Virginia Supreme Court Orders Special Election

A week after hearing oral argument on the petition for writ of mandamus to order an election for Governor, the state's highest court has granted the petition with respect to the Acting Governor, Earl Ray Tomblin (picured right). 

In the 25 page opinion, the Justices

direct Respondent Tomblin, in fulfilling his role to act as governor during the current vacancy, to forthwith issue a proclamation fixing a time for a new statewide election for governor consistent with W. Va. Const., art. VII, § 16 and W. Va. Code § 3-10-2 (1967).

 The court's syllabus provides its outline of the opinion:

1. “The provisions of the Constitution, the organic and fundamental law of the land, stand upon a higher plane than statutes, and they will as a rule be held mandatory in prescribing the exact and exclusive methods of performing the acts permitted or required.”

2. “Where a provision of a constitution is clear in its terms and of plain interpretation to any ordinary and reasonable mind, it should be applied and not construed.”

3. “Courts are not concerned with the wisdom or expediencies of constitutional provisions, and the duty of the judiciary is merely to carry out the provisions of the plain language stated in the constitution.”

4. “Words used in a state constitution, as distinguished from any other written law, should be taken in their general and ordinary sense.”

5. “As used in constitutional provisions, the word ‘shall’ is generally used in the imperative or mandatory sense.”

6. “The American constitutional system, under which West Virginia’s government is organized, W. Va. Const. art. 1, § 1, changed substantially the operative theory of sovereignty and identified the sovereign, whose will legitimizes authority, as the people.

7.  Pursuant to W. Va. Const., art. VII, § 16, the period of time in which the duties of the governor shall be performed by a person who was not elected to the office of governor by the people in a statewide election shall not exceed one year.

8. Pursuant to W. Va. Const., art. VII, §16, whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new statewide election shall be held as soon as practicable and in compliance with the constitutional prescription that the office be assumed by an elected successor within one year of the date when the vacancy occurred.

9. The procedure established in the second paragraph of W. Va. Code § 3-10-2 regarding the holding of a new or special election to fill the vacancy in the office of governor is within the legislative prerogative and does not violate the State Constitution.

10. The Legislature may amend the procedure for providing for a new or special election if it deems it appropriate to do so; provided, however, any new procedure may not conflict with the Constitution which requires that all acts necessary to elect a governor shall be completed within one year of the vacancy in the office. 

The West Virginia Supreme Court of Appeals' unanimous opinion was authored by Justice Brent Benjamin.  Benjamin, of course, was the justice at the center of the controversy in Caperton v. Massey Coal Company, in which the United States Supreme Court decided that due process required Justice Benjamin to recuse himself from the appeal of the $50 million jury verdict although the CEO of the lead defendant had spent $3 million dollars (about 60% of the total contributions) supporting Benjamin's campaign for a seat on the WV court.

RR

West Virginia Weekend: When will there be an elected governor?

 West Virginia continues to play host to numerous constitutional uncertainties initially sparked by the death of longtime U.S. Senator Robert C. Byrd and the special election of then-Governor Joe Manchin (D) to fill the senatorial vacancy.

This past Tuesday, West Virginia’s highest court, the Supreme Court of Appeals, heard oral arguments on a petition for writ of mandamus that seeks to force state leaders to schedule a special gubernatorial election to finish Manchin’s unexpired term.  Petitioners sued the President of the Senate and Acting Governor Earl Ray Tomblin, Speaker of the House Rick Thompson, and Secretary of State Natalie Tennant.  In addition to the parties, the Court heard from numerous amici, and all parties and amici apart from the current Acting Governor seek a judicially ordered special election this year.  The court must interpret the West Virginia Constitution which provides:

Article VII, section16, "Vacancy in governorship, how filled":

In case of the death, conviction or impeachment, failure to qualify, resignation, or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the Senate, for any of the above named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy.

As we previously discussed, the provision is ambiguous. But with fresh claims of unconstitutional action out of the State Senate over new senate rules, it’s beginning to appear as if most of the regular legislative session will be consumed by constitutional wrangling.  To distance himself from the State Senate where he technically still presides as Senate President, the Acting Governor tacitly endorsed a rule change whereby the State Senate created the new position of Acting Senate President to preside in the absence of the Senate President.  This position was created and ultimately filled by none other than Tomblin’s chief political foe and fellow Democrat, Senator Jeff Kessler.  (Kessler, known as a more labor-friendly Democrat than Tomblin, announced for governor last year.)  During the debate on the rules change, disaffected Democrats joined the small band of Senate Republicans to denounce Kessler’s ascendancy as an unwarranted political coup.  One Republican who called the rules change “unprecedented, unconstitutional, and illegal,”  blamed Kessler’s power play and Tomblin’s later submission as the result of senators who “signed in blood.”  Despite the heated rhetoric, the new rules were adopted and Kessler promptly took control of the State Senate and replaced Tomblin’s committee chairs and caucus leaders with his own supporters.

Arguments labeling the new rules unconstitutional appear to rest with Article VI, Section 24 of the West Virginia Constitution: “The Senate shall choose, from its own body, a president. . . .” Because the State Senate chose Tomblin as Senate President, thus allowing him to remain Acting Governor, critics suggest that creating the additional position of “Acting Senate President” impermissibly treads on the above constitutional mandate that there be only one president.  However, the same section further reads that “[e]ach house shall appoint its own officers, and remove them at pleasure.”  Taken together with the usual reluctance of courts to involve themselves in disputes over the internal rules of a legislative body, the claims of unconstitutionality may go no further than the senate chamber.

An additional constitutional complication has the potential of bringing all lawmaking to a halt.  It has been no secret that the Speaker of the House of Delegates opposes the new senate rules and rise of Kessler, as the Speaker, too, has gubernatorial aspirations.  In recent days, Kessler’s critics have stated that the House of Delegates may not agree to joint rules that would recognize Kessler’s signature for senate-passed bills.  As the argument goes, statue and convention provide that only the Senate President (in this case, the Acting Governor) and not the Acting Senate President may sign such bills before they go on to the House and/or the Governor.  Naturally, the Senate President and Acting Governor hopes to avoid the sticky situation of signing a bill twice, representing both the executive and half of the legislative branches.  Of course, this implicates the separation of powers provision in the state constitution, which we discussed in our earlier post.

Meanwhile, the Acting Governor has proposed a working group to study the idea of creating the separate constitutional office of lieutenant governor.  West Virginia is one of the few states that does not have a lieutenant governor.

Considering the political turmoil caused by ambiguous and archaic constitutional provisions, it might be an understatement to suggest that West Virginia’s Constitution—ratified in 1872—is starting to show its age.

RR

(with J. Zak Ritchie)

West Virginia "Acting Governor": Violation of State Constitution?

Joe Manchin, the former governor, was sworn in as the junior United States Senator from West Virginia yesterday.  West Virginia is one of less than ten states that does not have an official lieutenant governor to assume the governorship.  Instead, the West Virginia Constitution provides in Article VII, section16, "Vacancy in governorship, how filled":

In case of the death, conviction or impeachment, failure to qualify, resignation, or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the Senate, for any of the above named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy.

The problem is separation of powers under the state constitution.  A member of the legislative branch, president of the Senate, Earl Ray Tomblin, who was sworn in as governor yesterday, is now the head of the executive branch.  The West Virginia Constitution specifically prohibits a person serving in two branches of state government.  Article V provides:

The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.

Thus, Article V conflicts with Article VII, section 16, which provides for one person to occupy positions in two branches.  However, section 16 clearly contemplates such a state of affairs as a temporary solution: "until the vacancy is filled."   But how temporary?  And how is the vacancy to be filled?

ConLawProf Robert Bastress at WVU College of Law argues that the legislature should be given the opportunity to solve the problem.  WV attorney Thornton Cooper intends to file a lawsuit with the state supreme court to require a special election.  Their views and a discussion of the law is available from WV public television in the segment below.

   

 

RR

 

Federal Judge Issues TRO in Oklahoma's Anti-Sharia Case

Judge Vicki Miles-LaGrange of the Western District of Oklahoma yesterday issued her Temporary Restraining Order, enjoining the State from certifying the election results for State Question 755, the state ballot question that would amend the Oklahoma Constitution to ban state courts from considering Sharia law. 

Judge Miles-LaGrange's order was expected.  She issued a Minute Sheet to the same effect earlier this week.

The 9-page Order concludes that plaintiff Muneer Awad is likely to succeed on his Establishment Clause and Free Exercise Clause claims for reasons argued by Awad.  As to the Establishment Clause, Judge Miles-LaGrange wrote that the ballot measure did not have a secular purpose, that its primary purpose inhibits religion, and that it fosters an excessive government entanglement with religion.  As to the Free Exercise Clause:

[T]he Court finds that plaintiff has made a preliminary showing that State Question 755's amendment is not facially neutral, discriminates against a specific religious belief, and prohibits conduct because it is undertaken for religious reasons.  Additionally, the Court finds that plaintiff has made a preliminary showing that State Question 755's amendment is neither justified by any compelling interest nor narrowly tailored.

Judge Miles-LaGrange also ruled that Awad had standing, and that the case was ripe for review.  She ordered the TRO in effect until the scheduled hearing on the preliminary injunction, Monday, November 22.

Meanwhile, two Con Law Profs weighed in.  Prof. Ali Khan (Washburn) takes a strong stand against the measure, arguing that it would affect everything from Muslim prisoners' rights to halal food to state court interpretation of international business contracts based on Sharia law to marriages under Sharia law.  Prof. Marci Hamilton (Cardozo) argues that it may be a non-issue, because courts can't use religious law, anyway:

It may look anti-Muslim, but no other religious group has a right to have their religious doctrine determine secular law.  On this reading, it is just a restatement of the rule of law.

SDS

Federal Court Blocks Oklahoma's Anti-Sharia Con Amendment

Judge Vicki Miles-LaGrange of the Western District of Oklahoma today issued a temporary restraining order preventing the State of Oklahoma from implementing its new constitutional amendment that would ban the use of Sharia law in Oklahoma courts.  The court released a Minute Sheet without significant analysis; Judge Miles-LaGrange indicated that she'd release an Order soon.

We posted on the case, brought by Muneer Awad, ED for the advocacy group the Council on American-Islamic Relations, here.

The constitutional amendment, passed by a 70%-30% vote in last Tuesday's election, would prohibit Oklahoma courts from "look[ing] to the legal precepts of other nations or cultures.  Specifically, the courts shall not consider international law or Sharia Law."

The Minute Sheet also concludes that Awad has standing.  He claims that the amendment would stigmatize him as a Muslim and prevent him from enforcing his will, which references Sharia law, in Oklahoma state courts.

SDS

Nebraska Supreme Court Refuses Certified Question from Federal Court in Fremont Immigration Ordinance Challenge

In a brief opinion, the Nebraska Supreme Court (pictured below) denied a certification request from the federal district court in the controversial Fremont immigration ordinance challenge. 

The Fremont Ordinance, passed by ballot initiative in June, provides that all persons renting or leasing dwelling units obtain an “occupancy license” from the city.   The fee is $5.00, and requires “citizens or nationals” to sign a declaration so stating, and  "in cases in which the applicant is not a United States citizen or national, an identification number assigned by the federal government that the occupant believes establishes his lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, "A" number, 1-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the alien does not know of any such number, he shall so declare. Such a declaration shall be sufficient to satisfy this requirement."  The  Ordinance also requires that “Every business entity employing one or more employees and performing work within the City shall register in the [federal] E-Verify Program within 60 days after the effective date of this Ordinance, and shall use the E-Verify Program to verify the authorization of employment in the United States of each employee hired after such registration."

The federal district court certified the following question:

May a Nebraska city of the first class, that is not a “home rule” city under Article XI of the Nebraska Constitution and has not passed a home rule charter, promulgate an ordinance placing conditions on persons’ eligibility to occupy dwellings, landlords’ ability to rent dwellings, or business owners’ authority to hire and employ workers, consistent with Chapters 16, 18, and 19 of the Revised Statutes of Nebraska?

The Nebraska Supreme Court found the certified question too general.  It noted that under the relevant Nebraska statute allowing for certified questions, in addition to the question of law to be answered, there must be "a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose."   Yet the court quickly acknowledged that it was fully aware of the controversial ordinance and the factual basis for the question.  The real problem, the court reasoned, is that the certified question of state law would not be determinative of the pending federal case:

Obviously, even if this court held that the ordinance did not violate a state statute or the state Constitution, that holding would not be determinative of a federal constitutional challenge to the ordinance. And the request does not ask us to consider whether any authorizing statute raised by the complaint is subject to a construction that would limit the statute’s or ordinance’s reach and thus resolve the pending federal challenge. Nor does it ask us to decide whether the ordinance violated any specific statute. Thus, we assume that the plaintiffs have alleged that the ordinance offends state and federal constitutional protections or conflicts with federal immigration law, rather than violating specific state statutes.

Any state constitutional claims, the Nebraska Supreme Court states, are co-extensive with federal ones, and the "most common constitutional challenges to these types of ordinances have been due process, equal protection, and federal preemption challenges."

The Nebraska Supreme Court seems to ignore the clear language of the certified question, which posed a query about the authority of a city under the state constitution that was not a "home rule" city, which would presumably have greater powers to legislate than a non- "home rule city."  

Perhaps the federal district court was considering a state constitutional powers issue as a way to avoid deciding the "most common constitutional challenges."  If so, the Nebraska Supreme Court is not providing any assistance.

RR

Group Sues to Stop Oklahoma's Anti-Sharia Constitutional Amendment

Muneer Awad, Executive Director of the Council on American-Islamic Relations, filed for a temporary restraining order and preliminary injunction seeking to stop the State of Oklahoma from certifying state ballot question 755 and implementing the new anti-Sharia constitutional amendment.  CAIR's press release is here.

As we mentioned previously, Oklahoma's state ballot question 755 would amend the state constitution to ban the use of Sharia law in Oklahoma courts.  It reads in relevant part:

The [Oklahoma courts], when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions.  The courts shall not look to the legal precepts of other nations or cultures.  Specifically, the courts shall not consider international law or Sharia Law.  . . .

The measure passed by 70% to 30% in Tuesday's election.

Awad and CAIR argue that the provision violates both the Establishment Clause (under the Lemon test) and the Free Exercise Clause (under either strict scrutiny or rational basis review).  In short, they argue that the State's targeting of Sharia law will stigmatize Awad based on his faith and prevent him from enforcing his will (which references Sharia law) in Oklahoma state courts.  As to the Establishment Clause, they argue that the measure violates all three parts of the Lemon test: that it does not have a secular purpose, that its primary effect advances and inhibits religion, and that it fosters an excessive government entanglement with religion.  As to Free Exercise, they argue that the State doesn't even have a legitimate purpose in banning the use of Sharia law, except the bare desire to harm a politically unpopular group.  This is not enough to sustain the measure against Awad's challenge.  Cleburne v. Cleburne Living Center; Romer v. Evans.

SDS

Mississippi Court Allows Personhood Initiative To Appear on Ballot

Mississippi Circuit Court Judge Malcolm Harrison ruled yesterday that a ballot initiative to define "person" did not violate a state constitutional provision that prohibits the use of initiatives to modify the state Bill of Rights.  (Clarionledger.com reports here.)

The initiative, Initiative Measure 26, would amend the state constitution to define the word "person" as follows:

Section 33.  Person defined.  As used in this Article III of the state constitution, "The term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning, or the functional equivalent thereof."

The measure would add Section 33 to the Mississippi Constitution Bill of Rights (Article III of the state constitution).

But Section 273(5)(a) of the constitution prohibits the use of the initiative to amend the state Bill of Rights:

(5) The initiative process shall not be used . . . [f]or the proposal, modification or repeal of any portion of the Bill of Rights of this Constitution.

Thus plaintiffs in the case argued that the initiative was unconstitutional.  Judge Harrison disagreed.  In a remarkably short order, apparently dodging the plaintiffs' constitutional claim, he wrote (without citation):

Plaintiffs carry a heavy burden in attempting to restrict the citizenry's right to amend the Constitution.  Initiative Measure No. 26 has received more than the required amount of signatures to be placed on the ballot and the Constitution recognizes the right of citizens to amend their Constitution.  The Court finds plaintiffs have not met their burden.

The order's analysis seems surprising for a variety of reasons, not least of which this: Subsection (5)(a) is pretty clear; and the Mississippi Supreme Court and state attorney general seem to think that other, similarly clear subsections in Section 273 basically mean what they say. 

The case is likely headed to the Mississippi Supreme Court.

SDS