Wednesday, February 15, 2012
Judge Richard J. Leon (D.D.C.) issued reasons today for his earlier ruling rejecting bloggers Andrew Breitbart and Larry O'Connor's motion to dismiss Shirley Sherrod's defamation action against them. Breitbart and O'Connor moved to dismiss under D.C.'s Anti-SLAPP statute, a law that allows defedants to file a special motion to dismiss if they can show that the claim at issue arises from an act in furtherance of the right to free speech related to an issue of public concern. Judge Leon wrote that because the Act is purely procedural, the Erie doctrine bars its application in federal court.
The case arises out of Breitbart's posting of an edited and misleading video of a speech Sherrod made when she was Georgia State Director for Rural Development for the USDA. Sherrod sued for defamation, false light, and IIED; Breitbart and O'Connor moved to dismiss under the Anti-SLAPP Act.
Section 3 of the D.C. Anti-SLAPP Act says,
(a) A party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.
(b) If a party filing a special motion to dismiss under this section makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.
Judge Leon wrote that Breitbart and O'Connor filed their motion to dismiss before the Act was effective, that the Act is procedural (not substantive) and is therefore barred in federal court by Erie v. Tomkins, and that the defendants filed after the 45-day deadline in subsection (a). Judge Leon's earlier ruling means that the case can move forward; his reasons filed today only explain that ruling.
Monday, February 13, 2012
A three-judge panel of the Ninth Circuit ruled on Monday in Hunt v. County of Orange that a local sheriff enjoyed qualified immunity against a civil rights suit by his lieutenant after the sheriff fired the lieutenant for campaigning against him.
The case arose after the sheriff's lieutenant campaigned against the sheriff and his "culture of corruption." The sheriff placed the lieutenant on administrative leave and then demoted him, prompting the lieutenant to sue the sheriff under 42 U.S.C. Sec. 1983 for retaliation for exercising his First Amendment rights.
The district court dismissed the case, holding that the lieutenant fell into the "policymaker" exception to the general First Amendment rule against politically-motivated dismissals. Alternatively, the court ruled that the sheriff was entitled to qualified immunity.
The Ninth Circuit ruled that the lieutenant was not a policymaker and therefore not within the policymaker exception under Elrod v. Burns. But the panel ruled that the sheriff shouldn't have reasonably known this--and thus was entitled to qualified immunity:
[The lieutenant's] First Amendment right to be free from demotion for campaigning against [the sheriff] was clearly established as of June 2006. . . . However, the critical question here is whether a reasonable official in [the sheriff's] position should have known that [the lieutenant] was not a policymaker whose political loyalty was important to the effective performance of his job. . . .
We conclude, like the district court, that [the sheriff] could have reasonably but mistakenly believed that [the lieutenant's] demotion was not unconstitutional, given the unique nature of his job as Chief of Police Services for the City of San Clemente. . . . We have carefully analyzed the development of the policymaker exception, its underlying purpose, the high burden on the government to prove that political fidelity was a necessary requirement of [the lieutenant's] job, and balanced the nine-factor [policymaker] analysis that requires a fact-dependent inquiry. Even if [the sheriff] engaged in the appropriate analysis and wrongly concluded that [the lieutenant] was a policymaker such that demoting him was constitutional, we cannot say that he acted objectively unreasonably in concluding he could demote [the lieutenant] without violating his constitutional rights.
Judge Leavy would have ruled that the lieutenant was a policymaker, fell into the exception, and thus failed to state a First Amendment claim.
Friday, February 10, 2012
The case settled.
In the settlement approved by the court, the school district agreed its employees would "not do any of the following in the presence of students, either during the school day or at School District-sponsored activities or events: (a) initiate, solicit or direct prayers, (b) join students in prayers (e.g., joining in a student prayer circle), (c) proselytize, or (d) invite a third-party to engage in any of the practices listed in (a)(c)" and would not display religious images, Bibles or religious texts, "unless such is for pedagogical and non-religious purposes (such as a history of world religions course)." And at graduation, the school district "will not include a prayer whether referred to as a prayer, blessing, invocation, benediction, or otherwise as part of the official program of any graduation ceremony" and the "portions of the program devoted to student speeches will each be given the same name, such as Student Remarks or a substantially similar, but non-religious term. For instance, "Student Remarks by [valedictorian]".
District Judge Biery had entered a preliminary injunction in June 2011, including a provision that the school district "shall remove the terms “invocation” and “benediction” from the program of ceremonies for the graduation exercises. These terms shall be replaced with “opening remarks” and “closing remarks.”" This was quickly reversed by the Fifth Circuit in a per curiam opinion on an emergency motion, in part for mootness - - - the school district having abandoned the use of "invocation."
What makes this settlement and its approval other than run-of-the-mill is District Judge Biery's opinion approving the settlement, with its appendix II, entitled "An Ironic Venue for Separation of Church and State Litigation," including a catalog of quotes.
If it reads more like a position paper than a judicial opinion, that may be because it seemingly responds to another position paper. One by Presidential Candidate New Gingrich. As we've previously discussed, Gingrich's views on the federal judiciary are less than positive, including his "white paper" on judicial activism. The paper states:
A good place to start correcting federal judges is in Texas. This past June, a federal district court judge in West Texas issued an extraordinary judicial order that threatened local school officials with going to jail if they failed to censor the content of a student’s speech at a high school graduation ceremony. Such oppressive and tyrannical behavior from a sitting federal judge is not constitutional and has no place in America. Congress would be well within its power to impeach and remove this federal judge from office, or failing that, work with the President to abolish his judgeship.
Appendix B of the white paper discusses Schultz v. Medina Valley Independent School District and Judge Biery by name, concluding that the "American people would be better off without a judge whose anti-religious extremism leads him to ban a high school valedictorian from saying even the word “prayer.”"
Judge Biery's response - - - although he never mentions Gingrich by name - - - matches Gingrich's style of rhetoric, complete with quotations and historical incidents. The order also includes some "personal thanks" that provide a flavor of the controversy and allude to Gingrich.
To the United States Marshal Service and local police who have provided heightened security: Thank you.
To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.
To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.
To those in executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.
To the lawyers who have advocated professionally and respectfully for their clients respective positions: Bless you."
Thursday, February 9, 2012
A three-judge panel of the D.C. Circuit rejected Guantanamo detainee Abdul-Rahman Abdo Abulghaith Suleiman's habeas claim earlier this week. The case is just the latest from the D.C. Circuit on habeas claims of a Guantanamo detainees.
The court applied its familiar "part of" standard and concluded that Suleiman was part of the Taliban. The panel upheld the district court's findings based on Suleiman's own testimony, an FBI report summarizing an interview, and a DOD record of an interview.
According to the court,
There is no dispute that Suleiman's travel was initiated at the suggestion of and facilitated by a Taliban recruiter, and that he traveled a well-worn path to Afghanistan frequently used by Taliban recruits. . . .
He lived at the Al-Qa'eity guesthouse for seven months. . . . His Taliban fighter housemates used it as a base to travel to and from the battlefront during the time Suleiman was there.
Op. at 5-6.
May a state limit its statutory Freedom of Information Act to "state citizens"?
Doesn't such a provision violate the Privileges and Immunities Clause of Article IV? Or the dormant aspect of the commerce clause?
Not according to the Fourth Circuit. In McBurney v. Young, decided earlier this month, the Fourth Circuit upheld the constitutionality of a Virginia statute that allows access to state records to "to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth." Va. Code Ann. § 2.2-3704(A).
The challengers - - - one a former resident of Virginia with his divorce, child custody, and child support decrees from Virginia and another an information broker dealing in real estate tax assessments - - - argued that the state citizen limitation violated the Privileges and Immunities Clause of Article IV and the information broker also argued the "dormant" aspect of the Commerce Clause, Art. I §8 cl. 3.
The Fourth Circuit affirmed the district judge's rejection of both of these claims.
Regarding Article IV Privileges and Immunities (P&I), the panel opinion admitted that the contours of the P&I Clause are not well-developed, but noted that the "fundamental rights" its encompasses are distinct and "bear upon the vitality of the nation." With regard to the right to "pursue a common calling," the panel noted that the Virginia statute is not a residency requirement per se: the Virgina FOIA "does not act as a wholesale barrier to entering a business, nor does it establish a license, fee, or other burden to nonresidents entering or engaging in a profession" and on its face it "addresses no business, profession,
or trade." With regard to the less well-established rights under P&I, such as "equal access to information" or "ability to advance one's interests," the panel found these rights were not established. Having found no right sufficient to invoke P&I, the panel did not engage in any balancing of state interests and means chosen.
Regarding the dormant commerce clause (DCC), the panel again found that the clause was not properly at issue. The panel stated that although "the VFOIA discriminates against noncitizens of Virginia, it does not discriminate 'against interstate commerce' or 'out-of-state economic interests.' " Yet the panel somewhat confusingly added that "[a]ny effect on commerce is incidental and unrelated to the actual language of VFOIA or its citizens-only provision," and therefore a Pike balancing analysis, after Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) is appropriate. The panel, however, does not engage in any balancing, holding that "the opening brief does not challenge the district court's application of the Pike analysis and thus the argument is waived.
There is something about an open records act being limited to state citizens that seems inconsistent with our notions of a "United States," as well as inconsistent with our notions of openness. The Fourth Circuit's lack of a discussion of the state interests and how they are being served leaves an unfortunate gap, even as P&I and DCC doctrines do not seem adequate to address the issue.
Wednesday, February 8, 2012
The en banc Seventh Circuit heard oral argument on Wednesday in Vance v. Rumsfeld, the case by two American military contractors against the former Secretary of Defense (among others) for authorizing their torture while in military detention in Iraq. We posted on the three-judge panel decision allowing the case to move forward here. The full Seventh Circuit vacated that decision and took up the case en banc.
The plaintiffs, Vance and Ertel, filed a Bivens claim against Rumsfeld and others, seeking monetary damages and injunctive relief. The government, on behalf of Rumsfeld, moved to dismiss, arguing that special factors counseled against a Bivens remedy, namely wartime context and the military's ability to do its job without threat of litigation.
The arguments today focused around these themes--all relating to special factors counseling against Bivens except the last one:
Disincentives. Some on the bench, led by Judge Posner, were concerned that allowing a Bivens claim to move forward here would discourage talented people from considering public service. Others expressed concern that not allowing a Bivens claim here would give a green light to the military to violate whatever constitutional provisions it likes, with no judicial check.
Separation of Powers. Some, again led by Judge Posner, argued that Congress was the better branch to provide a remedy, and that the courts should take great caution in crafting a judicial remedy, or in applying Bivens beyond its narrow facts.
Contractor Status. Judge Posner pressed the plaintiffs' attorney about the plaintiffs' contractor status, suggesting that this status, equivalent in all but name to active members of the military, creates exactly the same special factors counseling against a Bivens remedy that an active-duty member's claim raises. And the courts have rejected Bivens for such a military-on-military claim.
Alternative Remedies. Several on the bench seemed concerned that the plaintiffs hadn't pursued, or hadn't at least tried to pursue, alternative compensation remedies through the Defense Department.
Judge Posner, the most vocal voice on the court against a Bivens damage remedy, was also most vocal about saying that the plaintiffs could get injunctive relief. Thus one possibility is that the en banc court would dismiss the damage action but allow injunctive relief to move forward. The problem: Plaintiffs might then face a Lyons-like standing problem.
Another possibility: The en banc court might dodge the thorny question of special factors and instead dismiss the case based on the plaintiffs' failure to pursue alternative remedies.
Oddly, nobody on the bench (or behind the podium) seemed to consider that the qualified immunity doctrine could cover for the discourage-public-service concern--and that qualified immunity might do it in a better way: Allowing the Bivens case to move forward would give the plaintiffs their day in court and only discourage plainly unconstitutional public service, not all public service.
February 8, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Oral Argument Analysis, War Powers | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 7, 2012
As we noted earlier today, the Ninth Circuit panel has affirmed the district judge that Proposition 8 is unconstitutional, in a 2-1 decision.
The panel was unanimous on two points:
First, the proponents had standing. The standing issue is convoluted in this case, for it is the standing of Hollingsworth and ProtectMarriage.com to appeal as proponents of Proposition 8, given that the state (in the person of defendant Governor Brown, formerly Schwarzenegger) refused to defend the constitutionality of Prop 8. The panel distinguished Arizonans for Official English v. Arizona, 520 U.S. 43, (1997), stating that unlike that case,
we do know that California law confers on “initiative sponsors” the authority “to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” The California Supreme Court has told us, in a published opinion containing an exhaustive review of the California Constitution and statutes, that it does.
While a state (or other party) cannot confer Article III standing on a federal court, a state, as an "independent sovereign" possesses the prerogative to "decide for themselves who may assert their interests and under what circumstances." Thus, the California Supreme Court's decision is outcome determinative.
Second, Walker's sexuality was not a reason to vacate his opinion. More precisely, applying the abuse of discretion standard, District Judge Ware, who replaced Judge Walker Vaughn, was affirmed regarding the denial of a motion to vacate Walker's judgment based on Walker's sexuality.
The panel divided on the central issue: the constitutionality of Prop 8 itself. The majority opinion, authored by Reinhardt concluded that Proposition 8 was unconstitutional. Reinhardt begins the panel majority opinion with an important framing of the issue:
Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.
Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right—the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.
Thus, Judge Reinhardt's opinion continued, Prop 8 "therefore could not have been enacted to advance California's interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples." Additionally it did not "have any effect on religious freedom or on parents' rights to control their children's education; it could not have been enacted to safeguard these liberties." Instead, all that Prop 8 "accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships." Later in the opinion, the panel majority provides examples of the cultural significance of "marriage" as a term:
Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, “Will you marry me?”, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see “Will you enter into a registered domestic partnership with me?”. Groucho Marx's one-liner, “Marriage is a wonderful institution ... but who wants to live in an institution?” would lack its punch if the word ‘marriage’ were replaced with the alternative phrase. So too with Shakespeare's “A young man married is a man that's marr'd,” Lincoln's “Marriage is neither heaven nor hell, it is simply purgatory,” and Sinatra's “A man doesn't know what happiness is until he's married. By then it's too late.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for samesex couples is no different. The name ‘marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships. . . . .
Thus, for the panel majority, Prop 8 "serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples." The panel majority stated that the "Constitution simply does not allow for 'laws of this sort,' " quoting and citing Romer v. Evans, 517 U.S. 620, 633 (1996).
Indeed, Romer v. Evans - - - in which the Supreme Court invalidated Colorado's Amendment Two that had prohibited any policies, ordinances, or laws that allowed claims of discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" - - - is a lynchpin of the panel majority's analysis. Like Amendment 2, Prop 8 eliminated a pre-existing right: "as the voters were told," Prop 8 would “eliminate the right of same-sex couples to marry in California.” :
Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.
Applying Romer's heightened rational basis scrutiny with its emphasis on animus as not satisfying a legitimate state interest, the panel majority finds Prop 8 - - - as an initiative that changed the status quo - - - to be unconstitutional.
Judge Smith, dissented as to the constitutionality of Proposition 8, largely arguing that Romer v, Evans was distinguishable.
The majority panel's final footnote forestalls the effect of the decision: "The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate."
The proponents now have to decide whether to seek a rehearing enbanc by the Ninth Circuit or to petition the United States Supreme Court for a writ of certiorari. Doubtless, they will do one or the other. And the complex Prop 8 saga will continue.
February 7, 2012 in Courts and Judging, Current Affairs, Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)
The Ninth Circuit panel has rendered its opinion in Perry v. Brown, on the constitutionality of California's Proposition 8 that prohibited same-sex marriage, affirming 2-1 Judge Vaugn Walker's extensive opinion based on the trial (our recap here) the videotapes of which will not be released as the Ninth Circuit ruled recently.
The Ninth Circuit Judges on panel, Stephen Reinhardt (middle), NR (Randy) Smith (right, and Michael Hawkins (left) disagreed on the major constitutional issue.
The panel was unanimous that the proponents had standing and that Judge Walker's opinion should not be vacated on the basis of his sexuality. The majority opinion, authored by Reinhardt concluded that Proposition 8 was unconstitutional. Judge Smith, dissented as to the constitutionality of Proposition 8, arguing that it was rationally related to a legitimate government interest.
MORE ANALYSIS HERE.
Monday, February 6, 2012
A group of 39 Republican Senators said on Friday that they would file an amicus brief in a court case challenging President Obama's recent recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board.
We posted most recently on the ongoing litigation brought by the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business against the NLRB. The plaintiffs in that case most recently filed a motion to amend their complaint to include a charge that President Obama's recess appointments to the NLRB were unconstitutional, and therefore that the NLRB didn't have sufficient sitting members to enforce its new rules. It's not clear if the Republicans seek to weigh in on this case, though: It involves only the NLRB, not the CFPB.
Senator John Cornyn (R-TX) released this statement on Friday:
American democracy was born out of a rejection of the monarchies of Western Europe, anchored by limited government and separation of powers. We refuse to stand by as this President arrogantly casts aside our Constitution and defies the will of the American people under the election-year guise of defending them.
Here's the statement from the Republican Senators:
We the undersigned believe that President Obama's January 4, 2012 recess appointments of individuals to lead the Consumer Financial Protection Bureau and National Labor Relations Board were unprecedented and unconstitutional. We intend to jointly file an amicus brief challenging the constitutionality of President Obama's appointments to the National Labor Relations Board and Consumer Protection Financial Bureau.
Saturday, February 4, 2012
The Seventh Circuit ruled last week in Brown v. Bowman that a bar applicant's claim in federal district court for constitutional violations in his bar application and appeal process was barred by the Rooker-Feldman doctrine. (The Rooker-Feldman doctrine prevents lower federal courts from hearing cases by losers in state court cases that ended before the federal district court case started. "The reason, quite simply, is that no matter how erroneous or unconstitutional the state court judgment may be, only the Supreme Court of the United States has jurisdiction to review it." Op. at 9.) The court said that the applicant's efforts to side-step the doctrine by pleading only constitutional violations, and not seeking a reversal of his ultimate rejection by state courts, failed, because the federal court would still have to review a state court decision.
The applicant, Brown, filed in federal district court after he was rejected by the Indiana Board of Law Examiners, and after his appeals through the Indiana courts and the U.S. Supreme Court all failed. (The Indiana high court wrote an order stating that the BLE decision should stand; the U.S. Supreme Court denied cert.) Brown alleged that a psychologist and a psychiatrist who evaluated him as part of his application drew conclusions that violated his speech, religion, and assembly rights under the First Amendment (among others). The district court dismissed Brown's complaint under the Rooker-Feldman doctrine and ruled that individual defendants were entitled to qualified immunity.
The Seventh Circuit affirmed under the Rooker-Feldman doctrine. The court ruled that Brown's effort to dodge the doctrine, by pleading only his constitutional claims in federal court and not by seeking to overturn the state courts' ultimate ruling, was insufficient:
Here, appellant's artful pleading cannot get him around Rooker-Feldman when the gravaman of his complaint requires the district court to review the state judicial proceeding. . . . Though Brown focuses much of his appeal on the allegedly religiously biased JLAP evaluations and the conduct of JLAC members, these actions are intimately connected with the Indiana Supreme Court's adjudication. . . . Because Brown's claims of religious bias require a federal district court to review the judicial process followed by the Indiana Supreme Court in deciding the merits of Brown's bar admission application, Brown's claims are "inextricably intertwined" and fall squarely under Rooker-Feldman's jurisdictional bar.
Op. at 12-13.
Thursday, February 2, 2012
A three-judge panel of the Ninth Circuit ruled this week in AE v. Tulare that a civil rights plaintiff suing a municipality under Monell v. Department of Social Services has to allege some concrete facts to satisfy the pleading standard under Ashcroft v. Iqbal. The ruling reiterates that the pleading rule in a Monell case in the Ninth Circuit now requires some concrete factual allegations--more than the pre-Iqbal rule in that Circuit.
Before Iqbal, the Ninth Circuit didn't require much detail at the pleading phase in a municipal liability case--no more than a bare allegation that goernment officials' conduct conformed to some unidentified government policy or custom. But the government argued here that that should change under Starr v. Baca, the Ninth Circuit's ruling last year in which the court wrestled with the "perplexing" holdings in Swierkiewicz v. Sorema N.A., Dura Pharmaceuticals, Inc. v. Broudo, Bell Atlantic Corp. v. Twombley, Erickson v. Pardus, and Iqbal and set these pleading principles for civil rights claims:
whatever the difference between these cases, we can at least state the following two principles common to all of them. First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.
AE, at 792 (quoting Starr). The court in AE said that this standard applies to AE's municipal liability claims and remanded the case to allow AE to amend the complaint to try to meet it.
The Ninth Circuit today issued its opinion in Perry v. Brown holding that the Proposition 8 trial videotapes will not be released. The panel - - - Judges Reinhardt, Hawkins, and NR Smith - - - reversed the decision of Northern District of California Chief Judge Ware that the videotapes should be released.
Judge Reinhardt's opinion for the unanimous panel made clear that the decision was not focused on the policy questions regarding broadcast of trials or the First Amendment right of press access or publication. Instead, the opinion highlighted the unique and narrow question: whether "the district court abused its discretion by ordering the unsealing of the recording of the trial notwithstanding the trial judge’s commitment to the parties that the recording would not be publicly broadcast."
The panel assumed without deciding that the "trial recording is subject to the common-law presumption of public access," but found that there was a "sufficiently compelling reason to override any such presumption here."
In short, the panel found that the sufficiently compelling reason was Judge Walker Vaughn's repeated assurances to the litigants that the trial recordings would not be published:
the district court [Judge Ware] failed to appreciate the nature of the statements that the trial judge [Judge Walker] had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so. The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments. . . . the interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release.
The Ninth Circuit opinion is not a constitutional one, but certainly seeks to respect the integrity of Article III courts. But it means that afficiandos of the Prop 8 trial will have to be content with the voluminous transcript that remains available, or with the re-enactment of the trial produced by actors, or with Walker's extensive opinion itself.
For scholars working on constitutional issues relating to social justice and gender, a terrific-looking conference, Social Justice Feminism, will be held at University of Cincinnati College of Law on October 26-27, 2012.
The deadline is April 1, 2012; submissions of abstracts for individual papers, as well as complete panels, are invited.
More info here.
[pictured: from the Race, Gender and Social Justice at U Cincinnati College of Law, via]
Wednesday, February 1, 2012
The ACLU filed suit on Wednesday against the U.S. government in the Southern District of New York seeking the release of records related to the targeted killings of U.S. citizens overseas. Recall that the New York Times and two reporters filed a similar suit in December 2011.
The ACLU lawsuit comes after the Departments of Justice and Defense and the CIA rejected or indefinitely delayed their responses to the group's FOIA request for the records. The complaint alleges,
The press began reporting in early 2010 that Anwar al-Awlaki, a U.S. citizen born in New Mexico, had been placed on CIA and JSOC "kill lists" that authorized his targeted killing. In the fall of 2011, the media reported on the existence of a legal memorandum drafted by the OLC ("OLC memo") that provided a legal analysis to support al-Awlaki's killing.
The lawsuit comes on the heels of President Obama's YouTube interview in which he acknowledges and defends drone strikes. Here's Al Jazeera's report on the interview:
Tracey Cooper-Harris (pictured right), a member of the US Army for twelve years, has filed a complaint against the US for veterans benefits for her same-sex partner, arguing that DOMA and the VA definition of "spouse" violates the Fifth Amendment's equal protection component. Cooper-Harris is represented by the Southern Poverty Law Center, the organization that also litigated the landmark case Frontiero v. Richardson involving a woman's right for military benefits for her husband.
This lawsuit joins the other constitutional challenges to DOMA including one filed by the Service Members Legal Defense Network, as well two companion decisions by federal district judge Tauro declaring DOMA unconstitutional, the Obama DOJ's decision not to defend it, and legislative efforts at repeal.
(h/t Jen Hogg)
Justice Ginsburg discusses the formation of the US Constitution, mentioning "Remember the Ladies," slavery, Native Americans, immigrants, and the death penalty, as well as other matters of constitutionalism, in an interview on Al Hayat TV in Egypt.
(h/t Barbara Burke)
As the NYT reports, the filmmaker Josh Fox whose documentary “Gasland” raised questions about "fracking," was escorted from a House of Representatives subcommittee hearing today and given a misdemeanor citation.
Although Fox shouted this "is a public hearing!” and “I’m being denied my First Amendment rights,” the subcommittee members had voted to exclude Fox and his camera crew for lacking proper media credentials.
A video of the hearing, sans any arrests, is available here.
For ConLawProfs teaching First Amendment this semester, this could be the basis for an interesting in-class discussion or problem.
In what the First Circuit calls the "second chapter" of challenges to the constitutionality of Maine's registration and disclosure laws regarding election-related advocacy, the court in National Organization for Marriage [NOM] v. McKee, essentially reaffirms its opinion last August in a case by the same name (and now to be known as NOM I). The cases stem from the hard-fought same-sex marriage ballot initiative in Maine in 2009. NOM II involves both NOM and American Principles in Action [APIA], although the court expressed doubt regarding APIA's standing as to some of the claims, and the principle arguments revolve around NOM.
The unanimous panel decision, authored by Judge Kermit Lipez, focuses on the "only substantively distinct issue" raised by this appeal as contrasted to NOM I: the constitutionality of the definition of "contribution" in the "ballot question committee" [BQC] provision, Me. Rev. Stat. tit. 21-A, §1056-B. The court concludes that the BQC provision, like the PAC provision at issue in NOM I survives the constitutional challenge.
The court quickly disposed of the First Amendment claims, on the basis of NOM I, but paid more attention to the assertion that the term "contribution" was unconstitutionally vague as a matter of due process, and that any reliance on subjective beliefs of a contributor were likewise void for vagueness. At issue were email communications such as:
"You can fight back! Can you help defend marriage in Maine and across the country, by donating $5, $10, or even, if God has given you the means, $100 or $500?"
The panel found that Maine can constitutionally require parties to determine whether or not a "reasonable listener would understand their advocacy as an invitation to contribute to a specific ballot question campaign"- - - such as that in Maine - - - based upon the specific earmarking words of the solicitor, in this case NOM.
The court engaged in such reasoning after specifically faulting the appellants' attorneys for poor lawyering in terms of the as-applied challenges:
Appellants, however, do not address in their brief the vagueness problem with respect to donations received following any specific communication they distributed or proposed. Rather, they assert in conclusory language that subsections B and C of section 1056-B "are unconstitutionally vague as applied to most of Plaintiffs' speech." They make glancing reference to the content of the emails, noting that "some of NOM's solicitations mentioned Maine," and query whether, as a result of those mentions, donors' knowledge of the Maine ballot measure would be enough to make their donations covered "contributions" and NOM a BQC. They do not explain why they were unable, or would be unable, to link particular contributions received to their advocacy efforts on the Maine referendum, focusing their arguments instead on the language of the statute generally.
Thus, appellants are not only unable to bring a facial vagueness challenge to section 1056-B, but their failure to develop their as-applied challenges also would allow us to reject those claims summarily if we were so inclined. [citations omitted]. Given the importance of the issues raised, however, and the resources expended by all parties in this extensive litigation, we choose to explain why their vagueness contentions would in any event be substantially, if not entirely, unavailing. [citations omitted].
As the panel succinctly stated, it saw "no constitutional problem with expecting entities like appellants to make pragmatic, objective judgments about the nature of the contributions they receive where their own conduct and communications are the primary elements in the determination."
While NOM's attorney has reportedly vowed to take the case to the United States Supreme Court, there seems to be little here that would merit a grant of a writ of certiorari.
However, with the same-sex marriage issuepossibly again on the ballot in Maine in 2012, there may certainly be more litigation.
February 1, 2012 in Campaign Finance, Due Process (Substantive), Elections and Voting, First Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream will be held at University of Wisconsin, Madison, and seeks to "bring together scholars, economists, activists, policymakers, and others to critically examine both the relationships between and the complexities of class and inequality."
More info here.