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Tuesday, June 28, 2005

Is it Unlawful To Threaten Justice Souter's Home (Suggested Answer: Yes)

Many bloggers (including Reynolds and Barnett) have today linked to a press release which announces a campaign to seize Justice Souter's home to build a "Lost Liberty Hotel."  Barnett has now apologized for the link, claiming that he believed the idea was a joke, and that it violates Kelo itself to seize Justice Souter's land to punish him for his authorship participation in the decision.  Reynolds' latest post on this topic, on the other hand, states only:

"Did I say "heh?"  I hope the project moves ahead."

The press release purports to provide Justice Souter's home address, and suggests that a "Logan Darrow Clements" has actually filed an application to take Justice Souter's land.  Because the hotel will encourage economic development.  See how clever Clements is? 

There are three possibilities here.  This may be a fake.  If so, the huge circulation the "joke" has received today is likely to have made it real (go here, and read the comments here, and tell me that these folks are kidding).    Or, it might be a media-event -- i.e., a real fax, a real claim, but not intended to be pursued.  Or, it might be deadly earnest. 

Frankly, I don't care what Clements' original intent  was.  I'm all for a joke. But this kind of retaliation against a Justice who merely wrote voted for a majority opinion (applying a century of solid precedent)  through use of a frivolous land claim strikes at the heart of our government of ordered liberty.  It is, I think, the same as if a mugger went to Justice Scalia on the street and asked for his wallet, on the ground that the Justice has, through his jurisprudence, eroded the protection against seizure  on the thoroughfare.

I (spurred by a co-bloggers here at Prawfsblawg) got to thinking: is this unlawful?  Here are some preliminary thoughts, which I encourage others here to join into, via comments or additional posts.  I divide the potentially unlawful actors into two groups.

  1. Logan Darrow Clements
  • Obviously, the takings claim itself is frivolous, given Kelo's intent language.
  • Given the purpose of the action is to retaliate against Justice Souter for acts in his official capacity, one would think that the federal obstruction of justice statute would be relevant. But it doesn't appear to be (no property harms against judges are actionable, at least on a quick read).
  • 40 U.S.C. 13, which defines the mandate of the Supreme Court Police force, does give that force the power to arrest anyone who threatens a Justice (or the property around the Supreme Court).  It would seem a stretch to turn that authority into carte blanche to arrest someone who is using the judicial process to seek to frivolously deprive Justice Souter of his property. (This is especially so given that Justice Souter ought to be able to get the USAO to pay his attorneys fees, if any, in the takings action given that the motivation is to punish him for official acts).
  • How about a state law crime?  In Pennsylvania, for example, retaliation by threatening the property of a judge is illegal. A quick web-search disclosed no New Hampshire equivalents.  Presumably, since Clements is now soliciting funds for his scheme (presuming, again, that it isn't a joke) you could tie the underlying conduct into a RICO case.
  • Other thoughts? (Putting aside civil remedies like malicious prosecution that Justice Souter is . . . unlikely . . . to take advantage of.
  • Summary: even if there weren't a constitutional problem [in the comments, Paul Gowder suggests that the Noerr-Pennington doctrine might apply here] a criminal case is hard to make out here.  There are civil remedies, but that is cold comfort for a sitting Justice. 

    2.  Bloggers

  • It surely can't be criminal to link to the Clements fax. Not even close.
  • Nor, off the top of my head, can it possibly be actionable (the bloggers were amused, even if their commentators took the entire thing quite seriously).  The linking jurisprudence that I've seen gives bloggers good protection against a facilitation charge.
  • But, and now I am a bit more unsure, what about the professional codes?  (I don't know enough about Prof. Responsibility to responsibly blog about it; however, it strikes me likely that lawyers who actively encourage frivolous litigation against judges may have a problem.)

Note: I am not claiming that anyone is guilty of anything.  Indeed, this is just a tempest in a teapot in many ways.  But it strikes me that there are some limits to how one should properly react to a Supreme Court decision.  From my naive, probably too-earnest, still-new-prof position, even suggesting that folks should retaliate against the Justice's person or property is clearly over the line.  As for the defense that "it was merely a joke" (even if taken seriously by most of its audience),  in this limited arena I'd say that blawgs are somewhat like the security line at an airport.

[Update: Post corrected for typos and misc. errors]
[Update 2:  Eric Muller had a somewhat similar reaction]
[Update 3:  But Eric Rasmusen thinks that Barnett shouldn't have apologized:  "[I]f we go after Souter’s house now, we may induce the Court to retreat a bit, and preserve a few freedoms that we will otherwise lose."  Wow.  Anyone still think this is funny?]

Posted by Dave Hoffman on June 28, 2005 at 08:09 PM in Constitutional thoughts | Permalink

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Comments

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Noerr-Pennington defense!!!!!!


(Which, AFAIK, has never been tried in a criminal case, but seems to apply. After all, an attempt to get the city council to seize land is a direct exercise of the right to petition an elected body, and also core political speech.)

Posted by: Paul Gowder | Jun 28, 2005 9:27:04 PM

But this kind of retaliation against a Justice who merely wrote a majority opinion (applying a century of solid precedent) through use of a frivlous land claim strikes at the heart of our goverment of ordered liberty.Justice Souter didn't write Kelo, Justice Stevens did. Why, in particular, this group is going after Justice Souter - as opposed to, say, Kennedy, Ginsburg, or Breyer JJ., all of whom had as much or as little to do with the result in Kelo as Justice Souter - I do not know.

Posted by: Simon | Jun 28, 2005 10:52:20 PM

Because he lives in a community where Kelo is particularly despised, and so the local government might feel some political pressure to approve of the seizure?

At any rate, it appears that judges have rights we peons must respect, even if the reverse is not true. How nice for them...

Posted by: Brett Bellmore | Jun 29, 2005 9:32:33 AM

Well, given the marina development that was announced yesterday, I think you have misread how the case will be applied.

As for a frivolous land claim the town would have a very non frivolous basis -- pure economic development. There is a great chance this will go forward because it would probably be an economically profitable move. From the township's view, it is not frivolous at all.

What this really reminds me of is Douglas and others who insisted on not following the rules they made law -- refusing to hire female law clerks, for example. I've a good friend and an excellent female attorney who learned to swear like a sailor in order to avoid being excluded the way those gentlemen excluded female clerks. I eventually sat down with her mother to explain why the transition and that it didn't mean her baby girl had gone bad.

But I found the justices who excluded female clerks and who talked about how they were entitled to do that while the rest of the country had to grow up and act like real human beings, I found those justices not as sympathetic as I would like.

Anyway, frivolous -- not at all. The right thing to do, obviously not.

Which, unfortunately, describes much of what goes on, both in criticism and in practice.

Posted by: Stephen M (Ethesis) | Jun 29, 2005 10:32:15 AM

Stephen: The majority in Kelo states: "a State may transfer property from one private party to another if future 'use by the public' is the purpose of the taking."

The press release justifying the proposed taking of this particular land states that the "hotel must be built on this particular piece of land because it is a unique site being the home of someone largely responsible for destroying property rights for all Americans."

That is, the purpose of the development is retaliation, not economic development. The economic justification is "a mere pretext of a public purpose" (in Kelo's words): we all know it. So I can't agree with you that there "is a great chance this will go forward because it would probably be an economically profitable move. From the township's view, it is not frivolous at all." Indeed, Justice Kennedy's crucial concurrence states that: "A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government’s actions were reasonable and intended to serve a public purpose." No way a taking here would survive such a review.

As for Paul and Simon, thanks for pointing out errors.

Posted by: Dave Hoffman | Jun 29, 2005 10:52:01 AM

Isn't retaliation on behalf of the public against a rogue official a public purpose? :-)

Moreover, if the only impermissible form of taking is that which is "favoritism to private parties," it's not clear that the hotel concept is one. After all, this doesn't benefit a favored private party, it simply injures a disfavored public one.

Posted by: Paul Gowder | Jun 29, 2005 11:56:59 AM

Dave,

I think you're conflating the private party's (FreeStar's) motives with the government's purpose. It seems reasonably clear to me that what was determinative in Kelo (and earlier takings cases like Midkiff) was the purpose that the government sought to achieve through the taking, not the motive of the private parties who benefitted from and agitated for the taking. I don't see why the underlying motives of the developer should be the government's concern, as long as it believes that the development will provide an economic benefit to the community. And I certainly don't see how we can automatically impute the private party's underlying motives -- even clearly expressed ones -- to the government. If the government concludes that the proposed hotel would be economically beneficial to the locality, which may in fact be the case here, then the claim that it would serve a "public purpose" under Kelo is far from frivolous. In fact, under Kelo and the other takings cases, that claim seems to be entitled to considerable deference.

By the way, I'd point out that the Pennsylvania statute to which you link only prohibits retaliation by "an unlawful act." Assuming New Hampshire had an equivalent statute, has building a hotel now become an unlawful act?

The suggestion that availing oneself of established legal processes suddenly becomes a crime when the subject is a judge strikes me as a little counterintuitive, to say the least. If you believe some form of judicial immunity should extend even to situations such as this, fine. But I think the moral case for criminal sanctions here is awfully weak. Are you suggesting that every pro se plaintiff who tries to sue a judge for his actions on the bench is or should be considered a criminal? If so, just how far should the criminal liability extend? Suppose a plaintiff has a legitimate cause of action against a judge for an act or omission off the bench, but the plaintiff's explicitly stated motive for bringing the suit is that he doesn't like the judge's decisions? (I.e., "with anybody else I'd have let it pass, but that guy really pisses me off.") Is that plaintiff a criminal, too?

Posted by: Matt | Jun 29, 2005 1:48:11 PM

[I]t strikes me likely that lawyers who actively encourage frivolous litigation against judges may have a problem.

Unless condemnation suits in Virginia do not proceed in rem like elsewhere, or I am way off base, wouldn't this at worst be encouraging frivolous litigation against land? And anyway, the litigation would be filed by an elected public body, so I wonder if that wouldn't insulate the people calling for it. Condemnation is government policy; could it possibly be a violation of professional responsibility to petition a government like this?

Posted by: Alan Robinson | Jun 29, 2005 4:17:53 PM

Dave, it seems to me that the majority in Kelo actually states that "a State may transfer property from one private party to another if a possible future 'use by the public' is the purpose of the taking." Justice Stevens specifically considered and rejected the appropriate ruling:Kelo goes wrong four sentences into III, where, having come painfully close to grasping the point - "it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation" - it then rejects this as a basis for deciding the case. This is as close as Stevens' opinion gets to the Constitution, and thereafter, it never again reconnects with text, tradition, or common sense, even, for that matter.(Excerpted from my comments June 28, 2005 06:06 PM)

Posted by: Simon | Jun 29, 2005 4:22:20 PM

"...condemnation suits in Virginia...." Oops, I guess this deals with the Justice's land in New Hampshire.

Posted by: Alan Robinson | Jun 29, 2005 4:25:30 PM

Not sure why you found the obstruction statute irrelevant. Here it is, edited to the essentials:

18 U.S.C. 1503(a): "Whoever ... by any threatening letter or communication, endeavors to influence, intimidate, or impede any ... officer in or of any court of the United States, ... in the discharge of his duty, ... or injures any such officer ... in his person or property on account of the performance of his official duties ... shall be punished ... [by imprisonment for not more than 10 years, a fine, or both].

Is attempting to take a home by eminent domain an attempted injury to property? Or does the legal process that eminent domain involves, or the "just compensation" that the 5th Am. requires, keep it from being an "injury"? From the press release, it's pretty clear that the attempt to invoke eminent domain is taken "on account of the performance of his official duties."

Not clear whether Noerr-Pennington, or the 1st Am. petition clause, would provide a defense if this does fall within the statute.

Posted by: Bruce | Jun 29, 2005 4:39:22 PM

Someone has already touched it in regards to state law, but my understanding is that any threat or retalition must include an illegal act. Any legal act, regardless of motive, is simply an exercise of rights and therefore can't be punished. You can't, after all, punish or prohibit legal acts (or they wouldn't be legal.)

Posted by: Phelps | Jun 29, 2005 4:44:57 PM

Prof. Hoffman you said,

It is, I think, the same as if a mugger went to Justice Scalia on the street and asked for his wallet, on the ground that the Justice has, through his jurisprudence, eroded the protection against seizure on the thoroughfare.

That isn't at all how it is at all. It is more like if a mugger asked permission for Justice Scalia's wallet, on the grounds that through jurisprudence the Justice had deemed "asking" to make the act legal.

Clements act is inherently legal; he is attempting to use the political mechanism to further economic development in his town. (Albeit for his own reasons.) He got the idea from a case that Souter supported, and he thinks that he can show Souter why he was wrong in supporting this decision. (Even though we know Clements doesn't have a leg to stand on.) What Clements is doing is reprehensible and stupid, but not illegal.

Posted by: Sean Sirrine | Jun 29, 2005 6:29:01 PM

I disagree with those who believe this is a constitutionally protected activity. There is a constitutional right of access to the courts, after all; and yet we still permit state-law causes of action for malicious prosecution and abuse of process. Perhaps the reason is that there is no constitutional right to access the courts for frivolous reasons.

Perhaps the answer to what makes this conduct wrongful is that it is an abuse of the "right" to petition for a seizure of someone's property. For example, a legitimate developer may have the right to request an eminent domain taking, but if their actual purpose were to harass the current landowner and cause them to incur legal fees, I doubt that would be considered protected activity. So there may be a state-law tort akin to abuse of process that would apply here.

I find it hard to neatly compartmentalize the petitioner's intent, however. Kelo clearly does not permit a taking of the type requested here (an A-to-B transfer premised upon a barely colorable argument of enhanced tax revenues), but that does not necessarily establish good faith. After all, it seems like many of the outspoken opponents of Kelo sincerely believe that A-to-B takings are now permitted; in fact, this is the very reason for their strident opposition, in many cases.

If this were a lawsuit, the plaintiff would not be liable for abuse of process despite its frivolous nature, so long as they had an honest, albeit unreasonable, belief that it was meritorious. So the attempt to pigeonhole the situation into an abuse of process tort might fall apart at this stage.

A lawyer, on the other hand, might well be subject to Rule 11-type sanctions for participating in this activity, because there is no good-faith basis for believing that Kelo permits this requested taking. This is also consistent with a lawyer's ethical duty to promote respect for the judicial system; one may disagree with a court's decision, but one should not seek to bring the judge into personal disrepute or otherwise harass him merely because he ruled the wrong way.

Posted by: Steve | Jun 29, 2005 7:26:53 PM

Since when is retaliation a defense to an otherwise proper eminent domain claim on the part of the government? If there is a holdout owner who, even though all his neighbors sold their land, refuses to sell his and forces the government to acquire his land through eminent domain (assume it is to build a freeway, classic public use), the government at this point may feel annoyed at the guy and say "hah, well take this for holding out!" and then take his land. Retaliatory? Even if it is, so what?

This is not illegally stealing Souter's land, it's using the government to take it legally for a public use (with just compensation).

I disagree that sanctions of any sort would be in order. I concede that doing this is deliciously immature, but that's it. If it's for a bona fide public use (a privately-owned hotel under Kelo apparently is such a public use), that's all that's required other than just compensation. Motive is not relevant, even if a federal judge is involved.

Posted by: Bruce | Jun 29, 2005 8:05:55 PM

Motive is absolutely relevant. However, Bruce, you have postulated an example where the government 'dislikes' someone, but the dislike is not the MOTIVE - rather, the desire to build a freeway is the motive.

If one could prove that the public use was a mere pretext, however, and that the government's real motive was personal animus or something else that is not a valid public use, nothing in Kelo suggests that the taking would pass constitutional muster. The opinion does suggest that federal courts will look deferentially upon a finding of public use, but that's a far cry from saying that even if the public use is shown to be a pretext, the federal courts will refuse to act.

Posted by: Steve | Jun 29, 2005 9:17:38 PM

Well, Volokh agrees with my analysis, and in general, one can point to the analysis of others to defend against claims of frivolousness.


http://volokh.com/archives/archive_2005_06_26-2005_07_02.shtml#1120089545

if someone needs to defend against a Rule 11.


Posted by: Stephen M (Ethesis) | Jun 29, 2005 10:13:45 PM

Hello,

Perhaps it's wrong that Souter is being threatened with the condemnation of his private property.

However, it raises some questions about how much power Supreme Court justices wield in shaping public policy in America. If we feel Supreme Court did wrong in some cases, how could we legally convince the justices of their error judgments? It would appear that Supreme Court IS above the law. There's no way to vote out a justice like we can do to our elected officials. It shows that despite what Clements is doing is perhaps a stupid joke and wrong, however, there must be some ways to hold Supreme Court accountable for what it decides in landmark cases.

Anyhow, it does remind me of ONE special case....Roosevelt's threat to pack Supreme Court with New Deal supporters. Of course, he lost the political war, however, he did successfully threaten Supreme Court to rule in his favor. Was that the right thing to do or wrong? Remember, we're talking about threatening Supreme Court justices by legal (or in this case, political) process.

What Roosevelt did was probably legally permissible, is that to say if Clements story is true, isn't he also doing it legally permissible? Think long and hard on this, kids.

Posted by: Dan | Jun 29, 2005 11:27:07 PM

So, asking a city to consider redevelopment is the same as "a mugger ... [asking] for his wallet"? That's very perceptive.

Your blog is quite a blatant attempt at intimidating Mr. Logan and an incitement to curtail first amendment rights.

Posted by: Felicity | Jun 30, 2005 12:25:37 AM

A lawyer, on the other hand, might well be subject to Rule 11-type sanctions for participating in this activity, because there is no good-faith basis for believing that Kelo permits this requested taking.

There's no good-faith basis for believing that the Constitution permits this requested taking -- but that didn't stop Souter. There's every reason to believe that Kelo permits it. You write:

Kelo clearly does not permit a taking of the type requested here (an A-to-B transfer premised upon a barely colorable argument of enhanced tax revenues)

You apparently read a different Kelo decision than the one handed down by the Court. That's exactly what the New London taking was -- except that they spent more money on consultants to come up with a barely colorable argument about enhanced tax revenues. But the question of whether the hypothetical Souter taking would result in enhanced tax revenues is a question for the state, not the courts, subject at most to rational basis review.

The motives of the developer are irrelevant, because the developer isn't the Taking authority. If you could show that the town council is motivated by animus towards Souter, only then would Kelo stand in the way. As long as they're sincerely motivated by the possibility of higher tax revenues -- again, an issue subject only to rational basis review -- then this meets the Kelo non-criteria.

Posted by: David Nieporent | Jun 30, 2005 12:33:32 AM

Steve: I think you're wrong on the law -- there are many cases where actors have invoked public processes (not courts necessarily, although Noerr-Pennington has been applied to courts, but it's a clear case for city councils and other local legislative bodies) for allegedly malicious purposes: to injure their competitors, for example. Still, the Noerr-Pennington doctrine is ordinarily implied to immunize the activity because they're in fact seeking legislative action. The only generally recognized exception is the "sham" exception, which only applies when the person invoking the legislative process doesn't actually want the legislature to act, they simply want the hassle of the process itself, rather than the result. (Too tired to look up cases, but a search for the sham exception might help. Also I think it's addressed in columbia v. omni outdoor advertising in the Court, though I'm not sure off the top of my head)

Posted by: Paul Gowder | Jun 30, 2005 12:34:49 AM

I was never tempted to question the legality of this whole charade, but it annoyed me nevertheless. Whatever happened to the idea that Justices' beliefs about the constitutionality of certain legislative actions do not (or at least should not necessarily) coincide perfectly with their political ideas about the wisdom or outcome of those actions? Why isn't it possible that Souter thought the taking in question was despicable but not, as a constitutional matter, one upon which he would set the countermajoritarian bludgeon of the Court? Cf. Justice Thomas in Lawrence v. Texas (with all due acknowledgement of the dissent in Griswold): "This is an uncommonly silly law, but..." etc. Surely if Lawrence had come out the other way, a conservative wouldn't countenance criticism of Justice Thomas on grounds of homophobia. On second thought, maybe don't answer that...but doesn't the principle still hold? The target of the developers ire should be the city councilmen who authorized the taking, not any of the judges who were called upon to rule on its constitutionality.

Posted by: AWT | Jun 30, 2005 5:54:09 AM

Solution to the takings problem.

First of all, nothing gets built without the public voting on whether or not to build it/allow it (in the case of private industry). Once the public has voted it in, the placement should be decided by the engineers for city planning, market values for that area will be consulted, compensation will be decided, and THEN, and only THEN, will the area to be taken be announced. Just compensation will be construed to mean twice the market value of the land to any owner of record that has owned the land for longer than six months at the time of the decision. Three times the market value to anyone who has been owner of record for ten years or longer. In the event that the land ever reverts back to individual ownership (not corporate or government), the land comes back to the owner of record, free of charge, and in good condition (corporate/government owner is responsible for razing and clearing any structures not desired by the new/previous owner and removing any debris, environmental hazards, or residual waste).

But given this or some other acceptable compensation scheme, I think Kelo was decided rightly. The government should have considerable control in the placement of large buildings, public or private, for the better good of the public. Holdouts who can eventually be bought are one thing, but why would it be fair for one guy to hold out for, say, twice as much when the others were doing the decent thing and selling out for the fair price to keep from raping the city council? A builder has to be free to build in the best place possible, whether it's a road, a building, or a park. How many times have you, or someone around you, asked, Why'd they build that THERE? The reasons, sometimes, are political, but this is fixed with Kelo.

The part I don't agree with in Kelo will be fixed by the above rule change, I think. Opinions?

Posted by: Doc Neaves | Jun 30, 2005 8:10:32 AM

Better yet, three votes....one to okay the project, one to pick from, say, three proposed sites, one final up or down on the final site, maybe?

Posted by: Doc Neaves | Jun 30, 2005 9:39:46 AM

Liberals really are humorless and thin skinned.

Posted by: Robert Schwartz | Jun 30, 2005 12:44:58 PM

I just wanted to say that I found this a very informative post, thank you.

Posted by: Malnurtured Snay | Jun 30, 2005 3:26:29 PM

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