Thursday, March 21, 2024

Sixth Circuit Rejects Medical Resident's Due Process Claim

The Sixth Circuit rejected a procedural due process claim by a medical resident at a public medical school after the school dismissed the resident for unprofessional behavior. Consistent with other courts that have considered the issue, the court ruled that a medical resident was more like a student than an employee, and therefore entitled to lesser procedural protections.

The case, Mares v. Miami Valley Hospital, arose out of complaints against the plaintiff, a medical resident at Wright State University's Boonshoft School of Medicine and Miami Valley Hospital, for unprofessional behavior. After a series of interventions, probation, and a committee vote to dismiss the plaintiff, a review panel recommended that the plaintiff remain on probation through graduation, but that any additional violations of WSU's academic and professional standards would result in immediate termination from the program.

The dean and president of Miami Valley rejected the recommendation, however, and affirmed the earlier committee decision to dismiss the plaintiff. WSU's provost affirmed. The plaintiff sued, arguing that WSU violated procedural due process.

The Sixth Circuit disagreed. The court first ruled that the plaintiff, as a resident, was more like a student than an employee, and that she was therefore entitled only to the "minimal" procedural due process protections of a student dismissed for academic reasons. (The court based this conclusion on the nature of the program and program materials. It also noted that this is consistent with every other court that considered the question.) The court then wrote that she received "more than enough process":

It is undisputed that [the plaintiff] accumulated several complaints about her unprofessional behavior from medical students, colleagues, and WSU faculty members throughout her residency. In less than two years at WSU, [the plaintiff] had been formally warned about her performance, suspended for several days, and placed on probation. Despite these formal warnings, [the plaintiff] continued with her problematic conduct and, after deliberation, WSU's Clinical Competency Committee recommended dismissing her from its residency program. In doing so, the Committee set in motion WSU's extensive internal procedures . . . which ensure that residents facing an adverse action are provided with quintessential due process.

The court also rejected the plaintiff's substantive due process claim, ruling that she had no substantive due process right in her residency (again, an educational program), but in any event that the school didn't act arbitrarily and capriciously or in a way that would shock the conscience.

March 21, 2024 in Cases and Case Materials, Due Process (Substantive), News, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Wednesday, May 17, 2023

Overdetention is One Thing; Getting Judicial Relief is Quite Another

The Fifth Circuit acknowledged yesterday that detaining a prisoner beyond their release date is a classic violation of due process. But it said that a prisoner's claim was barred by qualified immunity. This, despite a recent DOJ report finding "systemic overdetentions" by the Department and Department "deliberate indifference to the systemic overdetentions."

The case, Taylor v. LeBlanc, arose when the Louisiana Department of Public Safety and Corrections "overdetained" prisoner Percy Taylor. According to the court, "Department officials gave him credit for time served in pre-trial detention, but only for one (rather than both) of his two consecutive sentences." As a result, Taylor spent more than a year (a year!) longer in prison than he should have.

Taylor sued the Department secretary (LeBlanc), arguing that LeBlanc should have delegated authority to calculate release dates to an attorney, not to the non-attorney officials who misread the release-date law, and that LeBlanc's failure to do so was objectively unreasonable.

The court disagreed. It wrote that "Taylor does not point to anything that suggests the Constitution requires these determinations be made by attorneys." Taylor gets qualified immunity; case dismissed.

May 17, 2023 in Cases and Case Materials, News, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Friday, December 2, 2022

Second Circuit Says University Officials Get QI for Revoking Scholarship

The Second Circuit ruled this week that University of Connecticut officials enjoyed qualified immunity from a UConn soccer player's free-speech and due process claims after the officials terminated the player's scholarship for raising her middle finger on camera after a nationally broadcast game. At the same time, the court ruled that there was sufficient evidence to allow the player's Title IX claim to move forward.

The case, Radwan v. Manuel, arose when Noriana Radwan, a UConn soccer player, raised her middle finger on camera after a nationally televised game. UConn officials suspended her from further tournament play and later revoked her one-year scholarship. Radwan sued, arguing that the move violated the First Amendment, due process, and Title IX.

The Second Circuit ruled that UConn officials enjoyed qualified immunity against the free-speech claim, because "the right of a student-athlete at a university, while in public and on the playing field, to make a vulgar or offensive comment or gesture without suffering disciplinary consequences" wasn't clearly established. The court explained:

Although we agree that the Supreme Court has suggested that its analyses in addressing the First Amendment in the public elementary and high school settings (including Hazelwood and Fraser) may not apply equally to the university setting, neither the Supreme Court nor any circuit court has yet provided an alternative legal standard or framework to help university administrators discern the precise constitutional line in such circumstances, especially when the student engages in speech while wearing the university's uniform as part of an extracurricular activity.

As to the due process claim, the court held that a fixed-term athletic scholarship terminable only for cause gave rise to a constitutionally protected property right. But it said that this right wasn't clearly established when officials revoked Radwan's scholarship.

The court ruled for Radwan on her Title IX claim, however, saying that "taken as a whole and construed most favorably to Radwan as the non-moving party, [the evidence] is sufficient to create genuine issues of material fact as to whether Radwan received a more serious disciplinary sanction at UConn because of her gender." That's not a final ruling on the Title IX claim; it only allows the claim to move forward.

December 2, 2022 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Procedural Due Process, Speech | Permalink | Comments (0)

Thursday, August 19, 2021

Sixth Circuit Upholds Tenured Prof's Termination, Rebuffs Due Process, First Amendment Claims

The Sixth Circuit ruled that the University of Louisville did not violate procedural due process or free speech when it disciplined and later terminated a tenured professor and department chair for signing an unauthorized lease on behalf of the department and meeting with private equity firms interested in buying or financing the department.

Dr. Henry J. Kaplan, tenured prof and Chair of UofL's Department of Ophthalmology and Visual Sciences, sued the school after it fired him for signing the lease and meeting with potential investors. Kaplan argued that his termination violated due process, his reputation and career interests, and academic freedom. The court rejected each claim.

As to due process, the court ruled that Kaplan didn't have a property interest in his administrative position (chair of the department), so due process didn't apply. It ruled that the school's process for terminating his tenured professorship satisfied due process, because the school notified Kaplan of the issues prior to any disciplinary action; it terminated him pursuant to school rules that allow the school to terminate a faculty member for "[n]eglect of or refusal to perform one's duty" that "substantially impairs [their] effectiveness as a faculty member"; it conducted a post-termination hearing (a "Cadillac plan of due process"); and an alternative pre-deprivation hearing wouldn't have been any more protective of Kaplan's property right in his faculty position.

The court held that Kaplan forfeited any reputational-interest claim because he didn't request a name-clearing hearing. It ruled that the school didn't violate his career interest, because it didn't prevent Kaplan from seeking future employment in his chosen career.

Finally, the court ruled that Kaplan misfired on his academic freedom claim. "Simply put, UofL suspended Kaplan because of his attempts to circumvent UofL's cost-control measures and not because of any ideas he advocated or research he conducted."

August 19, 2021 in Cases and Case Materials, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Procedural Due Process, Speech | 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)

Wednesday, September 4, 2019

Federal District Judge Issues Preliminary Injunction to Restore Press Pass

In a well-considered opinion in Karem v. Trump, United States District Judge for the District of Columbia, Rudolph Contreras, issued a preliminary injunction requiring the defendants President Trump and White House Press Secretary Stephanie Grisham to restore the "hard pass" press credential to plaintiff Brian Karem.

As Judge Contreras explained, the "hard pass" is a long term press pass that the White House has made available for "decades and across many presidential administrations" to "any Washington-based journalist who regularly covers the President and can clear a Secret Service background check." In 1977, the DC Circuit Court of Appeals held that reporters have a First Amendment liberty interest in possessing a long-term so-called “hard pass”—an interest that, under the Fifth Amendment, may not be deprived without due process, Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977).

The defendants admitted that the revocation of Karem's hard pass was punitive. The revocation of Karem's hard pass came three weeks after an incident in the Rose Garden which Judge Contreras describes in detail, noting that the incident was captured on video and shared widely on the internet.

 

Judge Contreras noted repeatedly that the court did not reach Karem's First Amendment challenge, but resolved the issue on Fifth Amendment Due Process Clause grounds. One aspect of the due process challenge was procedural due process, as in Sherrill v. Knight, which the court found applicable despite the defendants' argument that Sherrill should be limited to its precise facts, situations in which the Secret Service denied a hard pass application for security reasons. Another aspect of the due process challenge was vagueness, which surfaces in Sherrill but is more directly addressed by the United States Supreme Court's opinion in FCC v. Fox (2012), in which the Court found that the FCC fleeting expletives and nudity regulations were unconstitutional.

Here, Judge Contreras found that the White House guidelines were not constitutionally adequate, even when considering the so-called "Acosta Letter" issued by the White House to the press corps in November 2018, although Grisham did not reference or seemingly rely on that letter when issuing her revocation of Karem's hard pass. 

On the balance of equities and public interest regarding the preliminary injunction, Judge Contreras noted the three week lag from the event to the discipline and also stated:

The Court understands the White House’s desire to maintain a degree of control over access and decorum, and at first glance, some might think the temporary suspension of a single reporter’s press pass to be a relatively modest exercise of such control. But as Sherrill makes clear, the conferral of White House hard passes is no mere triviality. And the need for regulatory guidance is at its highest where constitutional rights are implicated.

The White House could react by appealing to the DC Circuit — or by attempting to issue regulatory guidance that might or might not apply to Karem's actions.

 

September 4, 2019 in Current Affairs, Due Process (Substantive), Executive Authority, Fifth Amendment, First Amendment, Procedural Due Process | Permalink | Comments (0)

Friday, February 15, 2019

Third Circuit Finds No Property Interest in Continued Salary in Professor's Procedural Due Process Challenge

In its opinion in McKinney v. University of Pittsburgh, the Third Circuit rejected a procedural due process challenge to the university's reduction of a professor's salary by 20%. Reversing the district judge, the Third Circuit unanimously found that the professor did not have a property interest in continued salary at the same rate under the university policy.

The policy had no explicit provision describing salary decreases, but did provide that "[e]ach faculty or staff member performing satisfactorily will receive a percentage increase of the size determined for that year for maintenance of real salary.”  There were substantial questions about whether McKinney was performing satisfactorily and the decrease came only after several years of poor performance reviews. But the heart of the issue was whether the university policies established the type of property interest in his continued base salary sufficient to be recognized under Board of Regents v. Roth (1972) and Perry v. Sindermann (1972).

While the United States Supreme Court has never ruled explicitly on whether there is a property interest in a particular base salary, the Third Circuit discussed circuit cases requiring an "explicit assurance to that effect" in any policies. Here, while there was not a specific warning that salary could be reduced, the court found that nevertheless the language of the applicable policy was not sufficient to give McKinney a "legitimate expectation" in his base salary and thus a protectable property interest.

While the court's conclusion largely rested on its interpretation of the policy's language, it also noted that McKinney had not objected when his salary was not raised in a previous performance review, and articulated a policy of judicial restraint in the area of "academic decisionmaking."

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February 15, 2019 in Courts and Judging, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Wednesday, October 24, 2018

Federal Judge Grants Injunction in Challenge to Georgia "Mismatch" Ballots

In her Order & Opinion in Martin v. Kemp, United States District Judge Leigh Martin May stated she would enjoin county election officials from simply rejecting absentee ballot applications and absentee ballots due to an "alleged signature mismatch" but shall instead follow additional procedures. There has reportedly been some controversy regarding the Defendant Secretary of State, Brian Kemp, who is also a candidate for Governor, and the voter restrictions he oversees.

Judge May found that the plaintiffs and plaintiff organizations had standing, there was no laches, and that a facial challenge was appropriate. She also concluded that there was a substantial likelihood of success on the procedural due process challenge (and thus did not reach the other constitutional challenges).

Judge May quickly concluded that the plaintiffs had a constitutionally protected liberty interest in the right to vote by absentee ballot:

While Defendants correctly assert that the right to apply for and vote via absentee ballot is not constitutionally on par with the fundamental right to vote, once the state creates an absentee voting regime, they “must administer it in accordance with the Constitution.”  Indeed, the Supreme Court has long held that state- created statutory entitlements can trigger due process.  Having created an absentee voter regime through which qualified voters can exercise their fundamental right to vote, the State must now provide absentee voters with constitutionally adequate due process protection.

[citations omitted].

Turning to the issue of the process that is due, Judge May applied the well-known Mathews v. Edlridge (1976) factors. On the first factor weighing the private interest at issue, Judge May stated that the interest implicated the fundamental right to vote and as such was "entitled to substantial weight." On the second factor regarding the risk of erroneous deprivation and the probative value, if any, of additional procedural safeguards, Judge May found that while "the risk of an erroneous deprivation is by no means enormous, permitting an absentee voter to resolve an alleged signature discrepancy nevertheless has the very tangible benefit of avoiding disenfranchisement."  On the third and final factor requiring the court to examine the government’s interest, including “the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail,” Judge May concluded that "Defendants cannot cry foul with regard to the burden of additional procedures given that Defendants conceded at oral argument that counties already permit voters to verify their signatures through extrinsic evidence on an ad hoc basis." Further, the remedy of the voter simply showing up did not apply to voters who vote by mail because they cannot show up in person. Thus, Judge May found there was likely a procedural due process problem.

The judge's Order included a proposed injunction, giving the parties until noon on October 25 to object to the form of the injunction, stressing that this was not an "opportunity to readdress the propriety" of the injunction, only whether the language of the injunction would be confusing or unworkable for election officials.

 

 

October 24, 2018 in Elections and Voting, Fourteenth Amendment, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Friday, August 24, 2018

Seventh Circuit Rejects Procedural Due Process Claim for Denial of SORA

The Seventh Circuit's opinion in Beley v. City of Chicago finds no constitutional violation when the City of Chicago refuses to register sex offenders in certain circumstances (such as having no fixed address or an address outside of an approved zone) despite the requirement of the Illinois Sex Offender Registration Act (SORA), making it a felony for a sex offender not to register in a new city, including Chicago.

For example, as the court described one plaintiff:

Douglas Montgomery is a sex offender who tried unsuccessfully to comply with SORA. After he completed a twenty- year sentence for aggravated criminal sexual assault, he re- ported to the Department to register. He was turned away, however, because he produced neither an identification card nor proof of a fixed address. When Montgomery told the in- take officer that he was homeless, the officer responded that the Department was “not registering homeless people right now.” Nearly seven months later, after arresting Montgomery for violating several ordinances, Chicago police discovered that he had failed to register under SORA. They charged him with that violation, though he was ultimately acquitted.

Catch22The Seventh Circuit rejected the procedural due process challenge to the city's policy by holding that the "ability" to register as a sex offender is not a cognizable liberty interest under the Fourteenth Amendment, so no due process is necessary.  The court rebuffed each of the plaintiffs' arguments that there was a liberty interest. First, the court stated that SORA's "registration requirement burdens sex offenders" rather than being "an aspect of their liberty." Second, the court stated that "the Fourteenth Amendment guarantees procedural protection for state action that deprives someone of a cognizable interest in life, liberty, or property, not for state action that jeopardizes that interest."  Third, the court rejected the argument that freedom from the threat of incarceration constituted a liberty interest. And fourth and finally, the fact that the two named plaintiffs actually were deprived of their liberty was not available because they chose "to define the deprivation as the denial of registration" and are "stuck with that theory," although the City owed them due process when they were arrested. 

Without a cognizable liberty interest, there was no need to determine what process was due.

August 24, 2018 in Fourteenth Amendment, Procedural Due Process | Permalink | Comments (0)

Thursday, August 9, 2018

Federal Judge Orders Return of Mother and Daughter Being Deported

In a terse written Order in Grace v. Sessions, United States District Judge for the District of Columbia, Emmet Sullivan reiterated his oral order  "requiring the Defendants to return “Carmen” and her daughter to the United States FORTHWITH" (emphasis in original).  Judge Sullivan's Order recounted that at the emergency hearing on August 8, "Defendants stated that they would not consent to staying the removal past 11:59 pm Thursday August 9, 2018, but specifically represented to the Court that “Carmen” and her daughter would not be removed prior to that time." The judge therefore set a hearing for 1:00pm on Thursday, during which it was learned that Carmen and her daughter were being removed from the country by plane. The Judge's Order concluded:

it is

HEREBY ORDERED that the Defendants shall return “Carmen” and her daughter to the United States FORTHWITH; and it is

FURTHER ORDERED that in the event that the Defendants do not fully comply with this Order, Defendants Attorney General Jefferson Sessions, III; Secretary of the Department of Homeland Security Kirstjen M. Nielsen; U.S. Citizenship and Immigration Service Director Lee Francis Cissna; and Executive Office of Immigration Review Director James McHenry, preferably accompanied by their attorneys, shall be ORDERED to appear in Court to SHOW CAUSE why they should not be held in CONTEMPT OF COURT; and it is

FURTHER ORDERED that the Defendants shall file a status report on the docket in this case by no later than 5:00 pm August 10, 2018, informing the Court of the Defendants’ compliance with this Order.

SO ORDERED.

[emphasis in original].

The complaint in the case challenges expanded "expedited removal" for asylum seekers whose claims are based on gang violence or domestic violence, with statutory claims for relief augmented by separation of powers arguments and a constitutional claim of violation of due process.

August 9, 2018 in Courts and Judging, Current Affairs, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, Procedural Due Process | Permalink | Comments (0)

Monday, August 6, 2018

Federal Judge Declares Cash Bail Practice in New Orleans Unconstitutional

 In his opinion in Caliste v. Cantrell, United States District Judge for the Eastern District of Louisiana Eldon Fallon declared the bail practices of Judge Cantrell, an Orleans Parish Criminal District Magistrate Judge, unconstitutional as violative of due process under the Fourteenth Amendment.

After disposing of questions of justiciability and absention, Judge Fallon considered the cash bail practices in which the parish judge would never inquire regarding defendants' ability to post bail or provide reasoning for a rejection of alternative conditions of release, and would tell "public defenders that he would hold them in contempt when they have attempted to argue for lower bond amounts or RORs for their clients.” 

Judge Fallon found that the practices violated procedural due process, applying the well-settled balancing test of Matthews v. Eldridge (1976).  Judge Fallon concluded "that in the context of hearings to determine pretrial detention Due Process requires:

1) an inquiry into the arrestee’s ability to pay, including notice of the importance of this issue and the ability to be heard on this issue;
2) consideration of alternative conditions of release, including findings on the record applying the clear and convincing standard and explaining why an arrestee does not qualify for alternative conditions of release; and
3) representative counsel.

Judge Fallon also found there was a substantive due process violation, analyzing it in a section entitled "conflict of interest." Judge Fallon relied in part on Caperton v. Massey (2009), noting that there need not be proof of "actual bias," but there should be an inquiry “whether, ‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’”  In the Orleans parish, the problem was that the Orleans judge not only set bail but also managed "the Judicial Expense Fund, a portion of which comes from fees levied on commercial surety bonds." Judge Fallon found this was a conflict of interest rising to a due process violation: "Judge Cantrell’s institutional incentives create a substantial and unconstitutional conflict of interest when he determines their ability to pay bail and sets the amount of that bail."

Thus, the federal court entered summary judgment in favor of the plaintiffs, declaring the cash bail practices of  the Orleans parish judge unconstitutional.

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[image via]

 

 

August 6, 2018 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Fourteenth Amendment, Procedural Due Process | Permalink | Comments (0)

Monday, July 9, 2018

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.

 

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14th_Amendment_Pg2of2_AC

[images National Archives via]

 

July 9, 2018 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, History, Privileges or Immunities: Fourteenth Amendment , Procedural Due Process, Race, Reconstruction Era Amendments | Permalink | Comments (0)

Tuesday, July 3, 2018

Federal District Judge Enjoins Tennessee's Revocation of Drivers License for Failure to Pay Court Debt

In an opinion in Thomas v. Haslam, United States District Judge for the Middle District of Tennessee, Aleta Trauger, has held unconstitutional Tennessee Code §40-24-105(b) which revokes the driver's license of any person who has failed to pay court debt for a year or more.

Judge Trauger had issued an extensive opinion in March, appended to the current opinion, detailing the issues, holding the plaintiffs presented a justiciable claim, certifying the class, and allowing for additional briefing on the summary judgment motions on the constitutional issues.

The constitutional challenge to the driver's license revocation is grounded in Griffin v. Illinois (1956) and its progeny, which, as Judge Trauger explained "implicates both Due Process and Equal Protection principles in ways that defy an easy application of the Court’s more general precedents involving either constitutional guarantee alone" and should not be subject to a "pigeonhole analysis" of either strict scrutiny or rational basis review. However, Judge Trauger ruled that under Sixth Circuit precedent, rational basis must be applied, "which asks only whether the challenged policy is rationally related to a legitimate government purpose." Yet in the context of distinctions based on indigence, this rational basis should be one of "extra care" if "a statute treats the rich better than the poor in a way that will affirmatively make the poor poorer."

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Judge Trauger reasoned that while the state has a legitimate interest in seeking to recoup court debt, revoking the driver's license of a person unable to pay the debt is not "effective." Moreover,

 the law is not merely ineffective; it is powerfully counterproductive. If a person has no resources to pay a debt, he cannot be threatened or cajoled into paying it; he may, however, become able to pay it in the future. But taking his driver’s license away sabotages that prospect. For one thing, the lack of a driver’s license substantially limits one’s ability to obtain and maintain employment. Even aside from the effect on employment, however, the inability to drive introduces new obstacles, risks, and costs to a wide array of life activities, as the former driver is forced into a daily ordeal of logistical triage to compensate for his inadequate transportation. In short, losing one’s driver’s license simultaneously makes the burdens of life more expensive and renders the prospect of amassing the resources needed to overcome those burdens more remote.

Thus, while a lenient standard, Judge Trauger held that the lack of an indigent exception in the driver's license revocation penalty for failure to pay court debt fails rational basis scrutiny

Additionally, Judge Trauger held that the Tennessee statute does not afford procedural due process and that a "driver facing revocation for nonpayment of court debt is entitled to a pre-revocation notice and determination related to his indigence," to be developed by the state.

While issuing an injunction against the statute's future enforcement, Judge Trauger ordered the state to "submit a plan, within 60 days, for lifting the revocations of drivers whose licenses were revoked under Tenn. Code Ann. § 40-24-105(b) and providing an appropriate process for reinstatement."

Or, of course, Tennessee could appeal.

July 3, 2018 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Wednesday, June 27, 2018

District Judge Enjoins Administration's Child-Parent Separation Policy

In an opinion and order in Ms. L. v. United States Immigration and Enforcement (ICE), United States District Judge Dana Sabraw has found that the current Administration policies regarding separation of parents and children and reunification likely violate due process meriting a preliminary injunction.

Recall that in early June, Judge Sabraw denied a motion to dismiss in the same case finding that that there was sufficient claim of a due process violation, applying the "shocks the conscience" test.

This opinion reasserts that conclusion:

This practice of separating class members from their minor children, and failing to reunify class members with those children, without any showing the parent is unfit or presents a danger to the child is sufficient to find Plaintiffs have a likelihood of success on their due process claim. When combined with the manner in which that practice is being implemented, e.g., the lack of any effective procedures or protocols for notifying the parents about their childrens’ whereabouts or ensuring communication between the parents and children, and the use of the children as tools in the parents’ criminal and immigration proceedings,  a finding of likelihood of success is assured. A practice of this sort implemented in this way is likely to be “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,” interferes with rights “‘implicit in the concept of ordered liberty[,]’” Rochin v. Cal., 342 U.S. 165, 169 (1952) (quoting Palko v. State of Conn., 302 U.S. 319, 325 (1937)), and is so “‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency.” Breithaupt v. Abram, 352 U.S. 432, 435 (1957).

Judge Sabraw relied on the fact of separation and the government's failure to have a reunification plan, despite the June 23 Administration "Fact Sheet,"  that addressed not only removal but also"reunification for other purposes, such as immigration or asylum proceedings, which can take months." He stated that there was

no genuine dispute that the Government was not prepared to accommodate the mass influx of separated children. Measures were not in place to provide for communication between governmental agencies responsible for detaining parents and those responsible for housing children, or to provide for ready communication between separated parents and children. There was no reunification plan in place, and families have been separated for months.

Judge Sabraw's opinion clearly rests on the substantive due process claim violated by the governmental family separation policy, but also sounds in procedural due process:

the practice of separating these families was implemented without any effective system or procedure for (1) tracking the children after they were separated from their parents, (2) enabling communication between the parents and their children after separation, and (3) reuniting the parents and children after the parents are returned to immigration custody following completion of their criminal sentence. This is a startling reality. The government readily keeps track of personal property of detainees in criminal and immigration proceedings. Money, important documents, and automobiles, to name a few, are routinely catalogued, stored, tracked and produced upon a detainees’ release, at all levels—state and federal, citizen and alien. Yet, the government has no system in place to keep track of, provide effective communication with, and promptly produce alien children. The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property. Certainly, that cannot satisfy the requirements of due process. See Santosky v. Kramer, 455 U.S. 745, 758-59 (1982) (quoting Lassiter v. Dept. of Soc. Services of Durham County, N.C., 452 U.S. 18, (1981)) (stating it is “‘plain beyond the need for multiple citation’ that a natural parent’s ‘desire for and right to the companionship, care, custody, and management of his or her children’ is an interest far more precious than any property right.”) (internal quotation marks omitted).

Judge Sabraw found that the government's procedures which place "the burden on the parents to find and request reunification with their children under the circumstances presented here is backwards," and that under the present circumstances, "the Government has an affirmative obligation to track and promptly reunify these family members."

 

June 27, 2018 in Due Process (Substantive), Executive Authority, Fifth Amendment, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Tuesday, June 26, 2018

States Sue to Challenge Federal Child-Parent Separation Policy

In a lengthy complaint in Washington v. United States, seventeen states (as well as the District of Columbia) have challenged the "Trump Administration's practice of refusing entry to asylum applicants who present at the Southwestern border ports of entry and its cruel and unlawful policy of forcibly separating families who enter the country along our Southwestern border."

The states — Washington, California, Maryland, Oregon, New Mexico, New Jersey, Iowa, Illinois, Minnesota, Rhode Island, New York, Vermont, North Carolina, and Delaware, and the Commonwealths of Massachusetts, Pennsylvania, and Virginia; and the District of Columbia — argue that the federal policy is unconstitutional as a violation of substantive due process, procedural due process, and equal protection, pursuant to the Fifth Amendment.

The substantive due process claim alleges that state residents who are parents have a liberty interest in the care, custody, and control of their children, and that minors who are residents have a reciprocal liberty interest in being with their parents, as well as a right to be free of unreasonable risk of harm from the government separating them from their parents, detaining them, and housing them in unlicensed facilities.

The procedural due process claim alleges that the federal government has deprived residents and future residents of their liberty with "no hearing whatsoever."

The equal protection claim alleges that the federal government has infringed on a fundamental right and "targets" individuals based on "nationality or ethnicity," and is thus subject to strict scrutiny, or in the alternative, disparately impacts immigrants from Latin America based on animus.

The complaint also has two statutory counts: one under the Administrative Procedure Act and one under the laws regulating asylum.

The allegations in the 128 page complaint also seek to establish standing on behalf of each of the States.

This complaint joins the challenges we previously discussed in M.G.U. v. Kirstjen Nielsen  and a federal judge's June 7 decision in L. v. ICE denying a motion to dismiss a similar complaint.

  Agnes_Rose_Bouvier03

[image via]

 

 

June 26, 2018 in Due Process (Substantive), Equal Protection, Executive Authority, Fifth Amendment, International, Procedural Due Process | Permalink | Comments (0)

Tuesday, April 17, 2018

SCOTUS Finds INA Deportation Provision for "Crime of Violence" Unconstitutionally Vague

In its opinion in Sessions v. Dimaya, the United States Supreme Court held that a portion of the definition of "crime of violence" in 18 U.S.C. §1, as applied in the deportation scheme of the Immigration and Nationality Act,  see 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C), is unconstitutionally vague.

The Court's somewhat fractured opinion concluded that the residual clause, §16(b), which defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" is unconstitutionally vague.

Justice Kagan's opinion was joined in its entirety by Justices Ginsburg, Breyer, and Sotomayor. Justice Gorsuch joined only Parts I, III, IV–B, and V, thus making these sections the opinion of the Court.

The Court's opinion relied on Johnson v. United States (2015), authored by Justice Scalia, in which the Court found a similar residual clause in the Armed Career Criminal Act (ACCA), defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B) unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause.

The Court in Dimaya ruled that

§16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague" {in Johnson}.  It too “requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents” some not-well-specified-yet-sufficiently- large degree of risk. The result is that §16(b) produces, just as ACCA’s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

The United States and the dissenting opinions attempted to distinguish the INA provision from the ACCA provision in several ways. Kagan, writing for the Court in Part IV that "each turns out to be the proverbial distinction without a difference." 

34033716420_bd72e5fd56_zGiven Gorsuch's joining with the perceived more liberal-leaning Justices on the Court, his concurring opinion is sure to attract attention.  Gorsuch's substantial opinion (18 textual pages to Kagan's 25 page opinion for the Court and plurality), leans heavily on the foundations of due process, beginning

Vague laws invite arbitrary power. Before the Revolu­tion, the crime of treason in English law was so capa­ciously construed that the mere expression of disfavored opinions could invite transportation or death.

More importantly, Gorsuch disavows any notion that the context of immigration deportation merits any special consideration and that the Court's holding is narrow, stressing that the problem with the statute is the procedural one of failing to provide notice (and standards for judges) rather than the substantive choice by Congress.

Taken together with Johnson, the holding in Dimaya means that statutes must be much more precise when defining a "crime of violence" or risk being held unconstitutionally vague.

[image: caricature of Justice Neil Gorsuch by Donkey Hotey via]

April 17, 2018 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Fifth Amendment, Interpretation, Opinion Analysis, Procedural Due Process, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Thursday, February 15, 2018

Second Circuit Upholds NY Attorney General Regs Requiring Donor Disclosure

In its opinion in Citizens United v. Schneiderman, the Second Circuit rejected a challenge to the New York Attorney General's regulations requiring non‐profit organizations that solicit donations in NY to disclose their donors on a yearly basis.

The plaintiffs - - - Citizens United Foundation, a 501(c)(3)organization and Citizens United, a 501(c)(4) organization - - -have not been complying with the Attorney General's regulations requiring donor disclosure.  Both organizations must submit to the IRS Form 990 with each year’s tax returns, which includes a Schedule B including the organization’s donors, the donors’ addresses, and the amounts of their donations. The Attorney General’s regulations have long required that a charitable organization’s annual disclosures include a copy of the IRS Form 990 and all of its schedules. 13 N.Y.C.R.R. § 91.5(C)(3)(1)(a). But the Citizens United organizations have only ever "submitted the first page of their Schedules B—omitting the parts identifying donors," which apparently went without objection until 2013. 

The Citizens United organizations claimed that the New York disclosure requirements violated the First Amendment as chilling donors' speech, both facially and as applied. They also argued that the New York regulations were a prior restraint under the First Amendment. Additionally, they argued that the regulations violated due process and were preempted by the Internal Revenue Code.

Attorny_General_Eric_T_Schneiderman
NY Attorney General Eric Schneiderman

The opinion by Judge Rosemary Pooler held that all of these challenges lacked merit. On the chilled speech claim, Judge Pooler's opinion for the unanimous panel found that the plaintiffs' reliance on National Association for the Advancement of Colored People v. State of Alabama ex rel. Patterson (1958) was misplaced. The court applied exacting scrutiny, not the strict scrutiny that the Citizens United organizations advocated, and found the government interests of preventing fraud and self‐dealing in charities were important and the regulations made it easier to accomplish these goals. In the as-applied challenge, the Citizens United charities argued essentially that the current New York Attorney General was hostile to them, but the court stated:

In this case, all we have to go on is a bare assertion that the Attorney General has a vendetta against Appellants. Appellants have not even pled that the Attorney General will turn that alleged bile into untoward interference with the material support for Appellants’ expression. That is a far cry from the clear and present danger that white supremacist vigilantes and their abettors in the Alabama state government presented to members of the NAACP in the 1950s.

While Judge Pooler's opinion noted that it might be a closer case if the donor lists were to be made public, she noted that the IRC mandates that they remain confidential, and the NY regulations incorporate this requirement. The argument that NY might not follow this, or that there have been leaks, was not sufficient.

The court also found that the prior restraint challenge was without merit:

Facially content‐neutral laws that require permits or licenses of individuals or entities engaged in certain forms of expression only constitute prior restraints when they (1) disallow that expression unless it has previous permission from a government official and (2) vest that official with enough discretion that it could be abused.

Here, neither of those circumstances were met.

What Appellants complain of is not a proto‐censorship regime but the inevitability of prosecutorial discretion with finite enforcement resources. Prevention of their solicitation can only arise if they fail to comply with content‐neutral, unambiguous, and narrowly drawn standards for disclosure—they need only submit a document they already prepare and submit to the IRS—and then only after warning and opportunity to cure. It is, in other words, a remedial measure, not ex ante censorship. Moreover, without any indication of bias in application, we cannot view the Attorney General’s discretion to determine which groups receive deficiency notices or face penalties for failing to file Schedule B as anything but a necessary manifestation of the need to prioritize certain enforcement efforts over others.

While the district judge had found the due process challenge was not ripe, the Second Circuit reversed that conclusion, and decided on that the claim had not merit.  Affirming the district judge, the Second Circuit found there was no preemption.

Thus, the Citizens United charitable organizations will need to disclose the same information to New York and they do to the IRS or else face penalties. But it may be that they use some of their donations to petition the United States Supreme Court for review.

February 15, 2018 in Campaign Finance, First Amendment, Opinion Analysis, Preemption, Procedural Due Process | Permalink | Comments (0)

Monday, February 12, 2018

Ninth Circuit Recognizes Right to Intimate Association for Police Employee

In its opinion in Perez v. City of Roseville, a panel of the Ninth Circuit reversed a district judge's granting of summary judgment to the government on a constitutional challenge by Janelle Perez to her termination from the City of Roseville after an internal affairs investigation into her "romantic relationship" with a fellow officer. The investigation noted that both officers "are married and have young children."

Authored by Judge Reinhardt, the opinion noted that its conclusion was required by Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983), in which the Ninth Circuit held that the city violated Thorne's constitutional rights when it relied on her private, non-job-related sexual conduct as a clerk-typist in refusing to hire her as an officer, without “any showing that [her] private, off-duty personal activities ... [had] an impact upon [her] on-the-job performance,” or contravened “specific policies with narrow implementing regulations.” Likewise, Roseville failed to "introduce sufficient evidence that Perez’s affair had any meaningful impact upon her job performance."

Interestingly, the Ninth Circuit identifies a circuit split on the issue: We recognize that, since Thorne, at least two other circuits have adopted rules that appear to be in some tension with our case. See Coker v. Whittington, 858 F.3d 304, 306 (5th Cir. 2017) (concluding Constitution not violated where two sheriff’s deputies were fired for moving in with each other’s wives before finalizing divorce from their current wives because the Sheriff’s policies were supported by a rational basis); Seegmiller v. LaVerkin City, 528 F.3d 762, 770 (10th Cir. 2008) (upholding termination of officer on basis of extramarital affair under rational basis test because there is no “fundamental liberty interest ‘to engage in a private act of consensual sex’”). > Affair_at_the_InnHowever, the Ninth Circuit rejects the "approach taken by the Fifth and Tenth Circuits" for two reasons. First, there is the "binding precedent" of Thorne:

Because the State’s actions in this case “intrude on the core of a person’s constitutionally protected privacy and associational interests,” we must analyze them under “heightened scrutiny.” Thorne, 726 F.2d at 470. Moreover, even if we were to agree that the Department’s action here need only satisfy rational basis review, Thorne explains that it cannot survive any level of scrutiny without either a showing of a negative impact on job performance or violation of a constitutionally permissible, narrowly drawn regulation. Id. at 471. Under our precedent, the Department must do more than cite a broad, standardless rule against “conduct unbecoming an officer.”

Second, the "Fifth and Tenth Circuits fail to appreciate the impact of Lawrence v. Texas, 539 U.S. 558 (2003), on the jurisprudence of the constitutional right to sexual autonomy." 

"Lawrence did much more than merely conclude that Texas’ anti-sodomy law failed the rational basis test. Instead, it recognized that intimate sexual conduct represents an aspect of the substantive liberty protected by the Due Process Clause. As such, the constitutional infirmity in Texas’ law stemmed from neither its mere irrationality nor its burdening of a fundamental right to engage in homosexual conduct (or even private consensual sexual conduct,  Rather, Texas’ law ran afoul of the Constitution’s protection of substantive liberty by imposing a special stigma of moral disapproval on intimate same-sex relationships in particular. As the Court explained, the liberty protected by the Due Process Clause must extend equally to all intimate sexual conduct between consenting adults, regardless of whether they are of the same sex or not, married or unmarried. . . . Lawrence makes clear that the State may not stigmatize private sexual conduct simply because the majority has “traditionally viewed a particular practice,” such as extramarital sex, “as immoral.” Thus, without a showing of adverse job impact or violation of a narrow, constitutionally valid departmental rule, the Constitution forbids the Department from expressing its moral disapproval of Perez’s extramarital affair by terminating her employment on that basis.

[citations omitted].

Thus, the Ninth Circuit holds that Thorne, decided 20 years before Lawrence was correct and the Fifth and Tenth Circuit opinions, both decided after Lawrence, do not give Lawrence proper effect.

Concurring, Judge Tashima stresses that Perez was a probationary police officer and thus the government need not have provided reasons. However, when the government did provide reasons "those reasons all arose in such short order after the internal affairs review that a reasonable inference may be drawn that they may have been pretextual." Additionally, the majority opinion held that the government had no right to qualified immunity because the rights were clearly established, again relying on Thorne, decided in 1983.

The majority panel opinion rejected a procedural due process claim and a gender discrimination claim.The court thus reversed the summary judgment in favor of the government and remanded the case for further proceedings given the factual disputes regarding the actual reasons Perez was termination. 

February 12, 2018 in Association, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Procedural Due Process, Sexuality | Permalink | Comments (0)

Wednesday, September 27, 2017

Sixth Circuit Finds Lack of Procedural Due Process in Title IX Disciplinary Hearing

 In its opinion in Doe v. University of Cincinnati, a Sixth Circuit panel affirmed a district judge's grant of a preliminary injunction against the university suspension of student John Doe.  The university suspended graduate student John Doe after a finding of a sexual offense in a Title IX hearing at which the complaintant did not appear. 

Using the well-established criteria for procedural due process claims, Judge Richard Griffin's relatively succinct opinion found that the risk of erroneous deprivation of Doe's acknowledged interest was great.  Doe claimed that his inability to cross-examine the complaintant in a context in which the basic issue was one of credibility - - - a choice of believing Doe's assertion that the sex was consensual and Jane Roe's complaint that it was not consensual - - - was a fundamental flaw.  The court agreed, even though the university had no ability to compel Jane Roe's appearance.  The court also found the time lapse troubling: the university waited a month after the complaint to interview Jane Roe, four months after that to notify John Doe, and four months after that to hold the hearing.

CampusJuly14_54

The court did consider the potential for "emotional trauma" to Jane Roe, but concluded that when there is an issue of credibility, there must be a mutual test of credibility as part of the process "where the stakes are this high."  The court did seek to qualify its rationale as not requiring John Doe be allowed to cross-examine Jane Roe during the hearing:

However, we emphasize that UC’s obligations here are narrow: it must provide a means for the ARC [the university’s Administrative Review Committee] panel to evaluate an alleged victim’s credibility, not for the accused to physically confront his accuser.

The University has procedures in place to accommodate this requirement. A month before the ARC hearing, Mitchell informed Doe and Roe that they could “participate via Skype . . . if they could not attend the hearing.” Doe did not object to Roe’s participation by Skype, and he does not object to this practice on appeal. To the contrary, the record suggests that he or one or more of the ARC panelists in fact appeared at the hearing via Skype. What matters for credibility purposes is the ARC panel’s ability to assess the demeanor of both the accused and his accuser. Indisputably, demeanor can be assessed by the trier of fact without physical presence, especially when facilitated by modern technology.

The court's opinion added that it was "sensitive" to the "competing concerns" of the case: the goal of reducing sexual assault is more than laudable, it is necessary; but the elimination of "basic procedural protections" may not be a "fair price" to achieve that goal. 

These "competing concerns" are likewise the subject of debate as controversial Secretary of Education Betsy De Vos has acted to rescind the previous guidelines for educational institutions dealing with sexual assault based in part on the perceived "deprivation of rights" for accused students. While the new memo does not mandate cross-examination (unless it is provided to one party and then must be provided to both),  no doubt the Sixth Circuit's opinion in Doe v. University of Cincinnati will be used to bolster Secretary de Vos's decision.

 

September 27, 2017 in Current Affairs, Gender, Opinion Analysis, Procedural Due Process | Permalink | Comments (0)

Friday, September 22, 2017

Court Rebuffs Challenge to New Jersey's Bail Reform Law

Judge Jerome B. Simandle (D.N.J.) today declined to halt New Jersey's bail-reform law. The law provides for alternative, non-monetary pretrial release options in order to give poor defendants (who often can't afford bail) a shot at pretrial release while still serving other criminal justice interests. The plaintiffs in the case argued that the law violated the Eighth Amendment, due process, and the Fourth Amendment.

The preliminary ruling, denying the plaintiffs' motion for a preliminary injunction, leaves the law in place, for now. But today's order isn't a final ruling on the merits.

The plaintiffs lawyered-up big time (Paul Clement appeared pro hac), suggesting that this is just the first step in their aggressive challenge to New Jersey's law. One reason for the attention to the case: Taking money out of the bail system also takes away a stream of revenue from corporations like plaintiff Lexington National Insurance Corporation. As more jurisdictions look to non-monetary bail options to avoid keeping poor, nonviolent defendants behind bars pending trial, bail providers stand to lose even more.

The New Jersey bail-reform law sets up a five-stage, hierarchical process for courts to follow in setting bail. It allows for pretrial release of certain defendants with non-monetary conditions, like remaining in the custody of a particular person, reporting to a designated law enforcement agency, home supervision with a monitoring device, and the like. In order to help navigate the process for any particular defendant, the court gets risk-assessment recommendations from a Pretrial Services Program. According to the court, in less than a year under this system, "[t]his reform has shown great success in placing persons into pretrial release who would previously have been held in jail for failure to meet monetary bail and because pretrial monitoring options were largely unavailable. As a result, many fewer defendants are being detained in jail as they await trial."

Using this system, a New Jersey court ordered plaintiff Brittan Holland released, but subject to home confinement (except for work), with an ankle bracelet for monitoring, weekly reporting, and no contact with the victim. (Holland was charged with second-degree aggravated assault and agreed to these conditions on his release in exchange for the state withdrawing its application for detention.)

Holland argued that the system deprived him of a right to have monetary bail considered as a primary condition of release, and that as a result his conditions amount to an undue restraint on his liberty. (He said that the conditions "severely restricted [his] liberty, disrupted [his] family life, made [him] concerned about [his] job security, and made [him] feel that [his] life is up in the air.") Plaintiff Lexington, a national underwriter of bail bonds, joined, arguing that the system would cause it to lose money.

The court ruled first that Holland had standing, but that Lexington probably did not. Here's how the court explained Holland's standing:

Holland claims that his injury is not simply the restriction on his liberty, but rather the imposition of that restriction after a hearing that violated his rights under the Fourth, Eighth, and Fourteenth Amendments. He claims that such injury will be sufficiently redressed should the Court order that a hearing respecting those constitutional rights (as he understands them) be held, regardless of the ultimate outcome of such a hearing. Should the Court order such a hearing to be held, the relief then would not be speculative. He claims that he was injured by the holding of a hearing that did not afford him his constitutional rights, including the alleged right to have monetary bail considered as a primary condition of release pending trial, and that ordering a new hearing that does afford him those rights will redress that injury.

As to Lexington, the court said that it failed to establish standing for itself (because it could only assert harms of a third party, someone like Holland), and that it likely failed to establish third-party standing (because criminal defendants don't face any obstacles in bringing their own claims--obviously, in light of Holland's participation in the suit). (The state also argued that Lexington lacked prudential standing, because its injury doesn't fall within the zone of interests of the statute. The court said that the state could raise that argument later, as part of a failure-to-state-a-claim argument.)

Next, the court said that Younger abstention was inappropriate, because "[p]laintiffs, here, do not seek to enjoin the state prosecution against Holland; instead, they challenge the procedure by which the conditions of pre-trial release during that prosecution was decided and seek an injunction ordering a different procedure."

As to the merits, the court held that the plaintiffs were unlikely to success on all claims. The court said that the Eighth Amendment doesn't guarantee monetary bail, and that Holland waived his right to it, anyway. It said that Holland received procedural due process, and that he had no right to monetary bail under substantive due process. And it said that conditions were reasonable under the Fourth Amendment, and, again, that Holland agreed to them, anyway.

September 22, 2017 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Standing | Permalink | Comments (1)