Constitutional Law Prof Blog

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court today heard oral arguments in Williams v. Pennsylvania on issues of due process and the Eighth Amendment revolving around the court's decision in a death penalty case and judicial ethics. The Pennsylvania Supreme Court has been especially rocked by scandals - - - with one Justice resigning because of corruption and another because of sexually explicit emails and another Justice being subject to disciplinary proceedings over the explicit emails - - - but this controversy involves a different Justice, former Chief Justice of the Pennsylvania Supreme Court Ronald Castille. Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013. Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row."

One of those people on death row is Terrance Williams, convicted at age 18 and whose story has attracted much interest. Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief. Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty. Williams' post-conviction claim, moreover, is based on prosecutorial misconduct.

The central case in today's oral argument was Caperton v. Massey (2009) regarding judicial bias. Unlike the situation of Justice Benjamin in Caperton, Castille did not cast a "deciding vote" on the court. [Nevertheless, Castille's concurring opinion is worth reading for its defensiveness]. The problem is how - - - or even whether - - - to apply the 5-4 decision in Caperton, which involved judicial bias resulting from campaign contributions.

Stuart Lev, arguing for Williams, faced an almost-immediate question from Chief Justice Roberts, who dissented in Caperton, asking whether the nature of the decision of the former-prosecutor now-Justice should matter - - - was it mere policy or something more individualized? Justice Alito, who also dissented in Caperton, was wary of constitutionalizing the matters of recusal without clear lines. On the other hand, Ronald Eisenberg, arguing for Pennsylvania, seemed to admit that there could be cases in which recusal was necessary, but stressed the long time involved here - - - 30 years - - - which at one point prompted Justice Kennedy to ask "So the fact that he spent 30 years in solitary confinement actually helps the State?" (Eisenberg noted that this wasn't "exactly" the situation). Justice Sotomayor stressed that what was important was that Castille was prosecutor and judge in the "same case." For both sides, much of the wrangling was over what any "rule" should be - - - with the background of the Caperton rule being fluid rather than rigid.

The fact that Castille was only one of the Justices was important, but perhaps less so than it would be for another court. The idea that a judge simply "votes" for a result was looked on with disfavor. As Justice Kennedy stated:

But if - - - if we say that, then we say that being a judge on a 15 judge court doesn't really make much difference. You - - - you don't have a duty, and you don't have can't persuade your colleagues. It's very hard for us to write that kind of decision.

Earlier in the argument, there was some discussion of the remedy - - - and the "unsatisfying" remedy (as Justice Kagan phrased it) of sending the case back to the Pennsylvania Supreme Court to (re)consider the recusal motion. Lev, arguing for Williams, noted that this was the remedy in Caperton and also that the "Pennsylvania Supreme Court is constituted differently," now than it was then. "There were three new justices elected this last November and took office in January."

But what rule should the Court instruct the Pennsylvania Supreme Court to apply? This is likely to divide the Court just as it did in Caperton. But there does seem to be a belief among a majority of Justices that the judicial ethical rules alone are not protecting due process.

February 29, 2016 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Oral Argument Analysis, Supreme Court (US) | Permalink | Comments (0)

Supreme Court's Oral Argument in Voisine: Does Justice Thomas believe there is a Second Amendment issue?

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Today's oral argument in Voisine v. United States centers on the statutory construction of 18 U.S.C. § 921(a)(33)(A) which defines a "“misdemeanor crime of domestic violence” as an offense that is a misdemeanor AND

has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

The relevance of this definitional section is its application to 18 U.S.C. §922(g)(9) which makes is a federal crime for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence," to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

At issue in Voisine is whether the misdemeanor crimes involving family offenses that can be satisfied with a reckless mens rea are included the definition. Virginia Villa, arguing for the petitioners Voisine and Armstrong, stressed statutory definitions but the arguments delved into common law definitions as well. Arguing for the United States, Assistant Solicitor General Ilana Eisenstein stressed Congressional intent, with Justice Ginsburg surfacing the "rule of lenity."

But the argument then took a constitutional turn.

This was prompted by questioning from Justice Thomas (seemingly just as Eisenstadt believed her argument had concluded):

This Court should continue to interpret Section 922(g)(9) in light of that compelling purpose.

If there are no further questions.

JUSTICE THOMAS: Ms. Eisenstein, one question.

Can you give me this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?

Justice Thomas thereafter made a First Amendment analogy, asked whether the Second Amendment was indefinitely suspended, and pointed out that the underlying misdemeanor need not have involved a firearm. In considering possible analogies, Justice Kennedy pointed to SORNA which curtails the interstate travel of registered sex offenders. (Justice Kennedy could have analogized to sex offender cases involving the restrictions on First Amendment rights as well). Justice Breyer asked whether the Congressional statute was a "reasonable regulation of guns under the Second Amendment given Heller and the other cases with which I disagreed?" This provoked laughter but was also a poignant reminder that Heller's author was not on the bench given his unanticipated death. Justice Breyer, however, continued and attempted to make clear that the constitutional question was not clearly before the Court. It may be before the Court as a matter of constitutional avoidance (the statute should be construed to avoid the constitutional question), but, as Justice Breyer stated:

So one answer would be, well, maybe so. We aren't facing the constitutional question. We are simply facing the question of what Congress intended. And if this does raise a constitutional question, so be it. And then there will, in a future case, come up with that question. So we or our point is, we don't have to decide that here.

EISENSTEIN: That's correct, Your Honor.

JUSTICE BREYER: Thank you.

EISENSTEIN: If there are no further questions.

Ilana Eisenstein was then excused by Chief Justice Roberts.

Justice Thomas broke his own well-remarked upon habit of not asking questions during oral argument; it's been a decade since he has. But as some Court observers has noticed, he did write notes which were passed to Justice Scalia. It is difficult to not to make a causal connection in this regard. Moreover, Justice Thomas assumed a more active role in a case seemingly involving Second Amendment rights, an issue which a future Court might reconsider.

However, as the Court did in another domestic violence case last term, Elonis v. United States, look for a decision that engages in statutory construction and avoid the constitutional issue.

February 29, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, Interpretation, Oral Argument Analysis, Second Amendment, Supreme Court (US) | Permalink | Comments (0)

Thursday, February 25, 2016

District Judge Dismisses Complaint Seeking Judge Cebull's Emails

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Recall the controversy in 2012 regarding the racist and sexist emails of Judge Richard Cebull of the District of Montana reportedly regarding President Obama? Judge Cebull resigned about a year later, as the matter was being investigated by judicial committees. The Ninth Circuit Committee on Judicial Conduct and Disability entered its Decision in January 2014 incorporated the findings of judicial misconduct of other committees, but found that remedial action was "inoperative" given Cebull's retirement.

In Adams v. Committee on Judicial Conduct and Disability, two Montana journalists sought more information than the Committee included in that decision, including additional emails, and brought suit against the Committee and other defendants. In an 25 page Order today, Judge Yvonne Gonzalez Rogers dismissed the complaint without leave to amend. Judge Rogers's decision included several grounds.

circa 1894 via

First, Judge Rogers concluded that the Committee on Judicial Conduct and Disability was protected by federal sovereign immunity and that the Committee had not waived that immunity.

Second, Judge Rogers considered the Defendants' claim that the plaintiff journalists lacked standing. Citing First Amendment cases such as Branzburg v. Hayes (1972), Judge Rogers found that the plaintiffs did suffer "injury in fact" as journalists. However, Judge Rogers concluded that the plaintiff journalists failed to satisfy another element of standing, the causation inquiry, stating that "Plaintiffs have not alleged that their injury is fairly traceable to any conduct of the Committee, at least not with clarity." She thus dismissed the complaint for lack of standing.

Third, Judge Rogers entertained the Committee's arguments that it was protected by judicial immunity. Judge Rogers found that the Committee had both judicial immunity and quasi-judicial immunity, and granted the motion to dismiss on both these grounds.

Fourth, the Committee sought judicial deliberative privilege regarding Judge Cebull's emails. However, Judge Rogers found that the particular emails sought were not "in pertinent part, communications relating to official judicial business."

Fifth and finally, was the First Amendment claim. The Defendants claimed that the emails were "investigative materials" shielded from First Amendment disclosure by the confidentiality provision of the Judicial Council’s Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C section 360. Judge Rogers framed the issue thusly:

(i) assuming Defendants are correct that the emails are “investigative materials” covered by 360(a), is that confidentiality restriction consistent with the First Amendment?; and alternatively,

(ii) assuming the emails are not “investigative materials” covered by 360(a), does the First Amendment provide any right or claim to compel their disclosure by Defendants?

The Court turns to the Press-Enterprise II framework to determine if, under either formulation, Plaintiffs’ access claim is one that meets the historical experience and logic criteria, such that a qualified First Amendment right of access exists.

Using the experience and policy framework of Press Enterprise II (1986) Judge Rogers concluded that under either formulation of the issue, the press did not sustain a claim for access to the emails. Instead, the "more general rule set forth by the Supreme Court in Houchins [v. KQED (1978) ] — that the First Amendment right of the public or the press does not grant unlimited access to all government information or information within the government’s control—prevails.

Thus, it seems we will never be have an opportunity to read the other (presumably offensive) emails that Judge Cebull sent through his official judicial accounts when he was a sitting judge. Given the multiple grounds on which Judge Rogers relied, and the well-reasoned First Amendment discussion, any appeal would have much to overcome in order to be successful.

February 25, 2016 in Courts and Judging, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Apple Responds to Order to "Unlock" IPhone

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its Motion to Vacate filed today, Apple, Inc. argued that the Magistrate's Order Compelling Apple, Inc. to Assist Agents in Search of an Apple IPhone was not supported by the All Writs Act and is unconstitutional.

The constitutional arguments are basically three:

First, embedded in the argument that the All Writs Act does not grant judicial authority to compel Apple to assist the government is the contention that such would violate the separation of powers. Crucial to this premise is the Communications Assistance for Law Enforcement Act (CALEA), which Apple contends does not apply to Apple and which has not been amended to do so or amended to provide that companies must provide decryption keys. Absent such an amendment, which was considered as CALEA II but not pursued, the courts would be encroaching on the legislative role.

For the courts to use the All Writs Act to expand sub rosa the obligations imposed by CALEA as proposed by the government here would not just exceed the scope of the statute, but it would also violate the separation-of-powers doctrine. Just as the “Congress may not exercise the judicial power to revise final judgments,” Clinton v. Jones (1997), courts may not exercise the legislative power by repurposing statutes to meet the evolving needs of society, see Clark v. Martinez (2005)(court should “avoid inventing a statute rather than interpreting one”) see also Alzheimer’s Inst. of Am. Inc. v. Elan Corp. (N.D. Cal. 2013) (Congress alone has authority “to update” a “technologically antiquated” statute “to address the new and rapidly evolving era of computer and cloud-stored, processed and produced data”). Nor does Congress lose “its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution” in times of crisis (whether real or imagined). Youngstown Sheet & Tube Co. v. Sawyer (1952).

[citations abbreviated]. Apple adds that "whether companies like Apple should be compelled to create a back door to their own operating systems to assist law enforcement is a political question, not a legal one," citing Baker v. Carr (1962).

Second, Apple makes a cursory First Amendment argument that commanding Apple to "write software that will neutralize the safety features that Apple has built into the iPhone" is compelled speech based on content and subject to exacting scrutiny. Apple also contends that this compelled speech would be viewpoint discrimination:

When Apple designed iOS 8, it wrote code that announced the value it placed on data security and the privacy of citizens by omitting a back door that bad actors might exploit. The government disagrees with this position and asks this Court to compel Apple to write new software that advances its contrary views.

Third, and even more cursorily, Apple makes a substantive due process argument under the Fifth Amendment. Here is the argument in full:

In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from “‘arbitrary deprivation of [its] liberty by government.’” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“We have emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government,’ . . . [including] the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” (citations omitted)); cf. id. at 850 (“Rules of due process are not . . . subject to mechanical application in unfamiliar territory.”).

Interestingly, there is no Fourth Amendment argument.

The main thrust of Apple's argument is the statutory one under the All Writs Act and the application of the United States v. New York Telephone Co. (1977) factors that the government (and Magistrate) had relied upon. Apple disputes the burden placed on Apple that the Order would place. Somewhat relevant to this, Apple contends that "Had the FBI consulted Apple first" - - - before changing the iCloud password associated with one of the relevant accounts - - - "this litigation may not have been necessary."

February 25, 2016 in Cases and Case Materials, Congressional Authority, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), First Amendment, News | Permalink | Comments (0)

Wednesday, February 24, 2016

Sixth Circuit Finds Ohio's False Campaign Speech Law Violates First Amendment

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a relatively brief opinion in Susan B. Anthony List v. Driehaus, a panel of the Sixth Circuit found that Ohio's false campaign statute, Ohio Rev. Code § 3517.21(B)(9), violates the First Amendment.

Recall that the Sixth Circuit had previously decided that the constitutional challenge was not ripe for review, but that the United States Supreme Court unanimously reversed in June 2014. On remand, District Judge Timothy Black concluded that the statute violated the First Amendment.

Hannah Trapnel, a Quaker and a pretended prophet. Line engraving after R. Gaywood, 1823, via

The Sixth Circuit panel reasoned that any Sixth Circuit precedent supporting the view that falsehoods were categorically excluded from the First Amendment had been abrogated by United States v. Alvarez, (the "stolen valor" case). Instead, the panel found that the Ohio law both targeted core speech and was a content-based regulation, and thus strict scrutiny was applicable. The Sixth Circuit reasoned that

Ohio’s interests in preserving the integrity of its elections, protecting “voters from confusion and undue influence,” and “ensuring that an individual’s right to vote is not undermined by fraud in the election process” are compelling.

However, the means chosen were not narrowly tailored:

in their (1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over-inclusiveness and under-inclusiveness.

Additionally, the Sixth Circuit noted:

Ohio’s political false-statements laws have similar features to another Ohio election law that the Supreme Court found unconstitutional. In McIntyre [v. Ohio Elections Committee (1995)] , the Supreme Court struck down Ohio’s election law prohibiting anonymous leafleting because its prohibitions included non-material statements that were “not even arguably false or misleading,” made by candidates, campaign supporters, and “individuals acting independently and using only their own modest resources,” whether made “on the eve of an election, when the opportunity for reply is limited,” or months in advance. Ohio’s political false-statements laws have all of the same flaws. Such glaring oversteps are not narrowly tailored to preserve fair elections.

The use of McIntyre is an interesting one because the "right to be anonymous" recognized in McIntyre seemed to rest in part on the government interest in ensuring truthfulness and cited the Ohio campaign falsehoods law in support.

Given that the court did recognize as compelling the government's interests in addressing lies in campaigns, is there any possibility that a government could craft a narrowly tailored regulation? It seems doubtful.

February 24, 2016 in Campaign Finance, First Amendment, Interpretation, Opinion Analysis, Ripeness | Permalink | Comments (0)

Daily Read: Justice Scalia on Judicial Appointments as Political Prerogative

Professor Ruthann Robson, City University of New York (CUNY) School of Law

On this anniversary of Marbury v. Madison (decided February 24, 1803), and given the current controversies regarding the appointment of Justice Scalia's successor after his unexpected death, Justice Scalia's views on the political nature of judicial appointments, including those to the United States Supreme Court, is worth a read.

Dissenting in Rutan v. Republican Party of Illinois (1990), Scalia wrote:

Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an "appropriate requirement." Ante, at 1. It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Marbury v. Madison, 1 Cranch 137 (1803). Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.

The Court's majority opinion - - - authored by Justice William Brennan, a Democrat appointed to the United States Supreme Court by the Republican President Dwight Eisenhower - - - held that the Illinois governor's practice of implementing certain austerity measures in state government in accordance with political affiliation violated the First Amendment rights of government employees. Brennan's opinion for the Court notably began:

To the victor belong only those spoils that may be constitutionally obtained. Elrod v. Burns (1976), and Branti v. Finkel (1980), decided that the First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. Today we are asked to decide the constitutionality of several related political patronage practices — whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not.

What the Constitution does - - - or does not - - - provide regarding the "spoils" of judicial appointment is being hotly contested. And in this, Marbury v. Madison may be relevant as more than illustration should the controversy become subject to judicial review.

John Marshall Statute Outside United States Supreme Court Building via

February 24, 2016 in Courts and Judging, Current Affairs, First Amendment, History, Interpretation, Supreme Court (US) | Permalink | Comments (1)

Tuesday, February 23, 2016

Federal District Judge Finds Recording Police Conduct Not Protected by First Amendment

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a Memorandum Opinion in Fields v. City of Philadelphia, recently appointed United States District Judge for the Eastern District of Pennsylvania, Mark Kearney held that the First Amendment does not protect video-recording of the police absent a "stated purpose of being critical of the government."

For Judge Kearney, video-recording is conduct and there is no "expressive" element unless there is an explicit intent of being critical of police conduct. Mere "observation," Judge Kearney wrote, is not expressive. It is not within the First Amendment unless the observers are "members of the press."

Judge Kearney rather unconvincingly distinguished the First Circuit's 2011 opinion in Glik v. Cunniffee, by stating [in a footnote], "In Glik, the plaintiff expressed concern police were using excessive force arresting a young man in a public park and began recording the arrest on his cell phone and the police then arrested plaintiff." Even if valid, this distinction is problematical. It may be pertinent with regard to one plaintiff, Richard Fields, who took a picture of 20 or so police officers outside a home hosting a party. However, with regard to the other plaintiff, Amanda Geraci, who the judge notes is a "self-described 'legal observer'" with training, the distinction seems to be one without a difference: she was at a protest and "moved closer" to videotape an officer arresting one of the protesters when a police officer restrained her and prevented her from doing so.

image via

Judge Kearney thus granted the motion for summary judgment on the First Amendment claims. The judge did, however, deny summary judgment on the Fourth Amendment claims for unreasonable search and false arrest (for Fields) and excessive force (for Geraci). Yet however these claims are resolved, the First Amendment ruling is one that is exceedingly suitable for Third Circuit review.

February 23, 2016 in Courts and Judging, Criminal Procedure, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Federal Judge Finds "Parents for Megan's Law" a State Actor in Fourth Amendment Challenge

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In her opinion in Jones v. County of Suffolk (NY) and Parents For Megan's Law, Judge Joanna Seybert found that the group was a state actor for constitutional purposes and that the complaint stated a valid Fourth Amendment claim.

The facts as alleged in the complaint illustrate the continuing constitutional issues with civil monitoring of persons convicted of sex offenses. Jones, convicted in 1992, is a low-risk sex offender subject to numerous requirements under the New York Sex Offender Registry Act (SORA). New York's Suffolk County (on Long Island), passed an additional act, the Community Protection Act, which Judge Seybert described as including "aggressive sex offender monitoring and verification." The county act authorized the county law enforcement agency to enter into a contract with the organization Parents for Megan's Law (PFML), a “victim’s advocacy organization that campaigns for increased punitive regulation of people registered for past sex offenses” and “has called for legislative changes that, among other things, would require people convicted of SORA offenses to live far away from population centers.” The contract requires PML to "use ex-law enforcement personnel" to "engage in proactive monitoring of registered sex offenders." And "proactive" would be one way to describe the actions of the PFML personnel who came to Jones' home several times, waited for him at the doorstep, asked for his driver's license and kept it for several minutes, questioned him about his employment, and warned that they would make further unannounced visits to his home and work.

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Illustration from Hound of the Baskervilles via

In its motion to dismiss, PFML argued that it was a private entity not subject to constitutional constraints. Judge Seybert, relying on Second Circuit precedent, held that there was a "close nexus" and a "delegation of a public function," and thus PML was a state actor. This was not an ordinary contract, but one in which the police department directed the monitoring operations of the PFML. Important to her analysis, there was a letter from the county police department informing designated sex offenders that they would be required to provide identification to PML personnel, thus "creating the appearance of joint action" between the state and the organization.

The letter was also important to Judge Seybert's Fourth Amendment analysis. The judge distinguished the allegations here from Florida v. Jardines (2013), on which both parties relied, regarding the constitutionality of a so-called "knock and talk" by law enforcement:

Defendants assert that because PFML agents’ interactions with Jones can be classified as a “knock and talk,” no Fourth Amendment violation occurred. However, the allegations in the Complaint raise questions about whether a reasonable person in Jones’ position would feel free to terminate his interactions with PFML. The questioning here did not take place in an open field, or a Greyhound bus, but rather within Jones curtilage--an area afforded heightened Fourth Amendment protection. Moreover, in advance of the visits, Jones received a letter from the SCPD instructing him that he would be visited by PFML for the purpose of verifying his address and employment information. Although the letter stated that Jones would be “asked to provide them with personal identification” and “requested to provide employment information,” the letter begins by stating that “registered sex offenders are required to provide this information under [SORA].” Citizens do not often receive letters from the police announcing home visits by third-party groups. At the very least, the letter is ambiguous as to whether compliance was mandatory. Finally, the description of PFML agents’ conduct gives the distinct impression that compliance was not optional. The fact that the agents waited for fifteen minutes on Jones’ porch while he was in the shower, “followed [him] closely” as he walked to retrieve his driver’s license, and told Jones that “they may make subsequent, unannounced appearances at his job,” gives the encounter the appearance of a seizure of Jones’ person, rather than a consensual “knock and talk.”

Judge Seybert did dismiss the complaint's due process claim, which Jones argued were based on a right to familial association that had been injured by the PFML "visits" to his home. Judge Seybert reasoned that there was no "invasion of a liberty interest" that was "separate and apart" from the Fourth Amendment claim and thus an independent substantive due process claim could not proceed.

While there are other issues before the court - - - including whether a state (or county) can delegate its sex offender monitoring to a private group are also before the court as a matter of state law - - - the constitutional constraints governing the monitoring of designated sex offenders seems to be squarely presented.

February 23, 2016 in Criminal Procedure, Due Process (Substantive), Family, Fourth Amendment, Opinion Analysis, Sexuality, State Action Doctrine | Permalink | Comments (0)

Monday, February 22, 2016

District Court Says Drone Strike Case Raises a Political Question

Judge Ellen Segal Huvelle (D.D.C.) dismissed a complaint by the estates of two persons killed in a drone strike in Yemen. Judge Huvelle ruled that the complaint, which sought a declaration that the strike violated the Torture Victim Protection Act and customary international law, raised a non-justiciable political question.

The case, Bin Ali Jaber v. U.S., grew out of a drone strike that killed five individuals in Yemen. The estates of two of the victims sued, seeking a declaration that the U.S. violated the TVPA and international law. The government moved to dismiss the case as a non-justiciable political question.

Judge Huvelle granted the motion. She wrote that the court lacked judicially manageable standards for judging the legality of a drone strike, and that the decision to order the strike was a "policy determination of a kind clearly for nonjudicial discretion."

Judge Huvelle distinguished Comm. of U.S. Citizens Living in Nicaragua v. Reagan and Al-Aulaqi v. Panetta--cases in which the courts held that tort claims arising from foreign policy decisions were justiciable--because the plaintiffs in those cases raised constitutional claims. "Because the judiciary is the ultimate interpreter of the Constitution, constitutional claims can require a court to decide what would otherwise be a political question, but no such claims have been made here."

Judge Huvelle recognized that her ruling was in tension with Judge Weinstein's decision in In re Agent Orange Product Liability Litigation--with claims "not materially distinguishable from plaintiffs'." But she said, "[O]f course, this Court is bound by the decisions of the D.C. circuit, not the Eastern District of New York."

February 22, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Court Denies Stay in North Carolina Districting Case

The Supreme Court on Friday denied a stay of a three-judge district court order requiring North Carolina to redraw two congressional districts because they violated equal protection.

The brief denial (without opinion) came after the state developed a new districting plan--which wouldn't have gone into effect if the Court granted a stay, but which will now go into effect for the state's primaries.

Recall that the lower court ruled that North Carolina impermissibly used race to draw the districts, by packing black voters into these two districts. The court rejected the state's claim that it used race in one of the districts to comply with preclearance under the Voting Rights Act. The court said that even assuming (without deciding) that compliance with the VRA is a compelling government interest, the state failed to show that its use of race was narrowly tailored to achieve that interest.

February 22, 2016 in Cases and Case Materials, Elections and Voting, Equal Protection, News | Permalink | Comments (0)

Loyola's Colloquium 2016

Loyola University Chicago just announced the dates for its very popular--and very good--annual Constitutional Law Colloquium: November 4 and 5, 2016. Mark your calendars! Click here for more info.

February 22, 2016 in Conferences, News, Scholarship | Permalink | Comments (0)

Friday, February 19, 2016

CFP: Feminist Judgments Conference

Call for Presenters!

THE U.S. FEMINIST JUDGMENTS PROJECT:

REWRITING THE LAW, WRITING THE FUTURE

Call for Papers and Presentations

Deadline April 15, 2016

From the organizers:

We are seeking proposals for papers to be presented during the U. S. Feminist Judgments Project conference October 20-21, 2016 at the Center for Constitutional Law at The University of Akron School of Law in Akron, Ohio. We are also seeking proposals for “snapshot” presentations to be included in the final plenary of the conference. The conference is co-sponsored by The University of Akron School of Law and the University of Nevada, Las Vegas – William S. Boyd School of Law.

This conference will celebrate the 2016 publication of U.S. Feminist Judgments: Rewritten Opinions of the United States Supreme Court. That volume brought together more than fifty feminist legal scholars and lawyers to rewrite, using feminist reasoning, significant Supreme Court cases from the 1800s to the present day. (For more information, see the project website here.) Illustrating the value of this method of practical scholarship, the volume demonstrates that different processes and different outcomes would have been possible had decision makers applied feminist theory and methods in critical Supreme Court cases despite the restrictions of stare decisis.

The conference is designed to provide the appropriate setting and the essential participants for a structured conversation that explores and assesses the effects of feminist methods and theories on real-world judicial decision making. We expect the conference will identify common core principles and propose directions for future scholarship.

To this end, we seek proposals for papers that incorporate feminist theory and methods or report on research that furthers feminist thought. The organizers view feminism and feminist theory broadly as covering issues of inequality related to gender and gender norms, but also intersectional dynamics related to race, sexual orientation, immigration status, socioeconomic class, and disability.

Potential topics cover a broad range, including women in the judiciary, women in the legal profession, women and rhetoric, women in politics, empirical studies involving gender or gender norms, feminist theory, reproductive freedom, pregnancy, reproduction, families, sex, sexuality, violence against women, employment, sexual harassment, or affirmative action. We welcome with enthusiasm proposals from faculty in disciplines other than law, and we would especially appreciate proposals from new voices in feminism and feminist theory.

Our hope is to build on the insights of the U.S. Feminist Judgments book and to explore new avenues of inquiry for feminist legal scholarship. We hope to provide a supportive atmosphere to foster scholarship and networking among teachers, scholars, and others who are interested in gender equality and the law.

The conference will include plenary sessions related specifically to the U.S. Feminist Judgments book as well as sessions that will be more general in focus, concurrent sessions drawn from this Call for Papers, and a closing panel also drawn from this Call for Papers. The closing panel will be a brainstorming session to consider future directions for scholarly and practical projects that relate to gender equality, the judiciary, future Feminist Judgments projects, or all of the foregoing.

Concurrent Sessions – Paper Proposals

The concurrent sessions will feature presentations on any topic related to gender equality issues, with preference given to presentations related to the topics of women in the judiciary, women in the legal profession, women and rhetoric, women in politics, empirical studies involving gender or gender norms, feminist theory, reproductive freedom, pregnancy, reproduction, families, sex, sexuality, violence against women, employment, sexual harassment, or affirmative action. We will organize the presentations into panels based on the subject matter of the proposals.

Interested persons should submit a brief written description of the proposed paper (no more than 1000 words) and a resume. Please let us know in the proposal which of the above categories or what other, non-listed category best fits your proposal. Please use the subject line “U.S. Feminist Judgments Project October Conference Paper Proposals” and e-mail these materials to Maria Campos (maria.campos@unlv.edu) by April 15, 2016. We will notify selected speakers by June 1, 2016.

Brainstorming Presentations – Snapshot Proposals

The final plenary session of the conference will feature snapshots, or very brief presentations, of ideas for future projects that will advance gender equality in the law. Each selected participant will be limited to five minutes to present her or his idea or project. The presentations will be followed by audience feedback and comments. We welcome proposals for this brainstorming session on any topic related to gender equality.

Interested persons should submit a brief written description of the proposed presentation (no more than 300 words) and a resume. Please use the subject line “U.S. Feminist Judgments Project October Conference Snapshot Proposals” and email these materials to Maria Campos (maria.campos@unlv.edu) by April 15, 2016. We will notify selected speakers by June 1, 2016.

Eligibility

Anyone interested in issues of law and gender equality is eligible to submit a proposal, including full-time faculty members, fellows, visitors, and adjuncts who teach in undergraduate or graduate schools; judges; practitioners; government officials; and business, community, and non-profit leaders. The conference is free and open to the public.

There is no publication commitment associated with the conference. Presentation abstracts will be made available on the website of the Center for Constitutional Law at The University of Akron, and by mutual agreement of interested authors and journal editors, remarks may be published in a special symposium issue of ConLawNOW, the online companion journal run by the Center for Constitutional Law.

There is no registration fee for the conference but proposers and panelists must pay all of their own expenses associated with conference attendance. There will be a conference-negotiated rate at a local hotel. The University of Akron is located approximately 15 minutes from the Akron-Canton Airport and approximately 40 miles southeast of Cleveland Hopkins International Airport.

Please direct questions regarding this Call for Papers and Presentations to Kathy Stanchi (kstanchi@temple.edu), Linda Berger (linda.berger@unlv.edu), and Bridget Crawford (bcrawford@law.pace.edu).

February 19, 2016 | Permalink | Comments (0)

Thursday, February 18, 2016

Symposium: Does Quebec Need a Written Constitution?

Check out this symposium on March 31, 2016, at Yale: Does Quebec Need a Written Constitution? Organizers have assembled a terrific line-up, with a key-note by Jean Charest, 29th Premier of Quebec (2003-2012).

February 18, 2016 in Conferences, News, Scholarship | Permalink | Comments (0)

Abbott's Case Against the CFPB

Check this out: Alden Abbott outlines the case against the Consumer Financial Protection Bureau over at Heritage.

The CFPB, an independent regulatory agency created under Dodd-Frank that's charged with doing just what its name says, has been subject to a non-stop barrage of attacks from the right ever since its creation--for policy reasons, and for violations of separation of powers. Abbott summarizes the latter, drawing on Free Enterprise Fund:

The Free Enterprise Fund case strongly indicates that the CFPB's degree of independence goes beyond constitutionally acceptable norms.

First, the CFPB is more than one level removed from presidential oversight. Its director is independent from management supervision by the institution within which the bureau sits--the Federal Reserve System--and the Federal Reserve System is independent from presidential control.

Second, the bureau's independence from congressional appropriations or budgetary review prevents Congress from exercising its key means of oversight: the power of the purse.

Taken as a whole, these features grant the bureau greater autonomy than is allowed to any regulatory institution whose structure has been reviewed by the Court.

But neither feature of the CFPB is problematic. As to supervisory independence, Abbott's claim is simply wrong, on his own terms. He earlier says, correctly, that the head of the CFPB serves for five years, and can be removed by the President for cause. This isn't the kind of double-insulation that the Court found offensive in Free Enterprise Fund; instead, it's a direct line of accountability to the President that the Court has long approved. It doesn't matter that the CFPB sits within the Federal Reserve System, because the head of the CFPB answers to the President.

As to financial independence, it's hardly novel for an agency to self-fund outside the regular appropriations process, through fees or fines. Indeed, the Congressional Research Service says (correctly) that CFPB's funding--which comes from the Fed's combined earnings (and not regular appropriations)--"give the Bureau less flexibility than the OCC, FDIC, and other banking regulators that are able to increase assessments on the institutions within their jurisdiction to raise revenue, as needed to carry out their responsibilities." And Congress still has oversight: the CFPB reports regularly and is subject to audits by the Comptroller General, and the director must testify at least twice a year before Congress.

We'll continue to see challenges to the CFPB in the courts. But unless the Court changes its approach to independent agencies, or unless Congress changes things, don't expect the CFPB to go away.

February 18, 2016 in News, Separation of Powers | Permalink | Comments (0)

Wednesday, February 17, 2016

Magistrate Orders Apple to "Unlock" iPhone of Deceased Shooter

Professor Ruthann Robson, City University of New York (CUNY) School of Law

A California Magistrate has issued an "Order Compelling Apple, Inc. to Assist Agents in Search" exactly as requested by the government, with the exception of the word "Proposed" crossed off in Order's title, that requires Apple to provide "reasonable technical assistance in obtaining access to data on the subject device." The subject device is an Apple iPhone seized from a black Lexus; this is the black Lexus that was driven by the so-called "San Bernardino shooters." The government's motion explains some of the technology involved and argues that the All Writs Act, 28 USC §1651, authorizes the Order.

The Order specifies that the "reasonable technical assistance" shall accomplish these functions:

(1) it will bypass or disable the auto-erase function whether or not it has been enabled;
(2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE; and
(3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware.

Apple is resisting the Order. In an "open letter" to customers, the CEO of Apple has stated:

Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority.

The government would have us remove security features and add new capabilities to the operating system, allowing a passcode to be input electronically. This would make it easier to unlock an iPhone by “brute force,” trying thousands or millions of combinations with the speed of a modern computer.

The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.

We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country. We believe it would be in the best interest of everyone to step back and consider the implications.

While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.

Over at ars technica, Dan Goodin argues:

It would be one thing for the court to order Apple to brute force this one device and turn over the data stored on it. It's altogether something else to require that Apple turn over powerful exploit software and claim that whatever digital locks are included can't be undone by a determined adversary. That's why it's no exaggeration for Cook to call Tuesday's order chilling and to warn that its prospects for abuse of such a backdoor are high.

Although the Order is directed at one "subject device," Apple's compliance with the Order would make all our devices subject to government search.

February 17, 2016 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, Privacy, Web/Tech | Permalink | Comments (3)

Second Circuit: Is "Hispanic" a "Race"?

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a case involving both 42 USC §1981 and Title VII, a panel of the Second Circuit in its opinion in Village of Freeport v. Barrella addressed the question of whether "Hispanic" was included in definitions of race. In a word, the answer was yes. In a few words, Judge Jose Cabranes' opinion for the panel answered:

Based on longstanding Supreme Court and Second Circuit precedent, we reiterate that “race” includes ethnicity for purposes of § 1981, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under that statute. We also hold that “race” should be defined the same way for purposes of Title VII.

Don Quixote by Pablo Picasso, 1955, via

The plaintiff, Barrella, argued that the Village official had not appointed him chief of police because Barrella was a white Italian‐American, and that the Village had instead appointed a less‐qualified Hispanic. A jury found in favor of Barrella. At trial and on appeal, the Village contended that there was no "race" discrimination or classification, because "Hispanic" is not a race. Judge Cabranes' opinion discussed the "societal confusion" regarding "Hispanic," and included an interesting Appendix on the various labels the United States Census has used, starting in 1930. The court, however, clearly stated:

The existence of a Hispanic “race” has long been settled with respect to §1981. Although that statute never uses the word “race,” the Supreme Court has construed it as forbidding “racial” discrimination in public or private employment. The Court has further defined “racial discrimination,” for purposes of §1981, as including discrimination based on “ancestry or ethnic characteristics.”

But the clarity with regard to §1981 does not exist with regard to Title VII, which is further complicated by an "analytic" problem. The Second Circuit recognized that although its precedent had "avoided the question so far,"

the proper categorization of Hispanicity has important analytical implications. Section 1981 prohibits discrimination on the basis of race but not on the basis of national origin. Accordingly, if we were to treat Hispanicity as a national origin, but not as a race, for purposes of Title VII, plaintiffs in cases involving pro‐ or anti‐Hispanic discrimination might in some circumstances need to present two different factual arguments in order to invoke the distinct remedies of that statute along with those of § 1981.

In deciding the issue of "Hispanicity," the Second Circuit disapproved of the district judge's decision to treat the question as one of fact: "The meaning of the word “race” in Title VII is, like any other question of statutory interpretation, a question of law for the court." The error was harmless, however. On the question of law, the Second Circuit clearly held that "race" encompasses "ethnicity" for purposes of Title VII, just as in §1981.

On the ultimate disposition, an evidentiary issue caused the Second Circuit to vacate the judgment and remand the case for a new trial. Yet the case makes an important contribution in the continuing dialogue on the meanings of race - - - both statutory and otherwise.

February 17, 2016 in Affirmative Action, Courts and Judging, Opinion Analysis, Race | Permalink | Comments (0)

Tuesday, February 16, 2016

Morley on Injunctive Relief in Election, Voting, and Constitutional Cases

Check out Prof. Michael T. Morley's (Barry) just-posted and timely piece, De Facto Class Actions? Injunctive Relief in Election Law, Voting Rights, and Constitutional Cases.

Morley provides a framework for courts deciding whether to award plaintiff-oriented injunction (limited to the plaintiff in the case) or defendant oriented injunction (applying more broadly, to the defendant's actions anywhere) in these kinds of cases:

First the court should assess whether granting the requested relief solely to the individual plaintiffs would create unconstitutional disparities concerning fundamental rights in violation of Equal Protection principles, although this seldom, if ever, should be the case. Second, after confirming that limiting relief solely to the individual plaintiffs would be constitutional, the court should then determine whether such a Plaintiff-Oriented Injunction would be proper under the challenged statute or regulation itself by applying traditional severability principles. If the challenged provision can be applied coherently, and the entity that enacted the provision still would have intended for it to be enforced, even with the plaintiffs excluded from its scope, then a Plaintiff-Oriented injunction would be the proper remedy. Otherwise, a Defendant-Oriented Injunction is required.

February 16, 2016 in Courts and Judging, Elections and Voting, Jurisdiction of Federal Courts, News, Scholarship | Permalink | Comments (0)

Union Fair Share Fees Probably Spared, For Now

One of the more significant implications of a now (likely) equally divided Supreme Court is that public-sector-union fair-share requirements will almost surely stay on the books. That's because a 4-4 tie will affirm the lower court's ruling upholding the requirements, without setting a precedent, or because the Court could hold the case over until next Term, maintaining the status quo. Either way, California's fair-share requirement, and Abood (and other state fair-share requirements) will stay on the books--unless and until a new Justice, hostile to fair share, is appointed.

The Court heard oral arguments in the First Amendment challenge to California's public-sector fair-share requirement, Friedrichs v. California Teachers Association, last month. And the arguments confirmed predictions going in--that the Court was almost certain to strike fair-share requirements by a 5-4 vote, along conventional ideological lines.

But with Justice Scalia's death, and without a replacement, the Court will almost surely split 4-4. That will leave the Ninth Circuit ruling in place, upholding the fair-share requirement, and leaving Abood on the books.

Alternatively, the Court might hold the case over until next Term. If so, California's requirement will stay in place, and Abood will stay on the books--unless a Justice hostile to the requirement is appointed in the meantime.

All this means that public-sector fair-share is spared for now. And if a new Justice sides with the progressives, it may be spared for a while longer.

February 16, 2016 in Cases and Case Materials, First Amendment, News | Permalink | Comments (0)

Monday, February 15, 2016

Daily Read: Justin Pidot on 4-4 Decisions of the United States Supreme Court