Constitutional Law Prof Blog

Full Seventh Circuit Keeps Challenge to State Sex Offender Registration Alive

Steven D. Schwinn, University of Illinois Chicago School of Law

The full Seventh Circuit today rebuffed certain constitutional challenges to Indiana's Sex-Offender Registration Act (SORA) as applied to pre-Act offenders required to register in another state. At the same time, however, the court remanded an equal protection claim for further consideration.

The ruling means that the plaintiffs still have a live challenge to the Act. And, given the court's remand instruction and the lower court's earlier ruling, it's likely a winning one.

The case, Hope v. Commissioner of Indiana Department of Correction, tests Indiana's SORA as applied to pre-act offenders who were required to register in another state before SORA's enactment. That matters, because the Indiana Supreme Court interpreted the Act not to require Indiana pre-Act offenders to register. (It said that requiring registration would violate the state constitution's Ex Post Facto Clause.) So Indiana's SORA requires pre-Act offenders to register if they were required to register in another state before SORA. But it doesn't require pre-Act offenders to register if they had no pending out-of-state registration requirement.

Offenders with an out-of-state requirement sued, arguing that the Act, as interpreted by the state supreme court, violated their right to travel, the federal Ex Post Facto Clause, and equal protection. The district court ruled in the plaintiffs' favor on all claims, and a panel of the Seventh Circuit affirmed on the right to travel claim. The full court reversed.

The court ruled that the scheme didn't violate the right to travel under the Fourteenth Amendment Privileges or Immunities Clause--"for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state." That's "because it does not expressly discriminate based on residency, as consistently required by the Supreme Court." Instead, the court said that while the Act "may affect newer residents disproportionately,"

[a]s a statutory matter, SORA obligates all offenders--both old and new residents--to register based on prior convictions. Indiana's Ex Post Facto Clause then relieves a subset of those who must register from that statutory obligation. Receiving the clause's benefits, though, does not depend on when an offender became an Indiana resident but on whether one is subject to an existing registration requirements. That requirement can come from Indiana, or from another state. The twist in this case is that for those offenders like the plaintiffs, convicted before Indiana's SORA covered their crimes, such a registration obligation must come from elsewhere.

(The dissent argued that this different treatment--based solely on whether a pre-Act offender has traveled to another state or not--is the model of infringing on the right to travel.)

The court next ruled that SORA didn't violate the federal Ex Post Facto Clause, because the registration requirement isn't punitive.

But the court remanded the question whether SORA violated the Equal Protection Clause under rational basis review--and all but invited the district court to rule in favor of the plaintiffs. The court wrote,

The plaintiffs may still challenge Indiana's application of SORA to them because it treats them differently than similarly situated Indiana offenders. SORA, as modified by the Indiana Supreme Court's constitutional overlay, creates two classes of pre-SORA offenders--those who must register in Indiana, and those who are free from that requirement. Indiana distinguishes between the two groups based solely on whether the pre-SORA offender had a registration obligation in another state. For example: two lifelong Indiana residents, both with pre-SORA convictions, will be treated differently if one commutes into Chicago for work--and so is subject to Illinois's reporting requirements--while the other never leaves Indiana. The distinction holds true for offenders who attend school in another state or who have lived in another state imposing registration obligations on them. In short, two similarly situated Indiana offenders may have vastly different legal obligations simply because one of them has an out-of-state registration obligation.

The court instructed the lower court to apply rational basis review to this distinction, and cautioned that it "should be undertaken with care" and "thorough[] develop[ment of] the factual record." It said that "[r]ational basis review favors the State but does not ensure an automatic win."

SCOTUS Agrees to Hear Unanimous Jury Incorporation Challenge

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

The United States Supreme Court granted the petition for certiorari in Ramos v. Louisiana posing the question whether the right to a unanimous jury verdict is incorporated as against the states through the Fourteenth Amendment.

Recall that in McDonald v. City of Chicago (2010), in which 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), Justice Alito writing for the plurality discussed the state of incorporation doctrine in some detail.  In footnote 12, Alito's opinion discussed the provisions of the amendments in the Bill of Rights that had been incorporated, providing citations, and in footnote 13, the opinion discussed the provisions that had not yet been incorporated, other than the Second Amendment then under consideration:

• the Third Amendment’s protection against quartering of soldiers;
• the Fifth Amendment’s grand jury indictment requirement;
• the Seventh Amendment right to a jury trial in civil cases; and
• the Eighth Amendment’s prohibition on excessive fines.

Just this term in February, the Court whittled this small list down to three, deciding unanimously in Timbs v. Indiana that the Eighth Amendment's prohibition on excessive fines is incorporated through the Fourteenth Amendment, following an oral argument in which some Justices expressed wonderment that the issue of incorporation was even arguable in 2018.

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); see also Johnson v. Louisiana, 406 U. S. 356 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both theFederal Government and the States. See Johnson, supra, at 395 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca, 406 U. S., at 406 (plurality opinion), and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414–415 (Stewart, J., dissenting); Johnson, supra, at 381–382 (Douglas, J., dissenting). Justice Powell’s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government. See Johnson, supra, at 395–396 (Brennan, J., dissenting) (footnote omitted) (“In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment’s jury trialguarantee, however it is to be construed, has identical application against both State and Federal governments.")

Thus, in Ramos v. Louisiana, the Court is set to address this "exception to the general rule" and decide whether jury unanimity is required in a criminal case in state court to the same extent as in federal court pursuant to the Fourteenth Amendment.

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SCOTUS Declares Excessive Fines Prohibition Incorporated As Against the States

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

In its unanimous opinion in Timbs v. Indiana, the United States Supreme Court held that the Excessive Fines Clause of the Eighth Amendment is applicable to the states through the Fourteenth Amendment. 

Recall that the oral argument heavily pointed toward this outcome. While there was some discussion during oral argument about the relationship between excessive fines and civil in rem forfeiture, the Court's opinion, authored by Justice Ginsburg, rejected Indiana's attempt to  "reformulate the question" to one focused on civil asset forfeitures. This was not the argument that the Indiana Supreme Court ruled upon. Moreover, the question of incorporation is not dependent on whether "each and every particular application" of a right passes the incorporation test, using as an example the Court's unanimous opinion in Packingham v. North Carolina (2017), in which the Court did not ask whether the First Amendment's "application to social media websites was fundamental or deeply rooted."

Instead, the Court clearly held that the "safeguard" of the Excessive Fines Clause of the Eighth Amendment is "fundamental to our scheme of ordered liberty" with "deep roots in [our] history and tradition," citing McDonald v. Chicago (2010), the Court's most recent incorporation case.  In an opinion of less that ten pages, Ginsburg discusses the Magna Carta, the English Bill of Rights after the Glorious Revolution, the inclusion of the Clause in colonial constitutions and in state constitutions at the time of the Fourteenth Amendment, the misuse of excessive fines in Black Codes, and the current inclusion of the provision in the constitutions of all 50 states.

Justice Thomas, in a concurring opinion longer than the Court's opinion, reiterates the position he articulated in McDonald v. Chicago that it should not be the Due Process Clause of the Fourteenth Amendment that is the vehicle for incorporation but the Privileges or Immunities Clause.  Justice Gorsuch writes a separate and very brief concurring opinion acknowledging that the appropriate vehicle for incorporation "may well be" the Fourteenth Amendment's Privileges or Immunities Clause, but "nothing in this case turns on that question." 

Given that this is a unanimous opinion, unlike McDonald in which Justice Thomas was necessary to the five Justice majority regarding the incorporation of the Second Amendment, the attempt to resurrect the Privileges or Immunities Clause carries little precedential weight.

Thus, now the only rights enumerated in the Bill of Rights that are not incorporated through the Fourteenth Amendment to the states are: the Third Amendment prohibiting quartering of soldiers, Fifth Amendment right to a grand jury indictment in a criminal case; and the Seventh Amendment right to a jury trial in civil cases.

Daily Read: The Fourteenth Amendment (on its 150th Anniversary)

The Fourteenth Amendment was ratified on July 9, 1868. 

Here's the text:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

 

[images National Archives via]

 

No Federal Cause of Action Against State Officer under FLSA

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled today in Michigan Corrections Organization v. Michigan Dep't of Corrections that the federal courts lacked subject matter jurisdiction over a claim by Michigan correctional officers against the Corrections Department Director under the federal Fair Labor Standards Act. The court dismissed the federal case.

While the case marks a defeat for the workers (and others who seek to enforce the FLSA against a state), the plaintiffs may be able to re-file in state court. (They brought a state claim in federal court, along with their FLSA claim, and, if there are no other bars, they may be able to revive it in a new state proceeding.)

Correction officers filed the suit, claiming that they wre denied pay for pre- and post-shift activities (like punching the clock, waiting in line for security, and the like) in violation of the FLSA. They sued the Department Director in his official capacity for denied overtime pay and declaratory relief.

The Sixth Circuit rejected the federal claims. The court ruled that the Director enjoyed Eleventh Amendment immunity against monetary damages, and that Congress did not validly abrogate Eleventh Amendment immunity through the FLSA (because Congress enacted the FLSA under its Commerce Clause authority). The court rejected the plaintiffs' contention that Congress enacted the FLSA under its Fourteenth Amendment, Section 5 authority to enforce privileges or immunities against the states (which, if so, would have allowed Congress to abrogate Eleventh Amendment immunity). The court said that the Privileges or Immunities Clause (after The Slaughter-House Cases) simply can't carry that weight--that wages are not a privilege or immunity of national citizenship.

The court went on to reject the plaintiffs' claim for declaratory relief under the FLSA, Section 1983, and Ex Parte Young. The court said that the FLSA "does not provide a basis for this declaratory judgment action." That means that the plaintiffs can't get declaratory relief from the statute itself, and, because the FLSA doesn't provide for private enforcement by way of declaratory relief, the plaintiffs can't get Section 1983 or Ex Parte Young relief, either.

Ninth Circuit Upholds Arizona Bar Reciprocity Rule

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit yesterday upheld Arizona's reciprocal bar licensing rule against a host of federal constitutional claims. The ruling means that Arizona's rule stays in place.

At issue was Arizona's Rule 34(f), which permits admission to the state bar on motion for attorneys who are admitted to practice in states that permit Arizona attorneys to be admitted on a basis equivalent to Arizona's, but requires attorneys admitted to practice law in states that don't have such reciprocal admission rules to take the bar exam.

According to the National Conference of Bar Examiners and the ABA, just less than half the states and jurisdictions offer reciprocal admissions under this kind of rule.

Plaintiffs challenged the rule under the Equal Protection Clause, the Fourteenth Amendment Privileges or Immunities Clause, Article IV Privileges and Immunities, the Dormant Commerce Clause, and the First Amendment. The court rejected all of these claims.

As to equal protection, the court applied rational basis review and said that the state had legitimate interests in regulating its bar and in ensuring that its attorneys are treated equally in other states.

As to Article IV Privileges and Immunities and the Dormant Commerce Clause, the court said that the rule didn't discriminate against out-of-state attorneys--that it was a neutral rule that treated all attorneys alike--and that it advanced substantial state interests (the same as those above). The rule's neutrality also drove the result in the plaintiffs' Fourteenth Amendment privileges or immunities claim, because the right to travel isn't implicated (it can't be, if everybody is treated alike).

As to the First Amendment, the court applied the time-place-manner test and upheld the rule. The court flatly rejected the plaintiffs' right of association and right to petition claims.

Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Still, it's a good day to reflect on the "Bll of Rights":

• Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
• Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
• Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
• Amendment 4.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
• Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
• Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
• Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
• Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
• Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
• Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

RR
[image from National Archives via]