Monday, October 5, 2020

Obergefell as Precedent: First Monday in October

On the first Monday in October, the United States Supreme Court begins its Term, this time with only eight of the usual nine Justices given Justice Ginsburg's death in September.

In today's Order List of the Term, the Court denied certiorari in Davis v. Ermold to the Sixth Circuit's decision that court clerk Kim Davis did not have immunity from a damages suit. (Recall that in 2017 the Sixth Circuit allowed the damages suit to proceed). Kim Davis achieved notoriety as a clerk who refused to issue a marriage license to a same-sex couple despite the United States Supreme Court's ruling in Obergefell v. Hodges.

Two Justices on the Court who dissented in Obergefell — Thomas joined by Alito — used today's denial of certiorari to issue a "statement" (it is not a dissent as the issue is not "cleanly presented" in this case) to cast doubt on the continued validity of Obergefell:

this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.”

Two Justices who joined the slim 5-4 majority in Obergefell  — Ginsburg and Kennedy — are no longer on the Court.  This statement sends a strong message to courts and advocates that the the Court would contemplate overruling or severely limiting Obergefell should the issue be more "cleanly presented."

October 5, 2020 in Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Fourteenth Amendment, Fundamental Rights, Religion | Permalink | Comments (0)

Friday, July 24, 2020

Federal Judge Enjoins Federal Agents Acting Against Journalists and Legal Observers in Portland, Oregon

In a Temporary Restraining  Order and Opinion in Index Newspapers v. City of Portland, Judge Michael Simon enjoined the U.S. Department of Homeland Security ("DHS"); and the U.S. Marshals Service ("USMS") — the "Federal Defendants" — from arresting and otherwise interfering with journalists and legal observers who are documenting the troublesome and now widely reported events in Portland, Oregon, which have attracted Congressional attention.

Judge Simon's relatively brief TRO opinion, first finds that the plaintiffs have standing, and then applying the TRO criteria importantly finds that there is a likelihood the plaintiffs would prevail on the First Amendment claim. Judge Simon found both that there was sufficient circumstantial evidence of retaliatory intent against First Amendment rights and that plaintiffs had a right of access under Press-Enterprise Co. v. Superior Court (1986).  Judge Simon found fault with many of the specific arguments of the federal defendants, including the unworkability of the remedy:

The Federal Defendants also argue that closure is essential because allowing some people to remain after a dispersal order is not practicable and is unworkable. This argument is belied by the fact that this precise remedy has been working for 21 days with the Portland Police Bureau. Indeed, after issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working, or address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City never asked for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable. When asked at oral argument why it could be workable for City police but not federal officers, counsel for the Federal Defendants responded that the current protests are chaotic. But as the Federal Defendants have emphatically argued, Portland has been subject to the protests nonstop for every night for more than 50 nights, and purportedly that is why the federal officers were sent to Portland. There is no evidence that the previous 21 nights were any less chaotic. Indeed, the Federal Defendants' describe chaotic events over the Fourth of July weekend through July 7th, including involving Portland police, and the previous TRO was issued on July 2nd and was in effect at that time. The workability of the previous TRO also shows that there is a less restrictive means than exclusion or force that is available.

The TRO is quite specific as to journalists as well as to legal observers, providing in paragraph 5, to "facilitate the Federal Defendants' identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers' Guild-issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU-issued or authorized Legal Observer vest."

The TRO lasts for 14 days; the litigation will undoubtedly last much longer.

 

 

July 24, 2020 in Congressional Authority, Courts and Judging, Criminal Procedure, Federalism, First Amendment, Fourteenth Amendment, Speech, Standing | Permalink | Comments (0)

Wednesday, July 8, 2020

SCOTUS Broadens Ministerial Exemption from Anti-Discrimination Laws

In its opinion in Our Lady of Guadalupe School v. Morrissey-Berru, consolidated with St. James School v. Biel, the Court extended the application of the First Amendment's "ministerial exception" first accepted by the Court in 2012 in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, to the teachers at schools run by religious organizations in the cases, and seemingly to all teachers employed by religiously-affiliated schools. 

Writing for the Court, Alito's opinion — joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh — held that although the teachers in these cases were not actually "ministers" by title and did not have as much as religious training as the teacher in Hosanna-Tabor, they are encompassed in the same exception from enforcement of anti-discrimination laws.  The Court stated that the First Amendment protects a religious institution's independence on matters of "faith and doctrine" without interference from secular authorities, including selection of its "ministers." But who should qualify as a "minister" subject to this exemption? Recall that the factors of Hosanna-Tabor figured in the oral argument (and recall also that they figured in the Ninth Circuit's opinions). But here, the Court stated that while there may be factors,  "What matters, at bottom, is what an employee does," rather than what the employee is titled. Moreover, the "religious institution's explanation of the role of such employees in the life of the religion" is important. Indeed, the religious institution's "explanation" seems determinative. The Court rejected a "rigid formula" for determining whether an employee is within the ministerial exception, concluding instead that:

When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.

The brief concurring opinion by Thomas, joined by Gorsuch, argues that the Court should go further and essentially make the implicit more explicit: the Court should decline to ever weigh in "on the theological question of which positions qualify as 'ministerial.' "

Sotomayor dissenting opinion, joined by Ginsburg, begins:

Two employers fired their employees allegedly because one had breast cancer and the other was elderly. Purporting to rely on this Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the majority shields those employers from disability and age-discrimination claims. In the Court’s view, because the employees taught short religion modules at Catholic elementary schools, they were “ministers” of the Catholic faith and thus could be fired for any reason, whether religious or nonreligious, benign or bigoted, without legal recourse. The Court reaches this result even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. In foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of school- teachers of their legal protections, I respectfully dissent.

For the dissent, the Court's conclusion has "grave consequences," noting that it is estimated that over 100,000 secular teachers employed by religiously-affiliated schools are now without employment protections. Further, it contrasts Esponiza v. Montana Dept of Revenue, decided this Term, in which the Court "lamented a perceived 'discrimination against religion,'" but here "it swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs." The dissent concludes with a hope that the Court will be "deft" enough to "cabin the consequences" of this ministerial exception, but given the current composition of the Court, that hope seems a narrow one.

July 8, 2020 in Disability, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Opinion Analysis, Supreme Court (US) | Permalink | Comments (1)

Tuesday, June 30, 2020

SCOTUS Holds Free Exercise Clause Bars Application of State's No-Aid to Religious Institutions Clause in State Constitution

In its opinion in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships, the majority held that the scheme must be afforded to religious schools so that the Free Exercise Clause was not violated.

Recall that the Montana Supreme Court held that the tax credit program's application to religious schools was unconstitutional under its state constitution, Art. X §6 , which prohibits aid to sectarian schools. This type of no-aid provision is often referred to as (or similar to) a Blaine Amendment and frequently appears in state constitutions. 

In a closely-divided decision, the Court decided that the Montana Supreme Court's decision that the tax credit program could not be extended to religious schools should be subject to struct scrutiny under the First Amendment's Free Exercise Clause and did not survive. (The Court therefore stated it need not reach the equal protection clause claims). The Court essentially found that this case was more like Trinity Lutheran Church of Columbia v. Comer (2017) (involving playground resurfacing) and less like Locke v. Davey, 540 U.S. 712 (2004), in which the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology. The Court distinguishes Locke v. Davey as pertaining to what Davey proposed "to do" (become a minister) and invoking a "historic and substantial” state interest in not funding the training of clergy. Instead, the Court opined that like Trinity Lutheran, Esponiza "turns expressly on religious status and not religious use."

The Court's opinion, by Chief Justice Roberts and joined by Thomas, Alito, Gorsuch, and Kavanaugh, is relatively compact at 22 pages.  In addition to taking time to distinguish Locke v. Davey, the opinion devotes some discussion to federalism, invoking the Supremacy Clause and Marbury v. Madison in its final section. But the opinion also engages with the dissenting Justices' positions in its text and its footnotes. Along with the concurring opinions, the overall impression of Espinoza is a fragmented Court, despite the carefully crafted majority opinion.

The concurring opinion of Thomas — joined by Gorsuch — reiterates Thomas's view that the Establishment Clause should not apply to the states; the original meaning of the clause was to prevent the federal establishment of religion while allowing states to establish their own religions. While this concurring opinion criticizes the Court's Establishment Clause opinions, it does not confront why a state constitution would not be free to take an anti-establishment position.

Gorsuch also wrote separately, seemingly to emphasize that the record contained references to religious use (exercise) and not simply religious status. Gorsuch did not discuss the federalism issues he stressed in his opinion released yesterday in June Medical Services.

Alito's thirteen page concurring opinion is an exegesis on the origins of the Montana constitutional provision as biased. Alito interestingly invokes his dissenting opinion in Ramos v. Louisiana decided earlier this Term in which he argued that the original motivation of a state law should have no bearing on its present constitutionality: "But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here." 
(Noteworthy perhaps is that Roberts joined Alito's dissenting opinion in Ramos and Roberts's opinion in Esponiza does spend about 3 pages discussing the Blaine amendments' problematical history, but apparently this was insufficient for Alito).

Ginsburg's dissenting opinion, joined by Kagan, pointed to an issue regarding the applicability of the Court's opinion:

By urging that it is impossible to apply the no-aid provision in harmony with the Free Exercise Clause, the Court seems to treat the no-aid provision itself as unconstitutional.  Petitioners, however, disavowed a facial First Amendment challenge, and the state courts were never asked to address the constitutionality of the no- aid provision divorced from its application to a specific government benefit.

Breyer, joined in part by Kagan, essentially argued that the majority gave short-shrift to Locke v. Davey and its "play-in-the-joints" concept authored by Rehnquist as expressing the relationship between the Establishment and Free Exercise Clause of the First Amendment. Breyer's opinion is almost as long as the majority opinion, and the majority takes several opportunities to express its disagreement with Breyer, including in a two paragraph discussion, his implicit departure from precedent (e.g., "building on his solo opinion in Trinity Lutheran").

Sotomayor's dissent, also criticized by the majority in text, argues that the Court is "wrong to decide the case at all" and furthermore decides it wrongly.  The Court's reframing incorrectly addressed (or seemingly addressed?) whether the longstanding state constitutional provision was constitutional. Thus, she argues, the Court has essentially issued an advisory opinion.  On the merits, she contends, "the Court’s answer to its hypothetical question is incorrect." She concludes that the majority's ruling is "perverse" because while the Court once held that "the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs,” it now departs from that balanced view.

The Court's opinion is much more divided than it seems at first blush. And the future of state constitutional provisions that prohibit taxpayer money from being used to support religious institutions remains in doubt.

 

June 30, 2020 in Courts and Judging, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Opinion Analysis, State Constitutional Law, Supreme Court (US), Theory | Permalink | Comments (0)

Monday, June 29, 2020

SCOTUS Holds Louisiana Abortion Restrictions Unconstitutional

In its highly anticipated opinion in June Medical Services v. Russo (formerly Gee), the United States Supreme Court reversed the Fifth Circuit's controversial decision upholding Louisiana's abortion restrictions despite their similarity to the ones held unconstitutional in the Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016).

Justice Breyer, who also wrote the Court's opinion in Whole Woman's Health, wrote the plurality opinion in June Medical, joined by Ginsburg, Sotomayor and Kagan (None of the women Justices wrote separately, meaning that the abortion opinions in today's case are all by men).

Breyer's plurality opinion  concluded that there is standing; recall that the United States argued that the physicians should not have standing to raise the constitutional rights of their patients despite this long standing practice.  Breyer's plurality opinion carefully rehearses the findings of fact by the district court (which applied Whole Women's Health) and ultimately concluded that the "evidence on which the District Court relied in this case is even stronger and more detailed" than in Whole Woman's Health. The Fifth Circuit, Breyer's plurality opinion concluded, misapplied the correct standard of review of these findings: the appellate court should have applied the deferential clear-error standard.

Chief Justice Roberts, who dissented in Whole Woman's Health, concurred in June Medical on the basis of stare decisis:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case . . . .

The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.

The Chief Justice's sixteen page concurring opinion, necessary to constitute the majority reversing the Fifth Circuit and upholding Whole Woman's Health is bound to be highly analyzed.

The dissenting opinions are somewhat fragmented. Thomas's dissenting opinion and Alito's dissenting opinion, joined by Gorsuch, and in part by Thomas and Kavanaugh, tracks ground familiar from Whole Woman's Health, with additional discussions of stare decisis. Gorsuch, who was not on the Court when Whole Woman's Health was decided in 2016, penned an opinion accusing the Court of having "lost" its way in a "highly politicized and contentious arena" by not paying due deference to the state legislature. Kavanaugh, who replaced Kennedy who had joined the majority in Whole Woman's Health, not only joined portions of Alito's dissent but wrote separately to stress his agreement with the portions of Alito's opinion that the case should be remanded, and in a footnote also stated that "the District Court on remand should also address the State’s new argument (raised for the first time in this Court) that these doctors and clinics lack third-party standing."

June 29, 2020 in Abortion, Courts and Judging, Federalism, Fourteenth Amendment, Gender, Opinion Analysis, Reproductive Rights, Standing, Supreme Court (US) | Permalink | Comments (0)

Tuesday, May 26, 2020

Florida District Judge Issues Injunction on Florida Statute Requiring Payment of Fines and Fees for Re-enfranchisement

The 125 page opinion in Jones v. DeSantis by United States District Judge Robert Hinkle results in an detailed permanent injunction outlining how Florida must comply with the constitutional and statutory requirements required to implement its statute requiring the payment of fees and fines before persons convicted of felonies be re-enfranchised.

Recall that Florida law disenfranchising persons convicted of felonies, held unconstitutional in 2018, was changed by a voter referendum to amend the Florida Constitution. Amendment 4.  Amendment 4 changed the Florida Constitution to provide:

any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

Fla. Const. Art. VI §4.  After the amendment was passed, the Florida legislature passed SB7066, codified as Fla. Stat. §98.071 (5) which defined "completion of all terms of sentence" to include "full payment of any restitution ordered by the court, as well as "Full payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision, including, but not limited to, probation, community control, or parole." 

Recall Judge Hinkle previously issued a preliminary injunction regarding indigent persons, finding that the statute as to the named plaintiffs violated equal protection.

Recall also that the Eleventh Circuit upheld the preliminary injunction, finding that to the "extent a felon can pay" the legal financial obligations (LFOs), they must, but clearly affirmed the district court's order enjoining the state "from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations."

Now, Judge Hinkle has heard evidence in the five consolidated cases and issued a detailed injunction.

As to the equal protection claim of persons who are "genuinely unable to pay their LFOs,"  Judge Hinkle found the Eleventh Circuit decision upholding the preliminary injunction was determinative. But the determination of "genuinely unable to pay" had its own constitutional issues:

The State has shown a staggering inability to administer the pay-to- vote system and, in an effort to reduce the administrative difficulties, has largely abandoned the only legitimate rationale for the pay-to-vote system’s existence.

The state, it seemed, could not determine the original obligation for individuals, and it could not determine the amount that individuals had paid - - - changing its accounting from an "actual-balance method" to a "every-dollar method." The opinion does an admirable job of explaining the methods and providing examples - - - and it seems clear that it is incoherent. Further, the department of elections charged with administering the system did not have a system or the resources it.

On equal protection on the basis of race or gender, Judge Hinkle rejected both claims "on balance," but did provide serious consideration.

On the Twenty-fourth Amendment, the court stated that while the Florida statute was not a poll tax, the fees imposed on defendants as payment to run the criminal justice system were "any other tax" within the Amendment.

On procedural due process, the problems with the state system and the "request an advisory opinion" method provided to individuals to determine the amounts due merited analysis, as well as a large portion of the mandated injunction (below).

While the States may certainly chose to appeal, Florida would not seem to have a very good chance returning to the Eleventh Circuit.

Continue reading

May 26, 2020 in Due Process (Substantive), Elections and Voting, Equal Protection, Fourteenth Amendment, Gender, Opinion Analysis, Procedural Due Process, Standing | Permalink | Comments (0)

Tuesday, May 19, 2020

Sixth Circuit En Banc to Hear Right to Literacy Case

The Sixth Circuit has granted en banc review requested by a member of the court (rather than the parties) in Gary B. v. Whitmer. The panel's "previous decision and judgment of this court are vacated, the mandates are stayed, and these cases are restored to the docket as pending appeals."

This is not unanticipated. Recall that a divided panel held that there is a fundamental right to a "basic minimum education" providing "access to literacy" as a substantive due process right under the Fourteenth Amendment.  Our extensive analysis of the panel opinion is here.

May 19, 2020 in Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Recent Cases | Permalink | Comments (0)

Sunday, April 26, 2020

Sixth Circuit Recognizes Fundamental Right to Literacy

In a divided panel opinion in Gary B. v. Whitmer, the Sixth Circuit held that there is a fundamental right to a "basic minimum education" providing "access to literacy" as a substantive due process right under the Fourteenth Amendment.

Recall that in July 2018, United States District Judge for the Eastern District of Michigan Stephen Murphy dismissed the complaint in Gary B. alleging constitutional violations in the public schools in Detroit. For Judge Murphy, the constitutional right alleges here of "access to literacy" was sufficient to seemingly distinguish it from San Antonio Independent School District v. Rodriguez (1973), in which the Court rejected "education" as a fundamental right, but not ultimately distinguishable. The district judge found any right to access literacy was not cognizable as a fundamental right under the "standard" articulated in Washington v. Glucksberg (1997) and the complaint was furthermore seeking recognition of a prohibited "positive right" given that the Constitution only recognizes "negative" rights.

On appeal, the Sixth Circuit reversed this conclusion. (The Sixth Circuit did affirm the district court's finding that the claims for equal protection merited dismissal).

The 60 page opinion by Judge Eric Clay, joined by Judge Jane Branstetter Stranch, is impressively well-written and well-structured. After an extensive discussion of the facts and procedural history, the court articulates the standard for its review of a motion to dismiss and disposes of the mootness and sovereign immunity arguments. The court also relatively quickly dispatches the equal protection claim based on the pleadings as well as the claim that the state's compulsory education mandate gives rise to a due process claim (seemingly a "negative right" backup to the argument that the complaint failed as only seeking "positive" rights).  The court reaches the central issue of the fundamental right to a basic minimum education, "meaning one that provides access to literacy" at about midway through the opinion.

The court first articulates the two-pronged Glucksberg test and then rehearses the United States Supreme Court's education cases, beginning with this overview:

Beyond the general framework for assessing whether an asserted right is fundamental, the Supreme Court has also, in a series of cases, addressed the extent of constitutional rights with respect to state-provided education. Its education jurisprudence teaches several lessons. First, the Court has found that there is no broad, general right to education. Rodriguez. Second, while no general right to education exists, the Supreme Court has specifically distinguished and left open “whether a minimally adequate education is a fundamental right.” Papasan v. Allain, 478 U.S. 265, 285 (1986); see also Rodriguez. Third, education is, at minimum, highly important to “maintaining our basic institutions,” and so the denial of public education to a discrete group of students “must be justified by a showing that it furthers some substantial state interest.” Plyler [v. Doe (1982)]. And fourth, the Court has addressed the critical link between education and race discrimination in America. We discuss the Court’s relevant education cases in turn, beginning chronologically.

[some citations and Sixth Circuit references omitted]. 

30721475326_1e66e3b647_oAfter its detailed discussion of Rodriguez and Plyler, incorporating the parties' arguments, the court discussed the lesser-known cases of Papasan v. Allain and Kadrmas v. Dickinson Public Schools (1988). The court notes that the plaintiffs in Papasan did argue that they were deprived an opportunity to acquire basic minimal skills under the state's funding scheme, but the Court did not reject their claim as a matter of substantive due process: "Instead, the Court found that, assuming such a right existed, the plaintiffs had failed to allege sufficient facts in support of their claim." This, the Sixth Circuit reasoned, was an "answer on pleadings, sure, but not on constitutional law." Similarly, the Sixth Circuit found that the "Court essentially repeated this non-answer in Kardmas." Kardmas involved a fee charged for the bus transportation to attend public schools, but given that the plaintiffs were attending school "despite the bus fee," their claim was interpreted not as a denial of education but for wealth-discrimination based the payment of the bus fee. The Sixth Circuit quotes Justice Marshall's dissent in Kardmas as stating that the Court had still not decided whether there was a fundamental right to a minimal education.

That is the question that the Sixth Circuit panel takes up, using the framework of the Glucksberg prongs, and finds that access to a minimal education is a fundamental right.

In its discussion of whether the right to a basic minimum education is "deeply rooted in our Nation's history and traditions," the Sixth Circuit finds that the historical prevalence of education makes it "deeply rooted in our history and tradition, even under an originalist view." The opinion then notes that 92% of the population lived under mandated state-policies of public education at the time of the Fourteenth Amendment, and further declares that "history should not be viewed only as a static point," discussing the expansion of education. Most interestingly, perhaps, Judge Clay's opinion for the Sixth Circuit majority then develops an argument that "Our nation's history of racial discrimination further reveals the historical and lasting importance of education and the significance of its modern ubiquity." At the conclusion of that discussion, including the criminalization of teaching enslaved persons to read, the court concludes:

There are two main takeaways from this history of racial discrimination in education, as well as from past interventions by the courts. First, access to literacy was viewed as a prerequisite to the exercise of political power, with a strong correlation between those who were viewed as equal citizens entitled to self-governance and those who were provided access to education by the state. Second, when faced with exclusion from public education, would-be students have repeatedly been forced to rely on the courts for relief. The denials of education seen in these cases and beyond are now universally accepted as serious injustices, ones that conflict with our core values as a nation. Furthermore, the substantial litigation devoted to addressing these exclusions reveals the unparalleled value assigned to literacy, which is viewed by our society as essential for students to obtain even a chance at political and economic opportunity.

As to the second Glucksberg prong, which looks for the right to be implicit in the concept of ordered liberty, the Sixth Circuit notes that the belief that education is a means of achieving equality is a belief that has persisted in the nation "since the days of Thomas Jefferson," and concludes that providing a basic minimal education is necessary to prevent arbitrary denials to children based on no fault of their own, which is "so essential to our concept of ordered liberty."

The Sixth Circuit opinion then takes up the counter-arguments, including those made by the dissenting judge, Eric Murphy (recently appointed to the Sixth Circuit and seemingly no relation to district judge Eric Murphy). The Sixth Circuit majority refutes the judicial restraint argument with an articulation, if unlabeled, of a representation-reinforcement argument, with a footnote discussing its applicability to due process as well as equal protection:

But it is unsurprising that our political process, one in which participation is effectively predicated on literacy, would fail to address a lack of access to education that is endemic to a discrete population. The affected group—students and families of students without access to literacy—is especially vulnerable and faces a built-in disadvantage at seeking political recourse. The lack of literacy of which they complain is exactly what prevents them from obtaining a basic minimal education through the normal political process. This double bind provides increased justification for heightened judicial scrutiny and the recognition of the right as fundamental.

The Sixth Circuit majority also takes up the positive/negative rights dichotomy, first arguing that the constitutional tort at issue in DeShaney v. Winnebago County of Department of Social Services (1989), has no applicability to public education, and that even if it did, it is the state that is "creating the danger" here (rather than a private actor), thus bringing the case within the state-created danger exception.

Finally, with due recognition that the case is before the Sixth Circuit on a motion to dismiss, the majority acknowledged that it would be difficult to "define the exact limits of what constitutes a basic minimum education" sufficient to provide access to literacy. However, the majority stated that it would seem to include at least three basic components: facilities, teaching, and educational materials (e.g., books).  The case is therefore remanded to the district court to proceed.

But how the case will proceed is uncertain. In a usual scenario, the State would seek review. The Michigan Attorney General, Dana Nessel, however has stated that she is "overjoyed" with the Sixth Circuit's decision. (It was originally defended under a previous Michigan administration).  There is also some lack of clarity regarding the proper defendant or appellant, given that the school district is now under more local control (an issue that the Sixth Circuit discussed in its mootness analysis). If a party does not seek review, there is the possibility that the en banc Sixth Circuit may decide to consider the case. Under Sixth Circuit rules and internal operating procedures, 6 I.O.P. 35(e), "any member of the en banc court may sua sponte request a poll for hearing or rehearing en banc before a party files an en banc petition" and the "clerk will immediately circulate voting forms to the en banc court."  The en banc judges are judges in "regular active service" (meaning not senior judges) and including the panel judges no matter their status. It's quite possible that the dissenting judge would request a poll.

[image credit

April 26, 2020 in Books, Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Opinion Analysis, Race, Recent Cases | Permalink | Comments (0)

Monday, April 20, 2020

SCOTUS Rules Sixth Amendment Right To Unanimous Jury Verdict Applies to States

The Court issued its opinion in Ramos v. Louisiana with a majority concluding that the Sixth Amendment confers a right to a unanimous jury verdict that is incorporated against the states through the Fourteenth Amendment.

Recall from the oral argument on the very first day of the 2019-2020 term that almost all rights have now been incorporated through selective incorporation, and that the unanimous jury requirement subject to an exception of the incorporation of the trial by jury clause. As Justice Alito phrased it in an opinion for the Court in  McDonald v. City of Chicago (2010) (in which a closely divided Court held that the Second Amendment is incorporated), the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972).

The precedential value of Apodaca, a case in which the Justices split 4-1-4, was at the center of the oral argument and is at the center of the Court's fragmented opinions in Ramos. The lone Justice in Apodaca is Justice Powell, who is specifically discussed throughout the opinions. Powell's adoption of what the Court calls the "dual-track" incorporation, and seemingly Justice Powell himself, does he does not fare very well in the Court's opinion, including quoting Powell that he was simply "unwilling to follow the Court's precedents" regarding incorporation.

Writing for the Court, Justice Gorsuch's opinion is joined by Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh, but not in full. Indeed, the would-be majority loses Kavanaugh regarding some of its discussions of precedent and stare decisis, and loses both Kavanaugh and Sotomayor regarding a discussion of the specific stare decisis accorded to Apodaca. 

The Court clearly concludes, however, that there is a Sixth Amendment right to a unanimous jury verdict and that this right is incorporated as against the states.

Justice Thomas concurs, but renews his argument that the Privileges or Immunities Clause of the Fourteenth Amendment is the proper vehicle for incorporation. However, unlike in McDonald, Justice Thomas' vote is not necessary to constitute a majority.

Justice Alito dissented, joined by Chief Justice Roberts, as well as for most of his opinion, by Justice Kagan.

Certainly this case is important for both the constitutional doctrine of incorporation and for constitutional criminal procedure under the Sixth Amendment. But the Justices' various opinions discussing stare decisis might be read to portend larger developments.  Justice Kavanaugh's concurring opinion is most explicit in this regard: he outlines his views on stare decisis and supports his conclusion why Apocada should be overruled. Justice Alito's dissenting opinion argued for honoring stare decisis, but interestingly, Justice Kagan does not join that portion of the dissent arguing that the "reliance" in this case "far outstrips" other recently overruled cases.

Two other matters bear notice.
First, the racist roots of the non-unanimous jury verdict requirement is given attention by the Court, highlighted in Justice Sotomayor's concurring opinion, and minimized by the dissenting opinion (arguing that the opinion does not apply only to Louisiana and Oregon, but any future state that might adopt non-unanimous verdicts, even if all the lawmakers were "angels").
Second, there is the rhetoric and tone of some of the opinions. There is an evident conversation between the majority and dissent, with Gorsuch's opinion veering toward a condescending tone punctuated by rhetorical questions and Alito's opinion answering with accusatory and aggrieved notes.

But as a matter of incorporation doctrine, after last Term's Timbs v. Indiana regarding the Eighth Amendment's excessive fines provision, the Court's decision in Ramos now leaves only the Fifth Amendment grand jury requirement and the Seventh Amendment's right to a jury trial in a civil case as the federally applicable rights that are not incorporated as against the states. And then there is that Third Amendment.

1600px-Bill_of_Rights_Plaque

April 20, 2020 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Fourteenth Amendment, Privileges and Immunities, Sixth Amendment, Supreme Court (US) | Permalink | Comments (0)

Wednesday, March 4, 2020

SCOTUS Hears Oral Arguments in June Medical Abortion Case

Will this be the case in which the Supreme Court decides to overrule the almost half-century precedent of Roe v. Wade (1973)?

The Court heard oral arguments in June Medical Services v. Russo (formerly Gee), but Roe v. Wade was not mentioned. Planned Parenthood of SE Pennsylvania v. Casey (1992) was mentioned only once, but Justice Breyer in the context of standing of physicians. But the Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016), which is factually difficult to distinguish from the June Medical, was often center-stage.

Julie Rikelman, arguing for June Medical, began by stating that the Louisiana statute at issue in the case is "identical" to the one the Court upheld in Whole Woman's Health four years prior. Yet her first sentence — "This case is about respect for the Court's precedent" — implicitly reached back further. Further, the precedent involved was not only on the merits, but also on the issue of third-party standing, which here is the ability of physicians to raise the constitutional rights of their patients.  Such third party standing was accorded physicians in pre-Roe cases such as Griswold v. Connecticut (1965), involving contraception. It was also accorded the bar owner rather than the minor male (who had since turned 21), in Craig v. Boren (1976), involving an Oklahoma statute restricting 3.2 beer to males, a case with which Justice Ginsburg is more than a little familiar. Rikelman argued that Louisiana had waived any objections to third party standing by not raising it in the district court, and the fact of that waiver was vigorously disputed by Justice Alito. Alito also repeatedly raised the validity of the third party standing issue in circumstances in which the physicians and the patients interests were in conflict.  Rikelman, and other Justices seemingly, repeated that there was no conflict.

On the merits, the question was whether "the inquiry under [Whole Woman's Health v.] Hellerstedt is a factual one that has to proceed state-by-state?," as Chief Justice Roberts phrased it. This question goes to the heart of whether Whole Woman's Health is binding precedent. Elizabeth Murrill, Solicitor General for the state of Louisiana, argued that because the Fifth Circuit focused on the credentialing aspect of admitting privileges, it was different from Whole Woman's Health.  Chief Justice Roberts essentially asked her the same question he'd earlier asked Rikelman about state-by-state differences:

CHIEF JUSTICE ROBERTS: Do you agree that the benefits inquiry under the law is going to be the same in every case, regardless of which state we're talking about? I mean, I understand the idea that the impact might be different in different places, but as far as the benefits of the law, that's going to be the same in each state, isn't it?

MURRILL: No. I don't think the benefit -- I mean, I think that a state could certainly show greater benefits, depending on what their regulatory structure is and what the facts are on the ground in that state. I think we absolutely could show that we -- that it serves a greater benefit.
In our situation, for example, we've demonstrated that the doctors don't do credentialing . . . .

Arguing for the United States, Jeffrey Wall, the Deputy Solicitor General, supported the state of Louisiana on the merits and also argued against third party standing.  Justice Breyer posed the question of stare decisis:

  1. And I think eight cases where you've given standing, I mean, we could go back and reexamine Marbury versus Madison, but really we have eight cases in the abortion area, we have several cases in other areas, and Whole Woman's Health picks that up. Casey picks that up. And you really want us to go back and reexamine this, let's go back and reexamine Marbury versus Madison.

    And -- and you have good arguments. But why depart from what was pretty clear precedent?

Wall argued in response that in none of the previous standing cases had the Court considered whether there was a conflict between the patients and the doctors.

On rebuttal, Rikelman argued there was no such conflict now.

There are plenty of conflicts between the parties and the Justices.

 

 

March 4, 2020 in Abortion, Fourteenth Amendment, Gender, Medical Decisions, Oral Argument Analysis, Reproductive Rights, Standing | Permalink | Comments (0)

Wednesday, February 19, 2020

Eleventh Circuit: Florida Law Mandating Indigent Voters Pay Fines and Fees Violates Equal Protection Clause

In an extensive opinion in Jones v. Governor of Florida, the Eleventh Circuit found that the Florida legislature's imposition of payment of all fines, fees, and restitution connected with a felony conviction as a necessary precondition for re-enfranchisement violated the Fourteenth Amendment's Equal Protection Clause.

Recall that Florida law disenfranchising persons convicted of felonies, held unconstitutional in 2018, was changed by a voter referendum to amend the Florida Constitution. Amendment 4.  Amendment 4 changed the Florida Constitution to provide:

any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

Fla. Const. Art. VI §4.  After the amendment was passed, the Florida legislature passed SB7066, codified as Fla. Stat. §98.071 (5) which defined "completion of all terms of sentence" to include "full payment of any restitution ordered by the court, as well as "Full payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision, including, but not limited to, probation, community control, or parole." 

Recall that in October 2019, United States District Judge Robert Hinkle of the Northern District of Florida held that the Florida statute requiring payment of fines, fees, and costs in order for a person convicted of a felony to have their voting rights restored is unconstitutional and should be enjoined, providing that persons affected should have the opportunity to prove their inability to pay.

The Eleventh's Circuit per curiam opinion of 78 pages concluded that the statute's requirement of payment of "legal financial obligations" (known as LFO) could not be sustained under heightened scrutiny.  While wealth classifications in equal protection do not generally merit heightened scrutiny, the Eleventh Circuit noted that

But the Supreme Court has told us that wealth classifications require more searching review in at least two discrete areas: the administration of criminal justice and access to the franchise. M.L.B. [ v. S.L.J.], 519 U.S. at 123  [1996] (“[O]ur cases solidly establish two exceptions to that general rule [of rational basis for wealth classifications]. The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license. Nor may access to judicial processes in cases criminal or ‘quasi criminal in nature’ turn on ability to pay.” (citations omitted)). Because Florida’s re-enfranchisement scheme directly implicates wealth discrimination both in the administration of criminal justice and in access to the franchise, we are obliged to apply some form of heightened scrutiny. Florida has implemented a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is, it punishes more harshly solely on account of wealth—and it does so by withholding access to the franchise. The observation that Florida may strip the right to vote from all felons forever does not dictate that rational basis review is proper in this case. To the contrary, settled Supreme Court precedent instructs us to employ heightened scrutiny where the State has chosen to “open the door” to alleviate punishment for some, but mandates that punishment continue for others, solely on account of wealth.

Further,

The Supreme Court has also determined that a state may not extend punishment on account of inability to pay fines or fees. See Bearden, 461 U.S. at 672–73 (holding that a state may not revoke probation—thereby extending a prison term—based on the failure to pay a fine the defendant is unable, through no fault of his own, to pay); Tate, 401 U.S. at 399 (holding that a state cannot imprison under a fine-only statute on the basis that an indigent defendant cannot pay a fine); Williams, 399 U.S. at 240–41 (holding that a period of imprisonment cannot be extended beyond the statutory maximum on the basis that an indigent cannot pay a fine).

1024px-2018_Florida_Amendment_4.svgFor the Eleventh Circuit, disenfranchisement is clearly punishment, and also clearly a "continuing form of punishment." (emphasis in original). The Eleventh Circuit acknowledged that while felon disenfranchisment schemes are generally only subject to rational basis review, here, the long and short of it is that:

 once a state provides an avenue to ending the punishment of disenfranchisement—as the voters of Florida plainly did—it must do so consonant with the principles of equal protection and it may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny.

The court then applied the form heightened scrutiny from Bearden v. Georgia (1983) including its four considerations: (1) “the nature of the individual interest affected”; (2) “the extent to which it is affected”; (3) “the rationality of the connection between legislative means and purpose”; and (4) “the existence of alternative means for effectuating the purpose.” The court rather expeditiously analyzed the individual's interests as great, the state's interests as minor, and noted the lack of realistic alternatives.

Further, the court rejected Florida's argument that the plaintiffs must demonstrate discriminatory intent:

This is a wealth discrimination case. And the Supreme Court has squarely held that [Washington v.] Davis’s intent requirement is not applicable in wealth discrimination cases. See M.L.B., 519 U.S. at 126–27 (rejecting, in the context of a wealth discrimination claim, the argument that Washington v. Davis requires proof of discriminatory intent).

The Eleventh Circuit opinion concluded that although to the "extent a felon can pay LFOs, he or she must," but clearly affirmed the district court's order enjoining the state "from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations."

[image: Florida vote on Amendment 4 via]

February 19, 2020 in Criminal Procedure, Current Affairs, Elections and Voting, Equal Protection, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Race, Recent Cases | Permalink | Comments (0)

Thursday, January 2, 2020

Daily Read: Crenshaw & MacKinnon Propose a New Equality Amendment

In their article, Reconstituting the Future: The Equality Amendment, well-known feminist theorists Catharine A. MacKinnon & Kimberlé W. Crenshaw have argued that equality needs to be re-envisioned in an intersectional and progressive manner requiring constitutional amendment. In the Yale Journal Law Forum they contend their proposal

centers on rectifying the founding acts and omissions of race and sex, separately and together, and incorporates similar but distinct inequalities. It is informed by prior efforts to integrate equality into the constitutional landscape that have been decimated by political reversals and doctrinal backlash. It aggregates the insights, aspirations, and critiques of many thinkers and actors who have seized this moment to breathe new life into the nation’s reckoning with inequality. It neither looks back to celebrate amendments whose transformative possibilities have been defeated nor participates in contemporary hand-wringing over equality’s jurisprudential limitations. It seeks to make equality real and to matter now. We argue that a new equality paradigm is necessary and present one form it could take.

The article elaborates on the rationales for each section. The entire proposed amendment reads:

The Equality Amendment

Whereas all women, and men of color, were historically excluded as equals, intentionally and functionally, from the Constitution of the United States, subordinating these groups structurally and systemically; and

Whereas prior constitutional amendments have allowed extreme inequalities of race and/or sex and/or like grounds of subordination to continue with-out effective legal remedy, and have even been used to entrench such inequalities; and

Whereas this country aspires to be a democracy of, by, and for all of its people, and to treat all people of the world in accordance with human rights principles;

Therefore be it enacted that—

Section 1. Women in all their diversity shall have equal rights in the United States and every place subject to its jurisdiction.

Section 2. Equality of rights shall not be denied or abridged by the United States or by any State on account of sex (including pregnancy, gender, sexual orientation, or gender identity), and/or race (including ethnicity, national origin, or color), and/or like grounds of subordination (such as disability or faith). No law or its interpretation shall give force to common law disadvantages that exist on the ground(s) enumerated in this Amendment.

Section 3. To fully realize the rights guaranteed under this Amendment, Congress and the several States shall take legislative and other measures to prevent or redress any disadvantage suffered by individuals or groups because of past and/or present inequality as prohibited by this Amendment, and shall take all steps requisite and effective to abolish prior laws, policies, or constitutional provisions that impede equal political representation.

Section 4. Nothing in Section 2 shall invalidate a law, program, or activity that is protected or required under Section 1 or 3.

This just-published relatively brief (22 pages) essay would make a terrific addition to any Constitutional Law syllabus, as well as any course in Feminist Legal Theory or Gender and Law.

 

Screen Shot 2020-01-02 at 7.45.52 PM

pictured: Professors Crenshaw (left) & MacKinnon (right)

 

January 2, 2020 in Comparative Constitutionalism, Courts and Judging, Equal Protection, Fourteenth Amendment, Gender, Interpretation, Privacy, Race, Recent Cases, Scholarship | Permalink | Comments (0)

Wednesday, January 1, 2020

Daily Read: Chief Justice's Year-End Report on the Judiciary

For his 2019 Year-End Report on the Federal Judiciary, Chief Justice Roberts chose to include in his brief introductory remarks some words about democracy:

It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor. Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased to report that the judges and staff of our federal courts are taking up the challenge.

[emphasis added]. The emphasized bolded language, seeming to blame the population of the United States for taking democracy for granted and social media for spreading rumors did not sit well with some commentators who argued that Roberts should consider his own contributions to undermining democracy:  Shelby County (regarding voting rights);  Rucho (decided in June of this year holding partisan gerrymandering is a political question not suitable for the federal courts);   McCutcheon (finding campaign finance regulations unconstitutional).  For others, Roberts's language regarding civic education is welcome and demonstrates his recognition of the divides in the nation.

Noticeably absent from Roberts's remarks was any reference to the impeachment trial which looms in the Senate over which he will preside.  Also absent was any update on the sexual misconduct claims against members of the judiciary which he mentioned in last year's report.

January 1, 2020 in Campaign Finance, Courts and Judging, Elections and Voting, First Amendment, Fourteenth Amendment, News, Political Question Doctrine | Permalink | Comments (0)

Tuesday, December 31, 2019

Federal Judge Enjoins North Carolina's Voter-ID Law

In her opinion in North Carolina State Conference of the NAACP v. Cooper, Judge Loretta Biggs of the Middle District of North Carolina issued a preliminary injunction against North Carolina’s voter ID-requirements, known as S.B. 824.

Judge Biggs found that plaintiffs’ claim that SB 824 violated the Fourteenth Amendment’s Equal Protection Clause had a likelihood of success. Although the voter-ID law was facially neutral, Judge Biggs found that it enacted a racial classification. As she explained, in Village of Arlington Heights v. Metro. Housing Dev. Corp. (1977),

the Supreme Court set forth a non-exhaustive list of factors to guide this delicate investigation. Reviewing courts should consider: (1) the law’s historical background; (2) the specific sequence of events leading up to the law’s enactment, including any departures from normal legislative procedure; (3) the law’s legislative and administrative history; and (4) whether the law’s effect “bears more heavily on one race than another.” The Court further cautioned that, because legislative bodies are “[r]arely . . . motivated solely by a single concern,” a challenger need only demonstrate that “invidious discriminatory purpose was a motivating factor.” (emphasis added). “[T]he ultimate question,” then, is whether a law was enacted “because of,” and not “in spite of,” the discriminatory effect it would likely produce.

Applying the Arlington Heights factors, Judge Biggs found that the “historical background” of the law “weighs in favor of a finding of discriminatory intent with respect to S.B. 824’s enactment”:  “North Carolina has a sordid history of racial discrimination and voter suppression stretching back to the time of slavery, through the era of Jim Crow, and, crucially, continuing up to the present day.”

On the “sequence of events,” Judge Biggs found the record “mixed.” While the  “parliamentary requirements” were met, when “viewed with a wider lens, the circumstances surrounding S.B. 824 are unusual.” A majority of the Republican legislators who supported a previous bill on voter-ID declared unconstitutional by the Fourth Circuit “also voted for S.B. 824, and the same legislative leaders spearheaded both bills. "Further,she found it noteworthy that "those legislators were elected, at least in part, by way of district maps which were declared unconstitutional." Additionally, "after voters ratified the voter-ID amendment, S.B. 824 was enacted along (virtually) strict party lines and over the Governor’s veto.”

As to the legislative history, including statements, Judge Biggs considered the statements of legislators after the previous bill was declared unconstitutional as well as changes proposed or adopted, and “the decision not to include public-assistance IDs as an acceptable form of identification,” despite the Fourth Circuit’s criticism.  

Finally, Judge Biggs concluded that there was (or was likely to be) a racially disparate impact. Examining the specific provisions of the bill, including what types of identification were accepted and which were not:

the important metric for the Court’s purposes isn’t so much the variety of IDs as how readily they are possessed by North Carolinians of different backgrounds. In this sense, what is most striking about the state’s newly expanded list of IDs is that it continues to primarily include IDs which minority voters disproportionately lack, and leaves out those which minority voters are more likely to have.

One example was federal government identification, which was excluded. For Judge Biggs, these disparate types of identification mean not only that “minority voters will bear this effect more severely than their white counterparts,” but also that “a disproportionate number of African American and Hispanic” North Carolina citizens “could be deterred from voting or registering to vote because they lack, or believe they lack, acceptable identification and remain confused by or uninformed about S.B. 824’s exceptions.”

Thus, Judge Biggs found that the law was racially motivated. She further found that it was not supported by any of the proffered government interests.

Given that the Governor had vetoed this bill and the Fourth Circuit's decision holding a previous similar law unconstitutional, the prospects for an appeal will certainly be closely monitored.

December 31, 2019 in Elections and Voting, Equal Protection, Fourteenth Amendment, Opinion Analysis, Race | Permalink | Comments (0)

Friday, October 18, 2019

Federal Judge Enjoins Florida's Statute Conditioning Right to Vote on Payment of Finess and Fees

In an opinion in Jones v. DeSantis, United States District Judge Robert Hinkle of the Northern District of Florida held that the Florida statute requiring payment of fines, fees, and costs in order for a person convicted of a felony to have their voting rights restored is unconstitutional and should be enjoined.

Recall that Florida law disenfranchising persons convicted of felonies, held unconstitutional in 2018, was changed by a voter referendum to amend the Florida Constitution. Amendment 4.  Amendment 4 changed the Florida Constitution to provide:

any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

Screen Shot 2019-10-18 at 8.21.23 PMFla. Const. Art. VI §4.  After the amendment was passed, the Florida legislature passed SB7066, codified as Fla. Stat. §98.071 (5) which defined "completion of all terms of sentence" to include "full payment of any restitution ordered by the court, as well as "Full payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision, including, but not limited to, probation, community control, or parole."

Judge Hinkle first addressed Florida's motion to dismiss based on lack of standing and motion to abstain, finding them without merit. Judge Hinkle then discussed whether or not Amendment 4 authorized the statute extending the conditions to all restitution, fines, and fees, acknowledging that "the last word will belong to the Florida Supreme Court," on the matter of that interpretation. However, for purposes of the issue of constitutionality at this stage, the judge assumed that " “all terms of sentence” includes fines and restitution, fees even when unrelated to culpability, and amounts even when converted to civil liens, so long as the amounts are included in the sentencing document."

While the court acknowledged that a state can deny persons convicted of a felony the right to vote under the Fourteenth Amendment as construed by the Court in Richardson v. Ramirez (1974), here the state had amended its constitution not to do so, but with an exception for those persons convicted of felonies who could not meet their financial obligations. Thus, the Equal Protection Clause is implicated. On this point, Judge Hinkle found Eleventh Circuit precedent was clear, citing Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005) (en banc). The court quotes the en banc court in Johnson stating:

Access to the franchise cannot be made to depend on an individual’s financial resources. Under Florida’s Rules of Executive Clemency, however, the right to vote can still be granted to felons who cannot afford to pay restitution. . . . Because Florida does not deny access to the restoration of the franchise based on ability to pay, we affirm the district court’s grant of summary judgment in favor of the defendants on these claims.

[emphasis in original]. For Judge Hinkle, this is both the "starting point of the analysis of this issue, and pretty much the ending point." 

As support for Johnson and further explication of the standard of review under equal protection doctrine, Judge Hinkle reasoned:

Johnson does not lack Supreme Court support; it is consistent with a series of Supreme Court decisions.

In one, M.L.B. v. S.L.J., 519 U.S. 102 (1996), the Court noted the “general rule” that equal-protection claims based on indigency are subject to only rational-basis review. This is the same general rule on which the Secretary [of State of Florida] places heavy reliance here. But in M.L.B. the Court said there are two exceptions to the general rule. 

The first exception, squarely applicable here, is for claims related to voting.  The Court said, “The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license.”  The Court cited a long line of cases supporting this principle.  In asserting that the Amendment 4 and SB7066 requirement for payment of financial obligations is subject only to highly deferential rational-basis scrutiny, the Secretary ignores this exception.

The second exception is for claims related to criminal or quasi-criminal processes. Cases applying this exception hold that punishment cannot be increased because of a defendant’s inability to pay. See, e.g., Bearden v. Georgia, 461 U.S. 660 (1983) (holding that probation cannot be revoked based on failure to pay an amount the defendant is financially unable to pay). Disenfranchisement of felons has a regulatory component, see, e.g., Trop v. Dulles, 356 U.S. 86, 96-97 (1958), and when so viewed, disenfranchisement is subject only to the first M.L.B. exception, not this second one. But when the purpose of disenfranchisement is to punish, this second exception applies. If, after adoption of Amendment 4, the purported justification for requiring payment of financial obligations is only to ensure that felons pay their “debt to society”—that is, that they are fully punished—this second M.L.B. exception is fully applicable.

Another case applying these principles is Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), which was cited in both M.L.B. and the Johnson footnote. In Harper the Supreme Court said “[v]oter qualification has no relation to wealth.”  The Court continued, “[w]ealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process.”  And the Court added, “[t]o introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor.” The Secretary says none of this is true when the voter is a felon, but the Secretary does not explain how a felon’s wealth is more relevant than any other voter’s. And Johnson plainly rejected the Secretary’s proposed distinction.

[some citations omitted]

Judge Hinkle's remedy was not to entirely enjoin the enforcement of the statute. Instead, Florida must follow its procedures and amend them if need be to allow indigent persons to demonstrate their inability to pay any restitution, fines, or fees. Nevertheless, this is a victory for those who have argued that the Florida statute undermined Amendment 4.

[image via]

 

October 18, 2019 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Standing, State Constitutional Law | Permalink | Comments (0)

Monday, October 7, 2019

SCOTUS Hears Oral Arguments in Unanimous Jury Case

The United States Supreme Court heard oral arguments in Ramos v. Louisiana involving whether the Sixth Amendment confers a right to a unanimous jury verdict and whether that right is incorporated against the states through the Fourteenth Amendment. Justice Thomas was not on the bench for the argument.

Recall that the issue of which rights in the Bill of Rights are incorporated to the states has received recent attention: in McDonald v. City of Chicago (2010),  a 5-4 Court held that the Second Amendment is incorporated as against the states through the Fourteenth Amendment (with four Justices finding this occurred through the Due Process Clause and Justice Thomas stating the proper vehicle was the Privileges or Immunities Clause).  And just last Term, in Timbs v. Indiana, the United States Supreme Court unanimously concluded that the Excessive Fines Clause of the Eighth Amendment is applicable to the states through the Fourteenth Amendment. 

But embedded in Timbs was a dispute about whether the "right" and the "substance of the right" must be similar, a question that the Court did not address.  That dispute is at the heart of the incorporation doctrine surrounding the right to have a unanimous jury verdict.  Justice Alito explained the problem in footnote 14 of McDonald, after stating in the text that the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972).

Webster_County _Nebraska_courthouse_courtroom_3The precedential value of Apodaca, a case in which the Justices split 4-1-4, was at the center of the oral argument, although at times not as central as might be predicted.  The reliance of Louisiana on Apodaca in stare decisis considerations was certainly discussed at length,including the issue of how many inmates would be effected by the Court's ruling.  It was unclear how many persons were currently serving sentences under less than unanimous jury verdicts, although petitioner's counsel stated there were currently 36 cases on direct appeal.

However the Solicitor General of Louisiana largely advanced a different argument. She vigorously argued that the Sixth Amendment should not be read to require unanimous jury verdicts at all — whether or not in the context of incorporation. She stated that "nothing in the text, structure, or history of the Sixth Amendment requires unanimous jury verdicts." There seemed to be little support for this construction, although the Justices and opposing counsel did discuss the differences between unanimity and the "12" requirement which the Court has held is not constitutionally required.

There was little indication the Court was likely to revise its Sixth Amendment jurisprudence. And more indication that the Court would continue its trend of incorporating rights in the Bill of Rights as against the states, which would mean overruling Apodaca.

October 7, 2019 in Criminal Procedure, Due Process (Substantive), Federalism, Fourteenth Amendment, Interpretation, Oral Argument Analysis, Seventh Amendment, Sixth Amendment, Supreme Court (US) | Permalink | Comments (1)

Sunday, October 6, 2019

SCOTUS Terms Begins With LGBTQ Title VII Cases

The United States Supreme Courts 2019 Term begins with oral arguments in three cases that will impact LGBTQ equality.  To be clear, the Court is not considering constitutional law issues.  Instead all three cases involve statutory interpretation of the prohibition of discrimination "because of sex" in Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et. seq.

The two consolidated cases both involve sexual orientation discrimination. In Altitude Express v. Zarda, the Second Circuit en banc held that sexual orientation discrimination constituted a form of discrimination "because of sex" under Title VII, overruling previous Second Circuit decisions, and provoking the dissent of four judges.  Reaching the opposite conclusion, the Eleventh Circuit in Bostock v. Clayton County Board of Commissioners, clung to its previous precedent, first in an unpublished opinion affirming the dismissal of the complaint, and then in a denial of rehearing en banc requested by a member of the court, with two judges issuing a dissenting opinion. 

In deciding whether or not sexual orientation discrimination is included in Title VII's "because of sex" language, the primary precedent for the Court is its unanimous opinion in Oncale v. Sundowner Offshore Services (1998), authored by the late Justice Scalia.  The claim involved same-sex sexual harassment and the Court held:

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

The third case LGBTQ Title VII case to be considered by the Court in the Term's opening days is R.G. & G.R. Harris Funeral Homes v. EEOC.  The Sixth Circuit, in its unanimous panel opinion reversing the district judge, found that discrimination "against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII" under the "because of sex" discrimination prohibition. The court found that the "Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex" and that the religious claim under the Religious Freedom Restoration Act, RFRA, 42 U.S.C. § 2000bb–1, raised by the funeral home's owner failed because "Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination."

While the Court has not previously decided a case of transgender discrimination under Title VII, the Court's opinion in Price Waterhouse  v. Hopkins (1989) held that sex-stereotyping is included within the prohibition of discrimination "because of sex" under Title VII.  Hopkins is a fractured opinion, and none of the Justices who decided the case remain on the Court.

These statutory interpretation cases will provide an indication of the Court's views on LGBTQ equality, a subject last at the Court in the closely-divided same-sex case Obergefell v. Hodges (2015), decided under the Fourteenth Amendment. Further, these three Title VII cases may illuminate how the Court is considering precedent.

Finally, no matter how the Court decides these Title VII issues, Congress retains ultimately authority. In 2019, the House of Representatives passed "The Equality Act" which would amend the 1964 Civil Rights Act to include prohibitions of discrimination on the basis of sexual orientation and gender identity.  The Senate has yet to take up this legislation.

 

October 6, 2019 in Courts and Judging, Current Affairs, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Religion, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)

Thursday, August 15, 2019

SCOTUS Theater Event NYC August 18

Theatrical Performance featuring readings from

Rucho v. Common Cause

Department of Commerce v. New York

&

Flowers v. Mississippi

Https%3A%2F%2Fcdn.evbuc.com%2Fimages%2F68654007%2F31829097901%2F1%2Foriginal
A panel discussion afterwards with Ari Ezra WaldmanPerry Grossman  &  Ruthann Robson
 
More info and benefit tix here

August 15, 2019 in Courts and Judging, Fourteenth Amendment, Supreme Court (US), Theory | Permalink | Comments (0)

Friday, June 21, 2019

SCOTUS Finds State Cannot Tax Trust Beneficiary's "Income" Consistent With Due Process

In its opinion in North Carolina Dept of Revenue v. Kimberley Rice Kaestner 1992 Family Trust the United States Supreme Court unanimously held that a state's taxation of a trust based solely on the residence of a beneficiary — even where the beneficiary did not receive any income — violates due process.

Recall our discussion of the view from Professors Bridget Crawford and Michelle Simon that "Kaestner Trust is the most important due process case involving trusts that the Court has decided in over sixty years; it bears directly on the fundamental meaning of due process," and their discussion of the facts and merits of the case.  They urged the Supreme Court to affirm the conclusion of the North Carolina Supreme Court that the state lacked the power to tax consistent with due process and that's what the Court did.

Justice Sotomayor's succinct 16 page opinion is a model of clarity and analysis. The Court's conclusion clearly rests on the fact that there was no actual income or entitlement to distribution of any income from the trust managed by an out-of-state trustee:

We hold that the presence of in-state beneficiaries alone does not empower a State to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have no right to demand that income and are uncertain ever to receive it. In limiting our holding to the specific facts presented, we do not imply approval or disapproval of trust taxes that are premised on the residence of beneficiaries whose relationship to trust assets differs from that of the beneficiaries here.

The opinion sets out the doctrine:

The Due Process Clause provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” The Clause “centrally concerns the fundamental fairness of governmental activity.”

In the context of state taxation, the Due Process Clause limits States to imposing only taxes that “bea[r] fiscal relation to protection, opportunities and benefits given by the state.” The power to tax is, of course, “essential to the very existence of government,” but the legitimacy of that power requires drawing a line between taxation and mere unjustified “confiscation.” That boundary turns on the “[t]he simple but controlling question . . . whether the state has given anything for which it can ask return.”

The Court applies a two-step analysis to decide if a state tax abides by the Due Process Clause. First, and most relevant here, there must be “‘some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.’ ” Second, “the ‘income attributed to the State for tax purposes must be rationally related to “values connected with the taxing State.”’”

To determine whether a State has the requisite “minimum connection” with the object of its tax, this Court borrows from the familiar test of International Shoe Co. v. Washington (1945). A State has the power to impose a tax only when the taxed entity has “certain minimum contacts” with the State such that the tax “does not offend ‘traditional notions of fair play and substantial justice.’” The “minimum contacts” inquiry is “flexible” and focuses on the reasonableness of the government’s action. Ultimately, only those who derive “benefits and protection” from associating with a State should have obligations to the State in question.

[citations omitted]. 

Applying this doctrine to a trust involving an instate resident — whether beneficiary, settlor, or trustee—the Court stated that the

Due Process Clause demands attention to the particular relationship between the resident and the trust assets that the State seeks to tax. Because each individual fulfills different functions in the creation and continuation of the trust, the specific features of that relationship sufficient to sustain a tax may vary depending on whether the resident is a settlor, beneficiary, or trustee. When a tax is premised on the in- state residence of a beneficiary, the Constitution requires that the resident have some degree of possession, control, or enjoyment of the trust property or a right to receive that property before the State can tax the asset.  Otherwise, the State’s relationship to the object of its tax is too attenuated to create the “minimum connection” that the Constitution requires.

Here, where the only instate resident was a beneficiary who did not receive any income and did not have a right to demand any distribution, the "minimum connection" was not sufficient.

8a154a66-6f6d-4abc-845e-fc70ec3cd77b-GettyImages-175427818

Justice Alito wrote a brief concurring opinion, joined by Chief Justice Roberts and Justice Gorsuch, to stress that "the opinion of the Court merely applies our existing precedent and that its decision not to answer questions not presented by the facts of this case does not open for reconsideration any points resolved by our prior decisions" and the "Court's discussion of the peculiarities of this trust does not change the governing standard, nor does it alter the reasoning applied in our earlier cases."

June 21, 2019 in Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0)

SCOTUS Finds Batson Equal Protection Violation in Flowers v. Mississippi

In its opinion in Flowers v. Mississippi, the Court reversed the decision of a divided Mississippi Supreme Court that there was not a violation of the Equal Protection Clause in the selection of jurors under Batson v. Kentucky (1986).

The Court's opinion by Justice Kavanaugh, and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan, stressed the "extraordinary facts" of Flowers and stated the decision sought to simply "enforce and reinforce Batson by applying it" here. Indeed, the jury selection at issue was in the sixth trial of Flowers all prosecuted by the same lead prosecutor.  The Mississippi Supreme Court had reversed one conviction for prosecutorial misconduct, had reversed two other convictions for Batson violations, and two other trials had resulted in "hung juries."  The Court concluded that four "critical facts, taken together" led to the conclusion:

  • First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court. 
  • Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors.
  • Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors.
  • Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.

The Court's opinion rehearsed the Equal Protection Clause doctrine that led to Batson, starting as far back as Strauder v. West Virginia (1880).  The Court relied on its most recent Batson case, also a capital case, Foster v. Chatman (2016), and outlined the types of evidence relevant in a Batson challenge. It then discussed the evidence in detail as guided by the "critical facts" above. While the Court's opinion repeated that the case was "extraordinary" and that it was the combination of facts, Justice Alito wrote separately to stress the "unique combinations of circumstances present" as his reason for joining the Court's opinion.

Jury_box_croppedJustice Thomas dissented in an opinion joined in large part by Justice Gorsuch. In Parts I-III of Thomas's dissenting opinion, joined by Gorsuch, Thomas starts by recounting the crime alleged and then argues that there was "no evidence whatsoever of purposeful race discrimination by the State in selecting the jury during the trial below."  Further: "Each of the five challenged strikes was amply justified on race- neutral grounds timely offered by the State at the Batson hearing. None of the struck black jurors was remotely comparable to the seated white jurors. And nothing else about the State’s conduct at jury selection—whether trivial mistakes of fact or supposed disparate questioning— provides any evidence of purposeful discrimination based on race."  As in the Court's opinion, the dissenting opinion then discusses the facts, drawing different conclusion. Yet these conclusions exist in the shade of Part IV of Thomas's dissenting opinion — the portion Gorusch did not join — criticizing Batson as disregarding limitations on standing and "giving a windfall to a convicted criminal" who "suffered no injury."  Thomas concludes by stating that the "State is perfectly free to convict Curtis Flowers again" and that while the "Court's  opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families." As the only Black Justice on the Court, Thomas's rejection of Batson is sure to prompt discussion.

 

June 21, 2019 in Criminal Procedure, Equal Protection, Fourteenth Amendment, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)