Tuesday, September 15, 2015
Friday, August 28, 2015
In its substantial opinion in Hodge v. Talkin, a panel of the United States Court of Appeals for the DC Circuit upheld the constitutionality of statutory prohibitions of assembly and display of flags or signs on the United States Supreme Court plaza.
40 USC §6135 provides:
It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.
Recall that almost two years ago, district judge Beryl Howell had found the statute unconstitutional in a well-reasoned and extensive opinion. Judge Howell's ruling prompted the United States Supreme Court to swiftly respond by promulgating a new regulation that seemingly responded to at least some of the more problematical examples that Judge Howell identified such as preschoolers wearing a tee-shirt. However, the DC Circuit's opinion reverses Judge Howell's decision without reliance on the limitations in the new policy.
Writing for a unanimous panel, Judge Sri Srinivasan notes that the United States Supreme Court's decision in United States v. Grace (1983) left the constitutional status of the plaza, when it decided that the sidewalks surrounding the perimeter of the Supreme Court building are public forums. However, Srinivasan relies on Grace for the distinction between the plaza and the sidewalks to conclude that the plaza is a nonpublic forum:
In marked contrast to the perimeter sidewalks considered in Grace, the Supreme Court plaza distinctively “indicate[s] to the public”—by its materials, design, and demarcation from the surrounding area—that it is very much a “part of the Supreme Court grounds.” [Grace.; Id. at 183.]. The plaza has been described as the opening stage of “a carefully choreographed, climbing path that ultimately ends at the courtroom itself.” Statement Concerning the Supreme Court’s Front Entrance, 2009 J. Sup. Ct. U.S. 831, 831 (2010) (Breyer, J.). For that reason, the Court’s plaza—unlike the surrounding public sidewalks, but like the courthouse it fronts—is a “nonpublic forum,” an area not traditionally kept open for expressive activity by the public. The government retains substantially greater leeway to limit expressive conduct in such an area and to preserve the property for its intended purposes: here, as the actual and symbolic entryway to the nation’s highest court and the judicial business conducted within it.
The opinion devotes attention to architectural description, which it admits in one case has "perhaps" a "degree of romanticism," and also likens the public forum characterization of the Supreme Court plaza to "the treatment of courthouses more generally" and to the controversial Lincoln Center plaza case; interestingly now-Justice Sotomayor was a judge on that panel.
As a nonpublic forum subject to the "lenient" First Amendment standard of reasonableness, the DC Circuit has little difficult in finding that the statute is "reasonable." Interestingly, the United States Supreme Court's closely divided opinion last Term in Williams-Yulee v. The Florida Bar occupies a prominent role in this reasoning. The opinion is discussed numerous times to support a conclusion that the government interests put forward here - - - "the decorum and order befitting courthouses generally and the nation’s highest court in particular" and "the appearance and actuality of a Court whose deliberations are immune to public opinion and invulnerable to public pressure" - - - are both valid and being appropriately served. Essentially, the DC Circuit's opinion embraces the "judiciary is special" sentiment and correctly notes that this prevailed in the strict scrutiny context of Williams-Yulee, so should suffice under the reasonableness standard.
The DC Circuit's opinion similarly rejects the overbreadth and vagueness arguments that the statute is unconstitutional.
In essence, the DC Circuit finds the inclusion of the "grounds" in the statute as a place where assembly or "display" of opinion can be prohibited is appropriate line-drawing:
In the end, unless demonstrations are to be freely allowed inside the Supreme Court building itself, a line must be drawn somewhere along the route from the street to the Court’s front entrance. But where? At the front doors themselves? At the edge of the portico? At the bottom of the stairs ascending from the plaza to the portico? Or perhaps somewhere in the middle of the plaza? Among the options, it is fully reasonable for that line to be fixed at the point one leaves the concrete public sidewalk and enters the marble steps to the Court’s plaza, where the “physical and symbolic pathway to [the] chamber begins.” [citation to architectural work]
While the odds are increasingly low that the United States Supreme Court will accept any case on certiorari, the odds seem to approach nil that the Court will exercise its discretion to review this opinion.
Wednesday, August 19, 2015
In its opinion on rehearing, a divided panel of the DC Circuit in National Association of Manufacturers v. Securities and Exchange Comm'n has held that 15 U.S.C. § 78m(p)(1)(A)(ii) & (E), part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, requiring a company to disclose if its products were not "DRC conflict free" violated the First Amendment.
In its previous decision more than a year ago in National Association of Manufacturers (NAM), a majority of the same panel, in an opinion authored by Senior Judge Raymond Randolph and joined by Senior Judge David Sentelle, found the conflict mineral disclosure was a First Amendment violation. In that 2014 opinion, Judge Srinivasan dissented on the First Amendment issue and contended that this opinion should be held in abeyance "pending the en banc court’s decision" in American Meat Institute v. United States Dep't of Agriculture, regarding a First Amendment challenge to requiring country of origin labeling (COOL) of meat and meat products. In the DC Circuit's en banc opinion a year ago, a divided court upheld the constitutionality of the COOL requirements. The rehearing of the conflict minerals disclosure was prompted by that intervening en banc decision in American Meat Institute (AMI). The panel majority essentially concluded that its mind was not changed by en banc opinion. [Neither of the senior judges in the panel majority participated in the en banc opinion in AMI].
Central to the controversies in both NAM and AMI is a choice of precedent: should the constitutionality of the labeling requirements be analyzed under Zauderer v. Office of Disciplinary Counsel or under the more demanding standard of Central Hudson v. Gas & Electric Corp. v. Public Service Commission of New York. The DC Circuit's divided en banc opinion in AMI found that Zauderer should be applied. In this rehearing in NAM, the panel majority (again) found that Zauderer had no applicability, but, as the opinion states, "for a different reason." However, in sum this panel majority found that Zauderer is limited to "advertisements" at point of sale and seemed to contradict AMI.
The panel majority did "hedge its bets":
But given the flux and uncertainty of the First Amendment doctrine of commercial speech,15 and the conflict in the circuits regarding the reach of Zauderer, we think it prudent to add an alternative ground for our decision. It is this. Even if the compelled disclosures here are commercial speech and even if AMI’s view of Zauderer governed the analysis, we still believe that the statute and the regulations violate the First Amendment.
In applying Central Hudson, the panel majority found that the disclosure of conflict minerals has a merely speculative relationship to addressing the interest of the government in ameliorating conflict in the Democratic Republic of the Congo as a source of such minerals. Instead, the disclosure is akin to political propaganda. The majority interestingly cites George Orwell's Nineteen Eighty-Four for its passages regarding government redefinition ("WAR IS PEACE"), and concludes that the disclosure is not only not factual but also controversial: it compels "an issuer to confess blood on its hands."
In dissent, Judge Srinivasan argues that any Scarlet Letter comparison is inapt: "requiring a company to disclose product information in the commercial marketplace is not the same as requiring Hester Prynne to “show [her] scarlet letter in the [town] market- place.” He asserts that the majority is misreading Zauderer and that the en banc opinion in AMI controls. Interestingly, he also contends that to the extent the court is requiring "proof" that disclosure of conflict minerals be linked to amelioration of the DRC conflict, the court should be deferring to executive judgments in this commercial context at least as much as the Court did in the political speech context involved in Holder v. Humanitarian Law Project.
It seems likely that government attorneys are preparing its en banc petition.
Monday, August 3, 2015
Chief Judge B. Lynn Winmill for the United States District of Idaho today held Idaho's so-called "Ag-Gag" law, Idaho Code § 18-7042, unconstitutional in his opinion in Animal Defense League v. Otter. Judge Winmill found that the law violated both the First Amendment and the Equal Protection Clause.
The Idaho statute creates a new crime, “interference with agricultural production.” I.C. 18-7042. A person commits the crime of interference with agricultural production if the person knowingly:
(a) is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass;
(b) obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;
(c) obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility's operations . . .
(d) Enters an agricultural production facility that is not open to the public and, without the facility owner's express consent or pursuant to judicial
process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility's operations; or
(e) Intentionally causes physical damage or injury to the agricultural production facility's operations, livestock, crops, personnel, equipment, buildings or premises.
Chief Judge Winmill described the legislative history including statements that compared animal rights investigators to “marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission.” However, for Winmill, there is a better comparison:
The story of Upton Sinclair provides a clear illustration of how the First Amendment is implicated by the statute. Sinclair, in order to gather material for his novel, The Jungle, misrepresented his identity so he could get a job at a meat-packing plant in Chicago. William A. Bloodworth, Jr., UPTON SINCLAIR 45–48 (1977). Sinclair’s novel, a devastating exposé of the meat-packing industry that revealed the intolerable labor conditions and unsanitary working conditions in the Chicago stockyards in the early 20th century, “sparked an uproar” and led to the passage of the Federal Meat Inspection Act, as well as the Pure Food and Drug Act. National Meat Ass'n v. Harris, 132 S.Ct. 965 (2012). Today, however, Upton Sinclair’s conduct would expose him to criminal prosecution under § 18-7042.
On the First Amendment challenge, the judge found that Idaho's ag-gag statute is content based and merits strict scrutiny. The opinion revisits an earlier ruling so concluding to reiterate that the United States Supreme Court's opinion in United States v. Alvarez ("the stolen valor case"). Judge Winmill notes that any deception involved in the ag-gag violation would be not be harmful: "the most likely harm that would stem from an undercover investigator using deception to gain access to an agricultural facility would arise, say, from the publication of a story about the facility, and not the misrepresentations made to gain access to the facility." And "harm caused by the publication of true story is not the type of direct material harm that Alvarez contemplates." The judge also held that the recording provision is content-based.
Moreover, Judge Winmill implicitly determines that the law is viewpoint-based:
a review of § 18-7042’s legislative history leads to the inevitable conclusion that the law’s primary purpose is to protect agricultural facility owners by, in effect, suppressing speech critical of animal-agriculture practices.
Not surprisingly, the statute does not survive strict scrutiny. The judge is skeptical that the "property and privacy interests of agricultural production facilities" are sufficiently compelling given that food production is a heavily regulated industry. Even if the interests were compelling, however, the statute was not narrowly tailored:
Criminal and civil laws already exist that adequately protect those interests without impinging on free-speech rights. It is already illegal to steal documents or to trespass on private property. In addition, laws against fraud and defamation already exist to protect against false statements made to injure or malign an agricultural production facility.
The judge thus concludes that the law restricts more speech than is necessary to achieve its goals.
On the Equal Protection Clause issue, the court's conclusion does not depend on a strict scrutiny analysis. The judge finds that the ag-gag statute cannot satisfy even rational basis review. First, Judge Winmill finds that that state's purported interest is not legitimate:
The State argues that agricultural production facilities deserve more protection because agriculture plays such a central role in Idaho’s economy and culture and because animal production facilities are more often targets of undercover investigations. The State’s logic is perverse—in essence the State says that (1) powerful industries deserve more government protection than smaller industries, and (2) the more attention and criticism an industry draws, the more the government should protect that industry from negative publicity or other harms. Protecting the private interests of a powerful industry, which produces the public’s food supply, against public scrutiny is not a legitimate government interest.
Second, the judge finds that the actual interest is a “a bare congressional desire to harm a politically unpopular group" and thus "cannot constitute a legitimate governmental interest if equal protection of the laws is to mean anything,” quoting and relying on U. S. Dept. of Agriculture v. Moreno (1973). "As a result, a purpose to discriminate and silence animal welfare groups in an effort to protect a powerful industry cannot justify the passage" of the statute.
Judge Winmill's decision is ground-breaking. So-called "ag-gag" laws have proliferated and are being challenged, usually on First Amendment grounds. Undoubtedly the state will appeal and the Ninth Circuit will have a chance to decide whether Judge Winmill was correct that the Idaho law is similar to the day labor solicitation prohibition in Arizona's SB1070 that the Ninth Circuit held unconstitutional in Valle Del Sol Inc. v.Whiting.
UPDATE: Check out this analysis by ConLawProf Shaakirrah Sanders over at casetext and her pre-decision discussion about the case with Idaho Public Radio.
Wednesday, July 8, 2015
In its opinion in Morales-Santana v. Lynch, a unanimous panel of the Second Circuit has held that the differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child violated equal protection as included in the Fifth Amendment's protections. It creates a conflict in the circuits and sets up another trip to the United States Supreme Court on the issue, the last one having resulted in a 4-4 split as discussed below.
The statutory scheme at issue, the Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1409(c), was the one in effect when Morales-Santana was born in 1962 outside the US to unwed parents. His parents married each other in 1970 and he was admitted to the US as a lawful permanent resident in 1975. In 2000, Morales-Santana was placed in removal proceedings after a conviction for various felonies and applied for withholding based on derivative citizenship from his father.
Derivative citizenship, which occurs at the moment of birth, is bestowed on a child born abroad to an unwed citizen mother and non‐citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. By contrast, a child born abroad to an unwed citizen father and non‐citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen. Morales-Santana's father, born in Puerto Rico in 1900, met the one year requirement but not the ten year requirement at the time of his son's birth. Both parties agreed that had Morales‐Santana’s mother, rather than his father, been a citizen continuously present in Puerto Rico until 20 days prior to her nineteenth birthday, she would have satisfied the requirements to confer derivative citizenship on her child. It is this gender‐based difference in treatment that Morales‐Santana claims violated his father’s right to equal protection.
The Second Circuit's decision that the differential requirements for unwed fathers and mothers is unconstitutional must confront several United States Supreme Court decisions that point in a different direction on the equal protection issue in citizenship statutes, including two recent decisions. First, the Court in Nguyen v. INS, (2001) upheld gender discrimination regarding establishment of paternity. The Second Circuit notes that Morales-Santana complied with the statutory provisions upheld in Nguyen: the child was "legitimated" and thus paternity "acknowledged" when his parents married in 1970. Second, and more important, is the Court's per curiam affirmance by an "equally divided Court" in Flores-Villar v. United States in 2011. The Ninth Circuit in Flores-Villar had upheld the differential residency requirement.
Judge Ray Lohier's for the Second Circuit subjects the statutory scheme to intermediate heightened scrutiny under United States v. Virginia (VMI) (1996), rejecting the government's argument that essentially all citizenship statutes should be subject to mere rational basis review.
With regard to the government's proffered interests, the court acknowledged that ensuring a sufficient connection between the child and the United States is important, but then states that the differential treatments of mothers and fathers is unrelated to it: the government
offers no reason, and we see no reason, that unwed fathers need more time than unwed mothers in the United States prior to their child’s birth in order to assimilate the values that the statute seeks to ensure are passed on to citizen children born abroad.
The Second Circuit then recognizes that its "determination conflicts with the decision of the Ninth Circuit in Flores‐Villar, which addressed the same statutory provisions and discussed the same governmental interest in ensuring a connection between child and country."
As to the government's second interest - - - preventing statelessness - - - the court again agrees that it is important, but concludes that this was not a genuine actual interest of the legislation.
Neither the congressional hearings nor the relevant congressional reports concerning the 1940 Act contain any reference to the problem of statelessness for children born abroad. The congressional hearings concerning the 1952 Act are similarly silent about statelessness as a driving concern.
Moreover, even if it had been the government's concern, gender-neutral alternatives - - - which the court notes had been proposed as "far back as 1933" - - - would serve this purpose. Additionally, the ten year differential, which importantly cannot be cured since it attaches at the moment of birth, is substantial. Again, this time in a footnote (n.17), the court acknowledges that its decision differs from that of the Ninth Circuit.
The court then finds the paternity provision unconstitutional and rejects the government's proposed remedy that all derivative citizenship be subject to the longer ten year period.
Presumably, the government will seek certiorari. (And while this case involves a previous statute, the current statute maintains a gender differential). A petition would have a good chance of being granted given the split in the circuits. But the Court's 4-4 split in 2011 in Flores-Villar occurred because Justice Kagan was recused; this would not be the case this time. And perhaps the Obama Administration will chose not to seek review.
Thursday, July 2, 2015
After the United States Supreme Court's opinion in Obergefell v. Hodges on June 26 declaring that states are required by the Fourteenth Amendment to issue same-sex marriage licenses, a few state officials have not only voiced objections to the decision, but have voiced resistance to complying with the Court's declaration.
The situations in Alabama and Texas have been the most contentious.
ALABAMA: Recall that earlier this year when federal District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage, the reaction of Alabama Supreme Court's controversial Chief Judge Roy Moore was an unusual letter to the Governor objecting to the federal judge's opinion on the basis that federal courts have no power in this Biblical area. This was followed by an opinion of the Alabama Supreme Court ordering judges not to issue same-sex marriage licenses. The Eleventh Circuit, and then the United States Supreme Court denied a stay of the district judge's opinion.
When the Court took certiorari in Obergefell, however, Judge Granade stayed her order.
However, after the Court decided Obergefell, the Alabama Supreme Court's "corrected order" stated that because the US Supreme Court rules allow parties 25 days to file a petition for rehearing, the parties in the case - - - including two conservative Alabama organizations - - - were invited to submit briefs on the effect of Obergefell. Federal District Judge Callie Granade issued a one-page Order on July 1, referenced her earlier stay and then stated:
The United States Supreme Court issued its ruling on June 26, 2015. Obergefell v. Hodges, 576 U.S. ____ (2015). Accordingly, by the language set forth in the [previous] order, the preliminary injunction is now in effect and binding on all members of the Defendant Class.
Thus, the officials of Alabama are subject to a direct order by a federal judge.
TEXAS: The Attorney General of Texas, Ken Paxton, who is reportedly facing criminal charges on unrelated matters, issued a six page opinion letter a few days after Obergefell which stressed the individual religious rights of county clerks and their employees, as well as justices of the peace and clergy, regarding their participation in same-sex marriages. Paxton's opinion was widely reported and concluded that county clerks retain religious freedoms that "may allow" accommodations depending "on the particular facts of each case." Paxton relied on the First Amendment as well as Texas's Religious Freedom Restoration Act (RFRA), essentially similar to the federal RFRA at issue in the Court's decision in Hobby Lobby. This is not unique: the possibility of claims by individual public employees in clerk's offices was also raised after New York passed its Marriage Equality Act in 2011 and as that act made clear - - - as is generally understood - - - that religious officers have complete discretion in agreeing or refusing to solemnize marriages.
The Fifth Circuit issued a very brief opinion on July 1, noting that "both sides now agree" that the the injunction appealed from, originally issued in early 2014 by federal district judge Orlando Garcia in DeLeon v. Perry [now Abbott], "is correct in light of Obergefell," the Fifth Circuit ruled that the preliminary injunction is affirmed.
The Fifth Circuit's opinion makes clear - - - seemingly with state agreement - - - that Texas is bound by Obergefell, but does not mention individual religious accommodations.
In both the Alabama and Texas situations, there are echoes of resistance to the Supreme Court's opinion in Brown v. Board of Education; The Supremacy Clause and the Court's opinion in Cooper v. Aaron seem to answer the question of whether state officials simply may disagree with the Court's interpretation of the Constitution. This is true despite the dissenting opinions in Obergefell itself which argued that the Court should leave the resolution of same-sex marriage to individual states. The question of religious accommodations may be a closer one, but what seems clear is that if there is indeed an individual right to be accommodated - - - again, that itself is unclear - - - it cannot be a right of a government entity. While Hobby Lobby may have held that corporations have religious freedoms, it is hard to conceive of government entities having free exercise rights in a manner that does not violate the Establishment Clause.
July 2, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)
Monday, June 29, 2015
The Court has granted certiorari in Fisher v. University of Texas at Austin, which means the affirmative action in university admissions will be making its second trip to the United States Supreme Court. Justice Kagan is recused.
Recall that in June 2013, the United States Supreme Court reversed the Fifth Circuit's finding in favor of the University (affirming the district judge). The Court remanded the case for a "further judicial determination that the admissions process meets strict scrutiny in its implementation." The opinion, authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal" of diversity and the University should receive no judicial deference on that point.
On remand, recall that by a divided opinion, a panel of the Fifth Circuit held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.
The Court's grant of certiorari might mean that the Court - - - or at least 4 of its members - - - disagrees with the Fifth Circuit's application of narrowly tailored. Justice Kagan's recusal could be an important factor in any decision.
Fisher graduated from another university in 2012, but the courts have rejected arguments regarding mootness.
Friday, June 26, 2015
In a closely-divided opinion, with the majority written by Justice Kennedy, the Court has decided that the Fourteenth Amendment requires states to license same-sex marriages in Obergefell v. Hodges. The opinion rests on both due process and equal protection grounds. The majority opinion joined by Ginsburg, Breyer, Sotomayor, and Kagan - - - there are no concurring opinions - - - is less than 30 pages, plus 2 appendices including the citations of same-sex marriage opinions. Each of the four dissenting Justices - - - Chief Justice Roberts and Justices Scalia, Thomas, and Alito - - - wrote a separate dissenting opinion, with some joinders by other Justices.
The decision that the Fourteenth Amendment requires states to license same-sex marriages renders the second certified question regarding recognition irrelevant, as the discussion during oral arguments made clear.
Recall that the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans. There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.
[image Donkey Hotey]
On the due process issue, Kennedy's opinion for the Court concludes that the right to marry is fundamental because:
- the right to personal choice regarding marriage is inherent in the concept of individual autonomy, relying on Loving and Lawrence;
- it supports a two-person union unlike any other in its importance to the committed individuals, relying on Grsiwold, Rurner v. Safely, and Lawrence;
- to safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education, relying on Pierce v. Society of Sisters and Windsor;
- Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order, relying on Maynard v. Hill (1888).
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same- sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
Monday, June 22, 2015
The United States Supreme Court's opinion in Horne v. Department of Agriculture (USDA)
decisively declares the USDA's "California Raisin Marketing Order," under which a percentage of a grower's crop must be "put in reserve" is unconstitutional under the Fifth Amendment's Takings Clause.
This regulatory program, under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., regarding raisins, is similar to other USDA programs and thus could have wide application.
By resisting the program on behalf of "farmers," the Hornes have become "outlaws" or heroes of sorts. This is the second time that the Hornes have been to the Supreme Court: Recall that in a brief opinion in June 2013, the Court reversed the Ninth Circuit and held that the Hornes did state a claim for a taking.
Today, again reversing the Ninth Circuit, the Court held that a taking did occur and that the Hornes were entitled to just compensation under the Fifth Amendment. Only Justice Sotomayor dissented from this conclusion, but Justices Breyer, Ginsburg, and Kagan did not join Chief Justice Roberts's opinion for the Court regarding the determination of "just compensation."
Relying on a Magna Carta provision regarding corn as well as on colonial history, Chief Justice Roberts's opinion for the Court concludes that the Fifth Amendment's Taking Clause applies with equal force to personal property as to real property. Any distinction between real and personal property might be relevant in a regulatory takings case, but the Court stressed that this is a "clear physical taking": "Actual raisins are transferred from the growers to the Government." (Whether this happens in a physical seizure was debated in the contentious oral argument and made another appearance in a to-and-fro between the Court's opinion and Sotomayor's dissent). For the Court, growers thus lose "the entire 'bundle' of property rights in the appropriated raisins." Dissenting, Justice Sotomayor disagrees that it is the entire bundle and thus disputes this conclusion. Given this physicality, it is irrelevant for the Court that the USDA could achieve the same ends through a regulatory taking (such as prohibiting the sale):
A physical taking of raisins and a regulatory limit on production may have the same economic impact on a grower. The Constitution, however, is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).
The Court also rejected the notion that because the USDA program reserved a contingent interest in the raisins for the growers that this relieved the government duty to pay just compensation.
The Court also found that the USDA mandate to reserve raisins as a "condition" for engaging in interstate commerce effected a per se taking. In reaching this conclusion, the Court rejected the Ninth Circuit's observation that the growers could grow other crops or use the grapes differently - - -
“Let them sell wine” is probably not much more comforting to the raisin growers than similar retorts have been to others throughout history.
The Court also reached this conclusion by distinguishing other takings cases and other products. Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984) is inapplicable because "raisins are not dangerous pesticides; they are a healthy snack." Leonard & Leonard v. Earle, 279 U. S. 392 (1929) is likewise inapposite because "Raisins are not like oysters: they are private property— the fruit of the growers’ labor—not “public things" such as oysters that belonged to the state under state law.
The majority [corrected] of the Court determined that the "just compensation" owed to the Hornes is the fair market value of the raisins, the subject of the fine imposed by the USDA: $483,843.53. Justice Breyer (and Ginsburg and Kagan), disagreeing with this conclusion, would remand the matter for a determination. It is not that Justice Breyer disagrees that this was the amount of the fine, but that he disputes that this is the actual fair market value absent the taking. In other words, the raisin reserve program operated to increase the cost of raisins. Thus, without the program benefit, the raisins in reserve may have been worth much less that the amount fined, or even, Justice Breyer suggests, nothing at all. He contends that the question of evaluation was not properly briefed before the Court. For the Chief Justice, however, "This case, in litigation for more than a decade, has gone on long enough."
[image: 1916 California Sun Maid Raisin Recipe Book via]
Thursday, June 18, 2015
A unanimous Court, albeit with separate opinions, concluded that the extensive municipal signage regulations violated the First Amendment in Reed v. Town of Gilbert.
Recall from oral arguments that the town's regulations generally required a permit to erect a sign, with nineteen different exemptions including “Temporary Directional Signs Relating to Qualifying Event.” The exemption for these temporary directional signs further specifies that such signs "shall be no greater than 6 feet in height and 6 square feet in area,”and “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends.” Although the challenge involves a church sign, this was largely irrelevant. Instead the content at issue is the sign’s directional nature, if indeed "directions" is a matter of content. In a divided opinion the Ninth Circuit upheld the town regulation as content neutral.
Reversing the Ninth Circuit, Justice Thomas, writing for the Court, concluded that the Sign Code was content-based and did not survive strict scrutiny. The Sign Code provision is content-based because, simply put, to determine if a sign is a "Temporary Directional Sign" one must determine whether the sign "conveys the message of directing the public" to an event. It does not matter, Thomas writes for the Court, that the content may seem neutral:
A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. *** In other words, an innocuous justification cannot transform a facially content- based law into one that is content neutral.
Once the Court decided there the regulation was subject to strict scrutiny, there was little doubt that the town would not be able to satisfy the standard. Thomas assumed that the proffered governments interests of aesthetics and traffic safety were compelling, but quickly determined that that the manner in which they were being served was far from narrowly tailored. Instead, the regulations were "hopelessly underinclusive."
The concurring opinions take on the issue raised in oral argument about the constitutionality of any town's attempt to regulate signage. Justice Kagan's concurring opinion, joined by Justice Ginsburg and by Breyer (who also has a separate concurring opinion) - - - but not by Justice Alito, who has his own brief concurrence, joined by Kennedy and Sotomayor (who also join the Thomas's opinion for the Court)- - - argues that strict scrutiny is not appropriate for all sign ordinances. Kagan states:
Although the majority insists that applying strict scrutiny to all such ordinances is “essential” to protecting First Amendment freedoms, I find it challenging to understand why that is so. This Court’s decisions articulate two important and related reasons for subjecting content-based speech regulations to the most exacting standard of review. The first is “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” McCullen v. Coakley. The second is to ensure that the government has not regulated speech “based on hostility—or favoritism— towards the underlying message expressed.” R. A. V. v. St. Paul (1992). Yet the subject-matter exemptions included in many sign ordinances do not implicate those concerns. Allowing residents, say, to install a light bulb over “name and address” signs but no others does not distort the marketplace of ideas. Nor does that different treatment give rise to an inference of impermissible government motive.
She instead argues that the "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive." But it was evident that even the concurring Justices did not view the Town of Gilbert's signage regulations as entirely reasonable.
Court Decides Specialty License Plate is Government Speech in Sons of Confederate Veterans License Plate
In a closely - - - and interestingly - - - divided opinion today in Walker v. Texas Sons of Confederate Veterans, the Court's majority decided that Texas's specialty license plate program is government speech and therefore rejected the First Amendment challenge to the denial of a specialty license plate requested by the Texas Sons of Confederate Veterans.
Justice Breyer delivered the Court's opinion, joined by four Justices, Ginsburg, Sotomayor, Kagan, and - - - Thomas. The dissenting opinion by Justice Alito was joined by Chief Justice Roberts, Scalia, and Kennedy. And while Justice Breyer has become known for his appendices, this opinion has a simple one: the image of the rejected Sons of Confederate Veterans plate. Meanwhile, Alito's dissenting opinion has a more extensive appendix; it includes the images of 58 specialty plates that Texas has approved.
As was evident in the oral arguments, and is frequently the case in First Amendment speech controversies, there was a definite choice of doctrine at stake. Recall that the Fifth Circuit's divided opinion, reversing the district judge, found that the denial violated the First Amendment as impermissible viewpoint and content discrimination. The Court today not only rejected that view, but it rejected the applicability of any forum analysis. Instead, the Court applied the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) finding that there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas. This was raised at numerous points in the oral arguments and echoes the opinion of Judge Jerry Smith who had dissented in the Fifth Circuit's divided opinion. Breyer did note that there were some aspects of Summum that were not exactly parallel, such as the permanence of the monuments in Summun, the opinion states that this was important because the public parks in Summun are traditional public forums, which is not the case for license plates.
And as for that other and most famous license plate case, Wooley v. Maynard (1977), the Court's majority opinion distinguished Walker because "compelled private speech is not at issue." And indeed, if there is any compulsion of conveying ideological messages to be protected against here, it is that of the state being compelled to "include a Confederate battle flag on its specialty license plates."
Justice Alito's dissenting opinion has at its base a common-sense disagreement. Noting the proliferation of specialty plates, supported by his Appendix, he asks:
As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games— Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?
Thus, he argues that what Texas has done by selling space on its license plates is to create a "limited public forum."
Walker v. Sons of Confederate Veterans could have wide-ranging effect. Does it give unfettered discretion to governments to decide license plate matters given that it is now government speech? Consider that the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; that the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; and that a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.
Monday, June 15, 2015
In United States Supreme Court's fragmented and closely divided decision in Kerry v. Din, the majority rejected the procedural due process argument of a naturalized American citizen to an explanation of the reasons supporting a denial of a visa to her noncitizen husband. Justice Scalia, writing for the plurality and joined by Thomas and Chief Justice Roberts, concluded that she had no cognizable liberty interest attributable to her marriage. Justice Kennedy, joined by Alito, would not reach the liberty interest issue because the process here was all that was due. Justice Breyer, dissenting, and joined by Ginsburg, Sotomayor, and Kagan, would affirm the Ninth Circuit and find that she had a cognizable liberty interest and that more process was due in the form of a more precise and factual explanation.
So what might this mean for Obergefell? Most obviously, the dissenting opinion by Breyer, and joined by Ginsburg, Sotomayor, and Kagan, articulates an expansive liberty interest in marriage under the Due Process Clause that could be easily imported into Obergefell. On Justice Kennedy's concurrence, joined by Alito, the clear signal is that Justice Scalia's refusal to recognize a liberty interest in marriage is not one to which they are subscribing - - - in this case. Given that Justice Kennedy, as author of the Court's opinions Windsor, Lawrence, and Romer v. Evans, is being closely watched as potential author of an opinion in favor of Obergefell, there is nothing in Din that would mitigate that judgment. As for the plurality, Justice Scalia's derogation of substantive due process has a familiar ring that might be echoed in his opinion in Obergefell, with an emphasis on history. While Justice Thomas is widely expected to agree with Scalia's position, does the Chief Justice's joining of Scalia's opinion in Kerry v. Din signal a disapproval of recognizing any liberty interest in marriage? Perhaps. But perhaps not. Consider this:
Unlike the States in Loving v. Virginia, 388 U. S. 1 (1967), Zablocki v. Redhail, 434 U. S. 374 (1978), and Turner v. Safley, 482 U. S. 78 (1987), the Federal Government here has not attempted to forbid a marriage. Although Din and the dissent borrow language from those cases invoking a fundamental right to marriage, they both implicitly concede that no such right has been infringed in this case. Din relies on the “associational interests in marriage that necessarily are protected by the right to marry,” and that are “presuppose[d]” by later cases establishing a right to marital privacy.
Indeed, under this view, as the Court made clear in Zablocki, there must be a "direct and substantial" interference with marriage in order for there to be a liberty interest. The Court in Zablocki distinguished Califano v. Jobst, 434 U.S. 47 (1977) - - - which the Court in Din does not cite - - - which found no constitutional infirmity with altering social security benefits upon marriage. In short, the marriage was not "forbidden," it was simply subject to certain regulations in another the complex social security scheme, not unlike the complex immigration scheme.
So for those who might attempt to predict the various positions of the Justices in Obergefell based on Kerry v. Din, there is certainly much "play."
The Court today issued its closely divided opinion in Kerry v. Din. On this 800th anniversary of Magna Carta, both the plurality opinion by Justice Scalia and the dissenting opinion by Justice Breyer referenced the great charter's protection of what the Constitution's Fifth Amendment termed "due process of law." In Din, the due process rights of a citizen who obtained preferred immigration status for her spouse are at stake. Certainly the case is important in the immigration context, but how important might it be as a harbinger of the Court's impending decision in the consolidated same-sex marriage cases, Obergefell v. Hodges, argued in late April? What Kerry v. Din might say about Obergefell is discussed here.
In Kerry v. Din, a naturalized citizen, petitioned to have her husband, Berashk, classified as an “immediate relative” entitled to priority immigration status, and although this was approved, Berashk’s visa application was denied under §1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the consular officer provided no further information. Unable to obtain a more detailed explanation for Berashk’s visa denial, Din filed a complaint in federal court which was dismissed. The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons.
In the plurality opinion joined by Chief Justice Roberts and Justice Thomas, Justice Scalia has harsh words for Din's claim of any right of "life, liberty, or property" to which due process would attach. It is "absurd" and nothing in the caselaw "establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection." He characterizes her right as one to live in the United States with one's spouse, and concludes that such a right fails the Washington v. Glucksberg test requiring that any implicit right be "deeply rooted in this Nation's history and tradition." Indeed, he argues that the history is exactly the opposite and discusses laws that mandated women "take the nationality of her husband on marriage." While noting that modern " equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order," nevertheless, he concludes that "this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is 'deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.'"
Justice Kennedy, joined by Justice Alito, firmly rejects Justice Scalia's conclusion: "Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse." Instead, Kennedy concludes that the "Court need not decide that issue," for "even assuming she has such an interest, the Government satisfied due process when it notified Din’s husband that his visa was denied under the immigration statute's terrorism bar." For Kennedy and Alito, the citation of the statute seemingly satisfies all the process that is due.
Dissenting, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, argues that there is a liberty interest flowing from the Due Process Clause itself and from the statutory scheme establishing immigration preferences. In his critique of the plurality opinion, Breyer reminds readers that it "is not controlling." He discusses a number of cases in which the Court has recognized liberty interests, perhaps most compellingly Goss v. Lopez (1975), involving students' interest in attending school and not being suspended, and which the plurality opinion seeks to distinguish. Regarding the "process due," Breyer notes that a statement of the reasons for a government action is an essential part of due process and one that a recitation of the statute in this case cannot satisfy given that it contains "dozens" of reasons. Moreover, the government offered no factual basis. He argues:
Thus, the dissenters would recognize both the liberty interest of a spouse in her partner's visa denial and that procedural due process requires something more than the recital of a statute; Kennedy and Alito find that the statutory referral is sufficient process; and the plurality finds that there is no liberty interest of a spouse in her partner's visa denial. It's a fragmented set of conclusions and its predictive value for the same-sex marriage cases raises some interesting possibilities.
The generality of the statutory provision cited and the lack of factual support mean that here, the reason given is analogous to telling a criminal defendant only that he is accused of “breaking the law”; telling a property owner only that he cannot build because environmental rules forbid it; or telling a driver only that police pulled him over because he violated traffic laws. As such, the reason given cannot serve its procedural purpose. It does not permit Ms. Din to assess the correctness of the State Department’s conclusion; it does not permit her to determine what kinds of facts she might provide in response; and it does not permit her to learn whether, or what kind of, defenses might be available. In short, any “reason” that Ms. Din received is not constitutionally adequate.
Sunday, June 14, 2015
Reversing the district judge, a panel opinion of the Sixth Circuit in Smith v. Jefferson County Board of School Commissioners found that there was no Establishment Clause violation when a Tennessee public school board contracted with a "religious institution," Kingswood Schools, Inc., to provide "alternative-school" services for students suspended or expelled from their "ordinary schools." The county school board entered into the contract because of a funding shortfall and over seven years paid Kingswood, 1.7 million dollars; the arrangement ended when the county resumed providing alternative-school services.
The majority's opinion by Judge Julia Smith Gibbons, coupled with a separate concurring opinion by Judge Alice Batchelder, illustrates the disarray of Establishment Clause doctrine. Yet both the majority and concurring opinion settle on the "endorsement test" and find it is not satisfied. Specifically, the majority considered the "voluntary assemblies" as well as whether the "Biblical quotes on the report cards, family-feedback forms and—for those who sought them out—the annual report and school- improvement plan" constituted endorsement. As the majority described:
Students were required to submit a weekly family-feedback form—signed by their parents—in order to advance within the day program. That form contained the following quote from the Gospel of Luke: “Jesus . . . said, Suffer little children to come unto me, and forbid them not: for of such is the kingdom of God.” Parents were also required to sign report cards, which contained the same Biblical text. Kingswood’s director testified that the scripture—from the Gospel of Luke—could be interpreted as an invitation into the kingdom of God. The same passage appeared, accompanied by crosses, on the school’s Easter 2006 letter. The letter claimed: “Kingswood School is unique because we offer children a Christian environment of love and encouragement. . . . Kingswood remains one of the few places where children in need can get help in a Christian environment. We are a non-profit faith based ministry . . . .”
Those who sought out the 2005 Annual Report saw that it contains a picture of the chapel and says that each child will receive Christian religious training, and that emphasis is placed upon “instilling in each child a personal faith in God, and the assurance of the saving grace of Jesus Christ.” The “school improvement plan,” completed before the Jefferson County contract and still in effect afterward, stated the belief that schools must provide for “spiritual growth” in order to serve the “‘whole’ student.”
The Kingswood website also contained some religious references. It claimed, for example, that “Kingswood has survived independently by remaining true in faith to the principles of a Christian education without being bound to the doctrine of a particular denomination or sect’s control.” It states that the school will take care of a child’s “spiritual and religious life,” although it will not compel a student to adopt any particular religious doctrine. The website refers to Kingswood as a “Christian charity,” and explains its “Methodist-rooted beginnings.” It says that the school “has observed a Christian approach that has remained inter- faithed and unaffiliated with a particular Christian denomination.”
In its analysis, the court characterizes the Christian language as "de minimus" and concludes that a "reasonable observer would view all of these in the specific context of the arrangement that Kingswood had with Jefferson County." The arrangement saved taxpayer money and the court found it noteworthy that no parents or students complained. Instead, it reiterates that the complaint was by teachers of the public school who were terminated. The complaint was originally dismissed for lack of standing; the Sixth Circuit reversed en banc in 2011. The concurring opinion goes further and calls the case an "employment-contract dispute masquerading as an Establishment Clause case."
Yet the Establishment Clause disarray is not attributable to the procedural posture or the application of the so-called "endorsement test," but to questions about the test to be applied. According to the majority, there are "three main jurisprudential threads": the Lemon test; the endorsement test as a refinement of Lemon; and the "historical practice" test as articulated in Town of Greece v. Galloway, the closely-divided 2014 decision by the United States Supreme Court upholding a town council's prayer. The majority finds the historical practice test inapposite, but the concurrence argues for its application.
Interestingly, the court majority distinguishes Doe v. Elmbrook School District, in which the Seventh Circuit en banc found that an Establishment Clause violation existed when the school held graduation ceremonies in a church. The United States Supreme Court denied certiorari in Elmbrook, over a dissent by Justice Scalia (joined by Justice Thomas), arguing that the lower court's opinion is "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway. In her concurrence, Judge Batchelder essentially agrees with Justice Scalia. Judge Batchelder asks whether the school board's "contract would be historically acceptable to the Framers," seemingly assumes that it would be, and then would engage in a "fact-sensitive" inquiry regarding coercion. Judge Batchelder characterizes the biblical references as "innocuous," so presumably she would not find them coercive.
Yet bible verses on mandatory student correspondence that must be signed by parents on a weekly basis does seem to raise the specter of coercion - - - even if no parents or students of the "alternative-school" complained.
Monday, June 1, 2015
Dissenting in a denial of certiorari today in County of Maricopa, Arizona v. Lopez-Valenzuela, Justice Thomas, joined by Justice Scalia, argued that the Supreme Court should review decisions by lower federal courts invalidating state "constitutional provisions." At issue in Lopez-Valenzuela is Arizona's "Proposition 100" a ballot measure passed by Arizona voters that amended the state constitution to preclude bail for certain serious felony offenses if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the charge.
The Ninth Circuit en banc held the measure unconstitutional as violative of due process, over dissents by Judges Tallman and O'Scannlain.
Justice Thomas notes that
Congress historically required this Court to review any decision of a federal court of appeals holding that a state statute violated the Federal Constitution. 28 U. S. C. §1254(2) (1982 ed.). It was not until 1988 that Congress eliminated that mandatory jurisdiction and gave this Court discretion to review such cases by writ of certiorari. See Pub. Law 100-352, §2, 102 Stat. 662.
More provocatively, Justice Thomas implicitly evokes the "Ghost of Lochner" by pointing out that the Ninth Circuit's decision rested on substantive due process grounds and quoting from West Coast Hotel Co. v. Parrish, 300 U. S. 379, 391 (1937) and Nebbia v. New York, 291 U. S. 502, 537–538 (1934), which specifically disapproved Lochner v. New York (1905).
For Justice Thomas, the Court's refusal to grant certiorari is "disheartening," : "there are not four Members of this Court who would even review the decision below." (Note that Justice Alito also dissented, although he did not join Justice Thomas's opinion, for a total of three Justices who would have granted certiorari).
For Justice Thomas, the Court's "indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds."
In its highly-anticipated opinion in Elonis v. United States seemingly involving the First Amendment protections for threatening language posted on Facebook, the Court deflected the constitutional issue in favor of statutory interpretation.
Recall that while the question presented in the certiorari petition focused on the First Amendment and pointed to a split in the circuits regarding an application of Virginia v. Black, 538 U.S. 343 (2003) to a conviction of threatening another person: did it require proof of the defendant’s subjective intent to threaten or whether it is enough to show that a “reasonable person” would regard the statement as threatening. However, the Court's Order granting certiorari instructed:
In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."
And at oral argument, much of the discussion delved into common law and Model Penal Code doctrine, even as these were intertwined with First Amendment considerations.
Today's opinion, authored by Chief Justice Roberts, disentangles the First Amendment from the analysis. It concludes that as a matter of statutory interpretation, the instructions to the jury that guilt could be predicated on a "reasonable person" standard merited reversal.
Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”
However, whether or not that mental state could include "recklessness" was not decided by the Court. Chief Justice Roberts's opinion for the seven Justice majority, specifically disagreed with Justices Alito and Thomas, who each wrote separately, regarding the suitability of reaching the "recklessness" issue. Roberts wrote:
In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it.
Moreover, although the Court may be “capable of deciding the recklessness issue,” (quoting the opinion of ALITO, J.), Roberts wrote that "following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly."
Here is the Court's First Amendment "discussion":
Given our disposition, it is not necessary to consider any First Amendment issues.
Justice Alito would reach the First Amendment issue and hold that a recklessness standard would comport with the First Amendment. Justice Thomas, dissenting, would affirm the Third Circuit's "general intent" standard and hold that Elonis' statements were "true threats" unprotected by the First Amendment.
Interestingly, Chief Justice Roberts's opinion does include extensive quotes from the postings, including Mr. Elonis's reference to "true threat jurisprudence." It does not, however, include some of the more problematical sexual language.
Wednesday, May 27, 2015
In its divided opinion in Children First Foundation v. Fiala, the Second Circuit held that the Commissioner of Motor Vehicle's rejection of "Choose Life" license plates for the state's specialty plate program is constitutional. Judge Pooler, joined by Judge Hall, reversed the district judge's conclusion that the rejection violated the First Amendment.
The Second Circuit's divided opinion enters the fray of what might be called the developing doctrine of license plates, be they state-mandated, vanity, or as here, "specialty" plates issued by the state as a means of raising revenue. As we've discussed, the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.
The progenitor of this doctrine is the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech. This Term the Court heard oral arguments in Walker v. Texas Sons of Confederate Veterans; a divided Fifth Circuit had held that the rejection of the Sons of Confederate Veterans plate (featuring the Confederate flag) was a violation of the First Amendment as impermissible content and viewpoint discrimination. The Second Circuit stayed the mandate of its decision pending the outcome of Walker.
The specialty license plate litigation involves the intersection of a number of First Amendment doctrines. As Judge Pooler's opinion in Children First Foundation expressed its holding:
We conclude that the content of New York’s custom license plates constitutes private speech [rather than government speech] and that the plates themselves are a nonpublic forum. CFF’s facial challenge fails because New York’s custom plate program did not impermissibly vest the DMV Commissioner with unbridled discretion in approving custom plate designs. Furthermore, that program, as applied in this case, was reasonable and viewpoint neutral, which is all that the First Amendment requires of restrictions on expression in a nonpublic forum.
Judge Pooler's well-structured opinion supports this conclusion. First, the court considers whether the license plate is government speech or private speech. If the speech is government speech, then the First Amendment has little application. (Recall that this was the position of the dissenting judge in the Fifth Circuit's decision in Sons of Confederate Veterans). Agreeing with other circuits, the court reasons that an application of Pleasant Grove City, Utah v. Summum (2009) and Johanns v. Livestock Marketing Ass’n (2005) leads to " little difficulty concluding that such an observer would know that motorists affirmatively request specialty plates and choose to display those plates on their vehicles, which constitute private property."
bringing to justice individuals who have attacked police officers cannot reasonably compare—either by its very nature or by the level of contentiousness that surrounds it—to the issue of abortion. With respect to the decision to issue a “Union Yes” plate, while the myriad issues pertaining to organized labor in the United States are social and political in nature, there is no basis to conclude that the Department failed to apply the policy against creating plates that touch upon contentious political issues as opposed to having applied the policy and merely reaching a different result than it did with the “Choose Life” plate.
May 27, 2015 in Abortion, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Opinion Analysis, Reproductive Rights, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 26, 2015
The United States Supreme Court granted certiorari today in Foster v. Humphrey to the Georgia Supreme Court denying post-conviction relief.
According to the petition, in 1987, an all-white jury convicted Timothy Tyrone Foster, a "poor, black, intellectually compromised eighteen year old" of the murder of an elderly white woman. At trial, one black potential juror was removed for cause, and the prosecutors removed all four of the remaining black prospective jurors by peremptory strike, and proffered race-neutral reasons when defense counsel raised a challenge under the then-recent case of Batson v. Kentucky (1986). The judge rejected defense counsel's argument that the race-neutral reasons were pretexual and denied the Batson challenge. The Georgia courts affirmed.
Almost twenty years later, pursuant to a request under the state open records act, Foster gained access to the prosecution team's jury selection notes, which included highlighting the black potential jurors (image at right), circling the word "black" as an answer to the race question on the juror questionnaire, identifying the black potential jurors as B#1, B#2, and B#3 in the notes, and a draft affidavit by the prosecution investigator stating "“if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.” (The affidavit was originally submitted to the court with all mentions of race excised).
In the post-conviction proceeding, the court held that "[t]he notes and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race of prospective jurors was either circled, highlighted or otherwise noted on various lists." The Georgia Supreme Court declined review.
In granting certiorari, the United States Supreme Court could certainly agree with the Georgia courts and simply affirm. Assuming the Court granted certiorari because of some disagreement with the conclusions, the Court might take a broader approach. According to the petition in Foster, the prosecution "proffered a combined forty reasons for striking" the four black potential jurors. Because there are almost always "neutral" reasons for exercising a peremptory challenge - - - given that it can be based on essentially a "hunch" - - - proving racial motivation and discrimination can be difficult. The Court has the opportunity to revisit Batson and the problem of distinguishing between race-neutral and pretextual reasons, perhaps providing a more workable and fair rule.
May 26, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Federalism, First Amendment, Fundamental Rights, Habeas Corpus, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, May 18, 2015
The United States Supreme Court's opinion in City and County of San Francisco v. Sheehan arises from an incident in which two police officers shot Teresa Sheehan, a woman suffering from a schizoaffective disorder who was living in a group home for those with mental illness.
The seemingly primary issue upon which certiorari was granted was whether the Americans with Disabilities Act, ADA, 42 U. S. C. §12132, required law enforcement officers to "provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.” The Court, in an opinion by Justice Alito, found fault with the attorneys litigating on behalf of San Francisco and dismissed this first question presented as improvidently granted. In a concurring and dissenting opinion, Justice Scalia, joined by Justice Kagan, also faulted the attorneys for San Francisco, noting that the Petition for Certiorari
assured us (quite accurately), and devoted a section of its argument to the point, that "The Circuits Are In Conflict On This Question.”
But, Justice Scalia continued,
Imagine our surprise, then, when the petitioners’ principal brief, reply brief, and oral argument had nary a word to say about that subject.
Instead, the petitioners argued that "the issue is not (as the petition had asserted) whether Title II applies to arrests of violent, mentally ill individuals, but rather how it applies under the circumstances of this case, where the plaintiff threatened officers with a weapon."
We were thus deprived of the opportunity to consider, and settle, a controverted question of law that has divided the Circuits, and were invited instead to decide an ADA question that has relevance only if we assume the Ninth Circuit correctly resolved the antecedent, unargued question on which we granted certiorari.
Scalia had especially harsh words for the attorneys for San Francisco, casting aspersion on their integrity:
Why, one might ask, would a petitioner take a position on a Circuit split that it had no intention of arguing, or at least was so little keen to argue that it cast the argument aside uninvited? The answer is simple. Petitioners included that issue to induce us to grant certiorari.
Scalia states that the Court would never have granted certiorari on the first question as it was argued in the briefs and would certainly have never granted certiorari on the"fact-bound" qualified immunity issue. Scalia, with Kagan, dissented from the Court's holding on the qualified immunity issue:
I would not reward such bait-and-switch tactics by proceeding to decide the independently “uncertworthy” second question. And make no mistake about it: Today’s judgment is a reward. It gives the individual petitioners all that they seek, and spares San Francisco the significant expense of defending the suit, and satisfying any judgment, against the individual petitioners. I would not encourage future litigants to seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court’s docket, we will consider whatever workaday arguments they choose to present in their merits briefs.
The Court, absent Justice Breyer who did not participate in the case, did "reward" San Francisco by finding that the police officers were protected by qualified immunity: "no precedent clearly established that there was not 'an objective need for immediate entry' here." The somewhat particular facts - - - the situation involved an entry and then a re-entry of Sheehan's room - - - nevertheless involved a "straightforward" and exceedingly brief qualified immunity analysis.
And a reversal of the Ninth Circuit.
While the attorneys for the City and County of San Francisco may have endured a scolding, Scalia is correct that the Court's decision is ultimately a reward.
Thursday, May 7, 2015
District Judge Rejects Challenges to Requirement that Government Contractors Post Employee Rights Notice
In an opinion today in National Association of Manufacturers (NAM) v. Perez, Judge Amit Mehta of the District of Columbia District Court rejected various challenges to the Department of Labor's so-called "Posting Rule," a regulation requiring, as a condition of nearly all federal contracts, that contractors post workplace notices informing their employees of their rights under the National Labor Relations Act. The "Posting Rule" is derived from President Obama's Executive Order 13496, promulgated in January 2009 pursuant to the Procurement Act.
The central constitutional challenge is that the "Posting Rule" is compelled speech and violates the First Amendment as an unconstitutional condition. The court's first task was to determine the relevance of a NAM v. NLRB, 717 F.3d 947 (D.C. Cir. 2013), overruled in part by Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014). The judge concluded that while the posting at issue in NAM was "nearly identical," that case was not a First Amendment one - - - although it drew on some First Amendment principles - - - but an interpretation of §8(c) of the NLRA which prohibits the expression of views, argument, or opinions as constituting an unfair labor practice.
Instead, the challenge here was analogous to the Supreme Court's decision in Rumsfeld v. FAIR involving the Solomon Amendment directed at law schools.
There is little material distinction between FAIR and this case. The facts differ, but the First Amendment analysis and outcome are the same. Like the Solomon Amendment, the Posting Rule is a “far cry” from the government-mandated speech deemed unconstitutional in Barnette and Wooley. Requiring an employer to post government speech about labor rights is “simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.”
Moreover, the Posting Rule does not require a contractor to speak at all. Rather, the contractor is required to host government speech as a condition of receipt of a federal contract. That, of course, presents a contractor with a choice—agree to post the Notice or forgo federal contracting. But that choice is no different than the one presented by the Solomon Amendment— either accommodate a military recruiter or forgo federal funds.
Additionally, the Posting Rule does not interfere with the contractor’s ability to convey a different message. A contractor can still express its own views or engage in lawful activities to discourage unionization. Indeed, nothing in the rule prevents a contractor from creating its own posting and placing it next to the Department of Labor-drafted Notice, so as to make clear that the Notice does not reflect the contractor’s own views and its display is government mandated. *** A contractor’s speech is thus not “affected by the speech it [is] forced to accommodate.”
Nor are employees likely to believe that the Notice is their employer’s speech.
[citations omitted]. The court rejected NAM's attempt to distinguish FAIR because the speech here is a “slanted list of rights that unfairly promotes unionization while pointedly omitting a host of other critical employee rights,” noting even if the court could determine the meaning of "slanted," it is well settled that the government may make content-based choices about its own speech.
The court rejected NAM's arguments regarding preemption, as well as its statutory and administrative law arguments. It therefore entered summary judgment in favor of the government.Given the vigor with which NAM has litigated similar issues, it will most likely appeal. However, recently appointed Judge Mehta has authored a closely reasoned opinion that should withstand review.