Saturday, April 20, 2019
The Fifth Circuit ruled earlier this week that a sheriff office's official Facebook page was a public forum; that the office's posting rules were based on the viewpoint of the poster, in violation of the First Amendment; and that the rules constituted official county policy. The ruling reverses a lower court's denial of a preliminary injunction and remands the case for further proceedings. (That is, the case is still at a preliminary stage, though the ruling answers many of the legal questions.)
The case, Robinson v. Hunt County, Texas, tested the Hunt County Sheriff's Office Facebook page. According to the page, "We welcome your input and POSITIVE comments regarding the Hunt County Sheriff's Office." Moreover, "We encourage you to submit comments, but please note that this is NOT a public forum." On January 18, 2017, the HCSO Facebook account posted this message:
We find it suspicious that the day after a North Texas Police Office is murdered we have received several anti-police calls in the office as well as people trying to degrade or insult police officers on this page. ANY post filled with foul language, hate speech of all types and comments that are considered inappropriate will be removed and the user banned. There are a lot of families on this page and it is for everyone[,] and therefore we monitor it extremely closely. Thank you for your understanding.
Robinson and others posted on the page criticizing the policy as a violation of the First Amendment. Robinson's post was removed, and she was banned from the page. She sued individual officers and the county and moved for a preliminary injunction. The district court denied the injunction and later dismissed the case for failure to state a claim.
The Fifth Circuit reversed as to the county. (Robinson didn't appeal as to the individual officers.) The court held that she sufficiently pleaded a constitutional violation, because the defendants' actions constituted viewpoint discrimination in violation of the First Amendment. The court said that the Facebook page was a public forum, and it didn't matter which kind (designated or limited), because either way viewpoint-based discrimination was impermissible. The court held that the policy constituted official policy (for purposes of Robinson's Section 1983 claim against the county), because Robinson "has plausibly alleged that Hunt County had an explicit policy of viewpoint discrimination on the HCSO Facebook page," through the sheriff's official control of the page.
The court sent the case back for further proceedings.
Friday, April 19, 2019
The Ninth Circuit ruled yesterday that the federal government was unlikely to succeed in its challenge to certain California "sanctuary" laws that protect undocumented immigrants from federal immigration enforcement. The ruling denies the government's motion for a preliminary injunction against these laws. At the same time, the court remanded one particular provision to the lower court for further consideration.
The ruling, while preliminary, is yet another blow to the federal government's efforts to clamp down on sanctuary jurisdictions.
The case, United States v. California, tested three of California's "sanctuary" provisions. The federal government argued that they violated the doctrine of intergovernmental immunity (which prohibits state governments from regulating the federal government) and that federal law preempted them.
The first, AB 450, prohibits public and private employers in the state from providing consent to an immigration enforcement agent to enter any nonpublic area of their property and to review their employment records without a subpoena or warrant. It also requires employers to provide employees with a notice of inspection by an immigration agency within 72 hours of receiving the notice. The court rejected the government's intergovernmental immunity claim, because "AB 450 is directed at the conduct of employers, not the United States or its agents, and no federal activity is regulated." It rejected the obstacle-preemption argument, because the provision regulates the relationship between employers and their employees, not between federal immigration authorities and the employees they regulate, and therefore it "imposes no additional or contrary obligations that undermine or disrupt the activities of federal immigration authorities."
The second, AB 103, requires the California attorney general to inspect "county, local, or private" detention facilities where immigrants are housed and to review the conditions of confinement, including the "standard of care and due process provided to" detainees, and "the circumstances around their apprehension and transfer to the facility." The court ruled that the government was unlikely to succeed on its intergovernmental immunity argument as to the provision's burdens that duplicated preexisting inspection requirements, including the due process provision. But it ruled that the government was likely to succeed as to the provision's excessive burdens that fell uniquely on the federal government (the requirement that the state ag examine the circumstances surrounding the apprehension and transfer of immigration detainees). The court ruled that the government was not likely to succeed on the merits of its preemption claim, because "California possesses the general authority to ensure the health and welfare of inmates and detainees in facilities within its borders," and the government failed to show that Congress intended to supersede this authority.
The final provision, SB 54, restricts law enforcement from cooperating with federal immigration authorities in immigration enforcement. The court held that the federal government's preemption claim runs headlong into the Tenth Amendment's anti-commandeering principle. That's because the federal government can't force the state or its officers into participating in federal immigration enforcement, even if "SB 54 may well frustrate the federal government's enforcement efforts." The court rejected the federal government's intergovernmental immunity argument, because accepting that claim "would imply that California cannot choose to discriminate against federal immigration authorities by refusing to assist their enforcement efforts--a result that would be inconsistent with the Tenth Amendment and the anticommandeering rule." Finally, the court ruled that SB 54 does not directly conflict with 8 U.S.C. Sec. 1373, which prohibits state and local governments from prohibiting their officers from communicating with federal immigration officials about the immigration status of any person.
Wednesday, April 17, 2019
The Fourth Circuit ruled today that a Rastafarian prisoner in North Carolina couldn't show that prison officials denied his religious-exercise rights when they rejected his request to celebrate Rastafarian holy days through communal feasts and gatherings.
The case, Wright v. Lassiter, arose when a Rastafarian prisoner asked for communal feasts as part of his religious practice. When officials declined, he sued, arguing that officials violated his free-exercise rights under RLUIPA and the Free Exercise Clause.
But according to the court there was one problem: The plaintiff was the only Rastafarian, and the only prisoner who would attend the communal feasts and gatherings, in the prison. This meant that the officials didn't cause or impose a substantial burden on his religious exercise (the trigger for both RLUIPA and free exercise claims); instead, the absence of any other Rastafarian did:
Wright's causation problem stems from the fact that he has requested communal gatherings and feasts. There is no such thing as a community of one, and Wright agreed at oral argument tha the was not seeking a feast for himself alone. He therefore had to show that, but for the policies that allegedly prohibit the requested holiday gatherings, other inmates would join in the gatherings. To put it in the negative, if other inmates would not join in his gatherings, then the prison's restrictive policies would not be a factual cause of the burden he claims to have experienced.
Absent causation, the court said, it didn't even need to evaluate under strict scrutiny (under RLUIPA) or rational basis review (under the Free Exercise Clause).
The Seventh Circuit last week rebuffed a challenge to Illinois's law that prohibits residents of states that lack substantially similar licensing standards to even apply for an Illinois concealed-carry license. The ruling keeps Illinois's law on the books. (This is the second time the court ruled on the issue, the same way.)
The case, Culp v. Raoul, involved Second Amendment and related challenges to the reciprocal feature of Illinois's concealed-carry law. Here's how it works:
Illinois residents can apply for and receive a concealed-carry license upon a showing that the applicant isn't a public danger and, for the last five years, hasn't been a patient in a mental hospital, hasn't been convicted of certain crimes, and hasn't participated in a residential or court-ordered drug or alcohol treatment program. The state engages in an extensive background check of each applicant, and a daily check against the Illinois Criminal History Record Inquiry and the Department of Human Service's mental health system.
But for out-of-staters, the law only permits residents of states with substantially similar licensing requirements to apply for an Illinois concealed-carry license. The reason: Illinois authorities don't have access to criminal and mental health records of other states, so can't do the same kind of background check of their residents. At last count, there were just four such states; those states' residents can apply. Residents of all other states can't even apply for an Illinois concealed-carry license.
Residents of non-substantially-similar states sued, arguing that the law violated the Second Amendment, equal protection, and Article IV privileges and immunities. The court rejected those claims.
As to the Second Amendment, the court said that the law permissibly restricted out-of-staters' Second Amedment rights based on an "important and substantial" reason, enforcement of the criminal-history and mental-health standards, and that while it wasn't a perfect fit, it was close enough for intermediate scrutiny:
And the absence of historical support for a broad, unfettered right to carry a gun in public brings with it a legal consequence: the Second Amendment allows Illinois, in the name of important and substantial public-safety interests, to restrict the public carrying of firearms by those most likely to misuse them.
As to equal protection, the court noted that there's no discrimination against out-of-staters, because "Illinois's licensing standards are identical for all applicants--residents and non-residents the same." The court said that any discrimination between different states' non-residents was justified, because "Illinois has demonstrated that the substantial-similarity requirement relates directly to the State's important interest in promoting public safety by ensuring the ongoing eligibility of who carries a firearm in public. Intermediate scrutiny requires no more."
As to privileges and immunities, the court said concealed carry isn't a protected economic interest, and "we are equally unaware of a decision holding that a privilege of citizenship includes a right to engage in the public carry of a firearm, or, even more specifically, the right to carry a concealed firearm in another state." Moreover, the Clause "does not compel Illinois to afford nonresidents firearm privileges on terms more favorable than afforded to its own citizens."
The court noted that non-residents can still carry and use their firearms in the state. Just not concealed carry.
Judge Manion dissented, arguing that the law was way too rough a cut (both overinclusive and underinclusive) to meet the state's interests. "Illinois has utterly failed to show that banning the residents of an overwhelming majority of the country from even applying for a license is a 'close fit' to its goal."
Wednesday, April 10, 2019
Judge Reggie B. Walton (D.D.C.) ruled that plaintiffs lacked standing to challenge federal regulations that specified a process for certification of state capital counsel in post-conviction proceedings. The ruling means that the regs stay on the books, unless and until a plaintiff who can demonstrate a concrete harm brings a challenge.
Judge Walton's ruling follows a 2016 Ninth Circuit ruling by similar plaintiffs against the same regs.
The case tests DOJ's 2013 regs to certify state's mechanism for providing counsel to indigent prisoners in state postconviction proceedings. Under the Antiterrorism and Effective Death Penalty Act of 1996, if a state provides a mechanism for counsel, and gets it certified by DOJ, then (1) the capital prisoner gets an automatic stay from execution while postconviction and federal habeas proceedings are pending, (2) the statute of limitations for filing a federal habeas petition is shortened from one year to six months from the date of final judgment of the state courts on direct appeal, and (3) federal courts have to give priority status to the habeas case and resolve it within time periods set by statute.
DOJ implemented regs in 2013 to set standards and a process for DOJ certification of a state mechanism. (Again, certification would trigger the three things above, including the compressed time to file a federal habeas petition.) The regs allow the AG to "determine the date on which the state established its mechanism." And they include a retroactivity provision: "The certification is effective as to the date the Attorney General finds the state established its adequate mechanism; as this date can be in the past, a certification decision may be applied retroactively."
Under the plain language of AEDPA and the regs, the AG's determination of the certification date--especially a retroactive determination--could throw a serious curve ball at capital attorneys and prisoners in the postconviction pipeline, by suddenly (or even retroactively) shortening their deadline. Even without formal certification (yet), attorneys that represent capital prisoners in postconviction cases have to adjust their practices in accepting new clients.
So when Texas applied for certification, but before it received certification, the Texas Defender Service and individual prisoners sued to halt and set aside the regs. But the court dismissed the case for lack of standing, and lack of ripeness.
Applying Havens Realty Corp. v. Coleman, the court held that
because "TDS's mission is to establish a fair and just criminal justice system in Texas" and a significant aspect of TDS's work includes "represent[ing] death-sentenced prisoners in postconviction proceedings in federal court," the 2013 Regulations--particularly the provision allowing for the potential retroactive application of certification--is "'at loggerheads' with [TDS's] mission-driven activities."
But "TDS's position that it has been 'forced to expend substantial resources to prepare its comments [to Texas's petition]' and that its staff 'divert[ed] their attention from their ordinary responsibilities,' fails to satisfy the second prong of injury-in-fact under Havens because TDS has not shown that preparing comments to advocate against Texas's certification was an 'operational cost beyond those normally expended to carry out its advocacy mission.'"
As to the individual plaintiffs, the court held that the 2013 regs weren't aimed at them, and that their rights therefore could only "be affected indirectly, if the sentencing state requests certification and if the Attorney General finds that the state's capital-counsel mechanism comports with" the Act and regs. "The 2013 Regulations therefore do not have the coercive impact necessary to confer standing on the individual plaintiffs to bring their preenforcement challenge to the 2013 Regulations."
The court also ruled that the plaintiffs' claims weren't ripe for review.
The D.C. Circuit ruled that a federal prisoner's civil rights claims didn't become moot simply because he was transferred to another prison. The ruling goes against the general principle that a prisoner's "transfer or release from a prison moots any claim he might have had for equitable relief arising out of the conditions of confinement in that prison." According to the D.C. Circuit, that's because this prisoner alleged that he had been subject to the practices in different facilities, and because he alleged a policy or practice of violating regulations that would apply to him in any facility.
The case, Reid v. Hurwitz, arose when federal prisoner Gordon Reid alleged that federal prison officials failed to deliver his magazine subscriptions and deprived him of outside exercise during his repeated stays in the special housing unit, and deprived him of meaningful access to administrative remedies. Importantly, he alleged that with each violation, prison officials cited "BOP policy." Reid sought declaratory, injunctive, and mandamus relief.
The district court dismissed the case, citing the "normal" rule that a prisoner's claims for equitable relief become moot when he or she leaves the prison. But the D.C. Circuit reversed, holding that Reid's harms are "capable of repetition but evading review." The court wrote that Reid alleged that he was in the SHU in different facilities, that he suffered the same harms in different SHUs, and that prison officials gave the same explanation: "policy." Add those up, and you get "capable of repetition but evading review." Here's the court:
The BOP's argument ignores that Reid's complaint identifies not only single instances but also BOP's alleged policy or practice or violating its own regulations to the detriment of Reid. In particular, Reid has alleged three key facts. First, he has been housed at eight different SHUs since 2008. Second, he has suffered a uniform set of deprivations at each SHU that contradict BOP's written regulations. Third, each time he has suffered a deprivation, he alleges that BOP officials justify the deprivations based on "BOP policy." Having been placed in a SHU in myriad different BOP institutions, subject each time to a restriction allegedly imposed under a purported BOP policy or practice contravening BOP regulations, Reid has proffered a logical theory that the challenged actions reasonably will recur despite his current transfer out of the SHU.
Both the District Court and the government on appeal have failed to grapple with Reid's claim that he was repeatedly subjected to deprivations in the SHU due to an ongoing policy or practice of the BOP.
At the same time, the court acknowledged that there may be several other reasons for the district court to dismiss the case on remand.
Judge Katsas dissented, arguing that "[w]e should reject Reid's conclusory allegation that BOP has implemented unlawful nationwide policies. And without such unifying policies, the specific disputes alleged here are not capable of repetition."
Monday, April 8, 2019
The D.C. Circuit on Friday rejected the plaintiffs' facial vagueness challenge to D.C.'s anti-obstruction statute. The ruling means that the statute stays on the books.
The case, Agnew v. D.C., tests D.C.'s anti-obstruction statute. That provision makes it a misdemeanor "to crowd, obstruct, or incommode" the use of streets, sidewalks, or building entrances, and "continue or resume the crowding, obstructing, or incommoding after being instructed by a law enforcement officer to cease" doing so.
Three plaintiffs challenged the law as unconstitutionally vague. One was arrested after he failed to comply with an officer's warning to vacate a ramp near his apartment building. (He had stepped outside his home to get some air and was standing on the ramp as the officer drove by.) Another was arrested after he failed to comply with that same officer's warning to get off the stoop of his mother's building (where he went for a smoke). The third was arrested on a sidewalk in front of a business after she failed to comply with an officer's instruction to leave.
None actually obstructed anything, and their criminal cases were dismissed for lack of prosecution.
They sued, arguing that the law was unconstitutionally vague on its face, because it is subject to arbitrary and discriminatory enforcement. The court rejected the challenge:
Because it is readily apparent that the terms "to crowd, obstruct, or incommode" the use of public ways mean to block or hinder other people's ability to pass through or use a common space, we hold that the anti-obstructing statute is not unconstitutionally vague on its face.
The court noted that because the plaintiffs lodged only a facial challenge--and because their individual relief depended on that challenge's success--it didn't need to rule on individual relief.
Monday, April 1, 2019
Court Rejects As-Applied Challenge to Death Penalty Protocol by Prisoner with Rare Medical Condition
A sharply divided Supreme Court ruled today that a condemned prisoner failed to show that Missouri's lethal injection protocol violated the Eighth Amendment as applied to him, based on his rare medical condition. The Court split 5-4 along conventional conservative-progressive lines.
The case, Bucklew v. Precythe, arose when Russell Bucklew argued that Missouri's single-drug lethal-injection protocol was likely to cause severe pain, based on his rare medical condition, cavernous hemangioma. The condition causes vascular tumors to grow in Bucklew's head, neck, and throat. The tumors obstruct his airways and make it difficult for him to breathe, especially when he lies flat. As a result, he has to sleep at a 45 degree angle and adjust his head throughout the night. He often wakes up gasping for air. Moreover, the tumors hemorrhage with even minimal contact, and he wakes up each morning with blood on his face that leaked from tumors on his nose and mouth overnight.
Bucklew alleged that the state's lethal injection protocol would likely cause him severe pain because of his condition. (He only challenged the protocol as applied to him, not on its face.) His principal expert, an anesthesiologist, testified extensively as to the likely pain. As required by Baze and Glossip, Bucklew proposed nitrogen gas as an alternative.
Justice Gorsuch, writing for the five conservatives, rejected the challenge. Drawing extensively on history, the Court ruled first that the Eighth Amendment only prohibits only those punishments with a "superaddition" of "terror, pain, or disgrace," and that a prisoner "must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason." (The Court declined to say whether this required that an inmate show that the state intended its method to inflict pain, as Justices Thomas and Scalia would have had it.) The Court ruled that this standard governed as-applied as well as facial challenges to a state's method of execution, and thus governed Bucklew's challenge.
The Court ruled next that Bucklew failed to meet the standard. The Court said that while he identified an alternative (nitrogen gas), he failed to give the details:
He has presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks.
The Court also held that Bucklew failed to show that the alternative "would significantly reduce a substantial risk of severe pain."
Justice Thomas concurred, writing that he "adhere[s] to [his] view that 'a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain" and "to explain why Justice Breyer's dissenting opinion does not cast doubt on this standard."
Justice Kavanaugh concurred, writing to say that the "the burden of the alternative-method requirement 'can be overstated,'" and "to underscore the Court's additional holding that the alternative method of execution need not be authorized under current state law--a legal issue that had been uncertain before today's decision."
Justice Breyer wrote the dissent, joined by Justices Ginsburg, Sotomayor, and Kagan. Justice Breyer argued that Bucklew "cites evidence" and "established a genuine issue of material fact" that the state's method of execution will cause him excessive pain; that the alternative-method requirement doesn't apply in Bucklew's as-applied challenge; and that in any event Bucklew satisfied that burden.
Justice Sotomayor separately dissented, arguing that "there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions."
Saturday, March 30, 2019
In his opinion in Peltier v. Charter Day School, Inc., Senior United States District Judge Malcolm J. Howard in the Eastern District of North Carolina held that the dress code of the Charter Day School corporation mandating that girl students wear skirts violated the Equal Protection Clause.
The bulk of Judge Howard's 36 page opinion concerned the threshold matter of state action given that Charter Day School (CDS) is a private nonprofit corporation. CDS described itself as a "traditional values" charter school and operated under North Carolina statutes allowing and regulating charter schools. Judge Howard determined that CDS had responsibility for the dress code (unlike another defendant), was viewed as a public school under state law, was performing an historical, exclusive, and traditional state function, and was subject to pervasive regulation including regarding suspensions for dress code violations.
On the Equal Protection Clause issue, Judge Howard noted that grooming and dress codes did not fit neatly into the doctrine of sex discrimination articulated in United States v. Virginia (VMI) (1996), noting that the CDS argued that intermediate scrutiny should not apply, but rather a "comparable burden" analysis. However, Judge Howard determined that even under a "comparative burden" analysis, the skirts requirement for girls did not "pass muster." Judge Howard stated that the skirts requirement was not consistent with community norms: women and girls have worn both pants and skirts in school and professional settings since the 1970s.
In considering the interests CDS asserted, including that the skirts requirement "helps the students act appropriately toward the opposite sex," Judge Howard found that there was no evidence to substantiate this, including a comparison to the days when there were exceptions to the only-skirts requirement. Moreover, the CDS board members could not explain when deposed how the skirts requirement furthered the goal. And while CDS stressed their students' good performance, there was no link between the performance and the skirts policy.
As Judge Howard implied, mandating girl students wear skirts has become anachronistic. However, as Judge Howard also noted, this does not mean that all gender-specific dress codes violate equal protection. For more about school dress codes and enforcing gender norms, see Dressing Constitutionally.
image: girls in pants in Minneapolis, 1929, via
Thursday, March 28, 2019
Judge James E. Boasberg (D.D.C.) ruled in two separate cases that the Department of Health and Human Services's approval of work requirements for Medicaid by Arkansas and Kentucky violated the Administrative Procedure Act. The rulings send the cases back to HHS for further consideration of the requirements.
The rulings are a victory for opponents of Medicaid work requirements--at least for now. It is possible that the states and HHS on remand could come up with better reasons for imposing the requirements (reasons more consistent with the purposes of the Medicaid program, that is), or that Congress could change the Medicaid program to authorize work requirements. But barring some more Medicaid-consistent reason for the requirements (or a congressional change, which seems unlikely, at best), it doesn't look like this court will approve any HHS authorization for these states' work requirements.
Just to be clear: the ruling does not halt all work requirements, though. It just says that HHS has to reconsider its approval of work requirements for these two states. The Trump Administration has approved eight states for work requirements, and seven other states are in the pipeline.
One ruling says that HHS's approval of Arkansas's work-requirement "demonstration project" violated the APA, because HHS failed to consider that the requirement would lead a substantial number of Arkansas residents to be disenrolled from Medicaid. That's a problem, because the core purpose of Medicaid is to "furnish medical assistance" to those who cannot afford it. If the work requirement cuts recipients off, then, said the court, it fails to advance the core purpose of the Medicaid program. And because HHS didn't consider that in approving the project, HHS's approval was arbitrary and capricious in violation of the APA.
The court's reasoning in the Arkansas case follows its same reasoning in the Kentucky case from last summer. The court sent the Kentucky case back to HHS for further consideration, and the second recent ruling deals with HHS's approval of Kentucky's work requirement after reconsideration.
In that second case, round 2 of the Kentucky challenge, HHS advanced a new argument on remand: If Kentucky's work requirement isn't approved, then Kentucky would have to un-expand its Medicaid expansion (under the Affordable Care Act) in order to ensure that its Medicaid program remained viable. The un-expansion would result in even more recipients being thrown off Medicaid than the work requirement. In other words, Kentucky threatened to un-expand Medicaid (and cut even more people off) if HHS didn't approve the work requirement.
The court had none of it: "The Court cannot concur that the Medicaid Act leaves the Secretary so unconstrained, nor that the states are so armed to refashion the program Congress designed in any way they choose." The court sent Kentucky's request back to HHS for reconsideration, again.
Next step in both cases: HHS reconsideration, yet again. In the meantime, the states can't impose their proposed work requirements.
Wednesday, March 20, 2019
The Eleventh Circuit ruled in Alabama Department of Corrections v. Advance Local Media that a media outlet that intervened in a death-penalty case had a common law right to access the state's death penalty protocol. The ruling means that the state must release the protocol (with some redactions).
The case arose when a Doyle Lee Hamm, a condemned prisoner, challenged his scheduled method of execution based on his medical conditions. After one botched attempt, Hamm filed an amended complaint again challenging the protocol. Hamm and the state agreed to dismiss the claims, and the court dismissed the case. On the same day, Alabama Media Group moved to intervene and to unseal records, transcripts, and briefs discussing Alabama's protocol.
Alabama argued, among other things, that the media group didn't have a right to access the protocol, because the state never entered the protocol into the record. Instead, the state provided it to the court for in camera review. The trial court nevertheless ruled in favor of the media group, and the Eleventh Circuit affirmed.
The court ruled that the media group had a common law right to access the protocol. It didn't matter that the state didn't enter it into the record; instead, it only mattered whether the protocol was integral to the resolution on the merits. As the court explained:
we hold that materials submitted by litigants--whether or not they are formally filed with the district court--that are "integral to the 'judicial resolution of the merits'" in any action taken by that court are subject to the common law right of access and the necessary balancing of interests that the right entails.
As to the balancing of interests, the court said that the state's interests in withholding the protocol were outweighed by the media group's interests in gaining access to it. The court noted that the state's interest in security could be accommodated by selective redacting.
Tuesday, March 19, 2019
The Supreme Court ruled today that a treaty between the United States and the Yakama Nation preempts Washington's tax on "motor vehicle fuel importer[s]" who bring fuel into the state by "ground transportation." The ruling in Washington State Dept. of Licensing v. Cougar Den, Inc. means that Washington can't apply its tax to Yakama Nation members who import fuel.
The case pits a provision of the treaty against the state tax. The treaty provision reserves Yakamas' "right, in common with citizens of the United States, to travel upon all public highways," while Washington taxes "the importation of fuel, which is the transportation of fuel." The Court held, 5-4, that the treaty provision preempts the state tax. (Justice Gorsuch joined the progressives; the other four conservatives dissented.)
Justice Breyer wrote for a plurality that included Justices Sotomayor and Kagan. As to the tax, he wrote that it applies to transportation of fuel, and not just the possession of fuel, and thus implicated the treaty's right to travel. As to the treaty, he said that the the language "in common with citizens of the United States" was more than just an equality clause. (Mere equality would have meant only that Yakamas enjoyed the same right to travel as U.S. citizens, and not an especial right to travel to trade goods.) Justice Breyer wrote that prior Court decisions interpreting similar clauses in the treaty gave it broader sweep, and that this was based on the Yakamas' understanding of the treaty when it was signed. Moreover, he said that "the historical record adopted by the agency and the courts below indicates that the right to travel includes a right to travel with goods for sale or distribution." Finally, he wrote that imposing a tax on "traveling with certain goods burdens that travel." Putting the these points together, he concluded that the treaty provision preempts the state tax.
Justice Gorsuch wrote separately, joined by Justice Ginsburg, in a somewhat more muscular opinion--and one even more overtly favoring the Yakamas. In addition to making points similar to Justice Breyer's, he pointed out that the state court relied on factual findings from an earlier case as to the Yakamas' understanding of the treaty (which was broader than mere equality), and ruled that Washington was estopped from challenging those findings. He said that the findings were binding on the Court as well. Justice Gorsuch ended with this:
Really, this case just tells an old and familiar story. The State of Washington included millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises. The State is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more. But today and to its credit, the Court holds the parties to the terms of their deal. It is the least we can do.
Chief Justice Roberts, joined by Justices Thomas, Alito, and Kavanaugh, dissented. He argued that the state tax applied to possession of fuel, not to transportation, and therefore didn't implicate the treaty's right to travel at all. Justice Kavanaugh separately dissented, joined by Justice Thomas. He argued that the treaty's plain language only protected an equal right to travel, not an especial right to travel.
Monday, March 18, 2019
Attorney General Barr invoked the state secrets privilege to protect material in Twitter's suit against the Justice Department for forbidding it from publishing information on National Security Letters and surveillance orders that it received from the government.
The case, Twitter v. Barr, arose when Twitter sought to publish a Transparency Report describing the amount of national security legal process that the firm received in the second half of 2013. Twitter sought to publish this information because it said that the government wasn't completely forthcoming in its public comments about the extent of national security legal process served on it. DOJ declined Twitter's request to publish the information, citing national security concerns, and Twitter sued under the First Amendment. Here's Twitter's Second Amended Complaint.
DOJ now asserts the state secrets privilege in order to protect certain information in the pending case. But there are two things that make the assertion a little unusual. First, DOJ asserts the privilege not against the Transparency Report itself or the information contained in it, but instead against a confidential submission (the "Steinbach Declaration") that explains why Twitter's request to publish this information could harm national security. In other words, DOJ says that the explanation why the underlying information could harm national security itself could harm national security.
Next, Twitter's attorney now has a security clearance to view the material, yet DOJ argues that the privilege should still protect the material--even from Twitter's security-cleared attorney. (DOJ's position has been that the court could review material in camera and ex parte and make a determination as to whether it could come in.) In fact, much of the government's submission is dedicated to arguing why privileged material can't be released to a security-cleared plaintiff's attorney. (In short: It would increase the risk of disclosure.)
The government argues that the privileged material is such an important part of Twitter's suit that, without it, the court must dismiss the case.
DOJ cites four categories of privilege-protected classified national security information that appear in the Steinbach Declaration: (1) information regarding national security legal process that has been served on Twitter; (2) information regarding how adversaries may seek to exploit information reflecting the government's use of national security legal process; (3) information regarding the government's investigative and intelligence collection capabilities; and (4) information concerning the FBI's investigation of adversaries and awareness of their activities.
The government's submission is supported by declarations of AG Barr and Acting Executive Assistant Director of the National Security Branch of the FBI Michael McGarrity. The government separately submitted a confidential version of McGarrity's declaration.
Importantly, AG Barr's declaration draws on the Attorney General's Policies and Procedures Governing Invocation of the State Secrets Privilege, adopted in the Obama Administration as a response to the widely regarded overly aggressive assertions of the privilege during the Bush Administration. AG Barr's references to this document suggest that the current DOJ will respect the principles stated in it.
Friday, March 15, 2019
In his opinion in Cockrum v. Donald J. Trump for President, Inc., Senior United States District Judge Henry Hudson of the Eastern District of Virginia dismissed the complaint by two contributors and a staffer of the democratic National Committee against the Trump Campaign. The plaintiffs alleged that their personal information was "illegally obtained Russian intelligence operatives during the Russian hack of computer servers" belonging to the DNC, and then in a conspiracy with the Campaign and with WikiLeaks, emails with their personal information was released.
Judge Hudson's 35 page opinion first considered whether the plaintiffs claims were barred by the First Amendment as the Campaign argued, relying on Bartnicki v. Vopper (2001). Under Bartnicki, if a person lawfully obtains truthful information about a matter of public concern, the publication cannot be constitutionally punished. Judge Hudson distinguished Bartinicki because the complaint alleged that the information was not obtained legally but through a conspiracy with the Kremlin and WikiLeaks. Additionally, the private facts disclosed by the emails did not themselves have a public concern. Judge Hudson therefore concluded that, taking the allegations of the complaint as true, at this point the Campaign had no First Amendment protection.
However, Judge Hudson also ruled that the complaint failed to state a claim for relief in any of its counts.
For Count I, a claim that the Campaign violated 42 U.S.C. §1985(3), first enacted in 1871 and known as the Ku Klux Klan Act, Judge Hudson found that it was insufficient to allege that there was a "conspiracy to intimidate lawful voters from giving support or advocacy to electors for President and to injure citizens in person or property on account of such support or advocacy." The statute, Judge Hudson ruled, is remedial only and there must therefore be an allegation of a violation of a pre-existing constitutional right. This right, Judge Hudson ruled, could only be a First Amendment right, which would therefore require state action. The complaint did not contain sufficient allegations of state action, but instead stated that the Trump Campaign was a Virginia corporation. "Taking this fact to its logical conclusion, the Campaign is incapable of state action because it is a private entity," Judge Hudson wrote. Interestingly, this would similarly vitiate any action against the Ku Klux Klan as the Act originally intended to address.
Counts II-IV sounded in tort, three for the tort of public disclosure or private facts and one for intentional infliction of emotional distress. On the state tort claims involving publication of private facts, Judge Hudson provided a detailed lex loci analysis to determine the "place of the wrong" and thus which state law should apply, an important point because many states do not recognize the tort of private disclosure of public facts. Ultimately, the court determined that the act of publication could not be determined and thus the law of the forum state should apply; but given that Virginia did not recognize a common law right to privacy, there was no claim stated. As to the claim for intentional infliction of emotional distress, Judge Hudson found that the allegations did not rise to the level of extreme and outrageous required by the tort. The court dismissed the state tort law claims without prejudice.
The dismissal is a final order and it will be interesting to see if the plaintiffs appeal, especially on the §1985 claim.
Thursday, March 14, 2019
In its opinion in Zervos v. Trump, the Appellate Division, First Department of the New York State courts held that the lawsuit for defamation could proceed against the President while he is in office.
Recall that in March 2018, the New York state trial judge ruled the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status. The trial judge decided that the holding of the United States Supreme Court in its unanimous 1997 decision of Clinton v. Jones that then-President Clinton was subject to suit in federal court extended to state court. Recall also that soon thereafter, the appellate division in New York denied President Trump's motion for a stay, in a summary decision, and likewise soon thereafter, the New York Court of Appeals (NY's highest court) dismissed the appeal by Trump on the ground that the order appealed from does not finally determine the action.
In today's divided decision, the appellate division reached the merits of the trial judge's opinion with the majority affirming the decision regarding the President's amenability to suit, and all five judges agreeing that there was a claim for defamation.
Writing for the majority of three judges, Judge Dianne Renwick concluded that the Supremacy Clause, Article VI, does not bar a state court from exercising jurisdiction. She rejected Trump's argument that because he is the "ultimate repository of the Executive Branch's powers and is required by the Constitution to always be in function" as being without support in the constitutional text or case law and conflicting with the fundamental principle that the United States is a "government of laws and not of men." After a detailed discussion of Clinton v. Jones, she stated that in short, the decision "clearly and unequivocably demonstrates that the Presidency and the President are indeed separable." She continued that "aside from the forum, plaintiff's case is materially indistinguishable from Clinton v. Jones," and noted that Congress had not acted to afford the President more protection, interestingly citing and quoting an article by the most recent Supreme Court Justice, Brett Kavanaugh.
The difference between the majority and the dissent is centered on footnote 13 of Clinton v. Jones:
Because the Supremacy Clause makes federal law "the supreme Law of the Land," Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are "faithfully executed," Art. II, § 3, may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here. Cf., e.g., Hancock v. Train, 426 U.S. 167, 178—179 (1976); Mayo v. United States, 319 U.S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed.1988) ("[A]bsent explicit congressional consent no state may command federal officials ... to take action in derogation of their ... federal responsibilities")."
But as the majority opinion explains,
the cases cited in the footnote above suggest only that the Supreme Court was concerned with a state's exercise of control over the President in a way that would interfere with his execution of federal law (Hancock, 426 US at 167 [holding that the State of Kentucky could not force federal facilities in the State to obtain state permits to operate]; Mayo, 319 US at 441 [holding that a Florida state official could not order the cessation of a federal fertilizer distribution program]; but see Alabama v King & Boozer, 314 US 1  [holding that the State of Alabama could charge a tax on lumber that a federal government contractor purchased within the state for construction of an army base, where the federal government would ultimately pay the tax]).
The difference between the majority and dissent centers on the possibility that a state court could hold the President in contempt. For the majority, this is a "hypothetical concern" that is not presently before the court, noting also that contempt is unusual in all circumstances and state courts would be aware of the issue. For the dissent, on the other hand, although there is no reason to believe the President Defendant "would not cooperate in the litigation, there is no way to be absolutely certain that the court would not at some point have to take steps to protect its own legitimacy;" the contempt power would be a "sword of Damocles hanging over the President's head."
All judges agreed that Zervos stated a claim for defamation, rejecting Trump's claim that the statements were mere hyperbole and not pertaining to the plaintiff. Instead, he was clearly including Zervos in statements and his "flat-out denial of a provable, specific allegation against him concerning his own conduct, accompanied by a claim that the accuser was lying" is not rhetorical or a statement of opinion.
Presumably, the case will be heard on appeal by New York's highest court.
[image: Richard Westall, Sword of Damocles, 1812 via]
The Ninth Circuit rebuffed federal preemption and First Amendment challenges by Airbnb and HomeAway.com to Santa Monica's regulations on vacation home rentals. The ruling means that Santa Monica's regs can stay in place, and gives a green light to other jurisdictions that similarly seek to regulate these services.
The case, HomeAway.com v. City of Santa Monica, involves Santa Monica's efforts to regulate the Internet vacation home-rental market. The city first prohibited all short-term home rentals of 30 consecutive days or less, except licensed "home-sharing" (rentals where residents remain on-site with guests). It later added four requirements for Internet hosting platforms for vacation rentals: (1) collecting and remitting "Transient Occupancy Taxes," (2) disclosing certain listing and booking information regularly, (3) refraining from completing any booking transaction for properties not licensed and listed on the City's registry, and (4) refraining from collecting or receiving a fee for "facilitating or providing services ancillary to a vacation rental or unregistered home-share." Under the ordinance, if a platform complies with these requirements, it's presumed to be in compliance with the law. Otherwise, violations carry a fine up to $500 or imprisonment for up to six months.
Airbnb and HomeAway.com sued, arguing that the requirements were preempted by the federal Communications Decency Act and violated free speech. The Ninth Circuit rejected these claims.
As to the CDA, the Ninth Circuit ruled that the regs didn't require the plaintiffs to act as a "publisher or speaker," which would have brought them within the CDA's immunity provision. (The CDA provides Internet companies immunity from certain claims and liability in order "to promote the continued development of the Internet and other interactive computer services.") The court said that Santa Monica's regs only prohibited the plaintiffs from processing transactions for unregistered parties, not to monitor third-party content. Moreover, it held that the regs didn't require the plaintiffs to remove third-party content (even if in practice the plaintiffs would). Finally, the court ruled that the regs "would not pose an obstacle to Congress's aim to encourage self-monitoring of third-party content," so wouldn't post an obstacle to congressional purposes under the Act.
As to the First Amendment, the court said that the ordinance doesn't regulate speech (it regulates conduct, a commercial exchange), it doesn't "singl[e] out those engaged in expressive activity," and "the incidental impacts on speech . . . raise minimal concerns."
Wednesday, March 13, 2019
District Court Gives the Go Ahead to Sierra Club Suit Against Energy for Lack of Energy-Efficiency Regulation
Judge Emmet G. Sullivan (D.D.C.) ruled in Sierra Club v. Perry that Sierra Club has associational standing to sue the Department of Energy for the Department's failure to promulgate energy-efficiency standards for manufactured housing, as required by the Energy Independence and Security Act of 2007.
The ruling means that Sierra Club's case can go forward. And given the court's conclusions, and the law, it seems likely that Sierra Club will win. But that doesn't mean that we'll see regs any time soon.
The case arose when Sierra Club sued the Department for failing to promulgate energy-efficiency standards for manufactured housing by 2011, as required by the Act. The Department moved to dismiss for lack of standing. The court rejected that motion.
The court ruled that Sierra Club sufficiently pleaded that its members suffered three different harms. As to the first, economic injury, the court said that "members have alleged that they either cannot find, or it is difficult to find, energy-efficient manufactured homes, and their ability to search for such homes will continue to be adversely impacted by DOE's inaction." The court noted that under circuit law a plaintiff has suffered an injury to challenge an agency action if the action prevented consumers from purchasing a desired product--even if they could purchase an alternative.
As to the second, health injury, the court said that "seven members allege that their exposure to air pollutants and other harmful emissions is negatively impacting their health due to the lack of standards for energy-efficiency in manufactured housing."
As to the third, procedural injury, the court simply said that "the Secretary has compromised Sierra Club's members' 'concrete and particularized procedural rights,' because it is clear that the Secretary failed to establish regulations for energy-efficiency standards mandated by Congress, and it is substantially probable that the Secretary's failure to establish the standards has caused Sierra Club's members' concrete injury."
The court held that Sierra Club satisfied the causation and redressability requirements, because, by the Department's own reckoning, regulations would clean up the air (and a lack of regulations keeps it dirtier).
Tuesday, March 12, 2019
In its en banc opinion in Planned Parenthood of Greater Ohio v. Hodges, the Sixth Circuit reversed a permanent injunction by the district judge against Ohio Rev. Code §3701.034 which bars any state funding — including government-sponsored health and education programs that target sexually transmitted diseases, breast cancer and cervical cancer, teen pregnancy, infant mortality, and sexual violence — to any organization that performs or promotes abortion.
In less than 12 pages, Judge Jeffrey Sutton, writing for the 11 judge majority, rejected the claim that the Ohio statute was an unconstitutional condition on the due process right encompassing the right to abortion by stating that Planned Parenthood had no substantive due process right to provide abortions: "The Supreme Court has never identified a freestanding right to perform abortions." Moreover, Sutton's opinion rejected the argument that
the Ohio law will deprive Ohio women of their constitutional right of access to abortion services without undue burden, because it will lead Planned Parenthood and perhaps other abortion providers to stop providing them. Maybe; maybe not. More to the point, the conclusion is premature and unsupported by the record.
In this way, the majority distinguished the United States Supreme Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016), albeit briefly (with one "cf." citation and one "see" citation).
In the dissenting opinion, Judge Helene White writing for 6 judges, criticizes the majority for not mentioning "much less" applying,
the test the Supreme Court has recently articulated governing the unconstitutional-conditions doctrine. That doctrine prohibits the government from conditioning the grant of funds under a government program if: (1) the challenged conditions would violate the Constitution if they were instead enacted as a direct regulation; and (2) the conditions affect protected conduct outside the scope of the government program.
citing Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013) [the "prostitution pledge" case].
The dissent concludes that because "(1) the funding conditions in this case would result in an undue burden on a woman’s right to obtain nontherapeutic abortions if imposed directly, and (2) the six federal programs have nothing to do with Plaintiffs’ performing abortions, advocating for abortion rights, or affiliating with organizations that engage in such activity, all on their own 'time and dime,' " the Ohio statute should be unconstitutional.
The dissenting opinion also discusses the First Amendment argument, which the district court judge had credited but which the majority discounted because to prevail Ohio need only show that one limitation satisfied the Constitution and because "the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim." For the dissent, the free speech claim was not mooted and should be successful as in Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013).
March 12, 2019 in Abortion, Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)
Saturday, March 9, 2019
The Ninth Circuit ruled in Thuraissigiam v. USDHS that the statutory limitation on federal habeas corpus jurisdiction for asylum applicants in deportation proceedings violates the Suspension Clause. The ruling sends the case back to the district court to consider Thuraissigiam's legal challenges to the procedures leading to his expedited removal order.
The ruling is a huge victory for asylum seekers in deportation proceedings. It means that Thuraissigiam and other aliens in expedited removal but who seek asylum have access to federal court to challenge a denial of asylum on the merits, and not just on narrow technicalities--at least in the Ninth Circuit.
The case arose when Vijayakumar Thuraissigiam, a native and citizen of Sri Lanka, entered the U.S. through Mexico. He was detained by a Customs and Border Patrol Officer just north of the border and placed into expedited removal proceedings. After Thuraissigiam requested asylum (based on a fear of persecution in Sri Lanka), CBP referred Thuraissigiam for an interview with an asylum officer. The officer denied asylum; the officer's supervisor affirmed; and an immigration judge affirmed.
Thuraissigiam then filed a habeas petition in federal court, arguing that his credible-fear screening deprived him "of a meaningful right to apply for asylum" and other relief in violation of federal law, and that the asylum officer and IJ violated his due process rights by "not providing him with a meaningful opportunity to establish his claims, failing to comply with the applicable statutory and regulatory requirements, and in not providing him with a reasoned explanation for their decision."
The district court dismissed the case for lack of subject matter jurisdiction. The court pointed to 8 U.S.C. Sec. 1252(e), the habeas jurisdictional hook for individuals in expedited deportation proceedings, and noted that the provision only authorized a federal court to determine (1) whether a petitioner is an alien, (2) whether the petitioner was ordered removed, and (3) whether the petitioner could prove that he or she is an alien lawfully admitted for permanent residence, as a refugee, or has been granted asylum. The court ruled that Thuraissigiam's case didn't fall into any of the three categories, and so dismissed it.
The Ninth Circuit agreed that Thuraissigiam's case didn't fall into any of the three categories, and that the district court therefore lacked statutory habeas jurisdiction over his claim. But the court went on to hold that Section 1252(e) violated the Suspension Clause.
The court, looking to Boumediene and St. Cyr, ruled first that Thuraissigiam, as an alien who was arrested in the United States, could invoke the Suspension Clause. The court ruled next that the Suspension Clause requires review of Thuraissigiam's claims, and that Section 1252(e), in disallowing review of his claims, violates the Clause. In particular, the court noted that Section 1252(e) prevented any judicial review of whether DHS complied with the procedures in an individual case or applied the correct legal standard.
The court declined to invoke the constitutional avoidance canon, because, it said, Section 1252(e) cannot bear a reading that avoids the constitutional problems that it creates.
The court remanded the case to the district court to consider Thuraissigiam's legal claims.
Thursday, March 7, 2019
In its opinion in D.M. v. Minnesota State High School League, the Eighth Circuit held that an exclusion of male students from competitive dance teams violates equal protection. The Minnesota State High School League, a voluntary association of high schools that controls extracurricular activities and sports throughout Minnesota, prevailed in the district court by arguing that the gender-exclusive policy was justified because girls' "overall athletic opportunities have previously been limited," while boys' have not.
Writing for the unanimous panel, Judge Michael Melloy recited the well-known standard for evaluating the constitutionality of sex classifications from United States v. Virginia (VMI) (1996) requiring an exceedingly persuasive justification, and that classification serves an "at least" important government objective that is substantially related. While a compensatory justification intended to remedy past discrimination might survive in limited circumstances, Judge Melloy used the statistics provided by the state, reproducing them in table form, to demonstrate that there has not been a meaningful disparity in the rates of male and female participation in high school athletics. Judge Melloy concluded that the "broad" arguments the state advanced of important government interests such as promoting safety, increasing competition, redressing past discrimination, and providing more athletic opportunities for female athletes, failed to rise to the level of exceedingly persuasive justifications.
The court's opinion did not delve into this additional language from United States v. Virginia (VMI) (1996), that the justification "must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." It might have provided further support for the court's recognition that a dancing-is-only-for-girls policy violates equal protection.
The court did remand with instructions to issue preliminary injunctions on behalf of the boys who wanted to join the competitive dance teams at their respective high schools.
[image: David Klöcker Ehrenstrahl, Children playing, 1651, via]