Constitutional Law Prof Blog

Mark Twain and Constitutional Law

It's the 176th anniversary of the birth of Mark Twain, an anniversary that while not a usual celebratory number (100, 150, or even 175) has been attracting some attention.   

Mark Twain has also received a bit of attention from the United States Supreme Court in constitutional law cases.

Perhaps most obviously the pseudonymous Mark Twain appears in the context of the First Amendment right to be anonymous.  In McIntyre v. Ohio Elections Committee (1995), the Court held unconstitutional a state statute prohibited the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature.  Ms. McIntyre had distributed leaflets from “CONCERNED PARENTS AND TAX PAYERS” opposing a proposed school tax levy and was fined.  The Court's opinion by Justice Stevens noted that "Great works of literature have frequently been produced by authors writing under assumed names."  The supporting footnote first lists "Mark Twain (Samuel Langhorne Clemens)" as an American who first comes to mind, followed by O. Henry (William Sydney Porter), and expanded with reference to writers such as Voltaire, and even making a brief foray into the status of Shakespeare, a controversy now appearing in theatres.

Other references to Twain support Twain's reputation as an eminently quotable writer.  William Douglas, dissenting in a First Amendment case regarding the notorious Smith Act, deploys a Twain quote as the opening salvo:

When we allow petitioner to be sentenced to prison for six years for being a ‘member’ of the Communist Party, we make a sharp break with traditional concepts of First Amendment rights and make serious Mark Twain's lighthearted comment that ‘It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either of them.

Scales v. United States (1961) quoting Twain, Following the Equator (1903).   And Justice Harlan, dissenting in the reapportionment case of Whitcomb v. Chavis (1971), discusses the mathematical and theoretical models regarding vote dilution and includes as the entirety of a footnote this: " 'There is something fascinating about science. One gets such wholesale returns of conjecture out of such a trifling investment of fact.’ Mark Twain, Life on the Mississippi 109 (Harper & Row., 1965)."

The most recent constitutional law citation to Twain is not to one of Twain's pithy aphorisms, but to a simple observation in the nature of a travelogue.  Justice Stevens, once again uses Twain in his opinion for the Court, but this time in the text rather than a footnote:

The relevant facts are undisputed. . . .  All agree that Lake Tahoe is “uniquely beautiful,”  that President Clinton was right to call it a “ ‘national treasure that must be protected and preserved,’ ”  and that Mark Twain aptly described the clarity of its waters as “ ‘not merely transparent, but dazzlingly, brilliantly so’  [citations omitted].

The case is Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002), quoting Mark Twain, Roughing It 174-175 (1872),in which the Court rejected a takings clause challenge to a moratorium on building in the area surrounding Lake Tahoe. 

RR
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Seventh Circuit: Bond for Infomercial Does Not Violate Free Speech

A three-judge panel of the Seventh Circuit ruled today in FTC v. Trudeau that a lower court's requirement that author and infomercialist Kevin Trudeau post a $2 million bond before airing an infomercial does not violate the First Amendment.

The case arose out of Trudeau's violation of a court-approved settlement with the Federal Trade Commission by airing infomercials that misrepresented his book The Weight Loss Cure "They" Don't Want You to Know About.  Here's Trudeau (part 1 of 5; more on YouTube):

 

The lower court held Trudeau in contempt, ordered him by pay $37.6 million to the FTC (based on consumers' loss as a result of his misrepresentation) and required him to post a $2 million bond before airing any infomercial, misleading or not.

The Seventh Circuit upheld the bond against Trudeau's First Amendment challenge.  (It also upheld the $37.6 million sanction.)  Applying the Central Hudson test for commercial speech, the panel wrote that "the protection of consumers is a substantial interest," and that "the performance bond directly advances that interest" by making it more likely that future consumers would be compensated for misleading infomercials and by making it less likely that Trudeau will produce misleading infomercials.  As to tailoring:

The performance bond meets [the "carefully calibrated" standard in Bd. of Trustees of the State Univ. of New York v. Fox].  First, a bond is required only if Trudeau decides to resume making infomercials.  It does not limit Trudeau as an author; it does not curtail Trudeau's attempt to pitch products in any print medium; it does not even apply if Trudeau makes a TV or radio ad under two minutes.  Its application targets only the commercial conduct that has caused such tremendous consumer harm in the past--infomercials.  Second, the district court set the performance bond at $2 million but took seriously Trudeau's claim that it is beyond what he can afford by allowing him to file an audited financial statement and prove as much in a hearing.  Third, the bond requirement is proportional to the amount of harm Trudeau caused by previous deceptive infomercials.  If anything, the number seems low given that, over the course of nearly a year, Trudeau's Weight Loss Cure infomercial sold thousands of books each day for many months.

Op. at 11-12 (emphasis in original).

SDS

Ninth Circuit to Rehear Case on Gun Show Bans

The Ninth Circuit announced yesterday that it would rehear Nordyke v. King en banc.  The case involves a Second Amendment challenge to a municipal gun show ban.  The three-judge panel upheld the ban in May; the case will now go to the full Ninth Circuit.

The ruling gives the full Ninth Circuit a chance to determine the standard for Second Amendment challenges.  Two of the judges on the panel applied a "substantial burden" test and upheld the ban:

Because the Supreme Court has yet to articulate a standard of review in Second Amendment cases, that task falls to the courts of appeals and the district courts. . . . .

The Supreme Court's reasoning in Heller and McDonald suggests that heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms in self-defense. . . .

We are satisfied that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws.

Judge Gould would have upheld the ban under a rational basis test:

Drawing from First Amendment doctrine, I would subject to heightened scrutiny only arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of country; I would subject incidental burdens on the Second Amendment right (analogous to time, place, and manner speech restrictions) to reasonableness review.

SDS

Constitutional Law Final Exam: 2011 Version

It's time to draft the Constitutional Law final exam.  In our previous best practices regarding final exams, we included a discussion of the strategy of using current controversies to frame the exam. 

The caveat is that the exam question must include ALL the specific material and explanations that a student would need to answer the question and not rely upon extraneous information that not all students might share.

There are some exciting possibilities for the Fall 2011 Constitutional Law exam.

The Supreme Court’s recent grant of review in three cases on the constitutionality of the Patient Protection and Affordable Care Act (ACA) is an obvious choice.   The minimum coverage provision (individual mandate) is an excellent vehicle to test the Article I powers of Congress under the Commerce Clause and Taxing Clause.  The Medicaid expansion provision can be used as a focal point for a Spending Clause analysis, with issues of federalism and the Tenth Amendment permeating this discussion as well as the ACA problem as a whole.

MBZ (Zivotofsky) v. Clinton, in which the Court heard oral arguments in early November, is an excellent framework for testing executive power and the application of Jackson’s famous “continuum” in the Steel Seizure case (Youngstown Sheet & Tube Co. v. Sawyer) included in every Constitutional Law casebook. This is a straightforward case with a direct conflict between the executive and Congress, complete with a Presidential signing statement, and relatively easily understood facts.   The lower courts declined to decide the separation of powers issue on political  question grounds, so the case provides a great way to combine two distinct doctrines in one essay.

A great dormant commerce clause issue and a preemption issue can be found in various Nebraska bills to regulate the Keystone XL Pipeline, although very recent events including TransCanada’s sudden decision to reroute the pipeline to avoid Nebraska’s Sand Hills area makes the controversy less timely than it was.

State immigration statutes can provide a fertile ground for combining a structural issue (preemption) and rights issues (equal protection, due process, and criminal procedure issues). Alabama HB56 is especially notorious and complex, with two decisions from the district judge, a brief Eleventh Circuit opinion,  and a recent complaint regarding denial of marriage licenses. There is also Arizona's well-know SB1070 (district court opinion, Ninth Circuit opinion, petition for cert.) and district court cases from Georgia and Indiana, and more complex litigation involving the Hazelton, PA ordinance (Third Circuit opinion, on remand back to Third Circuit).   South Carolina is also a recent and important addition.  Including a state immigration issue on an exam will require careful limiting of the issues in the drafting of the question, most likely done by the provisions a professor choses to include in the question.

Another combination of structural and rights issues is available in the continuing Proposition 8 litigation, Perry v. Brown.  With the recent California Supreme Court’s advisory decision on the standing of the Proposition 8 “proponents,” the stage is set for the Ninth Circuit to rule on Article III standing as well as on the equal protection and due process issues.  Recall that Judge Vaughn Walker’s extensive opinion in Perry v. Brown (f/k/a Perry Schwarzenegger) concluded that the limitation of marriage to opposite sex couples was unconstitutional under the Fourteenth Amendment.

Equal protection and affirmative action questions can be forged from the Sixth Circuit’s conclusion that Michigan’s proposition 2 restricting affirmative action is unconstitutional and the Fifth Circuit’s decision that UT’s affirmative action plan is constitutional, with a well-constructed essay giving students a chance to explore the always popular Stevens’ anomaly as a theoretical perspective.

State laws seeking to regulate abortion are rife with constitutional issues: recent statutes in Texas, Kansas, and Arizona are especially complex, allowing for equal protection and speech arguments, as well as due process.

For First Amendment speech questions, litigation surrounding Occupy is the obvious choice.   There are a number of local regulatory schemes that could be tweaked to present arguments regarding “time, place, manner” vs. viewpoint or content restrictions; the Ft. Meyers, Florida litigation provides a good template.  The  “encampment” issues could focus students on Clark v. Community for Creative Non-Violence, a case in most Constitutional Law casebooks.   The unique status of NYC’s Zuccotti Park as a private/public space could be a platform for public forum doctrine, as could the United States Supreme Court building.   Additionally, lawsuits against police activity could be the basis for testing criminal procedure and governmental immunity doctrines.

The Stolen Valor case is another excellent choice for a First Amendment speech issue, with the possibility of a comparison of the “pure speech” provision and the “intent to deceive” provision.

As for the religion clauses,  there are some interesting possibilities in the classroom: the alleged hostility of a teacher toward religion; the teacher’s display of religious mottos in the classroom;  and the use of public school classrooms for church services on the weekends.   Other possible issues include the religious exemption and town clerks in the same-sex marriage statute in New York and the proposed male circumcision ban ; and there is always the Establishment Clause controversy surrounding the Mt Soledad cross.

There is a cornucopia of issues that should make drafting the exam a delight - - - and grading the responses a satisfying endeavor.

RR
[image: Rembrandt, A Scholar, 1631, via]

Alabama's HB56: Immigrants' Rights to Housing and to Marry

Portions of the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, Act 2011-535 - - - more popularly known as HB56 - - - have been enjoined by the district judge in two very lengthy separate opinions in the companion cases of United States v. Alabama and Hispanic Interest Coalition of Alabama v. Bentley, and additional sections enjoined by the Eleventh Circuit.   However, new litigation continues to challenge aspects of Alabama's immigration scheme.

In the Complaint in Central Alabama Fair Housing Center v. Magee, housing advocacy groups challenge section 30 of HB56 that makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.   This "business transaction" apparently includes complying with other Alabama statutes that require "submitting a payment for the annual manufactured home registration fee and obtaining a current identification decal," as well as a permit to move a manufactured or mobile home.  

Thus, as United States District Judge Myron Thompson observed in his opinion granting a TRO, the challenge is an "as-applied" one that "raises a host of issues not considered" by the previous courts.  Judge Thompson focused on the preemption claim, finding a likelihood of prevailing on its merits.  He found that "the evidence reflects that the Alabama Revenue Department and the Elmore County Probate Office initially proposed to use their own, state-created alternative for determining whether, under § 30, an individual has adequately demonstrated his or her lawful citizenship status, but are now in the process of developing a new system that will comply with HB 56."   The process is thus very different from those in which employers utilize E-verify.  As the Judge stated,

What is clear is, first, that the defendants do not now have in place a definite process that will be in sync with federal immigration law and, second, that they will not have a process in place any time soon. The conclusion that the defendants’ current process (or, perhaps to be more accurate, lack of a definite process) conflicts with federal law is inescapable.

The TRO expires December 7, 2011.  A NYT editorial yesterday argued that HB56 is causing Alabama economic damage.

While the definition of "business transaction" in §30 of HB56 is broad, subsection(a) specifically exempts marriage licenses: "Business transaction" "does not include applying for a marriage license."  Yet another complaint filed in federal court, Loder v. McKinney, contends that probate offices charged with issuing such licenses are requiring proof of immigration status, despite previous opinions by the Alabama Attorney General.  As the complaint alleges, the probate court of Montgomery county lists the requirement of proof of "legal presence" on its website:

Requirements For Persons 18 years or older

Non-citizens of the United States must provide proof of legal presence in the United States in the form of valid immigration documents or passport.

Each applicant must provide one of the following:

                1. An official Picture ID (passport, military ID, State issued ID, Driver's License).
                2. An original certified copy of the state issued birth certificate (hospital copy not acceptable) and original social security card.
                3. U. S. Government issued Immigration Services Picture ID Card (green card, visa, alien resident card, etc.).

The complaint alleges a fundamental right to marry and a violation of the Fourteenth Amendment's due process and equal protection clauses.  More about the litigation is available on the Southern POverty Law Center's website here.

RR
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Texas Files for Stay in Redistricting Case

As expected, Texas AG Greg Abbott today filed an Emergency Application for Stay of the three-judge panel's interim map of Texas House districts.  Paul Clement signed the Application in Perry v. Perez.  Appendices to the filing are here.  We posted most recently here.

Texas argues that the three-judge court wrongly failed to grant any deference to the state legislature, and thus wrongly assumed the role of super-legislature, and redistricted in violation of equal protection.

As to deference, Texas argues that Upham v. Seamon governs.  Under Upham, Texas claims, judicial modifications to legislatively enacted redistricting maps must be limited to "those necessary to cure any constitutional or statutory defect," even when preclearance is denied.  And so much more so here, where final preclearance is pending in the U.S. District Court for D.C. 

Texas says that the case is not governed by Lopez v. Monterey County, as the lower court ruled.  Lopez and similar cases involved covered jurisdictions that failed to submit plans for preclearance.  Not so here, Texas says.

As to equal protection, Texas argues that the three-judge court drew districts based on race, in violation equal protection, again with no showing that the Texas legislative map constituted a violation.

In arguing for emergency intervention, Texas claimed that there was nothing "interim" about the panel's map:

Elections will be conducted based on a judicially-drawn map in the absence of any finding--or even felt need to make a finding--that would justify such an extraordinary judical remedy.  That is profoundly wrong.

Application, at 6.

SDS

Texas to Appeal Court-Drawn Districts to Supreme Court

Texas Attorney General Greg Abbott announced that he'll file an emergency stay application with the Supreme Court on Monday to halt the implementation of redistricting maps drawn by a three-judge panel of the U.S. District Court for the Western District of Texas.  AG Abbott also announced that Bush Administration SG Paul Clement has joined the Texas legal team.

Recall that a three-judge district court in D.C. denied preclearance under the Voting Rights Act to Texas's redistricting plans for its U.S. House districts and Texas legislative districts.  The ruling sent the case to the Western District of Texas to designate a substitute interim plan for the 2012 elections.

The three-judge panel of the Western District drew proposed maps earlier this month.  The panel split on the Texas House districts, with Judge Orlando Garcia and Judge Xavier Rodriguez voting for one plan and Judge Jerry Smith of the Fifth Circuit voting for another.  The court on Friday denied Texas's motion to stay implementation pending appeal, again dividing 2-1.  AG Abbott then announced on Saturday that he'd file with the Supreme Court.

From AG Abbott's press release:

At issue is whether the interim maps imposed by a three-judge redistricting panel violate the U.S. Constitution and federal law, and exceeds the proper role of the judiciary.  The State of Texas alleges the panel improperly rejected the will of the elected legislature and redrew the State's House and Senate districts without regard to any established legal or constitutional principles. . . . .

Because the legally flawed maps could create confusion for Texans who wish to become candidates when the filing period opens Monday, the State of Texas is pushing quickly to restore clarity to the process. . . . .

The balance of the release largely quotes from Judge Smith's dissent.

We'll post on AG Abbott's filing on Monday.  ElectionLaw@Moritz collects the litigation documents here.  Check out the maps for yourself here.

SDS

The First President's Thanksgiving Proclamation

By the President of the United States of America, a Proclamation.

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor-- and whereas both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.

Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be-- That we may then all unite in rendering unto him our sincere and humble thanks--for his kind care and protection of the People of this Country previous to their becoming a Nation--for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the course and conclusion of the late war--for the great degree of tranquility, union, and plenty, which we have since enjoyed--for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted--for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions-- to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually--to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed--to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord--To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us--and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.

Given under my hand at the City of New York the third day of October in the year of our Lord 1789.
George Washington

 

While the holiday did not become an official part of the United States legal and cultural history until much later, Washington's proclamation is important for constitutional law professors and historians considering the holiday in the context of the Establishment Clause of the First Amendment.

RR
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The Balanced Budget Amendment's Attack on the Constitution

Neil Kinkopf (Georgia State) recently posted an American Constitution Society Issue Brief that challenges the Balanced Budget Amendment as an unenforceable, symbolic gesture that is, at best, dangerous to our constitutional order.  (We posted on most recently on the proposed Amendment here.)

Kinkopf argues in The Balanced Budget Amendment: A Threat to the Constitutional Order that the Balanced Budget Amendment contains no enforcement mechanism: it's not enforceable by Congress; judicial enforcement is beyond the expertise of the court and would raise all kinds of practical problems; executive enforcement would give too much power to the President, with none of the transparency that the Constitution envisions; and independent enforcement would bring all the problems of executive enforcement and then some.

Kinkopf concludes that all that's left is an empty symbol.  But there's a problem with that, too: its inevitable and repeated violations would undermine the constancy of other clauses in the Constitution that are not merely aspirational or symbolic.  In other words, any way you cut it, the Balanced Budget Amendment undermines our constitutional order.

SDS

LOC Posts "Father Chief Justice," a Constitutional Play

Actor, playwright, and Con Law Prof Paul Baier (LSU) staged his play "Father Chief Justice" Edward Douglass White and the Constitution last spring at the Library of Congress.  The LOC has now posted the play on its web-site and on YouTube; we embedded it here:

 

The cast is very impressive:

• Charles J. Cooper as Chief Justice White
• Ronald S. Flagg as Justice Harlan
• Tom Goldstein as Justice Brandeis
• Donald A. Hoffman as Justice Holmes
• Roberta I. Shaffer as Fanny Holmes
• Jacob A. Stein as Justice Holmes
• Paul Baier as Professor Richard Henry Jesse

Check it out.

SDS

No First Amendment Right to Disrupt Senior Center

A three-judge panel of the Seventh Circuit on Monday rejected the free speech claim of a disruptive visitor to a local senior citizens centers.  The case, Milestone v. City of Monroe, grew out of Edith Milestone's ban from the center for violating its Code of Conduct.  Milestone lodged a Section 1983 claim against the City.  The court rejected Milestone's vicarious liability claims under Monell v. Department of Social Services, but it reached the merits on her claims premised on the Code itself--which the court ruled to be city policy for the purpose of municipal liability under Section 1983.

The relevant sections of the Code read as follows:

• When in the Behring Senior Center of Monroe, all will be treated with respect and courtesy regardless of age, race or gender.
• Use of abusive, vulgar, or demeaning language is prohibited.
• Members of the Behring Senior Center staff, outside instructors and Green County personnel will be treated in a respectful manner.

Milestone engaged in a string of disruptive and verbally abusive tirades over time.  The Center staff eventually banned her.  She argued that the Code constituted unconstitutional viewpoint discrimination, that it was overbroad, and that it was unconstitutionally vague.

The court rejected her claims. It ruled that the Code was a content-neutral, time-place-manner regulation narrowly tailored to achieve the significant governmental interest of protecting the patrons of the center from vulgar and abusive language and disrespectful or demeaning treatment; and that it left open ample opportunities for speech.  It also ruled that the Code was not overbroad (mostly because it was content- and viewpoint-neutral and because it satisfied strict scrutiny) and that it was not unconstitutionally vague.

SDS

Occupy: Wrongful Arrest and Police Brutality Lawsuits Begin

Given the widely circulated police activities to control protest, including the pepper spraying of students at UC-Davis, as well as other incidents, damage lawsuits against law enforcement will most likely increase.

The complaint in Carpenter v. City of New York, filed in the Southern District of New York today, alleges violations of the Fourth Amendment resulting from false arrest and excessive force. 

The specific incident was October 15, 2011: an occupy event of a CitiBank in New York City.  Heather Carpenter, a CitiBank account holder, and her fiance', Julio Jose Jimenez-Artunduaga, were caught up in the arrests.  The complaint does allege that Carpenter was there to withdraw her money in protest, but also that she left the bank building after doing so, and that Jimenez-Artunduaga was outside the building.  However, the complaint alleges that the pair were forced back into the bank, and then arrested for trespassing.  (The charges were dropped).

The events were captured on video and photographs, including the photograph of Jimenez-Artunduaga's bloody hand, attached to the complaint as an exhibit.

The complaint includes claims for relief against the city, both for policies and on a theory of supervisory liability.  For example, paragraph 87 alleges:

Upon information and belief, Defendant CITY OF NEW YORK planned and implemented a policy, practice, custom and usage of controlling the OWS protests and those who
attended the bank protests, that was designed to and did preempt lawful activities by ordering and effecting indiscriminate mass arrests, illegally arresting protestors, including bank customers, and needlessly detaining them for excessively long periods. Upon information and belief, the CITY OF NEW YORK consciously disregarded the illegality and unconstitutionality of said arrests and detentions in order to facilitate and promote the CITY OF NEW YORK's desired reputation as corporate friendly and pro-bank.

RR

White House Objects to Detainee Provisions in Defense Authorization Bill

The White House on Thursday issued a statement objecting to certain provisions in the National Defense Authorization Act for Fiscal Year 2012, now before the Senate.

The Statement of Administration Policy objects to the detention provisions in S. 1867 as bad policy and as encroaching on executive authority.  In particular:

• The White House objects to Section 1031 for codifying its detention authorities that the courts have already recognized under the AUMF.  "[F]uture legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people."
• The White House "strongly" objects to Section 1032, which would mandate military custody for certain terrorism suspects, but not for U.S. citizens or lawful residents.  "[T]he provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests."
• The White House objects to Sections 1033, 1034, 1035, and 1036 which restrict the transfer of detainees to a foreign country and restrict funds for transferring or detaining them within the U.S.  "The Executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. . . .  [The] ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military's ability to transfer its detainees as operational needs dictate. . . .  [And] Section 1035 conflicts with the consensus-based interagency approach to detainee reviews . . . which establishes procedures to ensure that periodict review decisions are informed by the most comprehensive information and the considered views of all relevant agencies.  Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense."

The White House concludes with a veto threat.  The Senate takes the measure up again on Monday.

Recall that President Obama issued a signing statement on the current restrictions on detainee transfer, arguing that the restrictions interfered with the President's Article II authority, but stopped short of calling them unconstitutional.

SDS

Justice Thomas' Continuing Ethical Woes

The newest question regarding Justice Thomas' ethical practices focuses on the Justice's nondisclosure of his wife's income. 

Justice Thomas has been criticized previously regarding funding of a private museum and for the Tea Party activities of his wife Ginny Thomas.   But this newest controversy focuses on Ginny Thomas' substantial income earnings.  Since 1997, according to a table prepared by the Alliance for Justice, she has been paid from various sources: in 1997-8 from then-House Majority Leader Dick Armey, in 2000-2008 from the Heritage Foundation, and in 2008-2009 (the last year reported) from Hillsdale College.  However, Justice Thomas recorded his wife's income during these years as "NONE" - - - although the known income was 1.6 million dollars.  

A letter sent yesterday from 52 members of Congress to Chief Justice Roberts, as Presiding Officer of the Judicial Conference, urges a "referral to the Attorney General for further investigation."  The congressional members contend it would be very difficult for Justice Thomas to argue that he misunderstood the "filing instructions" given that he had disclosed his wife's income for the ten years before 1997, but then "misunderstood them for the next thirteen years."  The letter cites section 104(b) of the Ethics in Government Act of 1978, a provision that reads:

The head of each agency, each Secretary concerned, the Director of the Office of Government Ethics, each congressional ethics committee, or the Judicial Conference, as the case may be, shall refer to the Attorney General the name of any individual which such official or committee has reasonable cause to believe has willfully failed to file a report or has willfully falsified or willfully failed to file information required to be reported. Whenever the Judicial Conference refers a name to the Attorney General under this subsection, the Judicial Conference also shall notify the judicial council of the circuit in which the named individual serves of the referral.

Unlike some other judicial ethical rules that do not apply to Supreme Court Justices as we previously discussed, the disclosure requirements under the Ethics in Government Act do seem to apply.  Section 101(f) includes as a covered employee: "(11) a judicial officer as defined under section 109(10)."  Section 109(10) defines “judicial officer” as "the Chief Justice of the United States, the Associate Justices of the Supreme Court, and the judges of the United States courts of appeals, United States district courts . . .  and any court created by Act of Congress, the judges of which are entitled to hold office during good behavior."

RR
[image: Clarence Thomas, Virginia Thomas, and Byron White, via]

Occupy Toronto and the Charter

The Canadian Charter of Rights and Freedoms names as fundamental freedoms for everyone:

• (a) freedom of conscience and religion;
• (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
• (c) freedom of peaceful assembly; and
• (d) freedom of association.

These section 2 rights, like other rights, are qualified by section 1: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

This constitutional balancing is now occurring over the Occupy Toronto encampment at St. James Park.  

The city issued a Notice under the Trespass to Property Act, prohibiting tents and presence in the park during the night, and stating that failure to remove tents and "debris" immediately would mean that the City would have it removed.  The Notice was challenged in Batty v. Toronto, and Judge David Brown in the Superior Court of Ontario quickly entered an interim stay order, reasoning in part that:

The protesters have encamped in the Park for a month. They are now being asked to leave within a day. They have come before this Court, as members of the public, asking the Court to adjudicate on their rights. In these circumstances I think the most appropriate way to balance the interests of all concerned is to maintain the status quo for a very short period of time and require the parties to proceed to an early adjudication of this proceeding.

The hearing was set for today and being tweeted live on the cbc website here.  From such reports, it seemed as if Judge Brown was not sympathetic to the Charter rights arguments, including a distaste for extended drumming as protected expression. 

The Canadian Civil Liberties Association was also given time to argue as an intervenor.  The CCLA's Factum (brief) argues that the erection of tents and the presence during night hours are expressive and "are inextricably linked to the message conveyed by the protesters,"  citing several non-Supreme Court of Canada cases.  Given this expressive activity, the burden is on the City to demonstrate that its actions constitute a reasonable limit on the right. Further some "measure of inconvenience must be accommodated in a free and democratic society to ensure that these rights are protected."  As for the possibility of a permit, the CCLA argues that the discretionary nature of the permit guidelines render the regulations overbroad and the scheme restricts more speech than necessary (the "minimally impairing" test).

While Judge Brown's interim order stated he would "try to release my reasons for decision no later than 6 p.m. this coming Saturday, November 19, 2011,"  it is now reported that he has extended this time until Monday.

RR

Doe v. Reed: After Remand, Emergency Appeal Denied

The latest installment in the continuing saga of the quest for anonymity by "Protect Marriage" members and supporters is the Ninth Circuit's denial of the emergency appeal.

As we most recently discussed, on a remand from the United States Supreme Court, the district court's opinion ordered disclosure of the names of those who signed an anti-same-sex marriage petition in Washington state in accordance with the state's usual processes.  Recall that in Doe v. Reed, decided by the United States Supreme Court in June 2010, the Court rejected a facial challenge to the state of Washington's Public Records Act (PRA),  RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiative.  The ballot initiative at issue sought to repeal the "everything but marriage" law for same-sex couples and was spear-headed by the controversial Protect Marriage organization.  The John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.

In this latest round, the John Doe plaintiffs sought to "enjoin the Washington Secretary of State from further releasing the R-71 petitions, the Intervenors from distributing the petitions, and the district court from further disclosing the identity of Protect Marriage Washington’s John Doe parties and witnesses in the district court’s unredacted order."  

In its brief opinion, over one dissent, the Ninth Circuit panel stated it "preliminarily believes that the appeal is moot due to the release of R-71 petitions" and thus held that the plaintiff/ appellants’ "renewed emergency motion for an injunction pending appeal is denied."

RR

 

Arizona Supreme Court to Jan Brewer: Unconstitutional to Remove Chair of Restricting Commission

The Arizona Supreme Court issued an order today finding the controversial removal of Colleen Mathis, the Chair of the Arizona Independent Redistricting Commission, by Governor Jan Brewer (pictured right) was unconstitutional.

Here is the entire order:

Having considered the filings in this matter by the petitioner, the intervenor, the respondents, and the amici curiae, and the arguments of counsel,
1. The Court accepts jurisdiction of the petition for special action, having concluded that it has jurisdiction under Article 6, Section 5(1) of the Arizona Constitution;
2. The Court concludes that the issues presented in this matter are not political questions and are therefore justiciable. See Brewer v. Burns, 222 Ariz. 234, 238-39 ¶¶ 16-22, 213 P.3d 671, 675-76 (2009);
3. The Court concludes that the letter of November 1, 2011, from the Acting Governor to the intervenor Colleen Mathis does not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” by the intervenor Mathis, as required under Article 4, Part 2, Section 1(10) of the Arizona Constitution;

Therefore, the Court grants the relief requested by the intervenor Mathis and orders that she be reinstated as chair of the Independent Redistricting Commission.

The Court in due course will issue an opinion more fully detailing its reasoning in this matter.

Article 4, Part 2, Section 1(10) of the Arizona Constitution provides "After having been served written notice and provided with an opportunity for a response, a member of the independent redistricting commission may be removed by the governor, with the concurrence of two-thirds of the senate, for substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office."

Governor Brewer's letter of October 26 detailed several objections to the redistricting process and her subsequent November 1 statement removed Matthis:

“The Arizona Constitution provides that the Governor has direct oversight of the Independent Redistricting Commission, as well as the ability to remove any member due to "substantial neglect of duty‟ or "gross misconduct in office.‟ I invoked that authority today with my decision to remove IRC Chairwoman Colleen Mathis, and I‟ve called the Arizona Legislature into Special Session so that the State Senate may concur with this removal, in accordance with the Constitution.
“I recognize that my decision will not be popular in some quarters. I certainly did not reach it lightly. However, the conduct of the IRC – led by Chairwoman Mathis – has created a cloud of suspicion that will not lift. A flawed redistricting process has resulted in a flawed product. Just as disturbing, the public does not have confidence in the integrity of the current redistricting process. As Chairwoman of this Commission, the buck stops with Ms. Mathis.
“Today‟s action isn‟t the easy thing, certainly. But I‟m convinced it‟s the right thing. I will not sit idly-by while Arizona‟s congressional and legislative boundaries are drawn in a fashion that is anything but Constitutional and proper. Arizona voters must live with the new district maps for a decade.
“I urge the Senate to act quickly so that a newly-constituted Redistricting Commission may complete its duties in time.”

The dispute seems to be a classic one in which the Executive removed an official (and was supported by the legislature) based upon a disapproval or disagreement rather than the constitutionally required good cause standard.

More on the Arizona Supreme Court's full opinion when it appears.

RR

Proposition 8 and the Question of Constitutional Standing: In the California Supreme Court

The question - - - certified by the Ninth Circuit to the California Supreme Court and heard in September - - - was this:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure [PROPOSITION 8] possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

The short answer from the California Supreme Court today is "Yes."  Or, as the conclusion to the court's opinion in Perry v. Brown states:

when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

It takes the court some 60 pages to reach this conclusion in an unanimous opinion written by the new Chief Justice Cantil-Sakauye, with an additional 7 page concurring opinion by Justice Kennard. Kennard wrote to "highlight the historical and legal events that have led to today‘s decision and to explain why I concur in that decision," and reiterated her position that is it is the judicial role to decide whether "excluding individuals from marriage because of sexual orientation can be reconciled with our state Constitution‘s equal protection guarantee."   On the contrary, the main opinion de-emphasized Proposition 8: "the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter."

The California Supreme Court states that "past official proponents of initiative measures in California have uniformly been permitted to participate as parties — either as interveners or as real parties in interest — in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored," and without any specific showings.  The opinion, it seems, could have ended there but the California Supreme Court stated it felt it was "useful and appropriate briefly to set forth, at the outset, our understanding of the federal decisions that discuss the role that state law plays in determining whether, under federal law, an individual or entity possesses standing to participate as a party in a federal proceeding."  Although the opinion emphasized that its "discussion of federal decisions is not intended to, and does not purport to, decide any issue of federal law, and we fully recognize that the effect that this opinion‘s clarification of the authority official proponents possess under California law may have on the question of standing under federal law is a matter that ultimately will be decided by the federal courts," certainly its analysis will be carefully considered by the Ninth Circuit.

The court's major analytic attention, however, was devoted to matters of state constitutional law focused on the initiative process.  In these cases, non-state actors have had the ability to defend the initiative from challenges.  Additionally, the court noted that "even outside the initiative context it is neither unprecedented nor particularly unusual under California law for persons other than public officials to be permitted to participate as formal parties in a court action to assert the public‘s or the state's interest in upholding or enforcing a duly enacted law."

If the Ninth Circuit fully credits the California Supreme Court's opinion and finds it sufficient to confer Article III standing, the court will proceed to the merits and review Judge Walker's opinion in Perry v. Brown (f/k/a Perry Schwarzenegger) that Proposition 8 violates the Constitution.

RR
[image: Pro and anti-Proposition 8 protesters rally in front of the San Francisco City Hall via].

Occupy and the First Amendment: Updates #N17 and Journalists

Today's mass action named #N17 for November 17, two months after the start of "Occupy Wall Street" in Zuccotti Park, New York, is sure to result in further First Amendment and other constitutional controversies, adding to those of the last weeks.

The New York City "eviction" or "dismantling" of the Zuccotti Park encampment resulted in a TRO which was later rescinded, as we discussed most recently here. 

The police intervention in Zuccotti Park included several arrests of members of the press.  The Committee to Protect Journalists has issued a statement of protest as did other press organizations. [UPDATE: A useful tracking of journalist arrests by Josh Stearns here].

In addition to the arrests of members of the press, the police action was apparently scheduled at a time when the press was least likely to be present.  These actions were reportedly defended by NYC Mayor Bloomberg as necessary to "prevent the situation from getting worse" and  "to protect the members of the press.”  The question of press access was considered by the United States Supreme Court in Houchins v. KQED, decided in 1978, in which a plurality of the Court stated that "the media have no special right of access"  that was "different from or greater than the public generally."  In KQED, however, the right of access involved a jail, not a public place.  However, Justice Stewart's opinion noted that the First Amendment's free press clause should not be considered "an accident" and not merged simply with free speech. 

The NYC police action occurred at the same time as police actions in other cities, apparently not by coincidence, according to conjectures from the fact of multi-city mayoral conference calls. A letter of complaint about police practices and the First Amendment is being submitted by multiple parties to the Assistant Attorney General for Civil Rights, Thomas Perez.

Meanwhile, the number of lawsuits arguing First Amendment issues has increased.  For example, the Ft. Myers complaint which we discussed previously resulted in an 40 page Opinion by United States District Judge John Steele granting, in part, the motion for a preliminary injunction.
The Judge enjoined the enforcement of Ordinance §86-153(a), which states:

No parade or procession upon any street of the city, and no open-air public meeting upon any public property shall be permitted unless a special permit shall first be obtained. Any person desiring a permit under this section shall make written application to the chief of
police or some duly authorized member of the police department. Permits issued under this section shall be printed or written, duly signed by the chief of police or some duly authorized member of the police department after approval, and shall specify the day, hour, place and purpose of such parade, procession or open-air public meeting.

The Judge enjoined only the enforcement of the bolded portions of other ordinances:

Except for unusual and unforeseen emergencies,parks shall be open to the public every day of the year during designated hours. The opening and closing hours shall be posted for public information. Normal park hours are 6:00 a.m. to 10:30 p.m. unless posted otherwise by the recreation manager. Such hours shall be deemed extended by the recreation manager as necessary to accommodate athletic sports events, or cultural or civic activities.

[Prohibited]: Loitering and boisterousness. Sleep or protractedly lounge on the seats, benches, or other areas, or engage in loud, boisterous, threatening, abusive, insulting or indecent language, or engage in any disorderly conduct or behavior tending to a breach of the public peace.

 On the other hand, a federal judge ruled from the bench after a five hour hearing that Occupy St. Louis was not entitled to a preliminary injunction against the enforcement of its ordinances regarding a 10:00pm closing of a city park.

RR

Occupy Wall Street: Judge denies TRO for Zuccotti Park

As we previously posted, the early morning police eviction of protesters from NYC's Zuccotti park by police officers was quickly followed by a Temporary Restraining Order prohibiting the city from evicting protesters from the park and enforcing rules prohibiting tents and other property.

The hearing on that order, before Judge Michael Stallman, resulted in a new order denying the motion for a more longstanding temporary restraining order.

In Matter of Waller v City of New York, the judge assumed that the First Amendment applied.  However, he held that the "movants have not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time, place, and manner restrictions permitted under the First Amendment."   Judge Stallman wrote:

The movants have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owner's reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely. Neither have the applicants shown a right to a temporary restraining order that would restrict the City's enforcement of law so as to promote public health and safety.

RR