Wednesday, June 13, 2012
The Supreme Court on Monday declined to review an earlier Fourth Circuit ruling rejecting Jose Padilla's civil case against former Defense Secretary Donald Rumsfeld and others for torture. The move leaves the Fourth Circuit ruling untouched and will almost certainly influence the outcome in a similar case now before the full Seventh Circuit. The move also lends further legitimacy to the Fourth Circuit's approach--that separation-of-powers principles can be a "special factor" counseling against a civil damage remedy in federal court--or, in short, that the executive has something close to a trump card to shut down litigation against executive officers for torture of individuals while detained for reasons that the executive says are related to national security or terrorism.
The case, Lebron v. Rumsfeld, arose out of Jose Padilla's detention and torture. Padilla filed a Bivens claim against Rumsfeld and others for violations of his constitutional rights. The Fourth Circuit ruled that special factors counseled against a Bivens remedy and that Padilla had other forms of relief (i.e., habeas). As to special factors, the court said that separation-of-powers principles counseled against a Bivens remedy--in particular, that military matters like this are the province of the political branches, and that courts lack expertise and risk upsetting the military command structure and intelligence-gathering activities.
The Fourth Circuit ruling is in tension with similar recent rulings by the Seventh Circuit and two district courts. The Seventh Circuit case, Vance v. Rumsfeld, was vacated and is now on appeal to the full Seventh Circuit. The Court's rejection of Lebron will almost certainly influence the outcome of Vance (as if the outcome needed any influencing) and other cases by U.S. citizens alleging constitutional violations against executive officials related to national security, terror, intelligence, and the military.
The Court's rejection also lends further legitimacy to the Fourth Circuit approach, which was an aggressively pro-government, anti-plaintiff approach. The Fourth Circuit reasoning all but gives the executive a trump card to shut down constitutional litigation against executive officials anytime the government says that the case is related to national security, terror, intelligence, and the military. This approach gives the executive nearly complete control over this kind of litigation, takes the courts nearly entirely out of it, and sharply curtails plaintiffs' remedies for constitutional violations while in custody for anything that the executive says is related national security, terror, intelligence, and the military.
While the Court's rejection of Padilla's cert. petition is certainly not a ruling on the merits, the rejection signals a constriction of Bivens actions--a signal that the full Seventh Circuit will surely read and apply in the Vance case.
Congress, of course, could change this by authorizing suits for individuals like Padilla (or Vance and Ertel in the Seventh Circuit) for constitutional violations against executive officials. But don't look for that to happen anytime soon.
The next chapter in this saga will come when the full Seventh Circuit issues its ruling in Vance v. Rumsfeld. Especially now, in light of the Court's rejection of Padilla's cert. petition, look for the court to reverse the three-judge panel and to reject Vance's Bivens claim. The only interesting aspect of the Seventh Circuit ruling will be how closely the court follows the Fourth Circuit's reasoning.
June 13, 2012 in Cases and Case Materials, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, Supreme Court (US), War Powers | Permalink | Comments (0) | TrackBack (0)
Tuesday, June 12, 2012
In mid-June, the Supreme Court watching & waiting gets serious. The Court currently has only two scheduled "Non-Argument" days on its June calendar to announce opinions, June 18 and 25, although it could add more.
[UPDATE: On June 14, the Court added Thursday, June 21, to its calendar].
Certainly, the health care reform cases on the constitutionality of the ACA, argued over several days (March 26, March 27, and March 28) are the most anticipated, but there are at least three other not-yet-decided opinions that are much anticipated and involve controversial constitutional issues.
In January, the Court heard oral arguments in FCC v. Fox presenting the Court again with the First Amendment problems of "fleeting expletives" and "fleeting nudity" in a regulated media context, although the precise issue is more muddled than not. Fox (represented by Carte G. Phillips) focused on the "fleeting expletive" sanction based on Cher's statement at an award ceremony and ABC (represented by Seth Waxman) focused on a nudity sanction based on an episode of NYPD Blue, argued against the FCC (represented by the Solicitor General Verrilli). The Justices - - - sans Sotomayor who did not participate - - - did seem reluctant to honor the respondents' request to overrule FCC v. Pacifica Foundation (1978) (the "seven dirty words" case), yet also seemed uncertain to what extent the case survived into the current proliferation of media.
In February, the Supreme Court heard oral arguments in another First Amendment case, United States v. Alvarez, the so-called "Stolen Valor" case. The Ninth Circuit, in a divided opinion, held a provision of the act unconstitutional: 18 U.S.C. § 704(b), criminalizes false representations, verbal or written, that one has been "been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item." A few weeks before oral argument, the Tenth Circuit, in a divided opinion, upheld the provision.
In late April, the Court heard oral arguments in Arizona v. United States involving the constitutionality of several provisions of Arizona's notorious SB 1070 that the DOJ argues are pre-empted by federal law as the lower courts held. These include requiring every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully; criminalizing the failure to carry an “alien registration document;'" criminalizing undocumented immigrants applying for employment or being employed; and authorizing warrantless arrests if based upon probable cause that a person has committed a deportable crime. Several commentators suggested that Justice Scalia's remarks at oral argument were other than judicial.
While it is not always true that opinions rendered late in the term are the most divisive and complex, the conventional wisdom supports this perception, especially if the oral arguments were earlier in the Term.
[image of Supreme Court courtroom via]
Monday, June 11, 2012
A unanimous three-judge panel of the Ninth Circuit ruled in Associated Press v. Otter that media organizations were "quite likely" to succeed on the merits of their First Amendment claim to witness all stages of Richard Leavitt's impending execution by the State of Idaho. The lower court since granted the media organizations' motion for a preliminary injunction and thus required the state to allow the organizations to witness all stages of the execution.
The state had denied the media access, despite a 2002 ruling by the Ninth Circuit the "the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber, including those 'initial procedures' that are inextricably intertwined with the process of putting the condemned inmate to death." California First Amendment Coalition v. Woodford, 299 F.3d 868, 877 (9th Cir. 2002). The state argued that it had legitimate penological interests in preserving the condemned prisoner's privacy and dignity, respecting the sensibilities of the condemned prisoner's family and fellow death-row inmates, and protecting the anonymity of the members of the medical team who participate in the execution.
The court rejected these:
The State of Idaho already offends the dignity of condemned inmates and the sensibilities of their families and fellow inmates by allowing strangers to watch as they are put to death. It strains credulity for the State to assert that these interests will be offended to a meaningfully greater degree when witnesses are permitted to watch the insertion of intravenous lines than when they are simply allowed to watch the inmates die. The State also has not explained why these interests were not equally at stake in California, although our opinion in California First Amendment Coalition did not explicitly consider them.
Op. at 7.
As to protecting the anonymity of the executioners, the court already rejected this interest in California First Amendment Coalition, and the state here failed to show why its interest was any different or greater. The court said that the execution team could be protected by wearing surgical garb, and any threat to their anonymity was based on pure speculation.
Sunday, June 10, 2012
Over a dissent and reversing the district judge, a DC Circuit panel held unconstitutional the random drug testing policy applicable to all employees working at Job Corps Civilian Conservation Centers operated by the U.S. Forest Service in its opinion in National Federation of Federal Employees-IAM v. Vilsack.
The majority described the random drug testing policy as “a solution in search of a problem” and thus concluded that the “designation of all Forest Service Job Corps Center employees for random drug testing does not fit within the ‘closely guarded category’ of constitutionally permissible suspicionless searches” permissible under the Fourth Amendment.
The panel reasoned that "where the government asserts 'special needs' for intruding on Fourth Amendment rights, as here, the specific context matters" and in demonstrating that the governmental interests are “important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy,” the government must provide a foundation for the "determination that the requirement of individualized suspicion is impractical in the Forest Service Job Corps Center context."
While the usual employees subject to random drug testing are those involved in high security or safety positions, the US Department of Agriculture in 1996 designated all Forest Service Job Corps staff positions for random drug testing. There were, however, various objections and drug testing only occurred on the basis of individualized suspicion. It was not until 2010 that the Forest Service informed the Union, during collective bargaining, "that all Job Corps Center staff would be subject to the random testing program." (emphasis in original). Interestingly, the government argued that because the policy had first been advanced (even if not implemented) in 1996, the employees no longer had any expectation of privacy in not being subject to random drug tests.
The panel rejected this argument and also found the Secretary of Agriculture's rationales supporting special needs too speculative. Quoting from the government's brief that the government has a “legitimate interest in deterring drug use that might affect work performance, that employees who use drugs off the job risk performance-impairing addiction, that off-duty drug users may buy [or sell] drugs at work,” the panel found these interests insufficient to justify a Fourth Amendment intrusion absent more specifics.
The government argued that because the Job Corps Civilian Conservation Centers employees supervised students, this essentially constituted a special need. The dissenting judge found this contention persuasive. However, as the majority noted, in Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995) - - - upholding random drug testing of student athletes in the context of a documented drug abuse issue - - - "the Supreme Court did not imply that protection of this interest would justify random drug testing of the teachers and other staff at the schools — to the contrary, it 'caution[ed] against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts.' "
In short, without some sort of documented problem, or some particular special need such as security or safety, a random drug testing policy of federal employees does not satisfy the Fourth Amendment.
Federal District Judge Robert Dawson declared the Arkansas Public School Choice Act of 1989 unconstitutional on Friday in his opinion in Teague v Arkansas Board of Education. Judge Dawson concluded that the statute's use of race violated the Fourteenth Amendment's Equal Protection Clause, largely relying on the Supreme Court's 2007 opinion in Parents Involved in Community Schools v. Seattle School District No. 1, because while there might be a compelling government interest, the statute was not sufficiently narrowly tailored to serve that interest and therefore survive strict scrutiny.
The statutory scheme is a complex one. Generally, students who attend public school must do so in the school district in which they reside. This general rule has some exceptions, including the Public School Choice Act. However, the choice created is generally subject to a race-based limitation: "No student may transfer to a non-resident district where the percentage of enrollment for the student’s race exceeds that percentage in the student’s resident district." However, even this exception had exceptions. Additionally, the 2011 Legislature amended the School Choice Act to specifically state that the race or ethnicity of a student shall not be used to deny a student the ability to attend a school in the student’s school district of choice if the transfer is "to a school that has been designated by the State as a school performing higher than that in which the student is currently enrolled or to which the student has been assigned." Moreover, the statute provided that if conflicts with the provisions of a federal desegregation court order applicable to a school district, the provisions of the federal desegregation court order shall govern.
Interestingly, Judge Dawson used both the 2011 amendment and the escape clause of federal court desegregation orders to support his conclusion that the statutory scheme was not narrowly tailored. He reasoned that the 2011 amendment was evidence that "some of the state’s lawmakers themselves have determined that the limitation" in the statute "may not pass the strict scrutiny test." He also stressed that the judicial desegregation order exception undermined narrowly tailored because the statutory scheme "applies state-wide without regard to whether a resident or non-resident school district has a history of de jure or de facto segregation." Obviously, however, any limitation to school districts under judicial supervision vitiates the need for the statute.
Not surprisingly then, Judge Dawson declared the statutory provision unconstitutional. More surprisingly, he declared the entre statute unconstitutional, finding that severability is a matter of state law. Looking at legislative intent, he concluded that severing the provision would undermine the legislative interest, including the legislature’s express statement that inter-district transfer is permissible “provided that the transfer by this student would not adversely affect the desegregation of either district."
Judge Dawson was attentive to the history of school segregation in Arkansas, although he sought to expand the portrait beyond the well-known events in Little Rock that resulted in Cooper v. Aaron:
Arkansas has a complicated history with regard to race relations in general, and equal opportunity education in particular. From resistance in the 1950s to minimum compliance in the 1960s, some parts of the state have fought integration even since the Brown v. Board of Education of Topeka decision. . . . Arkansas is home to both the first public school in the former Confederate States of America to implement racial desegregation (Charleston) and the high school which drew the nation’s attention in 1957 when the state National Guard was utilized to keep black students from entering Central High School in Little Rock . . .
The final line of Dawson's 32 page opinion illustrates the continuing legacy of this history: "The Court fully expects this case to be appealed in view of the important issues presented in this case."
Friday, June 8, 2012
A three-judge panel of the D.C. Circuit ruled today in Libertarian Party v. D.C. Board of Elections and Ethics that the Board did not violate the Libertarian Party's First Amendment speech and association rights and its Fifth Amendment equal protection rights by declining to produce an exact count of the votes received by Bob Barr, the Libertarian candidate in the 2008 presidential election.
The Libertarians claimed that the Board's failure to provide an exact count of votes received meant that they couldn't tell how much support they had in D.C. and that they couldn't determine whether they met the 5 percent national threshold to qualify for public funding in the next election. Here's the gist:
[A] voter who casts a valid write-in ballot for a declared candidate like Barr is entitled to know whether she has acted in concert with other like-minded voters or whether her vote is a lone statement in the political wilderness. The voting public is entitled to know how Barr fared at the polls. The Libertarian Party is entitled to know whether its stature has grown or been diminished by the votes cast for Barr. None of this vital information, laden with associative and communicative value, is available if the Board fails to count and report the Barr vote.
The court rejected the claims. It ruled that the Board's failure to provide an exact count was a reasonable, nondiscriminatory restriction on the constitutional rights of voters and therefore valid with only an "important regulatory interest." The court said that the Board had a sufficient interest in saving money by not counting votes of a candidate for reasons other than determining the winner of an election. Moreover, the court said that the Libertarians could always get the ballots via the FOIA, and count them themselves.
Wedding ceremonies on Hawai'ian beaches may be the stuff of some fantasies, but they may also require permits from the state as any other commercial activity on state land would. In its opinion in Kaahumanu v. Hawai'i Department of Land and Natural Resources, the Ninth Circuit upheld Hawai'i's permitting scheme, except to the extent it allowed the state to alter the permits once issued.
The permitting scheme applies to ceremonies all state-owned beaches, even if there are three people at the wedding, if the officiant is receiving compensation. It prohibits tables, chairs, tents, and strictures demarcating the area, while allowing flowers, leis, chairs for the elderly/infirm, and "unamplified musical instruments including a conch shell."
The Ninth Circuit's unanimous panel opinion easily found that one of the plaintiffs, a wedding and events professional association, had standing, and quickly proceeded to the gravamen of the constitutional claim.
As the court expressed it, the First Amendment challenge posed three questions:
- First, do wedding ceremonies constitute “speech” protected by the First Amendment?
Second, what is the nature of the forum?
Third, are the challenged restrictions on commercial weddings permissible in the forum?
The Hawai'i Department of Land and Natural Resources (DLNR) contended that weddings were not speech at all and thus excluded from First Amendment protection. Applying the "particularized message" expressive conduct test from Spence v. Washington, 418 U.S. 405 (1974), the court had "no difficulty" concluding that wedding ceremonies were protected expression: "The core of a wedding ceremony’s “particularized message” is easy to discern, even if the message varies from one wedding to another."
The forum issue was not so easily resolved - - - and indeed, remained unresolved. The panel seemed hesitant to render an opinion that might be used in other contexts. Moreover, while the DLNR contended that "all unencumbered state beaches are nonpublic forums" and the plaintiffs contended that "they are all traditional public forums," the court ruled that Hawai’i’s unencumbered state beaches were not so easily categorized. Instead, the beaches "vary from heavily trafficked beaches to isolated beaches accessible only by foot or watercraft," and on the present record, it was "difficult to put all of Hawai’i’s unencumbered state beaches into a single forum category." Thus, the court assumed - - - without deciding - - - that "unencumbered state beaches in Hawai’i are, as Plaintiffs contend, a traditional public forum." Thus, the panel stated it would assess the validity of all regulations "that we uphold under the most exacting test for restrictions on forum access." On the contrary, the panel assessed the particular provisions of the regulation that it did not uphold under the most lenient standard. The panel summarized its First Amendment holding thusly:
In sum, we hold that DLNR’s regulation requiring a person to obtain a permit for commercial weddings on unencumbered state beaches is narrowly tailored to a significant governmental interest, is content-neutral, leaves ample alternative spaces for hosting a wedding, and does not vest too much discretion in the government official when issuing the permits. We hold that the limitation on accessories, insurance requirement, and the indemnification/hold-harmless clause also satisfy the tra- ditional public forum standard. However, we hold invalid the grant of discretion to DLNR to revoke, or add terms to, a per- mit under the least exacting standard of review for a nonpublic forum.
The panel opinion also briefly referred to the plaintiffs' freedom of religion arguments, rejecting them because that while the regulation may have an incidental effect on specific religious "implements or physical symbols," this does not "render it impermissible." Seemingly, a more specific as-applied challenge, perhaps also stating a RLUIPA claim, might be taken more seriously.
Additionally, the court rejected the Equal Protection and Due Process claims: while recognizing that the "right to marry" is a fundamental right, the DLNR’s "regulation of commercial weddings on unencum- bered state beaches does not impinge on the right to marry."
Wednesday, June 6, 2012
A sharply divided three-judge panel of the D.C. Circuit ruled last week in Davis v. Billington that a Library of Congress employee did not have a Bivens claim against his supervisor and the Librarian of Congress for firing him for his speech. The court ruled that special factors counselled against extending Bivens, because Congress did "not inadvertently" omit damage remedies for employees in the plaintiff's position--employees of the Library of Congress, not the executive branch--in the comprehensive Civil Service Reform Act.
The case arose after Morris Davis, the Congressional Research Service Assistant Director of the Foreign Affairs, Defense, and Trade Division, penned some high-profile opinion pieces critical of the Obama administration for choosing to prosecute some Guantanamo detainees in federal courts and others in military commissions. Davis was also critical of the Bush administration handling of Guantanamo detainees.
Davis had some unique familiarity with these issues. He served as Chief Prosecutor of the military commissions at Guantanamo Bay until October 2007.
After the pieces came out, Daniel Mulhollen, Davis's supervisor, fired him. Davis sued Mulhollen and Billington, the Librarian of Congress, seeking declaratory and injunctive relief, and for damages against Mulhollan for violation of his First and Fifth Amendment rights under Bivens.
The court ruled that special factors counselled against extending a Bivens remedy, because Congress, through the comprehensive remedial scheme in the CSRA, did "not inadvertently" omit damage remedies for civil service members, like Davis, outside the executive branch.
Judge Rogers filed a lengthy and sharp dissent. She said that Congress omitted civil service members outside the executive branch from the CSRA remedial scheme based on separation-of-powers principles. That is, the legislative history of the CSRA shows that Congress didn't include legislative branch employees in the CSRA comprehensive remedial scheme because it didn't want the executive branch to have the power to adjudicate claims of legislative branch employees. The history shows, moreover, that Congress didn't have that same concern with respect to judicial adjudication. According to Judge Rogers, this all shows that Congress did not omit legislative branch employees becauase it wanted to leave them without a remedy. On the contrary, Congress seems to have left open the possibility of a judicial remedy--a Bivens action.
June 6, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Fifth Amendment, First Amendment, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)
Yet another opinion has held section 3 of DOMA, the Defense of Marriage Act, unconstitutional.
Coming on the heels of the First Circuit's opinion issued last week, today's opinion by federal district judge for the Southern District of New York, Barbara Jones, in Windsor v. US reached the same conclusion that section 3 of DOMA does not pass rational basis. In November 2010, Edith Windsor filed a complaint in the Southern District of New York as the survivor of a same-sex couple married in Canada. Windsor sought a refund of estate taxes paid because the marriage was not recognized by the federal government and argued that the Defense of Marriage Act, DOMA, section 3 is an unconstitutional denial of equal protection. The New York Attorney General filed an amicus brief in support of Windsor.
Judge Jones' opinion rehearses grounds that are becoming quite familiar, and while she cites and quotes the First Circuit's opinion in Massachusetts v. HHS, she does not substantially rely upon it.
Instead, Judge Jones does not stress the heightened rational basis standard for legislation based on animus, but concluded that the Congressional interests support DOMA did not pass the threshold of being "legitimate." Judge Jones specifically considered the additional interest advanced by BLAG (supporting DOMA) that Congress intended to approach "same-sex marriage with caution." Judge Jones did not quite say that this was not a legitimate interest, but did conclude that "whatever the social consequences of this legal development" that is same-sex marriage "ultmately may be, DOMA has not, and cannot, forestall them."
Of particular interest to New York constitutional scholars, Judge Jones confronts Hernandez v. Robles, the 2006 decision by New York's highest court that rejected a constitutional claim against barring same-sex marriage. Yet this is in the context of Windsor's standing to raise the claim as to the 2009 tax year. As Jones notes, subsequent executive and legislative action in New York has disavowed that stance in 2009, rendering BLAG's reliance on the case to show a lack of injury "unpersuasive."
DOMA, it can certainly be said, has had its constitutionality seriously cast into doubt, yet again.
Tuesday, June 5, 2012
A three-judge panel of the D.C. Circuit ordered the State Department on Friday in In Re: People's Mojahedin Organization of Iran to act on the petition of the People's Mojahedin Organization of Iran, PMOI, to delist the organization as a Foreign Terrorist Organization under the Antiterrorism and Effective Death Penalty Act.
PMOI originally petitioned the State Department for redesignation on July 15, 2008. PMOI argued that, while it had engaged in terrorist actions in the past, those days were over. PMOI said that it had stopped its military campaign against the Iranian regime, renounced violence, surrendered arms to U.S. forces in Iraq, and cooperated with U.S. officials in Iraq and on Iran's nuclear program.
Secretary Rice denied the petition on January 7, 2009, and PMOI petitioned for review with the D.C. Circuit. The court then ruled that due process required the Secretary to notify PMOI of the unclassified material on which the Secretary proposed to rely and be given an opportunity to respond before re-designation as an FTO. The court remanded to the Secretary to provide that access.
The Departments of State and Justice dragged their feet, and the Secretary has yet to take final action on the petition. (AEDPA requires a final determination within 180 days after receiving the petition.) PMOI filed a writ of mandamus with the D.C. Circuit earlier this year.
The court was highly critical of the government's delays and gamesmanship. (Under AEDPA, a petitioner cannot appeal to the D.C. Circuit until the Secretary issues a final determination. The government's foot-dragging thus left PMOI in limbo.) It gave the Secretary four months to issue a final determination--to which it said it'd give great deference--or it would grant PMOI's writ of mandamus setting aside the FTO designation.
The Ninth Circuit en banc has refused to hear the the Ninth Circuit's 2-1 panel opinion affirming the district judge's conclusion that the controversial Proposition 8 is unconstitutional.
Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) (Dissent by Judge O'Scannlain, Concurrence by Judge Reinhardt)
A majority of the panel has voted to deny the petition for rehearing en banc. Judge N.R. Smith would grant the petition. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc.
The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.
The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.
A sharp but brief dissent by O’Scannlain, joined by Judges Bybee and Bea, highlights President Obama's recent remarks about same-sex marriage:
A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same- sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”
Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012). Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.
For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc.
We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.
Monday, June 4, 2012
The question is rather simple: Is tax forgiveness by a municipality present an equal protection violation if reimbursement is not extended to the taxpayers who paid in a timely manner?
The Court's answer in its brief opinion in Amour v. City of Indianapolis is an equally simple "No."
Near the close of oral argument in March, Justice Breyer condensed the question before the Court as whether the city's choices were rational. In today's brief opinion, authored by Breyer, the conclusion is that the city did act rationally in its sewer assessment policies.
Breyer's opinion articulates the matter as one meriting mere rational basis review; the city's act is a "classification neither involving fundamental rights nor proceeding along suspect lines" and thus "cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” For the Court, "Indianapolis’ classification has a rational basis. Ordinarily, administrative considerations can justify a tax-related distinction and the city's decision to stop collecting the debts "finds rational support in related administrative concerns." As for the failure to reimburse, to "have added refunds to forgiveness would have meant adding yet further administrative costs, namely the cost of processing refunds."
Yet not all members of the Court agreed with the rationality of the city's scheme. In a dissenting opinion about the same length as the Court's opinion, Chief Justice Roberts, joined by Scalia and Alito,criticized the Court for not adhering to Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336 (1989). The dissenters described Allegheny Pittsburgh Coal as a "succinct and unanimous opinion striking down a property tax scheme in West Virginia on the ground that it clearly violated the Equal Protection Clause" and argued that the Court failed to distinguish it convincingly. The dissenters argued that like Allegheny Pittsburgh, the Indianapolis tax scheme was that "rare case" that comes along "every generation or so" requiring the Court to "say enough is enough, if the Equal Protection Clause is to retain any force in this context."
As in oral arguments, the Court's opinion today in Reichele v. Howards puts the First Amendment in the "back seat." In the front seat is the doctrine of qualified immunity, specifically the requirement that any claimed violation be a matter of clearly settled law.
As the relatively brief opinion for a unanimous Court, authored by Justice Clarence Thomas (pictured below) explains:
We granted certiorari on two questions: whether a First Amendment retaliatory arrest claim may lie despite the presence of probable cause to support the arrest, and whether clearly established law at the time of Howards’ arrest so held. If the answer to either question is “no,” then the agents are entitled to qualified immunity. We elect to address only the second question. We conclude that, at the time of Howards’ arrest, it was not clearly established that an arrest supported by probable cause could violate the First Amendment.
Recall the rather unique facts:
Howards' arrest was by Secret Service agents at a mall in Colorado where then-VP Dick Cheney was appearing. Howards was taking his son to a piano recital at the mall and on his cell phone. Apparently, no fan of the VP, Howards stated into his cell phone, "I'm going to ask him [the Vice President] how many kids he's killed today."
This was overheard by the Secret Service agents and attracted their attention. Moreover, Mr. Howards did make good on his stated intentions: After dropping off his son at the recital:
Mr. Howards remained behind to visit with the Vice President. As Mr. Howards waited for his turn, he observed the Vice President interacting with the gathering crowd, greeting patrons, shaking hands, and posing for photographs with onlookers. He then approached the Vice President and informed him that his "policies in Iraq are disgusting." The Vice President responded, "Thank you." As he departed, Mr. Howards touched the Vice President's right shoulder . . .
Interestingly, Mr. Howards was not arrested then, but quite a while later when agent Reichele and Howards had an "interview" which escalated, with the agent becoming angry. The agent arrested Howards for assault on the Vice-President, based on the touching of the shoulder, which Howards had "lied" about saying he hadn't touched the VP.
Writing for a unanimous Court, Thomas concluded that the “clearly established” standard was not satisfied: "This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause." Thomas stressed that the right that must be established is not a general First Amendment one "to be free from retaliation for one’s speech," but the "more specific right to be free from a retaliatory arrest that is otherwise supported by probable cause." Thomas then delved into the Tenth Circuit precedent, concluding that such a right was not established as a matter of circuit law, although there was certainly some "uncertainty" generated by Hartman v. Moore, 547 U. S. 250 (2006).
Concurring, Justice Ginsburg, joined by Justice Breyer, distinguished Hartman v. Moore as involving retaliatory prosecution rather than simply arrest. Yet Ginsburg's concurring opinion also relied on her interpretation of the facts:
Nevertheless, I concur in the Court’s judgment. Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy. In performing that protective function, they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge. Whatever the views of Secret Service Agents Reichle and Doyle on the administration’s policies in Iraq, they were duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security. Retaliatory animus cannot be inferred from the assessment they made in that regard. If rational, that assessment should not expose them to claims for civil damages.
While Reichele v. Howards is a unanimous opinion, it refuses to do what we often expect unanimous opinions to do: clarify the law. By addressing only the second question - - - whether the law was settled or not - - - and not addressing the substantive question, the law remains unsettled.
Nevertheless, the clear import of the case is deference to law enforcement, including (or especially) Secret Service agents, against civil damages even if their actions may seem "retaliatory."
Friday, June 1, 2012
In the latest installment in the long-running saga Nordyke v. King, the en banc Ninth Circuit ruled today that Alameda County's ban on gun shows at the county fairgrounds didn't violate the Second Amendment, because, well, Alameda County changed its policy to allow gun shows.
The county's late-in-the-day move pulled the rug out from under the plaintiffs' original Second Amendment claim and gave the court an out (which it took) in articulating a Second Amendment standard. The move also allowed the court to preempt any repleading by the plaintiffs. Between the county's move and the court's ruling, the case now has virtually no chance of going to the Supreme Court.
Recall that the case involved Alameda County's ban on gun shows at the county fairgrounds. The county ordinance banned firearms on the fairgrounds, but provided exceptions for, among other things, a "dance or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event." The county originally interpreted the ordinance to ban gun shows, and the plaintiffs sued.
That was a long time ago, and the case has been up and down several times since. But most recently, the county re-interpreted its ordinance to allow gun shows (as an "event"), provided that the weapons are secured or tethered (like cell phones are in a cell phone store).
The en banc Ninth Circuit ruled that the county's change in interpretation meant that the plaintiffs no longer had a Second Amendment claim against a ban on gun shows. The court said nothing about the Second Amendment itself.
As to the requirement that the guns remain secured or tethered, the court said that that "[n]o matter how broad the scope of the Second Amendment . . . it is clear that . . . this regulation is permissible."
Judge O'Scannlain, joined by Judges Tallman, Callahan, and Ikuta, concurred, arguing that the court should have adopted a standard of scrutiny for the Second Amendment--the "measured, calibrated approach developed in the original three-judge panel majority opinion, which considers carefully the extent of the regulation's burden on Second Amendment rights." But even applying this standard, Judge O'Scannlain argued that the county's new interpretation of the ordinance would survive.
Judge Ikuta, joined by Judge Callahan, also wrote a concurrence, arguing that the court should adopt a standard and determine whether the plaintiffs could re-plead their case.
While we still don't have guidance from the Supreme Court as to the standard for Second Amendment claims, this case now makes a poor candidate for the Court to determine that standard. Look for this case to (finally) end.