Constitutional Law Prof Blog

Fifth Circuit Stays Injunction Against Texas HB 2 Abortion Restrictions

A few days ago, federal District Judge Lee Yeakel enjoined portions of Texas HB 2 in Planned Parenthood of Greater Texas v. Abbott.

A Fifth Circuit panel has entered its opinion staying the injunction pending a full consideration of the merits, concluding that there is  "a substantial likelihood that the State will prevail in itsargument that Planned Parenthood failed to establish an undue burden on women seeking abortions or that the hospital-admitting-privileges requirement creates a substantial obstacle in the path of a woman seeking an abortion."  The panel also concluded that "the State has made a strong showing of likelihood of success on the merits" on its appeal on the partial injunction pertaining to medication abortions.

As to mandated hospital admitting provisions, the panel observed that the district judge's finding that the requirement failed a rational basis standard "overlooks substantial interests of the State in regulating the medical profession and the State’s interest in “‘protecting the integrity and ethics of the medical profession." Further, the panel held that the district judge's finding of an undue burden did not apply to "a large fraction" of the women seeking abortions in Texas.

Regarding the partial injunction on medical abortions, the Fifth Circuit panel found it is was overbroad, except in a single respect in which the injunction will remain in effect:

the district court’s injunction continues to apply pending appeal with respect to a mother who is 50 to 63 days from her last menstrual period if the physician who is to perform an abortion procedure on the mother has exercised appropriate medical judgment and determined that, due to a physical abnormality or preexisting condition of the mother, a surgical abortion is not a safe and medically sound option for her.

Otherwise, HB 2, the subject of the well-publicized filibuster by state senator Wendy Davis in now in effect.

 

Second Circuit Stays Stop and Frisk Opinion and Removes District Judge

In a brief opinion , a panel of the United States Court of a Appeals for the Second Circuit - - -John M. Walker, Jr, José A. Cabranes, and Barrington D. Parker - - - have issued a stay of the decisions of District Judge Shira Scheindlin (pictured right)  in Floyd v. City of New York and in Ligon v. City of New York, In both cases, Judge Scheindlin essentially found that the NYPD's implementation of stop and frisk violated equal protection.

The Second Circuit not only stayed the decisions, but also remanded the cases with the order they be assigned to a different judge:

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of partiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), [footnote 1] and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court. [footnote 2].

In support, the opinion's footnote 1 provides:

In a proceeding on December 21, 2007 involving the parties in Daniels v. City of New York, No. 99 Civ. 1695 (S.D.N.Y. filed Mar. 8, 1999), the District Judge stated, “[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.” She also stated, “[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.” She concluded the proceeding by noting, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.” Two of the attorney groups working on behalf of plaintiffs in Daniels, a case challenging the New York Police Department’s stop-and-frisk practices, helped file Floyd the next month. See generally Joseph Goldstein, A Court Rule Directs Cases Over Friskings to One Judge, N.Y. Times, May 5, 2013.

In footnote 2, the court 's "see e.g." cite lists three articles:

• Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence, N.Y. Law Journal, May 5, 2013;
• Larry Neumeister, NY “Frisk” Judge Calls Criticism “Below-the-Belt,” The Associated Press, May 19, 2013;
• Jeffrey Toobin, A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013. [*]

While the Second Circuit's panel opinion includes the disclaimer that the judges "intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued," it certainly expresses deep disapproval.

 

*UPDATE:  See Toobin's response to the ruling and use of the article he authored here

Senate Republicans Successfully Filibuster Millett Nomination for D.C. Circuit

Senate Republicans today successfully filibustered Patricia Millett's nomination for the D.C. Circuit.  The Senate voted 55-38 to end debate and proceed to a vote on the nomination, but the body needed 60 votes under Senate rules.  The Republicans' move blocks the nomination, unless and until the Senate can muster 60 votes, or changes its rules.

Millett would fill one of three vacancies on the court.  The Republicans' move means that this exceptionally important court--often called the second most important court in the country--continues to operate three shy of a full bench.  The move also means that the court continues to be dominated by judges appointed by Republican presidents (despite Republicans' argues to the contrary).  (There's an even split among the active judges, but judges appointed by Republicans are dominant among the semi-retired.  Those semi-retired judges still sit and help decide cases.)  Finally, the move means that a supremely well qualified nominee who receieved bipartisan praise won't get the nod from the Senate, despite receiving a majority to proceed to a vote.

No word yet whether Democrats will use the nuclear option and try to change the filibuster rule to bypass Republican obstruction, or whether leaders will come up with some other way to proceed.

UPDATE: Here's a link to the roll-call (h/t Glenn Sugameli).

 

Parties Wrangle Over D.C. Circuit Nominee

Democrats are preparing for a Republican filibuster of D.C. Circuit nominee Patricia Millett tomorrow and threaten to use the "nuclear option" when it happens, according to the NYT and BLT.

Millett's nomination comes before the full Senate tomorrow, and there's indication that Republicans could filibuster.  If so, Senator Leahy is quoted in the NYT, "I think that the pressure on changing the [cloture] rules would be almost insurmountable."  Democrats will have 55 votes in the Senate tomorrow, after Cory Booker, newly elected Democrat of New Jersey, is seated.  That means that they need to pick up five Republicans to close debate.

Meanwhile, the House Judiciary Committee joined the fray, holding a hearing yesterday titled, "Are More Judges Always the Answer?"  The thrust of the hearing--and one of the Republicans' argument against Millett's appointment: the D.C. Circuit doesn't do enough work to justify filling the seat.  (There are currently three vacancies on the court.)

Republicans also argue that President Obama is trying to "stack" the court with judges who will be friendly to his regulatory agenda.  (The court is now evenly split between judges appointed by Republican presidents and judges appointed by Democats.)

Catholic Media Corporation, Alabama Sue Over Contraception Mandate

The Eternal World Television Network, a Catholic media corporation, and the State of Alabama filed suit against the government yesterday, seeking to halt the contraception mandate in the Affordable Care Act. 

EWTN argues that the mandate violates the Religious Freedom Restoration Act and the religion clauses, among other claims.  Alabama says that the mandate intrudes on its "sovereign prerogative to regulate the insurance market in accordance with its own law and policy, without being contradicted by unlawful federal regulations."

The case is just the latest religious-based challenge against the contraception mandate.  We posted most recently just yesterday, on the Sixth Circuit's ruling in Eden Foods.  If Eden Foods seemed more political than religious-based--the plaintiff's "deeply held religious beliefs" "more resembled a laissez-faire, anti-government screed," according to the court--this case seems more political than religious-based for a different reason: EWTN is exempt under HHS regs, and if the mandate is valid Alabama simply has no claim.  In other words: the plaintiffs don't seem to have much to complain about.  We posted on the government's proposed regs exempting religious employers here; and we posted on the then-developing circuit split on the issue here.

EWTN says this about its accommodation under the regs:

This is a mere fig leaf.  It would still require EWTN to play a central role in the government's scheme by "designating" a fiduciary to pay for the objectionable services on EWTN's behalf.  This would do nothing to assuage EWTN's objections to the mandate.

The so-called "accommodation" also continues to treat EWTN as a second-class religious organization, not entitled to the same religious freedom rights as the Church it exists to serve.  It also creates administrative hurdles and other difficulties for EWTN, forcing it to seek out and contract with companies willing to provide the very drugs and services that EWTN speaks out against.

As to Alabama, the State apparently seeks to protect itself and its citizens from the "immediate and continuing burdens" of the mandate.  The State points out that its law expressly says that insurers do not have to provide contraception coverage in their plans.  The claim sounds in federalism, but the complaint doesn't say why or how the federal mandate violates federalism principles.  (Maybe that's because it doesn't.)

The plaintiffs also raise free speech, due process, and APA claims.

Texas District Judge Declares Portions of HB 2 Restricting Abortion Unconstitutional

In his opinion in Planned Parenthood of Greater Texas v. Abbott, Judge Lee Yeakel has enjoined portions of Texas HB 2, passed in July (despite a well-publicized filibuster by state senator Wendy Davis) and slated to become effective October 29, 2013.

 The judge found unconstitutional the "admitting privileges provision" that provided:

A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services

He concluded that the provision placed a substantial obstacle in the path of a woman seeking an abortion and failed the rational basis test.  As to the substantial obstacle, the judge noted that hospital admitting privileges for physicians performing abortions can be difficult to obtain; for example a physician performing low-risk abortions may simply not have sufficient surgeries to qualify.  Moreover, many physicians are not within the 30 mile limit.  Regarding a rational relationship, the judge found that hospital emergency rooms admitting a patient and hospitals subsequently treating her do not disfavor a patient whose physician does not have admitting privileges.

Judge Yeakel did not declare unconstitutional HB 2's revision of physician prescription of abortion-inducing medications such as RU-486.  HB 2 essentially mandates following the FDA protocol, a protocol that is not usually followed and about which there is substantial disagreement.  Judge Yeakel, however, found that HB 2 did not impose an undue burden because the physician could perform a surgical abortion.  An exception, however, must be added if the physician determines that the health or life of the woman is at stake.

Texas is reportedly already appealing the decision.  It is not the first time that Judge Lee (Earl Leroy) Yeakel has rendered an opinion declaring portions of a Texas statute restricting abortion unconstitutional and been appealed.  Last year in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, a panel of the Fifth Circuit reversed Judge Yeakel's preliminary injunction involving a Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.

 UPDATE: FIFTH CIRCUIT STAY

Sixth Circuit: Eden Foods Corporation Cannot Assert a Religion Under RFRA

The continuing question of whether a for-profit secular corporation can assert a religious belief against contraception sufficient to exempt it from the ACA's provision requiring an employer to include contraceptive coverage in its health care insurance was again addressed by the Sixth Circuit in its opinion in Eden Foods v. Sebelius.

Interestingly, a footnote in the opinion cast doubt on whether Eden Foods and its founder and sole shareholder Michael Potter could past the requirement of having a sincerely held religious belief:

Potter’s “deeply held religious beliefs,” see Complaint ¶ 83, more resembled a laissez-faire, anti-government screed.  Potter stated to Carmon [in an article in salon.com]  “I’ve got more interest in good quality long underwear than I have in birth control pills.” Carmon then asked the Eden Foods chairman why he didn’t seem to care about birth control when he had taken the step to file a lawsuit over the contraceptive mandate. Potter responded, “Because I’m a man, number one[,] and it’s really none of my business what women do.” The article continued:

So, then, why bother suing? “Because I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” He added, “I’m not trying to get birth control out of Rite Aid or Wal-Mart, but don’t tell me I gotta pay for it.”

 

But the panel opinion rested on different grounds, following the decision of another panel of the circuit in Autocam Corp. v. Sebelius, decided in September, that agreed with the divided panel of the Third Circuit's July opinion in Conestoga Wood Specialties  that a for-profit secular corporation cannot assert a claim to religious freedom under RFRA, the Religious Freedom Restoration Act. 

This is contrary to the holding of the divided  en banc Tenth Circuit's June majority opinion in Hobby Lobby v. Sebelius presently before the United States Supreme Court on a petition for writ of certiorari filed by the Solicitor General on behalf of Sebelius, the Secretary of Health and Human Services.   In its response brief filed October 21, 2013, Hobby Lobby agrees that the Court should grant the writ and hear the case.   With the split in the circuits, numerous district court cases in litigation, and both parties contending it is a matter of great public importance, odds are that the Court will grant certiorari for the current Term. 

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Government Notifies Defendant of Warrantless Wiretap, Tees Up Challenge

The Department of Justice for the first time notified a criminal defendant that evidence against him was obtained through a warrantless wiretap, according to the New York Times.  The move gives the criminal defendant the standing to challenge warrantless wiretapes that the plaintiffs in Clapper v. Amnesty International lacked and invites his challenge of warrantless wiretaps.  Our previous post on the issue is here.

The defendant, Jamshid Muhtorov, is charged with "provid[ing] and attempt[ing] to provide material support and resources, to wit: personnel . . . to a foreign terrorist organization, specifically the Islamic Jihad Union . . . knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States" in violation of 18 U.S.C. Sec. 2339B.  The notice says that the government

hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. Secs. 1806(c) and 1881e(a), that the government intends to offer into evidence or otherwise use or disclose from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 . . . .

The Supreme Court held that the plaintiffs in Clapper lacked standing to challenge warrantless wiretaps, because they couldn't show that they'd been, or would be, wiretapped under the specific statutory authority they sought to challenge.  Now that the government has disclosed that its evidence resulted from warrantless wiretaps, Muhtorov has clear standing to challenge the wiretaps. 

This merely puts the legality of the wiretaps before the courts; it doesn't answer the underlying question.  For that, we'll have to await the ruling and appeals.

Sunday Dress: Wearing a Mask for Halloween

Many states have anti-masking statutes, criminalizing the wearing of a mask or identity concealing face covering. 

In some states, the statutes are known as anti-Klan statutes, although by their terms they do not limit their coverage to Klan regalia.  The Georgia Supreme Court upheld the state's anti-masking statute, O.C.G.A. 16-11-38, against a First Amendment challenge in State v. Miller (1990).  Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute, argued that the statute was overbroad.   In addressing Miller’s argument, the court interpreted the statute narrowly, but not so narrowly as to exclude the KKK.  Instead, the court required the mask-wearer to have intent to conceal his identity and further that the statute would  “apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”

Considering New York's anti-masking statute - - -  one that has its roots not in Klan activities but was first passed in 1845 and directed at a widespread resistance to farming rents assessed by large estate owners, known as the anti-rent riots - - - the Second Circuit in 2004 similarly upheld the statute against a First Amendment challenge in Church of American Knights of the Ku Klux Klan v. Kerik.  The KKK group had sought an injunction against the statute to allow a demonstration while wearing masks. Rejecting the First Amendment claim, the court agreed that the KKK regalia - - - the robe, hood, and mask - - - met the threshold requirement for expressive speech, but nevertheless separated the mask in its analysis.  In the court’s view, the mask was “redundant” and did “not convey a message independently of the robe and hood.” Moreover, the court opined that mask-wearing was not integral to the expression, but optional even amongst KKK members.

Not limited to the KKK, the anti-masking statute was used in prosecutions of Occupy Wall Street protestors.

But surely, these statutes do not apply on Halloween?

The Georgia statute has a specific exemption for "A person wearing a traditional holiday costume on the occasion of the holiday," while the New York statute does not apply "when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities."

In Louisiana, the statutory exemption for "activities of children on Halloween," and other events such as Mardi Gras, has its own exception for any "person convicted of or who pleads guilty to a sex offense."

Wearing a mask on Halloween may be traditional, but it may not be constitutionally protected.

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when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities; - See more at: http://codes.lp.findlaw.com/nycode/PEN/THREE/N/240/240.35#sthash.lWP6lnsF.dpuf

when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities; - See more at: http://codes.lp.findlaw.com/nycode/PEN/THREE/N/240/240.35#sthash.lWP6lnsF.dpuf

Second Circuit Enjoins NY Campaign Finance Provisions

A few days after hearing oral argument, a Second Circuit panel has reversed the district judge and entered an order enjoining the enforcement of New York Election Law §14-114(8) and §14-126(2) in its 14 page unanimous opinion in New York Progress and Protection PAC (NYPPP) v. Walsh.

NYPPP challenged New York's $150,000 individual contribution limit to a PAC alleging that it has a "donor waiting to contribute $200,00 to its cause" and that the contribution limit violates NYPPP's "core First Amendment right to advocate in favor of Joseph Lhota in the upcoming New York mayoral election."  According to the NY Times, that "donor" is none other than Alabama businessman, Shaun McCutcheon - - - the plaintiff in the campaign finance challenge McCutcheon v. FEC heard by the United States Supreme Court earlier this month as we discussed here.

While stating that the court expressed "no opinion on the ultimate outcome," it did hold that there was a substantial likelihood on the merits, citing Citizens United v. FEC for the proposition that the government "has no anti-corruption interest in limiting independent expenditures."  The panel rejected the district court's finding that the "so-called independent expenditure only committees" have "only one purpose - advancing a single candidacy at a single point in time - - - " and are thus "not truly independent as a matter of law."  Instead, the panel concluded that NYCPP was independent and its choices "irrelevant."  Thus, a donor to an independent expenditure PAC such as NYPCCC is "even further removed from the candidate and may not be limited in his ability to contribute to such committees."   The panel noted that this issue has been resolved "consistently" by all the federal courts that have considered it.

Balancing the equities, the panel easily concluded that the hardship faced by NYPPP and its donors was significant: "Every sum that a donor is forbidden to contribute to NYPPP beacuse of this statute reduces constitutionally protected polictical speech."

The Second Circuit's injunction against the enforcement of the NY campaign finance statutes was criticized by the rival of Republican Joe Lhota:  a spokesperson for Democrat Bill deBlasio, reportedly stated the ruling would "empower the right-wing billionaires, like the Koch Brothers, and Tea Party groups who support Joe Lhota  to drown out the voices of New Yorkers."  

 The race between the mayoral candidates remains heated, if not especially close so far.  The question is whether an influx of money can change the outcome on November 5.

Meanwhile, watch the most recent debate between the candidates:

 

 

Not So Fast Nadon: The Supreme Court of Canada's Would-Be Justice On Hold

As we discussed when we reported that Marc Nadon had been nominated to be the newest Justice on the Supreme Court of Canada, there existed a constitutional question regarding whether a judge on the Federal Court of Appeal was eligible for the Supreme Court. 

 

Marc Nadon, Portrait (prematurely?) on the Supreme Court of Canada website

It's a complex issue, especially for those not steeped in Canadian constitutional law, but luckily Canadian ConLawProfs Michael Plaxton and Carissima Mathen have made available on ssrn their excellent paper, Purposive Interpretation, Quebec, and the Supreme Court Act.

 

They set out the facts at the beginning of their discussion:

On 30 September 2013, the Prime Minister announced the nomination of Marc Nadon, a Federal Court of Appeal judge, to fill the seat vacated by Supreme Court Justice Morris Fish. The announcement was accompanied an unusual supporting document – an opinion  by a former Supreme Court Justice, The Honourable Ian Binnie.  Asked whether the Supreme Court Act permits the appointment of Federal Court judges, Binnie wrote a brief memorandum arguing that it does – a conclusion endorsed by another former Supreme Court Justice, Louise Charron, and Professor Peter Hogg.  After Nadon was sworn in, a Toronto lawyer launched proceedings in Federal Court to contest the appointment. This prompted Nadon to decline to participate in court hearings until the issue is resolved.  On October 22, in apparent response to these events, the federal government announced that it would introduce a “declaratory” change to the Supreme Court Act. It would also seek an advisory opinion from the Supreme Court of Canada as to whether Federal Court judges are qualified for appointment.

The Supreme Court of Canada action is now docketed here.

As Plaxton and Mathen describe the "apparent interpretive problem raised by Justice Nadon’s appointment," 

Section 5 of the Supreme Court Act states: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Section 6 provides: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Mr Justice Nadon was, at the time of his nomination, neither a judge of a Quebec superior court nor a current member of the practicing bar. It is therefore not clear that he is “among the advocates” of Quebec within the meaning of section 6.

Ultimately, they conclude that the argument in favor of Nadon's eligibility privileges section 5 over section 6, with its purpose "to protect the authority and legitimacy of the Court in the eyes of Quebec citizens, advocates and jurists."

This controversy over eligiblity has certainly eclipsed the earlier concerns regarding Nadon's appointment contributing to the lack of gender balance and representation on the Court.  

Medical Certificate of Public Need May Violate Dormant Commerce Clause

The Fourth Circuit ruled in Colon Health Centers of America v. Hazel that two out-of-state medical providers alleged a sufficient challenge to Virginia's "certificate of need" requirement to survive a motion to dismiss.  The court remanded the case for fact-finding on the dormant Commerce Clause question.

The court suggested that the requirement wouldn't ultimately survive.  The case, when it comes back to the Fourth Circuit after remand, may be significant, if, as the concurrence says, "in Virginia, and throughout much of the country, state certificate of need regimens continue to grow and now regulate an enormous segment of the national economy."  Op. at 27-28.

Virginia's certificate-of-need program requires medical providers that seek to launch a medical enterprise in the state to show a public need for the service that it seeks to offer.  (Judge Wilson puts a finer point on it in dissent: "Plaintiffs would like to render medical services in Virginia with equipment they cannot utilize without first proving to the Commonwealth that the competition they bring with them will not harm established local health care providers.")  The plaintiffs, two corporations that provide colon screening and treatment, alleged that the program violates the dormant Commerce Clause (among other constitutional claims, rejected by both the district court and the Fourth Circuit).

The court ruled that the plaintiffs alleged sufficient facts to survive a motion to dismiss and to trigger discovery and fact-investigation by the trial court.  The court gave unusually specific directions to the trial court to find facts on the program's discrimination against interstate commerce in purpose and effect, recognizing that this fact investigation would also spill over into the lower-level balancing test under the dormant Commerce Clause for state laws that create an undue burden on interstate commerce.

Access to the Courts Includes Arbitration Proceedings, Divided Third Circuit Panel Holds

 The First Amendment includes a right of public (and press) access to trials.  But what is a "trial"?  Or, as the Third Circuit considered in its opinion in Delaware Coalition for Open Government v. Strine, is there a right of public access to a state sponsored arbitration program.  By a divided panel - - - with a separate opinion from each of  the three judges - - - the majority held that the First Amendment requires public access to state arbitration proceedings.

While the majority affirmed the district judge, the appellate panel disagreed with the standard the district judge applied.  The correct standard, according to the apellate panel, is the "experience and logic" test.  The test derives from cases applying the open access to a trial principle that the United States Supreme Court enunicated in Richmond Newspapers v. Virginia in 1980, including Press Enterprise v. Superior Court (II), in 1986, considering whether preliminary criminal hearings must be open to the public.  Thus, quoting from Press Enterprise II,  as the majority opinion by Judge Dolores Sloviter phrased it:

A proceeding qualifies for the First Amendment right of public access when “there has been a tradition of accessibility” to that kind of proceeding, and when “access plays a significant positive role in the functioning of the particular process in question.”

The history prong - - - asking whether there is a tradition of accessibility - - - rests upon a determination of the "kind" of proceeding in question.  Here, the parties disagreed whether the focus should be on "civil trials" or "arbitrations": the court provided an in-depth discussion of both.  The civil trial discussion traversed familiar ground, with the easy conclusion that civil trials and courtrooms are generally open to the public.  The arbitration discussion began with a mention of English arbitrations in the twelfth century, concluding with a finding that the "history of arbitrations reveals a mixed record of openness."  But, the court continued, the history shows that "arbitrations with non-state action in private venues tends to be closed."  This is distinct from the Delaware scheme at issue, "a binding arbitration before a [state] judge that takes place in a courtroom," which is more like a usual civil trial. 

On the logic prong, not surprisingly given the majority's discussion of history, public access was deemed to play a significant positive role.  Judge Sloviter's opinion revealed a pointed disagreement with Judge Jane Roth's dissent:

I agree with Judge Roth on the virtues of arbitration. I cannot help but question why the Delaware scheme limits those virtues to litigants whose disputes involve an amount in controversy of at least a million dollars, and neither of whom is a consumer. One wonders why the numerous advantages set forth in Judge Roth’s dissenting opinion (which apparently motivated the Delaware legislature) should not also be available to businesspersons with less than a million dollars in dispute. I see no explanation in Judge Roth’s dissent for the limitation to rich businesspersons.

In her dissent, Judge Roth states that she believes that I do not appreciate the difference between adjudication and arbitration, i.e., “that a judge in a judicial proceeding derives her authority from the coercive power of the state, while a judge serving as an arbitrator derives her authority from the consent of the parties.” Indeed I do.

Delaware’s proceedings are conducted by Chancery Court judges, in Chancery Court during ordinary court hours, and yield judgments that are enforceable in the same way as judgments resulting from ordinary Chancery Court proceedings. Delaware’s proceedings derive a great deal of legitimacy and authority from the state. They would be far less attractive without their association with the state. Therefore, the interests of the state and the public in openness must be given weight, not just the interests of rich businesspersons in confidentiality.

In his concurring opinion, Judge Julio Fuentes seeks to clarify that it is not the entire arbitration scheme that violates the First Amendment, but only the provision requiring the proceedings to be "confidential" and "not of public record" until they are appealed.

Thus, these high stakes commercial arbitrations allowed by Delaware law and performed by Delaware judges can continue - - - but they are no longer confidential.  This certainly seems the correct outcome if the First Amendment access to "trials" has substantive meaning.

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Human Rights Watch Urges Changes to Draft Vietnamese Constitution

Human Rights Watch penned a letter to the Chairman of the Vietnamese National Assembly this week, urging the body to protect the rights and liberties of all people in Vietnam as the Assmebly moves forward with the country's new constitution.  Here's the press release.

The National Assembly has authority to revise the constitution; it is considering amendments during a session from October 21 to November 30, 2013.  The government opened the draft constitution up for public and official comment on January 2, 2013, and received tens of thousands of submissions.  But as HRW points out, some who campaigned for changes found themselves targets of government reprisal.

The letter urges the assembly to "ensure that the amendment process brings the constitution into conformity with Vietnam's obligations under international law so that it fully protects the rights and liberties of all people in Vietnam, which will contribute to the country's development."  In particular, the group is concerned about these:

-Weakened protections against arbitrary arrest;

-Expansion of the one-party state;

-Extension of control over the armed forces by the Communist Party

-Broad limitations on rights, broader than limitations recognized under international law;

-A weak judiciary and Constitutional Council.

The group also recognized some positive developments, including the more frequent references to human rights, and extension to both citizens and non-citizens; explicit reference to the right to life; a new ban on discrimination on political, economic, cultural, and social grounds; a new prohibition on gender discrimination; new criminal procedure rights; bans on forced labor and child labor; the establishment of a Constitutional Council; and the creation of a National Election Commission.

District Judge Dismisses Separation of Powers Challenge to CFPB

Update Below

Judge Colleen Kollar-Kotelly (D.D.C.) dismissed a separation-of-powers challenge to the Consumer Financial Protection Bureau, an independent agency created by Dodd-Frank that's tasked with the responsibility for "ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive."  (This case challenges the CFPB on separation-of-powers grounds.  We most recently posted on the other challenge to the recess-appointed head of the CFPB here.  The recess appointment question is heading to the Supreme Court in Noel Canning.)

But the order dismissing the case in the D.C. District didn't touch the merits, and the plaintiffs in the D.C. case will undoubtedly raise the same constitutional claims in the underlying enforcement action against them in the Central District of California.

The case, Morgan Drexen, Inc. v. CFPB, arose after the CFPB filed an enforcement action against Morgan Drexen in the Central District of California.  Morgan Drexen and its "attorney-client" then filed for injunctive and declaratory relief in the D.C. District, seeking to halt the enforcement action in the Central District of California, arguing that the CFPB violates constitutional separation-of-powers principles.  The result: two parallel cases in two different courts, one enforcement action and one facial challenge, challenging the CFPB on constitutional grounds.

Update: Morgan Drexen filed in the D.C. court before the CFPB filed its case in California.

But Judge Kollar-Kotelly didn't bite.  Instead, the court ruled that injunctive and declaratory relief in the D.C. District would be inappropriate with the case pending in California--and that Morgan Drexen could obtain complete relief on its claim there.  (The court said that ruling on the matter would frustrate both the final judgment rule (because Morgan Drexen could immediately appeal a D.C. District ruling on the merits, but not a ruling from the Central District of California denying a motion to dismiss on constitutional grounds) and the principle of constitutional avoidance (because the Central District of California could dodge the constitutional issues and rule on other grounds, but the D.C. District case would force the court to address the constitutional claims).  The court also ruled that declaratory relief was inappropriate.

The court held that Morgan Drexen's "attorney-client" lacked standing, becuase she couldn't point to specific or generalized interference with the attorney-client privilege, or any other harm in the CFPB's investigation or enforcement action against Morgan Drexen.

The case ends this collateral piece of the litigation, but it doesn't end the enforcement action, still pending in the Central District of California.  Morgan Drexen raises the same constitutional claims, and other statutory claims, as defenses in that case. 

Daily Read: The Meaning of "United States"

The meaning of "United States" if often not as clear as one might assume, demonstrated by much of the litigation surrounding Guantanamo Bay (which is geographically if not politically in Cuba).

 

Over at Lawfare, law student Raffaela Wakeman has a good description (and audio) of the oral arguments in Al Janko v. Gates before the DC Circuit.  She also has a good preview of the argument.  Al Janko is seeking damages for his detention at Guantanamo Bay, which was determined to be unlawful by a federal district judge.   

This requires the court to construe the jurisdiction-stripping provision of the Military Commissions Act, §2241(e)(2), which reads: “no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”

In short, does a federal judge's determination that Al Janko was not properly detained count as a determination by "the United States"?   The Government argues that it does not and that in this statute, United States means only the Executive (Al Janko's detention was determined to be proper by Combatant Status Review Tribunals). 

There are constitutional issues raised by the Bivens claim, but these tend to be backgrounded by the statutory interpretation issue of the meaning of "United States."

[image: map via]

 

Georgia Supreme Court Upholds Constitutionality of Solicitation for Sodomy Statute - As "Narrowly Construed"

The Supreme Court of Georgia has upheld the constitutionality of the state statute criminalizing the solicitation of sodomy, even as it narrowly construed it, and even as it reversed the conviction based upon insufficiency of the evidence.

In its 12 page opinion in Watson v. State, Justice Carol Hunstein (pictured right) writing for a unanimous court, reaffirmed two of the court's previous decisions:

• Powell v. State (1998), limiting the construction of the sodomy statute pursuant to the "fundamental privacy rights under the Georgia Constitution" and
• Howard v. State (2000), upholding the sodomy solicitation statute against a free speech challenge by  narrowly construing "the solitication of sodomy statute to only punish speech soliciting sodomy that is not protected by the Georgia Constitution's right to privacy."

 Thus, the rule the court articulates is that

an individual violates the solicitation of sodomy statute if he (1) solicits another individual (2) to perform or submit to a sexual act involving the sex organs of one and the mouth or anus of the other and (3) such sexual act is to be performed (a) in public; (b) in exchange for money or anything of commercial value; (c) by force; or (d) by or with an individual who is incapable of giving legal consent to sexual activity.

Under this redefined "scope of the statute," the court then finds that Watson's actions did not satisfy any of the possibilities required by the third element: it was not to take place in public, it was not commercial, was not by force (although Watson was a police officer) and was not to a person incapable of giving consent (although solicited person was 17, the age of consent in the state is 16).  In addition to reversing the conviction for solicitation of sodomy, the court reversed the conviction for violation of oath of office (of a police officer) that rested on the solicitation conviction.

While the Georgia Supreme Court's opinion is correct, redrafting a statute that remains "on the books" for prosecutors, defense counsel, and perhaps even judges who are less than diligent can result in a denial of justice.

The better course would have been to declare the solicitation of sodomy statute unconstitutional, requiring the legislature to do its job and pass a constitutional statute.  This was the option followed by the New York Court of Appeals - - - New York's highest court - - - when presented by a similar issue in 1983.  Having previously declared the state's sodomy statute unconstitutional in People v. Onofre (1980),  when the court was presented with a challenge to a prosecution under the solicitation of sodomy statute, the court in People v. Uplinger stated:

The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy. Inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose. This statute, therefore, suffers the same deficiencies as did the consensual sodomy statute.

The United States Supreme Court granted certiorari in Uplinger, and then dismissed certiorari as improvidently granted, in part because of the intertwining of state and federal constitutional issues and in part because there was not a challenge to the underlying decision that held sodomy unconstitutional, six years before Bowers v. Hardwick, the case in which the United States Supreme Court upheld Georgia's sodomy statute.

Rand Paul Proposes Amendment to Apply Laws to Congress, Too

Senator Rand Paul introduced a constitutional amendment today that would require Congress to apply laws equally to U.S. citizens and to Congress.  Politico reports here; Senator Paul's press release is here.

The proposed amendment reads,

Section 1. Congress shall make no law applicable to a citizen of the United States that is not equally applicable to Congress.

Section 2. Congress shall make no law applicable to a citizen of the United States that is not equally applicable to the executive branch of Government, including the President, Vice President, ambassadors, other public ministers and consuls, and all other officers of the United States, including those provided for under this Constitution and by law, and inferior officers to the President established by law.

Section 3. Congress shall make no law applicable to a citizen of the United States that is not equally applicable to judges of the Supreme Court of the United States, including the Chief Justice, and judges of such inferior courts as Congress may from time to time ordain and establish.

Section 4. Nothing in this article shall preempt any specific provision of this Constitution.

The proposed amendment comes amid continuing calls to apply the Affordable Care Act, or Obamacare, equally to government officers and employees.  In particular, opponents of the health care law argue that it exempts members and employees of Congress.  This isn't exactly correct: the law requires members and employees to enter health exchanges, but an OPM rule issued in September said that they will continue to receive federal employer contributions to help them pay for insurance on the exchanges.  Here's the kick: they have to buy insurance in an appropriate Small Business Health Options Program, or SHOP, in order to get the government contribution.  SHOP programs are ordinarily available only for employees of businesses with fewer than 50 workers.  Members and employees of Congress number around 16,000.  Thus the claim that they're exempt.

PolitiFact, Factcheck.org, and WaPo's Fact Checker all concluded that this claim is false, or at least highly misleading.

Still, it persists.  But if Senator Paul's proposed amendment is taking aim at an "exemption," it'll miss the mark.  That's not only because there is no exemption.  It's also because members and staff (and all federal employees) previously received employer-provided health insurance, like many employees.  But under the ACA, members and staff (unlike any other employees) are required to enter exchanges to get their insurance.  They can opt for a SHOP plan and get a subsidy, or they can opt for a non-SHOP plan and waive the subsidy.  Either way, the ACA simply replaced their previous employer-provided insurance with a requirement to enter the exchange and, if they enroll in a SHOP plan, get a subsidy.

At the same time, the ACA will (eventually) require employers to provide insurance options for their employees.

So taking all this together, as to members and employees of Congress, the net result of Senator Paul's proposed amendment would probably mean that Congress would revert back to the employer-provided insurance system in place before the ACA, not take away the phantom "exemption" or the SHOP subsidy.

Daily Power Point Slides: PRISM, Surveillance, France and the NSA

Many will be considering the new revelations regarding the NSA and France, published in Le Monde today, linked and discussed in this LeMonde editorial, with The Guardian coverage here.

A few Power Point slides are published in Le Monde.   But Journalist Glenn Greenwald and Edward Snowden have also released additional Power Point Slides that are worth a look.  A set of eleven slides have some redactions, but will also seem eerily familiar to anyone who has ever prepared or seen a Power Point presentation:

 

slide 3

 

slide 5

Sunday Dress: A Woman's Constitutional Right to "Go Topless"

While the United States Supreme Court has never declared that women possess a First Amendment or Equal Protection or any other constitutional right to be as shirtless as men in public, several state courts have found constitutional protections.  

Yet even where there is state precedent, the police may not think so; and even when a woman about to be arrested tells the officiersabout a case, they may still not think so.   That's the basis of the allegations in Krigsman v. New York City, a complaint filed earlier this month, that I discuss over at Dressing Constitutionally.

[image: Woman Standing in Front of a Mirror, 1841]