Thursday, March 26, 2015
Better Call Saul does law
As I have written, I waited anxiously for Better Call Saul, the Breaking Bad prequel that focuses on criminal lawyer Saul Goodman in his early days as Jimmy McGill. And the show has not disappointed.
Medical shows regularly feature actors spouting off medical and scientific lingo and I always wonder whether what they were saying made any sense. This week's episode of BCS, "RICO," gives law that treatment--cases, rules, and statutes are bandied about and lawyers are asked to look things up on Westlaw and to Shepardize.
Jimmy discovers that an assisted-living facility is surreptitiously charging its residents (including his client) for various supplies (such as $ 14 for a box of tissues). He and his brother start putting together a case involving claims for elder abuse, fraud, unfair trade practices, and RICO (hence the title).
I went back through the episode to hear all the law talk and try to figure out how much of the law made any actual sense.FRCP 11: Jimmy serves a "demand letter" (this is not necessarily a thing, even under New Mexico procedure, although many states require a plaintiff to serve a "Notice of Suit" letter) on the facility, which gets relayed to the facility's high-powered lawyer. The lawyer calls Jimmy and insists that "the best response would be to send a Rule 11 letter and have [McGill] sanctioned," because McGill had "no good-faith basis to threaten any litigation."
This one is clearly wrong. Rule 11 applies to papers filed with the court, not to something sent to counsel before litigation has even commenced. Plus, who would they ask for sanctions--no court actually has jurisdiction, since no lawsuit has been filed. Moreover, according to every court of appeals except the Seventh Circuit, Rule 11 cannot be triggered by a letter, only by motion (this was the very point of the Rule 11 essay I assigned this semester).
Jimmy's brother says they need to "start pulling case law--any precedent dealing with 18 U.S.C. §§ 1961-68": This is RICO, so they got the statute right. But pulling "any precedent" on all of RICO may kick back kind of a large amount of stuff; perhaps they should narrow their search a bit.
Cases to be read and Shepardized include:
Sedima v. Imrex: This is a major case loosening up the availability of civil RICO, holding that actionable conduct need not have resulted in a criminal conviction or produced a "racketeering injury."
Holmes v. SIPC: RICO requires proximate cause
Slesinger v. Disney: This could be any of several lawsuits in state and federal court over licensing rights for Winnie the Pooh, none of which involved RICO. My guess is that this one is an inside joke.
Statutes to be researched include:
30-47-1 NMSA: State statute concerning criminal offenses related to abuse and neglect of residents in health-care facilities
57-12-1-24 NMSA: State statutory provisions on unfair trade practices.
On the RICO question: The show makes a big deal about invoices showing that the fraudulently charged supplies crossed state lines, thus providing the interstate commerce hook. But is that necessary to make the RICO claim? Wouldn't it be enough that the facility itself substantially affects interstate commerce (as all such facilities do) and that it committed fraud? Does RICO require that the fraudulent act itself have an interstate hook?
Two other exchanges worth noting:
• Jimmy's brother says they should start with class cert., trying to get a conditional certification that will hold long enough to start discovery.
Whatever. It was never that quick or easy to get into discovery, even in 2002 (when the show takes place), the pre-historic days before Twiqbal and Wal-Mart. They are going to spend six months fighting over 12(b)(6) motions, regardless of class cert, before sniffing discovery.
• The ALF will not allow Jimmy onto the grounds. Jimmy's brother says they need to "quash this prohibition against you--some injunctive relief, maybe a TRO."
What other kind of injunctive relief is there besides a TRO when time is of the essence? Plus, "quash" seems an inappropriate term when there was no court order, but simply a private property owner controlling who has access to its property. But this raises an interesting remedies question--Would/Should a court of equity issue a TRO requiring that Jimmy be given access to a facility that he is suing, given that his client(s) live there? Or would the clients need to make the motion, arguing that they are entitled to have their lawyer visit them in their homes? Or would a private ALF be allowed to keep their residents away from their attorney when the residents are suing the facility through that attorney?
All-in-all, not bad. And a lot of fun to listen to.
Finally, check out The Legal Ethics of Better Call Saul, a blog operated by New York attorney Nicole Hyland that analyzes just how unethical Jimmy/Saul is being, at least under New York (as opposed to New Mexico) law.
Tuesday, March 24, 2015
SCOTUS Decision on Agency Determinations and Issue Preclusion
Today the Supreme Court decided B&B Hardware, Inc. v. Hargis Industries, Inc., a case about the preclusive effect of determinations made by the Trademark Trial and Appeal Board (TTAB) when reviewing trademark registrations. Writing for a seven-Justice majority, Justice Alito concludes that “a court should give preclusive effect to TTAB decisions if the ordinary elements of issue preclusion are met.”
Going forward, parties in trademark litigation will likely continue to litigate whether “the ordinary elements of issue preclusion” are, in fact, met with respect to any given TTAB decision. As Justice Ginsburg emphasizes in her brief concurrence, the Court recognizes that “for a great many registration decisions issue preclusion obviously will not apply.” Ginsburg explains that “contested registrations are often decided upon a comparison of the marks in the abstract and apart from their marketplace usage,” and that, if so, “there will be no preclusion of the likelihood of confusion issue in a later infringement suit.”
What may be of broader interest is the Court’s discussion of “whether an agency decision can ever ground issue preclusion.” The answer: yes, it can.Quoting a number of earlier decisions (citations omitted), Justice Alito writes:
“[B]ecause the principle of issue preclusion was so well established at common law, in those situations in which Congress has authorized agencies to resolve disputes, courts may take it as given that Congress has legislated with the expectation that the principle of issue preclusion will apply except when a statutory purpose to the contrary is evident. This reflects the Court’s longstanding view that when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.”
The Court then addresses – and dismisses – potential constitutional concerns with agency preclusion. Although Justice Alito finds that Hargis did not present any direct constitutional challenge, he discusses the Seventh Amendment and Article III in the context of Hargis’s “statutory argument that we should jettison administrative preclusion in whole or in part to avoid potential constitutional concerns.” Alito writes that “the Seventh Amendment does not strip competent tribunals of the power to issue judgments with preclusive effect; that logic would not seem to turn on the nature of the competent tribunal.” And he rejects the argument that “it might violate Article III if an agency could make a decision with preclusive effect in a later proceeding before a federal court.”
Justice Thomas writes a dissenting opinion, joined by Justice Scalia, that is much more skeptical of agency preclusion. His opinion begins:
The Court today applies a presumption that when Congress enacts statutes authorizing administrative agencies to resolve disputes in an adjudicatory setting, it intends those agency decisions to have preclusive effect in Article III courts. That presumption was first announced in poorly supported dictum in a 1991 decision of this Court, and we have not applied it since. Whatever the validity of that presumption with respect to statutes enacted after its creation, there is no justification for applying it to the Lanham Act, passed in 1946.
[Cross-posted at the Civil Procedure & Federal Courts Blog]
Monday, March 23, 2015
Two Interesting SCOTUS Cert Grants Today
Today’s order list from the Supreme Court includes grants of certiorari in two cases.
DIRECTV v. Imburgia (No. 14-462) will ask the Court once more to address arbitration agreements and the Federal Arbitration Act. The question presented is:
Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.
Montgomery v. Louisiana (14-280) involves the retroactivity of the Court’s 2012 decision in Miller v. Alabama, which held that the Eighth Amendment forbids sentencing schemes that mandate life-without-possibility-of-parole sentences for juvenile homicide offenders. The question presented in the cert. petition is:
Whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?
But the Court also asked the parties to address whether it even has jurisdiction:
Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller?
[Cross-posted at the Civil Procedure & Federal Courts Blog]
Friday, March 20, 2015
Unusual SCOTUS Line-ups
When it comes to civil procedure, the Supreme Court has had its share of sharply divided 5-4 decisions. In many cases, we get the voting alignment attitudinalists would expect: Iqbal, Wal-Mart, Concepcion, Comcast, Clapper v. Amnesty Int’l, Genesis v. Symczyk, to name some recent examples.
Sometimes, though, the Justices split in surprising ways. This Term’s decision in Dart Cherokee divided 5-4 over the whether (and by what standard) the Supreme Court could review a Court of Appeals’ refusal to hear a discretionary appeal under the Class Action Fairness Act. The majority—Roberts, Ginsburg, Breyer, Alito, and Sotomayor—concluded that review was proper. Scalia, Kennedy, Thomas, and Kagan dissented.
Another intriguing 5-4 split was Shady Grove. After analyzing Erie, FRCP 23, and the Rules Enabling Act, the majority concluded that federal courts were not bound by a state-law prohibition on certain kinds of class actions, even though Shady Grove was a diversity case arising under state law. In the majority were Roberts, Stevens, Scalia, Thomas, and Sotomayor. The dissenters were Kennedy, Ginsburg, Breyer, and Alito.
I’ve written elsewhere about why a case like Shady Grove might have generated such an unusual line-up. But the Shady Grove split also has a fascinating (if trivial) feature that I don’t recall seeing in any other Supreme Court decision. All of the Justices whose last names were in the second half of the alphabet were on one side, and all of the Justices whose last names were in the first half of the alphabet were on the other. I can’t think of an easy way to confirm whether this sort of voting pattern has ever happened before, so I figured I’d take advantage of my time on PrawfsBlawg to crowd-source it. Are readers aware of any other cases where the Court has split 5-4 along alphabetical lines?
Wednesday, March 18, 2015
Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)
I was glad to see Dave get the Twombly/Iqbal train rolling this month. Whatever the debate surrounding the empirical impact of Twombly and Iqbal, federal courts are continuing to struggle with what those decisions mean for how judges should decide Rule 12(b)(6) motions. A particularly difficult question has been the vitality of pre-Twombly Supreme Court precedents like Conley v. Gibson and Swierkiewicz v. Sorema.
These issues were on display last Friday (the 13th, by the way) as a divided Fourth Circuit panel affirmed the dismissal of an employment discrimination claim in McCleary-Evans v. Maryland Department of Transportation (No. 13-2488). The majority opinion by Judge Niemeyer rejected the plaintiff’s reliance on Swierkiewicz, emphasizing that the Supreme Court in Swierkiewicz had “applied a pleading standard more relaxed than the plausible-claim standard required by Iqbal and Twombly.” In dissent, Judge Wynn argued that the majority had improperly “ignore[d] the factual underpinnings of the Swierkiewicz holding, looking solely to the Supreme Court’s 2009 decision in Iqbal to guide its decision,” and noted that lower federal courts “have no authority to overrule a Supreme Court decision no matter how out of touch with the Supreme Court’s current thinking the decision seems.”
Twombly and Iqbal are problematic decisions in many respects, and diagnosing their flaws is important. Even more important, though, is the question of how courts should be applying Twombly and Iqbal, especially in relation to pre-Twombly Supreme Court case law. Properly understood, Twombly and Iqbal can and should be read to preserve the notice-pleading approach that the Supreme Court repeatedly employed during the half-century before Twombly. I’ve laid out this argument here and here, and explained how the basic framework Iqbal articulated can be applied in a way that is consistent with notice pleading and pre-Twombly precedent. This understanding of Twombly and Iqbal is confirmed by more recent Supreme Court pleading decisions—especially the 2014 decision in Johnson v. City of Shelby—which cast doubt on the presumption that the Court’s pre-Twombly case law even is “out of touch with the Supreme Court’s current thinking.”
I may have more posts on pleading as March marches on, but for now I wanted to address the one—and only—instance where the Twombly and Iqbal opinions directly call into question any aspect of pre-Twombly case law. That, of course, was Twombly’s “retirement” of Conley’s statement that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
“Twombly overruled Conley” is a great sound bite if you prefer the maximalist reading of Twombly and Iqbal that one sees in Judge Niemeyer’s McCleary-Evans opinion. But it’s a huge oversimplification, especially when Twombly explicitly quoted and embraced the language from Conley that enshrined notice pleading into federal practice: “All the Rules require is a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
As for the decision to “retire” the “no set of facts” language itself, it’s important to pay attention to Twombly’s actual reasoning on this point. Justice Souter’s concern was that a “focused and literal reading” of that phrase would preclude dismissal “whenever the pleadings left open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery.” OK, let’s pretend that courts actually applied this “focused and literal reading” of Conley. And suppose I file a complaint that alleges:
1. [Jurisdictional statement]
2. The Earth is round.
Therefore, I demand judgment against one or both defendants for $ <_____>, plus costs.
One can imagine any number of facts that are consistent with both (1) the Earth being round, and (2) me having a claim for relief against the defendants. Thus, this complaint would “le[ave] open the possibility” that I “might later establish some set of undisclosed facts to support recovery.” Under the reading of Conley that Twombly retired, my complaint should pass muster.
Obviously this is not at all what Justice Black meant when he penned the “no set of facts” sentence in Conley. Nor was that nonsensical reading of Conley ever the foundation for classic notice-pleading precedents like Scheuer, Leatherman, or Swierkiewicz. But it was only this straw-man reading of Conley that Twombly “retired.”
Once Twombly’s handling of Conley is clarified, this reality remains: there is not a single meaningful aspect of pre-Twombly case law that is explicitly rejected by Twombly or Iqbal. From the standpoint of the lower federal courts, at least, any approach to pleading that would defy pre-Twombly Supreme Court precedent is highly suspect.
[Cross-posted at the Civil Procedure & Federal Courts Blog]
Tuesday, March 17, 2015
Scope of injunctions
A recurring problem in the marriage-equality litigation--not only in Alabama, although it has obviously reared its head there--is confusion about the scope of a civil rights injunction and declaratory judgment. The constant refrain from me and many others is that any injunction applies only as to the named defendant(s) and as to the named plaintiffs. The injunction--as opposed to the court's reasoning and the power of precedent--does not legally compel anyone else to do anything or for the defendant to do anything as to any person not named as a plaintiff. But there has been pushback (particularly in a Con Law prof listserv conversation), particularly over the lack of SCOTUS precedent explicitly establishing this point.
In both cases, multiple people wanted to engage in particular conduct but were prohibited from doing so by a state or local law--handbilling outside a shopping center in Steffel, perating nude-dancing establishments in Doran--that arguably violated the First Amendment. Also in both cases, one person was a defendant in an ongoing state criminal prosecution. And in both cases, SCOTUS held that Younger did not bar the action by those people who were not parties to those ongoing state proceedings. The key was that the federal action (and resulting injunction or declaratory judgment) would not interfere with any ongoing state proceeding, since the federal plaintiffs were not involved in any such proceedings, so there were no comity problems.
But implicit in both decisions is that the federal injunction also would not interfere with the pending proceeding against a different person, even when instituted by the same government official. In other words, enjoining Doran from prosecuting Salem Inn did not prohibit him from continuing to prosecute M&L (the bar that had violated the ordinance and been issued a summons) and enjoining Thompson from prosecuting Steffel did not prohibit him from continuing to prosecute Steffel's friend (who already had been charged with criminal trespass). This must mean that the injunction binds only the named defendant as to the named plaintiff. At most, the federal court's reasoning might convince the official to drop the state case. But he would not have been "ignoring" or "defying" the federal court to continue with the state proceeding against someone other than the federal plaintiff because he carried no legal obligation as to any other person. If enjoining Doran as to Salem also would have enjoined him as to M&L, then the Younger analysis would have changed, because the injunction as to Salem would have interfered with the ongoing state proceeding.
We can see the parallel to the federal litigation in Alabama. A federal court has enjoined Probate Judge Don Davis from enforcing the state's SSM ban as to the four or five couples in Strawser, just as the federal court enjoined Doran not to enforce the nude-dancing ordinance against Salem. But that injunction cannot prohibit Davis from enforcing the ban as to any other non-party couple (by not granting them a license), just as the injunction could not prohibit Doran from enforcing the ordinance against M&L, which no longer was a party to the federal action.
Again, SCOTUS did not speak about the scope of injunctions in either Doran or Steffel. But it clearly understood injunctions in this way. And that, it seems to me, resolves at least this part of the shouting in Alabama.
Judge Granade refused to stay the preliminary injunction against Probate Judge Don Davis ordering him not to enforce the state SSM ban in deciding on marriage licenses. The linked story insists that this now creates a conflict for Davis, as he remains under both the state mandamus declaring the SSM ban constitutionally valid and prohibiting him from issuing licenses to same-sex couples and a federal injunction declaring the ban invalid and ordering him to issue licenses.
But is there actually a conflict? Granade has not yet acted on the plaintiffs' motion to amend and certify a class action. Without that, what we have against him is a federal declaratory judgment of constitutional invalidity that is persuasive-only and an injunction that he already has satisfied as to the currently named plaintiffs (there are four or five at this point, all of whom have been granted licenses). So Davis is under no current federal obligation to issue a license to anyone who does not already have one, thus he faces no conflict with the mandamus prohibiting him from issuing licenses to same-sex couples. Judge Granade's opinion by itself imposes no obligation on him to do anything, so it alone does not create conflicting obligations. That is the fundamental mistake everyone is making.
Fortuitously, here is Will Baude (Chicago) making a similar argument in The Times,* not as to marriage but as to the Affordable Care Act. Baude argues that, if the plaintiffs prevail in King, the administration can comply with the Court's judgment as to the four named plaintiffs, but continue granting subsidies to everyone else, since the Court's order does not apply to them and nothing requires the government to extend the reasoning of an opinion to other people. (H/T: My colleague Tom Baker, who refers to this as the "Dred Scott Move"). In essence, the state mandamus is forcing Davis to do the same--not extend Judge Granade's reasoning to other couples.
If the administration can legally (even if not politically) do this with a Supreme Court opinion, then certainly Don Davis can legally do this with an opinion from Judge Granade.
* On a different note: The headline on Will's op-ed--Could Obama Bypass the Supreme Court--perfectly captures the media's fundamental confusion about how judicial decisionmaking operates. Will's very point is that Obama would not be bypassing the Supreme Court at all in doing this, that he would be complying with the Court's order but not extending its reasoning, which typically is done only as a matter of convenience (to avoid getting sued again and again), not legal obligation. So in no way would this be "bypassing" anything. The headline writer clearly missed that point.
Monday, March 16, 2015
Recently a call for nominations came out on the civil procedure listserv: what's the worst civil procedure case ever. Nominations poured in--even as Pepperdine's excellent symposium on this worst topic was all-but-ignored. Sadly, recency bias trumped careful thought, and a plurality of respondents focused on Twiqbal. In some ways this is an unsurprising result. Twiqbal hit a sweet spot for modern scholars. The decisions together appear to be politically conservative (fitting modern progressives' newfound suspicion of the Supreme Court); they cry out for empirical examination (fitting modern scholars' newfound love of counting things); and they produce a test whose indeterminacy makes socratic dissection easy.
But here's the thing: dozens of scholars have spent enormous effort on these problems, and have found essentially no observable effects on party and judge behavior, whether in or out of Court. In that way, Twiqbal is a black hole for scholarship -- its sucks in quants and non-quants alike in, but nothing comes out.
Consider two recent papers -- one by Jonah Gelbach, forthcoming in Stanford, and one by Roger Michalski and Abby Wood, under review. As a part of a dazzling empirical & game-theoretic analysis, Gelbach points out that "a reasonable observer could conclude that the heated debates over the empirical evidence on Rule 12(b)(6) motion grant rates haven’t—couldn’t—shed any light at all on the actual effects of Twombly and Iqbal." (Emphasis added.) Michalski and Wood, studying state adoption of Twiqbal, conclude that whether "at the federal or state level, attorneys and judges are either not as attuned to procedural changes as many commentators think they are, or plaintiffs were already pleading with factual specificity so as to negotiate earlier and more favorable settlements." And yet, as they point out, "many academics, practitioners, and commentators simply refuse to believe that the switch from notice pleading to plausibility pleading would not have an empirical effect."
What's going on? Is this motivated cognition by progressive proceduralists, who can't admit that the worst cases of their generation (or any!) had no measurable effects? (That's not to say that Twiqbal hasn't had an effect in the world - just not one that is observable.) Because their priors are so strong, later evidence is discounted. As such, Twiqbal is quickly becoming a progressive proceduralist's shibboleth: to belong to the academy community (and to be welcome at conferences), one has to agree that plausible pleading is implausible, evil, and otherwise wrongheaded. Defending the decision is like defending Lochner. It can be done, but you really ought to teach at Mason.
Or is it something else? Maybe Twiqbal has attracted attention not because it actually represents a change in practice today (after all, no one was truly engaging in notice pleading) but rather because the cases represent a watershed in procedure - the beginning of a return to a pre-1938 code or fact pleading regime. Like Dole or Printz, it's a signal of a revolution that's coming. My colleague Craig Green has worked over the last several years to identify certain cases as iconic, particularly retrospectively -- will Twiqbal be such an icon in another few generations?
Defending the barely defensible
This weekend, I published two guest commentaries for JURIST defending some reprehensible folks. First, I argue that Oklahoma's expulsion of the SAE members over the racist chant on the bus probably violates the First Amendment. Second, I try to bring some procedural sanity to the discussion of same-sex marriage in Alabama (this puts together everything I have been writing here for the past month or so).
Friday, March 13, 2015
Would the Alabama Supreme Court prefer no marriage at all?
There’s an interesting paragraph in this week’s order from the Alabama Supreme Court, which confirmed that Mobile County probate judge Don Davis is subject to its earlier mandamus ruling even though he is also the subject of a federal-court injunction. In trying to make sense of this situation, Judge Davis had stopped issuing marriage licenses altogether (as a commenter on my last post noted).
Here’s what the Alabama Supreme Court said (emphasis mine) on p.9:
Section 30-1-9, Ala. Code 1975, provides that Judge Davis "may" issue “marriage licenses." To the extent he exercises this authority, he must issue those licenses in accordance with the meaning of the term "marriage" in that Code section and in accordance with other provisions of Alabama law, as discussed in our March 3 opinion.
Is the implication here that Judge Davis has no obligation to issue marriage licenses to anyone? That he can refuse to issue them across the board, just as long as no marriage licenses are issued to same-sex couples?
Meanwhile, expect some more activity in federal court next week. Judge Granade has ordered Judge Davis to file a response to the Strawser plaintiffs’ motion for class certification by Tuesday, March 17.
[Cross-posted at the Civil Procedure & Federal Courts Blog]
Wednesday, March 11, 2015
New developments in the Alabama same-sex marriage litigation
The litigation over Alabama’s ban on same-sex marriage has taken many twists and turns in these early months of 2015, but the main action has been in two arenas: the Alabama Supreme Court and U.S. District Judge Callie Granade’s courtroom in the Southern District of Alabama. Of course, everyone will be watching the U.S. Supreme Court as well, where Obergefell v. Hodges will be argued next month. And it was the Supreme Court’s February order refusing to stay Judge Granade’s initial injunction that began the latest round of activity. Here’s where things stand:
The Alabama Supreme Court said its piece last week, granting a writ of mandamus ordering all Alabama probate judges to stop granting marriage licenses. The merits of that ruling are certainly open to debate—both on the key constitutional issue and the standing/jurisdiction issue—but there are a few things to keep in mind going forward. First, the mandamus action was brought by two groups opposing same-sex marriage (acting as “relators” for the State of Alabama) against the Alabama probate judges. No individuals or couples who might wish to challenge Alabama’s same-sex marriage ban were parties to that proceeding, so as a matter of preclusion the ruling by the Alabama Supreme Court does not prevent them from seeking relief in federal court.
Second, the court ordered Alabama probate judges not to issue new same-sex marriage licenses (and it seems to have had that effect), but it ignored the relators request to order Alabama probate judges “not to recognize any marriage licenses issued to same sex couples.” In doing so, the court avoided one potential direct conflict with the federal judiciary, insofar as Judge Granade had previously ordered Mobile County probate judge Don Davis to issue marriage licenses to four same-sex couples in the Strawser case. Indeed, the Alabama Supreme Court’s order asked Davis to “advise” it “as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.” His deadline was last Thursday (3/5), but he’s asked for more time to respond. [Update: Today the Alabama Supreme Court posted on its website an order confirming that Judge Davis was also subject to its mandamus ruling, but only after determining for itself (whether correctly or not) that Judge Granade’s injunction did not extend beyond those four licenses.]
So now the ball is back in Judge Granade’s court (literally), where a few things have happened in the wake of the Alabama Supreme Court’s order. First, Don Davis filed an emergency motion to stay Judge Granade’s earlier injunction “until after the U.S. Supreme Court issues its ruling” in Obergefell. Second—as Howard posted on Monday—the Strawser plaintiffs have filed a motion to amend their complaint to, among other things, certify a class action. (Here’s the proposed amended complaint, including the class action allegations) The amendment would add some additional plaintiffs, three same-sex couples who have been refused marriage licenses in either Mobile County or Baldwin County; it also would add Tim Russell, the Baldwin County probate judge, as an additional defendant.
The proposed plaintiff class is: “all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages.”
The proposed defendant class is: “all Alabama probate judges who are or may enforce Alabama’s marriage ban.”
There’s been no ruling yet on the class-certification question—nor have I seen any reports of what the timing will be on that. It’s worth noting, though, that Judge Granade herself suggested in an earlier order that “certification of plaintiff and defendant classes” could be proper in the event that probate judges who were not formally bound by her initial injunction refused to follow it. Alabama Attorney General Luther Strange—who is also a defendant in Strawser and was the subject of the first injunction Judge Granade issued—has filed an opposition to class certification.
Stay tuned. Also in Judge Granade’s court is another action brought by Cari Searcy, the plaintiff whose earlier case led to the initial ruling by Judge Callie Granade declaring Alabama’s same-sex marriage ban unconstitutional. Searcy and Kimberly McKeand were legally married in California, but the Mobile County probate judge’s action on Searcy’s petition to adopt McKeand’s biological son was “qualified in nature,” and he refused to issue a final adoption order “until a final ruling is issued in the United States Supreme Court on the Marriage Act cases before it.”
[Cross-posted at the Civil Procedure & Federal Courts Blog]
Monday, March 09, 2015
I see your mandamus and raise you a class action
In response to last week's Writ of Mandamus by the Supreme Court of Alabama, the plaintiffs in Strawser have moved to amend the complaint to add some new plaintiffs and one new probate-judge defendant and to have the entire thing certified as a plaintiff and defendant class action. (H/T: Lyle Denniston). If successful, the move will allow Judge Granade to enjoin every probate judge to issue a license to every same-sex couple in the state.
It also seems to set-up a direct conflict between orders of a state supreme court and a lower federal court, although that may be more illusory than real. The arguments surrounding the mandamus recognize that the mandamus only controlled judges not under a federal injunction requiring them to issue licenses; recall that Judge Don Davis (at the time the only probate judge subject to an injunction) was ordered to show that he was under the injunction, presumably to be released from the mandamus. By those terms, if a class injunction issues, every probate judge should be given an opportunity to make that showing, after which the mandamus should give way.
Wednesday, March 04, 2015
Missing the signals
Ed: This post originally was published under Dan's name because I was inadvertently signed-in on our administrative password. My apologies.
The worst thing that can be said about the Supreme Court of Alabama's mandamus decision (besides its legal reasoning, which on a quick read seems wrong and somewhat intemperate) is that the court disregarded the "signals" that have been emanating from the Court since the fall (if not since Windsor itself) about the likely outcome on this issue. A question for the signalling people (Richard and others): Does a lower court act inappropriately if it ignores (willfully or otherwise) signals and insists on applying only the formally established precedent? In a way, this feels like another aspect of the question of whether lower courts should decide cases by attempting to "predict" what SCOTUS will do or by applying their own best judgment and analysis to reach what they believe is the correct result.
Tuesday, March 03, 2015
Adam beat me to the announcement of the Supreme Court of Alabama issuing the mandamus ordering all non-enjoined probate judges to cease issuing marriage licenses (it is nice to have another Fed Courts geek around for a month). I have written about the mandamus petition before, but I will repeat the key points.
SCOTA is going out of its way to make its voice heard on marriage equality. This is arrogant and probably wrong, since none of the arguments against SSM hold water. But it cannot be regarded as "defiant" in any way, since the court is not acting in defiance of any legal authority.
This ultimately is entirely symbolic. As Adam notes, the mandamus order makes clear that it does not/will not apply to Judge Davis to the extent he is under the federal injunction to issue licenses to anyone. Presumably, any later-issued federal injunctions, against Davis or any other probate judge as to any other couples, will be grounds to release that judge from the mandamus, thereby avoiding any conflict with a federal order (this was Alabama's position in opposing a motion in the Southern District to stay the mandamus action). The mandamus solidifies the legal status quo--anyone wanting a license must sue the appropriate probate judge and obtain a federal court injunction.
Two wrinkles. First is that the probate-judge defendant in that future federal action may try to argue abstention, although I expect the argument to fail, for the same reasons it failed in Oklahoma and South Carolina. Second, I wonder if anyone will ask SCOTUS to stay the mandamus pending review. [Update: An emailer reminds me that SCOTUS review might be impossible, since no license-seeker is a party to the state court action. One of the respondent probate judges would have to petition, but I don't know that any of them cares enough to appeal.]
Alabama Supreme Court Enjoins Probate Judges from Issuing Marriage Licenses to Same-Sex Couples
As you may know (Howard has had some excellent coverage), we’re in the midst of a real-life fed-courts hypo here in Alabama as litigation continues over the state’s ban on same-sex marriage. There was another development this evening, when the Alabama Supreme Court issued a 134-page per curiam opinion enjoining Alabama probate judges from issuing marriage licenses to same-sex couples.
The ruling was prompted by a petition for a writ of mandamus that was filed earlier this month by two groups opposing same-sex marriage, purporting to be “relators” for the State of Alabama. The petition named four probate judges who had been issuing same-sex marriage licenses as respondents, and designated all other Alabama probate judges as “Judge Does ##1-63.” One of those Doe judges, Judge Enslen of Elmore County, sought to have the Alabama ban enforced and was redesignated as an additional relator-petitioner.
This evening’s order acknowledges that one Alabama probate judge—Judge Davis of Mobile County—is the subject of a federal injunction issued by Judge Callie Granade, who back in January had declared Alabama’s ban unconstitutional.
Here’s the full text of the order that appears at the end of today’s Alabama Supreme Court opinion:
The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator's petition for the writ of mandamus and showing cause, if any, why said probate judge should not be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion. As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
If you want to get up to speed on what’s been going on, you can find copies of all the important orders, filings, and other documents at the Civil Procedure & Federal Courts Blog.
Monday, March 02, 2015
The Dress, Justice Holmes & Erie
What’s the half-life for internet-breaking social media sensations these days? It seems to get shorter and shorter, so I figured I should address #TheDress sooner rather than later. Is it White & Gold, or Blue & Black? For all the snark, memes, and celebrity tweets the dress has inspired, a crucial piece of historical context has been overlooked.
Ninety years ago, there was a kerfuffle in Bowling Green, Kentucky that bears striking similarities to the one that now threatens the marital harmony of Kim & Kanye. Back then, the dispute was between Black & White taxis and Brown & Yellow taxis. A federal lawsuit was filed that made its way all the way to the U.S. Supreme Court, where it prompted a strong dissent from Justice Holmes. Holmes attacked the majority for reading the 1842 decision in Swift v. Tyson to allow the federal court to disregard Kentucky law on the enforceability of a contract giving Brown & Yellow the exclusive ability to solicit customers at the Bowling Green train station.
To Holmes, the majority improperly accepted the “fallacy” that parties in federal court “are entitled to an independent judgment on matters of general law.” The Swift opinion itself—Holmes contended—was written by Justice Story “under the tacit domination” of this fallacy. Holmes explained:
Books written about any branch of the common law treat it as a unit [and] cite cases from this Court, from the Circuit Courts of Appeal, from the State Courts, from England and the Colonies of England indiscriminately …. It is very hard to resist the impression that there is one august corpus, to understand which clearly is the only task of any Court concerned. If there were such a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute, the Courts of the United States might be right in using their independent judgment as to what it was. But there is no such body of law. The fallacy and illusion that I think exist consist in supposing that there is this outside thing to be found. Law is a word used with different meanings, but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State ….
If a lot of these quotes sound familiar, it may be because Justice Brandeis used them liberally in Erie Railroad v. Tompkins, where he wrote the opinion overruling Swift. Black & White Taxicab v. Brown & Yellow Taxicab, in fact, was Brandeis’ Exhibit A for Swift’s “mischievous results.” And everyone from first-year law students to Supreme Court Justices have been struggling with Erie ever since.
While White & Gold v. Blue & Black may have temporarily broken the internet, Black & White v. Brown & Yellow helped to recast judicial federalism as we know it. But rest assured that if the White & Gold dress reincorporates in Tennessee so it can sue the Blue & Black dress in federal court, you’ll hear it here first.
[Cross-posted at the Civil Procedure & Federal Courts Blog]
Wednesday, February 25, 2015
JOTWELL: Erbsen on Klerman & Reilly on forum selling
The new Courts Law essay comes from Allen Erbsen (Minnesota), reviewing Daniel Klerman & Greg Reilly's Forum Selling, which discusses how particular courts make themselves attractive places for parties to forum shop. The article and the review essay are worth a read.
Tuesday, February 24, 2015
Another twist in the march to marriage equality
Two weeks ago, Judge Granade enjoined Mobile Probate Judge Don Davis to stop enforcing the state's SSM ban and to begin issuing marriage licenses to same-sex couples. Last week, Davis refused to grant a second-parent adoption to Cari Searcy and Kimberly McKeand, the plaintiffs in the first action in which Judge Granade invalidated the state ban. Davis entered an interlocutory decree granting Searcy temporary parental rights, but declining to issue a final adoption order until after SCOTUS decides the Marriage Cases this spring. Searcy and McKeand have filed a new action against Davis, seeking not only an injunction, but also compensatory and punitive damages (I have not been able to find the complaint).
First, this illustrates the importance of determining the true and proper scope of an injunction. In Strawser, the Court enjoined Davis from enforcing the SSM ban and to issue licenses to Strawser and some other named plaintiffs. But that is the limit of the court order. It does not and cannot apply to enforcing (or not) the SSM ban as to anyone else or in any other context. Thus, the argument that Davis is bound by any court order to grant this adoption is wrong. Otherwise, we have, at most, persuasive authority that the SSM ban is unconstitutional, nothing more.
Second, this new lawsuit seems to have other problems. Adoption decisions by probate judges, unlike decisions to grant or deny marriage licenses, appear to be judicial in nature, involving petitions, hearings, evidence, interlocutory and final orders, and appeals. This raises a couple of issues. First, if this is a judicial act, Davis is absolutely immune from damages--Davis was named in Searcy's original action and this was one argument he made in his motion to dismiss. And if Davis was acting in a judicial capacity, then under § 1983 the plaintiffs at this point can only obtain a declaratory judgment but not an injunction. Second, if this is a judicial act, this action should be barred by Rooker-Feldman--Searcy and McKeand are state court losers (they did not get the remedy they wanted in state court) and functionally are asking the federal court to reverse the state court decision. This argument is a bit weaker within the Eleventh Circuit, as there is some district court caselaw that Rooker-Feldman only applies to final state court decisions but not interlocutory orders. Still, if Davis was wrong to deny the adoption in a state judicial proceeding, the plaintiff's move is to appeal, not to run to federal court.
Update: Thanks to commenter Edward Still for sharing the Complaint, which is as bad as I thought. It asks for an injunction against a judge without having gotten a declaratory judgment; it asks for damages and attorney's fees against a judge for what the complaint itself makes clear is a judicial act; and it asks the district court to "strike" an order of a state-court judge and to command that state judge to grant parties relief. I am not big on Rule 11 sanctions against civil rights plaintiffs, but this one asks for so much that is so obviously legally barred by clear statutory language as to be a bit ridiculous.
Tuesday, February 17, 2015
And more crazy in Alabama
With briefing moving forward in the state mandamus action, the plaintiffs in Strawser have filed an Emergency Motion to Enforce the federal injunction, specifically by ordering Alabama Attorney General Luther Strange to assume control over the mandamus action and dismiss it; the government has responded. (H/T: Reader Edward Still, a civil rights attorney in Alabama). The gist of the plaintiffs' argument is that the Attorney General controls all litigation brought by or on behalf of the state, including through private relators; in order to comply with the injunction, which prohibits him from enforcing the state ban on same-sex marriage, he must end the state litigation.
The state's response is interesting for what it acknowledges about the mandamus action, confirming that it is largely symbolic and annoying.
First, the state acknowledges that the mandamus, if issued, cannot run against Probate Judge Don Davis of Alabama, who is a party in Strawser and is enjoined from denying licenses to same-sex couples. The state also acknowledges that, even if the mandamus issues, a couple denied a license could sue the denying probate judge in federal court and obtain an injunction, and that judge would be compelled to comply with that injunction. In other words, the state mandamus action does not set-up any conflict with the federal court or federal court orders, which the state acknowledges would trump the mandamus, whether existing orders or future orders. Thus, the sole effect of the mandamus would be to prevent non-party probate judges from being persuaded by Judge Granade's order or from issuing licenses so as to avoid suit and an award of attorney's fees. The only way they could issue licenses is if sued and ordered by a federal court to do so, which in turn has the effect of forcing every couple to sue every probate judge in the state. This is annoying and time-consuming. But, again, it does not reflect state defiance so much as state legal obstinacy.
Second, as has frequently been the case here, the big question is one of Alabama law--how much control the attorney general has over privately initiated litigation on behalf of the State. The Attorney General can seize control over litigation initiated as the state by local prosecutors and other executive officers; it is less clear whether he can do the same when suit is brought by private actors. The plaintiffs argue for a a broad understanding of FRCP 65 as to the scope of injunctions.
Third, as predicted, the state tries to play the abstention card. Also as predicted, they screwed it up. The state tries to argue that the Anti-Injunction Act bars the federal court from enjoining this pending state proceeding, emphasizing the narrowness of the statute's exceptions. But one exception is when Congress expressly authorizes an injunction by statute, which it did in enacting § 1983. Strawser and all other actions challenging SSM bans are § 1983 actions, so the AIA imposes no limit on the injunction here. The state also tries to argue Rooker-Feldman, a doctrine which also has no application here, since the plaintiffs are not state-court losers or even parties to the state court action.
Sunday, February 15, 2015
If possible, Alabama could get more confusing
Al Jolson said it best. Two anti-marriage-equality groups have filed a Petition for Writ of Mandamus in the Alabama Supreme Court's original jurisdiction, seeking an order preventing probate judges from issuing licenses on the strength of Judge Granade's decision and ordering them to wait until a "court of competent jurisdiction"--which petitioners define as only SCOTUS--decides the matter. The court ordered briefing on the petition, with two justices dissenting; Chief Justice Moore apparently took no part in the decision.
So how will this play out and what effect will it have?
This sort of mandamus action has been attempted before, in a slightly different context. In Oklahoma and South Carolina, state attorneys general sought to mandamus individual county clerks who intended to issue licenses in light of a federal appeals court decision invalidating SSM bans in other states. These clerks were under no federal injunction and there had been no decision addressing bans in their own states. But now-binding Fourteenth Amendment precedent made legally certain what would happen in any federal action challenging those bans, so the clerks were simply avoiding that lawsuit and injunction. The mandamus was intended to make the clerks wait and not to issue licenses unless and until compelled to do so.
In Alabama, probate judges other than Don Davis of Mobile who are issuing marriage licenses are doing so on the persuasive force of the district decision, but without an injunction. They, too, are trying to avoid a lawsuit, one whose outcome is both more and less obvious than in the other two cases. Here, there is only persuasive, and not binding, federal precedent, although it involves a declaration as to this state's marriage ban.
The mandamus action raises a whole series of state-law questions. One is whether these organizations have standing, as their only injury seems to be that probate judges are doing something the petitioners don't like. It also would require the court to conclude that a probate judge is forbidden (not simply not obligated, forbidden) from adhering to district court precedent. It is not clear whether the petition also will require the court to decide the constitutionality of its marriage ban, which would be the only federal issue in play; otherwise, any decision is insulated from SCOTUS review.
The mandamus petitioners rely on one fundamental misunderstanding--that the only court of competent jurisdiction to declare the state's marriage-equality ban unconstitutional is SCOTUS. This erroneously minimizes the effect of lower-court precedent. While only SCOTUS precedent binds state courts, here probate judges are performing administrative functions; they can be sued in federal court, where circuit court precedent will be binding and district court precedent is at least persuasive. Again, I really believe the question of federal precedent in state court is beside the point. And in taking this step, petitioners misunderstand that point.
Finally, if the mandamus issues, the real effect will depend on how broad the order is. If it simply applies until a probate judge comes under a federal-court injunction, then its effect is more practical than legal. Formally, no probate judge has any direct legal obligation to issue a license until sued in federal court and enjoined; the mandamus would simply provide a court order emphasizing that reality. It would force every couple seeking a license to sue every probate judge individually, rather than allowing couples to gain the benefit of persuasive authority. This is inconvenient and inefficient (although not costly, since plaintiffs should get attorney's fees), but not a significant change to the landscape of actual legal obligations. The mandamus also would open the door to the probate judges trying to raise Younger, Rooker-Feldman, Pullman, and Burford in the federal district court; this is what happened in both the Oklahoma and South Carolina cases, although both courts soundly and properly rejected those arguments.
On the other hand, if the mandamus bars probate judges from issuing any licenses until SCOTUS decides the issue of marriage equality, we have genuine problems. The inevitable federal injunction would set up the very direct conflict and confusion the petitioners purport to be trying to resolve. There actually would be directly conflicting orders--a state mandamus prohibiting every probate judge from issuing a license and a federal injunction commanding a named probate judge to do so.
Thursday, February 12, 2015
Lower federal courts and state administrative actions
Thanks to Amanda for her post about her article and the effect of lower-federal-court precedent on state courts. I look forward to reading it and using it in a larger article on the procedural insanity we are seeing between Windsor and the decision this June.
But I wonder if this issue is just a distraction here, partly triggered by Moore's memo and order, which focused heavily on it. Probate judges are not acting in a judicial capacity or deciding cases in issuing (or declining to issue) marriage licenses. They are acting in an executive or administrative capacity, such that there is no such thing as "binding" or "persuasive" precedent. Absent a federal judgment against him, precedent does not act directly on any executive or administrative actor; its force is in the fact that, if sued, the precedent will bind the court hearing the case and the executive will almost certainly be enjoined.
So the non-binding nature of Judge Granade's original decision is in play here. But not because it is not binding on state courts; rather, because it is not binding on other federal district courts. Thus, the possibility of a different district judge disagreeing with Judge Granade justifies a probate judge, acting in an administrative capacity and performing an administrative function, in not immediately following that decision.
Now we have a meaningful federal order
The New York Times reports that Judge Granade has enjoined Mobile County Probate Judge Don Davis from denying marriage licenses to same-sex couples. The injunction comes in Strawser v. Strange, an action by a male couple to obtain a license. In January, Judge Granade enjoined the attorney general from enforcing the ban on same-sex marriage, an injunction that, as we have seen, has no real effect on the issuance of marriage licenses. On Tuesday, the plaintiffs amended their complaint to add Judge Davis as a defendant.
So, since even the Times article linked above does not have it quite right, let's be clear on where we are now:
1) Judge Davis is legally obligated to issue a marriage license to Strawser and his future husband; if he fails to do so, he can (and probably will) be held in contempt.
2) Judge Davis probably is not obligated by the injunction to grant anyone else a license, since there are no other couples joined as plaintiffs, this was not brought as a class action, and Judge Davis does not exercise supervisory authority or control over other probate judges. But anyone in Mobile denied a license will be able to intervene or join as a plaintiff in Stawser and Judge Granade will immediately extend the injunction to cover the new plaintiffs. So Judge Davis should pretty well understand that he should issue licenses to everyone who requests one.
3) No other probate judge in the Southern District of Alabama is obligated by the injunction to grant anyone a license. But they all should be on notice that, if they fail to do so, they will end up before Judge Granade (either because a new action goes to her or because the new plaintiff jumps into Strawser and adds the next probate judge as defendant) and she will enjoin them.
4) No probate judge in the Middle or Northern District is obligated by the injunction to do anything, nor are they bound by the precedent of her opinion. Formally, it will take a new lawsuit by a different couple and a new opinion and injunction by a judge in each district. But as I wrote earlier in the week, I believe that, once one probate judge in the state had been enjoined, everyone else would fall in line, even if not yet legally obligated to do so. So while Roy Moore may continue to shout at the rain, I would be very surprised if any other probate judge bothers denying anyone else a license; it just is not worth the effort, as I cannot see a federal judge in either district reaching a different conclusion about the constitutionality of same-sex marriage bans.
Update: Important addition: If a probate judge in situations ## 3-4 did decline to issue a license to anyone, they would not be acting in disregard or defiance of Judge Granade's order, which still does not bind them or compel them to do anything. And I feel pretty confident that Judge Davis would not be acting in defiance of the order in situation # 2. In other words, today's order likely will have the practical effect of getting probate judges statewide to fall in line; it does not have that legal effect.
Bazelon sort-of defends Roy Moore
Emily Bazelon makes a sort-of defense of Roy Moore in The New York Times Magazine, turning out many of the arguments I have been making here.
Wednesday, February 11, 2015
The wrong vehicle?
Judge Granade has scheduled a hearing for Thursday to decide whether to add Alabama Probate Judge Don Davis back into the case as a defendant and whether to enjoin him from enforcing the state ban on same-sex marriage. That injunction is all-but-certain to issue. Believe it or not, however, it may not end the controversy. We still have a scope-of-the-injunction problem. Since Searcey and her wife remain the only plaintiffs, the injunction would only compel Davis to allow Searcey to adopt her wife's child. That's it. Even as to Davis, the effect of the opinion as to anyone else's rights would be merely persuasive.
The problem is that Searcey may be the wrong litigation vehicle for getting probate judges to issue licenses, since it is not a marriage-license case but an adoption case. And it seems to me that it is impossible to turn it into a license case by adding new plaintiffs (through joinder or intervention) who are looking for licenses rather than to adopt, since they are seeking entirely different relief. Perhaps the fact that the same-sex marriage ban (and whether the plaintiffs are or can be married) is a common question of law or fact. But the questions are arising in such wildly different contexts and settings.
Update: Thanks to the commenter below for correcting me. The events are happening in Strawser, an action brought by a male couple in January, originally against Attorney General Luther Strange and which produced a (largely meaningless) injunction against him; Davis has been added as a defendant and a hearing on a preliminary injunction against Davis is scheduled for Thursday. In addition, according to this story, there is a second action in the Southern District by several couples, naming Davis and Moore as defendants.
Now we are beginning to see some progress. Once Davis is directly enjoined to issue licenses, expect everyone else to fall in line.
Tuesday, February 10, 2015
The irony of trying to have it both ways
Much of what is happening with same-sex marriage in Alabama right now is a product of a hierarchical and geographically dispersed judiciary. The district courts hear cases first and may decide quickly, but the decision (beyond the parties themselves) has limited precedential value. The courts of appeals and SCOTUS create sweeping binding precedent, but it takes longer to get those decisions.
Had the Eleventh Circuit or SCOTUS ruled that the Fourteenth Amendment prohibits same-sex marriage bans, the obligations of state officials would be clearer. It would be certain that any district court would order them to issue the license because the precedent would be binding and that to not issue licenses would subject them to contempt. It also would be certain they would be on the hook for attorney's fees. And they may even be on the hook for damages, because the law would be clearly established. But we are still early in the process in Alabama, so we only have a persuasive-but-not-binding opinion from a district court. And we see what we would expect--it is persuading some actors, not persuading others; when lawsuits start coming, it may persuade some district courts and not persuade others.
In the short term, of course, this may give us Swiss cheese--one report this morning said 16 out of 67 counties are issuing licenses. Uniformity within the state comes with that binding precedent from the reviewing court. But it takes time.
There is a way to avoid Swiss cheese, of course: Have the district court decision and order stayed pending appeal. Then everyone will be able to marry at the same time--once the reviewing court provides binding precedent that same-sex marriage bans are invalid, after which everyone is bound. Of course, no one on the pro-marriage equality side wants to wait. I would guess everyone would strongly prefer marriages in 16 counties to marriages in none.
But that is the choice. You can have marriages begin without binding precedent, but not every official or court will go along with the precedent, so not everyone will gain the benefit of it. Or you can get uniformity from the eventual binding precedent so that everyone will be bound and everyone will benefit, but you have to wait. You cannot get both. And while frustrating, it is wrong to attribute this procedural reality to malfeasance by state officials.
And the media does not help
Most counties in Alabama were not issuing licenses as of yesterday, not improperly so as a matter of process. But you would not know it from the media, with headlines such as Most Alabama Counties Defy Feds by Blocking Gay Marriage (ABC News, complete with video of George Wallace in the doorway) and Judicial Defiance in Alabama: Same-sex marriage begins, but most counties refuse (Wash. Post); The Supreme Court Refused to Stop Gay Marriage in Alabama, But the State's Governor and Chief Justice Are Refusing to Listen (TNR); and Alabama's Roy Moore Defies Federal Order, Refuses to Allow Gay Marriage (Slate's Mark Joseph Stern, who can't help himself, calling it a "stunning display of defiance against the judiciary").
Monday, February 09, 2015
No contempt for you
Motion for Contempt denied--as expected and as appropriate. Judge Granade emphasized that Judge Davis is not a party. And she pointed out that her clarification order "noted that actions against Judge Davis or others who fail to follow the Constitution could be initiated by persons who are harmed by their failure to follow the law." In other words, plaintiffs' lawyers, pay attention to what the judge tells you.
Ever looking to escalate, Alabama's Chief Justice Roy Moore has issued an Administrative Order stating:
Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with [Alabama's constitutional and statutory prohibitions on same-sex marriage].
Moore seems to be relying on the fact that no probate judge is subject to Judge Granade's order. So we probably need to read this as implicitly applying "as of Sunday, February 8," but no longer effective when probate judges start getting enjoined by federal district courts on Monday morning.
But Moore's move now has me thinking that commenters to my earlier posts had it right--Moore is the statewide officer who should be named as defendant, with an injunction ordering him to order the state's probate judges to issue licenses. Moore clearly has set himself up as the official with the power to control the enforcement of this particular state law by controlling what state probate judges do, much as California's AG could control county clerks and order them all to issue licenses. Moore concedes he is acting in an administrative capacity. And since this is not a decision arising from actual litigation, neither Younger nor Rooker-Feldman should come into play.
Sunday, February 08, 2015
More from Alabama
This article lays out the competing sides of the dispute pretty well. And it shows how complicated this may be getting and how confused many people are by this area of the law.
First, the article talks about Alabama probate judges being jailed for contempt. This would be utterly impossible--Judge Granade cannot hold in contempt anyone who was not party to the federal action, which is only the state AG. But the story then clarifies that contempt would be for violating a future order against a probate judge sued on Monday for refusing to issue a license, not for violating Judge Granade's original order. Which is right, although unlikely--at least Judge Bowden has stated that he will comply with any injunction that may issue should he be sued.
Second, someone mentions the possibility of "sanctions" against the judges, including attorney's fees. This is one of the things Judge Granade mentioned in her "clarification" order, which block-quotes from Judge Hinkle's similar clarifying order in the Florida case
Calling this a "sanction" is wrong, in that it suggests wrongdoing by the non-issuing judge for which he would be punished. Instead, fees would be a routine part of the injunction action. Under § 1988(b), a prevailing party can recover attorney's fees; this would cover a same-sex couple that sues and obtains an injunction ordering the judge to issue the license because the state SSM ban violates the Fourteenth Amendment.
But the attorney's fee question gets another layer because Alabama has vested the licensing power in judicial officers. Section 1988(b) has an exception--"in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction." This was added in 1996, along with an amendment to § 1983 which limits the availability of injunctions against a "judicial officer for an act or omission taken in such officer’s judicial capacity." The amendments together were intended to limit the effect of the Court's 1984 decision in Pulliam v. Allen, which held that absolute judicial immunity does not extend to injunctions or attorney's fees. The effect is to grant judges absolute immunity from attorney's fees to the same extent they enjoy absoulute immunity from damages--whenever they acted in a judicial capacity or performe a judicial function and did not act in the complete absence of jurisdiction.
It seems pretty clear that issuing a marriage license lacks the hallmarks of a judicial function (adversary proceedings, appellate review, formal processes) and lacks the exercise of the learned judgment that characterizes judicial decisionmaking and justifies judicial immunity. This is a purely ministerial function, such that a judge acts in an executive capacity in performing it. As such, a probate judge refusing to issue a license would not enjoy judicial immunity from an action for damages,* would not fall within the exception to § 1983 regarding injunctions against judges, and would not fall within the exception to § 1988(b) regarding attorney's fees against judges.
* A judge performing an executive function still can claim qualified immunity. And since it is not clearly established in Alabama that a ban on same-sex marriage is unconstitutional, any Alabama probate judge sued next week almost certainly would enjoy qualified immunity.
Attorney's fees play an interesting and unexpected function in a situation like this--they act as a deterrent to recalcitrant state officials. While formally not bound by the district court decision invalidating the SSM, the threat of attorney's fees puts these officials to a choice: 1) Force plaintiffs to go through the additional step of another lawsuit to obtain an (almost-certain-to-issue) injunction at the risk of having to pay fees or 2) Go along with the district court, even if not legally obligated to do so, to avoid fees. Neither option is right or wrong, but § 1988(b) puts a thumb on the scales in favor of the latter.
Saturday, February 07, 2015
Ben Bowden, a probate judge in Covington County, AL, announced on Friday that, on his reading of the law, he will not issue marriage licenses to same-sex couples on Monday, when the stay of a district court injunction expires. Bowden concluded that he the district court decision and injunction invalidating the state's marriage-equality ban is not binding on him, thus he will continue to follow the state-law ban until an appropriate court directs him otherwise.
So the issue now is queued up. A couple wanting a license in Covington County can now sue Judge Bowden for an injunction compelling him to issue the license; the issue is ripe, given Bowden's announcement, and the couple will have standing. Covington County is located in the Southern District, so the case likely will be assigned to Judge Granade (most districts have a rule sending "related cases," often broadly defined, to the same judge); she will quickly issue an order reaffirming her earlier opinion that the marriage-equality ban is unconstitutional, ordering Bowden to issue the license, and refusing to stay the order. And Bowden recognized that he will be sued and insisted that he would "fully comply" with an order in a case to which he is a party.
Obviously, this is not the most efficient way of doing things. But the point is that couples will be able to get their licenses, probably on Monday, in fairly short order.
Thursday, February 05, 2015
Roy Moore gets it right
And without bigoted or anti-federal rhetoric.
Moore sent a memo on Tuesday to all state Probate Judges, explaining why probate judges are not bound by two recent district court decisions invalidating state marriage-equality bans. (Ed Whelan analyzes the memo at NRO). Moore makes two points, both correct: 1) The attorney general, the only defendant in both Alabama cases, is part of the executive branch while probate judges (who issue marriage licenses) are part of the judicial branch, thus the AG exercises no supervisory authority over them; and 2) federal lower-court precedent is not binding on state courts.* The memo includes an appendix analyzing how the Alabama AG came to be the sole defendant in the two Alabama cases and why he is not, in fact, the appropriate defendant in cases challenging the refusal to issue marriage licenses when (as in Alabama) that task rests with judges or court clerks.
Wednesday, January 28, 2015
If you say so
Judge Callie Granade of the Southern District of Alabama has clarified her order holding that Alabama's marriage-equality ban violates the Fourteenth Amendment. She block-quotes Judge Hinkle's position--which I previously labeled "unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four"--that the injunction does not apply to anyone other than the Alabama A/G (the only named defendant), but that the Constitution does apply and the Constitution requires the probate judges to issue marriage licenses.
On reading it this time around, these seems a framed example of an advisory opinion. A court is telling someone what to do or not to do, but that person is not a party to a case within the court's jurisdiction and not subject to any valid order of the court. Judge Granade can insist all she wants that the Constitution requires the state's probate judges to issue marriage licenses--if they disagree, no one can do anything about it (unless and until new litigation is brought and a court with jurisdiction--perhaps Judge Granade--directly compels them to do so).
Of course, the news is not all normal, because Alabama Supreme Court Justice Roy Moore is back in the news, insisting that state law remains in place, that he will continue to follow state law, and that the probate judges should continue to do so, as well. This, in turn, prompted the Southern Poverty Law Center to file an ethics complaint against Moore, alleging he violated judicial ethics rules in commenting on a matter that will be coming before him in the coming weeks.*
* Although I am not sure why. I would expect the move for anyone denied a license would be to sue the probate judge in federal court, so I do not see how this is going to make its way through the Alabama courts.
(H/T for all of this: Josh Blackman and Howard Bashman)
Sunday, January 25, 2015
The process of marriage equality, once again
This time in Alabama (H/T: Josh Blackman), with the pushback coming from the state's probate judges, who are empowered under state law to issue marriage licenses. The plaintiffs asked the district court for a "clarification" of her ruling and its scope, although it is unlikely that her clarification will announce that these non-party probate judges are subject to the injunction, since, just as in Florida, they cannot be. The district court has issued a 14-day stay, so the race to figure this all out by Monday has become moot--the district judge gave the state a chance to ask the Eleventh Circuit for a stay.
Comparing this to George Wallace standing in the doorway at the University of Alabama is incredibly overstated and flat wrong. And at some level, this is on the plaintiff's lawyers--they framed the case, only sued the Attorney General in a state in which the AG does not have the power to issue licenses or to control or advise those who do, and did not include any "responsible" executive officers in the action. The AG is ordinarily the proper defendant in an Ex Parte Young action (notably where the challenged law is a criminal provision); but not here and not for the issuance of marriage licenses. And the failure to recognize that is creating these procedural complications, at least until SCOTUS or the Eleventh Circuit weighs in.
With all that, calling everyone a bigot in a legal document is not particularly helpful.
Wednesday, January 21, 2015
MDL consolidation and appealability
SCOTUS on Wednesday decided Gelboim v. Bank of America, holding that a district court order dismissing the sole claim in a single-claim action, consolidated with other actions for pretrial proceedings in multidistrict litigation, was a final and appealable order, even if claims remained in other actions included in the MDL. I have an opinion analysis at SCOTUSBlog. And I am happy to say I called this one.
Saturday, January 10, 2015
The Lady Doth Protest Too Much, Methinks
I was back in the saddle this week. On Thursday morning, I appeared in a California courtroom to argue an appeal. One of the issues in the case concerned whether a corporation could be served by publication under California law. The appellant, a real estate company, had once been represented in a bankruptcy proceeding by a law firm. After that proceeding was dismissed, the law firm sued its former client over its fees. When the law firm tried to serve the real estate company by personal service, however, it was unsuccessful. Rather than attempt other methods, such as service by mail or service on the California Secretary of State, the law firm moved for service by publication. Since corporations do not read newspapers, the appellant did not know it has been sued or that a large default judgment had been taken against it. Without getting into specifics, suffice it to say that many of the issues in the case turned on technical matters of statutory interpretation.
Most students think professors don’t practice law. I would guess, however, that many professors try to keep some hand in practice. They sometimes argue appeals, for example, serve as expert witnesses in cases in their areas of expertise, or work on various pro bono matters. And that, of course, does not include the important work that law school clinics do, which is all of the above and much, much more.
After the oral argument, the trial lawyer asked me how my job as a law professor impacted my approach to the case. Since this wasn't a particularly difficult matter, I told him, honestly, that one thing that I felt my job allowed me to do was to take a few more liberties in the briefing than I normally would. The opening brief, for example, began with the following line: “Many things about this case smell fishy.” It then used examples of dead fish, rotten fish, and smelly fish as metaphors for the law firm’s actions.
In response, the law firm argued that "[t]here was no chicanery" on its behalf, and that it did not "act in an unscrupulous manner to secure the judgment in this case. Nothing in the record suggests otherwise. In this case," it wrote, "there is no evidence that any chicanery or any other inequitable conduct or negligence of [Law Firm] caused the alleged failure of notice to Appellant.” In the reply, I quipped: "Given that Respondent is a law firm, and given the evidence in this record, its words ring hollow. This is how Shakespeare put it:
Hamlet: Madam, how like you this play?
Queen Gertrude: The lady doth protest too much, methinks.
(William Shakespeare, HAMLET, Act III, Scene 2.)"
Some of my collagues in the appellate bar suggested I take out the Shakespeare reference. But a colleague on my faculty, who argued this case before the U.S. Supreme Court last year, liked it and suggested I leave it in. So I did. I have no idea what the three-judge panel thought. Probably not much.
Which brings me to my question. How does being a law professor change one’s perceptions of what should or should not be done in the normal practice of law? Is there something different about the briefs that law professors write, or about the advice they give? Should there be? I’ll leave the comments open.
Saturday, January 03, 2015
The process of marriage equality, redux
I do not have the energy to provide background; SCOTUSBlog offers a nice analysis of what is happening in Florida, as an opinion by U.S. District Judge Robert Hinkle (N.D. Fla.) invalidating Florida's ban on marriage equality is due to take effect next Monday evening. I am simply going to link to a bunch of documents and ask whether anyone in the State of Florida has a clue about procedure, remedies, or jurisdiction.
First is a December memorandum from the attorney for the Florida Association of Clerks and Comptrollers stating, correctly, that Hinkle's a decision and injunction is binding only on the Washington County Clerk of Courts (named as defendant) and only as to the named plaintiff; all other clerks are not legally obligated to issue licenses and may, in fact, be prohibited by state law from doing so and subject to criminal penalties. (Slate's Mark Joseph Stern, somewhat losing it, labels the memo "bogus," "deceptive and borderline unethical," and "willfully misleading").
Judge Hinkle responded on Thursday with this order acknowledging that his injunction is as limited as the FACC lawyers suggested. But he then goes on to insist that "the Constitution requires the Clerk to issue" (italics in original) licesnes to other couples. Implicitly, that means the Constitution require all other clerks to issue licenses. And it reminds all clerks that other litigation may follow his ruling and that they may be subject to suit, injunction, and attorney's fees if they do not follow his ruling.
The FACC's lawyer responded that, in light of the new order (which it also interprets as threatening money damages, although the order says no such thing), all "clerks should follow the judge's ruling for all marriage-license applications or face the consequences identified by Judge Hinkle." Florida Attorney General Pam Biondi similarly responded: "This office has sought to minimize confusion and uncertainty, and we are glad the Court provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed."
Finally, the Orange County Clerk of Courts sought and received a state declaratory judgment; the state judge agreed that the state prohibition on SSM violates the Constitution (essentially adopting and incorporating by reference Judge Hinkle's opinion), that the clerk could rely on the federal decision, and would not be violating state law or be subject to criminal penalties if she issues licenses to same-sex couples once the Hinkle order becomes effective next Monday.
My coments on why this all is so insane after the jump.
The original memo from the FACC's lawyer had it right. The district court's injunction only requires the named defendant clerk to issue a license to the named plaintiff. There was no class of plaintiffs or defendants before the district court. There was no statewide officer enjoined to issue, or order the issuance, of licenses across the state. The district court's declaration that the SSM ban violates the Fourteenth Amendment is not binding or preclusive as to any non-party and is not binding on any other federal or state court. The memo is a bit overwrought in suggesting that a clerk is going to be prosecuted for issuing a license. But the basic point--the district court decision is nothing more than persuasive authority to all other couples and all other clerks--is correct.
None of this is new, of course. We have been discussing procedure underlying marriage equality since last summer, when, post-Hollingsworth, we were left with an incredibly (and possibly unlawfully) overbroad injunction in California and procedural wrangling about what happens next. But Judge Hinkle's original injunction is not so broad, as he acknowledges. So any non-party clerk remains free to deny a license in light of state law on the books; it then is on any couple wanting a license to sue and challenge the constitutionality of the denial and the state SSM ban, likely winning on the strength of the persuasiveness of Hinkle's opinion. This is all messy and inefficient, but that is how constitutional litigation works, at least short of a decision by SCOTUS or a class action.
So what to make of Judge Hinkle's supplemental order? It is either unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four. That everyone seems to be praising this order for "clarifying" things shows how just confused everyone is.
The italicized insistence that the Constitution requires the issuance of licenses by all clerks to all same-sex couples is nonsense. Yes, licenses are required by the Constitution, as interpreted by Judge Hinkle. But that interpretation is not the only one and it does not bind (or even necessarily influence) anyone not a party to that case. There is controversy enough over whether SCOTUS does/should get the last word on constitutional meaning and what the Constitution requires; there is no way that a single district judge could possibly have the last word, even within one state. But the supplemental order insists that is the effect of the original decision--in essence, "I have announced what the Constitution means with respect to the Fourteenth Amendment and marriage equality and every clerk in the State of Florida is bound by that meaning I have identified (even if not subject to the injunction)." One district court opinion cannot be read to have that much binding effect, particularly on people outside of that judicial district and not subject to the court's jurisdiction or venue.
Moreover, since Article III courts cannot issue advisory opinions, it is logically impossible to separate the Constitution (as interpreted) from the injunction or to have the former apply more broadly than the latter. The only people who can be bound by the court's interpretation are those bound by its remedial order. And Hinkle concedes the narrowness of the original injunction.
Beyond that, the supplemental order does not tell us anything we did not already know (or should have already known). Any same-sex couple could have sued any county clerk (beside Washington County) at any time to invalidate the ban and, if successful, could have gotten an injunction and attorney's fees; Judge Hinkle's original decision would have been important binding precedent in that lawsuit, but nothing more. But the right of other couples to bring that suit does not emanate from Judge Hinkle or his order. And the threat of injunction and attorney's fees against a non-compliant clerk is a consequence of basic rules of constitutional litigation of which everyone should have been aware even without the supplemental order.
Nor should it be news that any clerk may (italics again Judge Hinkle's) follow that original ruling that the ban violates the Fourteenth Amendment. Of course a clerk may follow the ruling, for the same reason she could ignore it--absent injunction, preclusion, or binding precedent, every clerk retains the authority to decide her legal and constitutional obligations, unless and until her interpetation is overruled by a higher state official or a binding court decision. Otherwise, note the internal contradiction of the supplemental order--a clerk who agrees with him may follow the ruling, but a clerk who disagrees must follow the ruling.
Everyone is also reading the supplemental order to threaten money damages for any clerk who does not issue a license. I do not read the order as suggesting damages as a consequence. But even if Hinkle did threaten that, I do not see how any damages action could overcome qualified immunity--that it was clearly established that the Fourteenth Amendment required clerks to issue licenses to same-sex couples. There is no binding precedent on this in Florida; neither SCOTUS nor the Eleventh Circuit has spoken. We have a circuit split nationally (even if it is largely one-sided) and decisions from one federal and two state trial judges within Florida. I believe that banning same-sex marriage violates the Fourteenth Amendment. But no way is that conclusion clearly established, as that concept is currently understood. So damages are not remotely possible.
The only appropriate procedural move was by the Orange County Clerk of Courts, who got that state-court declaratory judgment. In essence, the state court established a state-court order that the SSM ban is unconstitutional and that the Orange County Clerk, as a party to the state-court action,is not bound by the state prohibition, is free to issue licenses to same-sex couples, and is now protected by an order of a court that actully had jurisdiction over her (which Judge Hinkle did not).
As a policy matter, I like where we end up: every clerk in the state is likely to issue marriage licenses to same-sex couples and the attorney general is not going to stop them. A mass ceremony is planned for just after midnight Tuesday in Broward County. And I am surprised that Florida, which hardly the leading edge on SSM, is not going to be one of the recalcitrant states dragged kicking and screaming to marriage equality by SCOTUS. Still, it would have been nice if everyone involved, including the federal judge, had a better sense of the underlying processes.
Friday, January 02, 2015
It's Been Real!
I think they're going to take away the keys soon, so while I still have access I wanted to say thanks for a great month on Prawfs. I touted my current scholarship, talked about teaching, wrote a post that generated over 35 comments, and even seemed to annoy some of the so-called "scambloggers" in the process! That sounds like a success!
I plan to head to the Markelfest tomorrow night at AALS, so I hope you'll stop by and say hello.
Tuesday, December 23, 2014
Enforcing Medicaid Against Recalcitrant States: The Former HHS Officials' Amicus Brief in Armstrong
Back in October, I wrote a post, titled "Is Ex parte Young Doomed?," about the Supreme Court's grant of certiorari in Armstrong v. Exceptional Child Center, Inc., which the Justices limited to the following question:
Does the Supremacy Clause give Medicaid providers a private right of action to enforce § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute?
As I wrote back then, this is the exact question that the Court ducked in its 2012 decision in Douglas v. Independent Living Centers of Southern California--a case in which, in a four-Justice dissent, Chief Justice Roberts would have dramatically curtailed the ability of private litigants to bring Supremacy Clause-based claims for injunctive relief to enforce any federal statute against a state officer if that statute didn't provide its own cause of action. Although HHS effectively mooted Douglas by approving the contested California state plan amendment while the case was pending, such a step is almost certainly not available in Armstrong--which means the Justices in the majority in Douglas, especially Justices Kennedy and Breyer, will now have to take a position on whether such a Supremacy Clause-based suit for injunctive relief is ever available for statutes lacking private causes of action. (The Supreme Court has previously endorsed the availability of such suits, but hasn't revisited those cases since its more recent jurisprudence curtailing the ability of private litigants to enforce statutes without their own cause of action, whether directly or through 42 U.S.C. § 1983).
One of the interesting back-stories to Douglas, which I covered in some detail on this blog, was the aggressive (and, in my view, disappointing) anti-private-enforcement position taken by the Solicitor General in an amicus brief filed in support of California. Leaving aside the controversial merits of the SG's Douglas brief, it was also a position that was radically inconsistent with the historical position of the Department of Health & Human Services (HHS) on the private enforcement question, especially with regard to "Section 30(A)"--the Medicaid Act's requirement that states set reimbursement levels high enough so that Medicaid recipients are able to have "equal access" to median quality medical care. Without this "equal access" mandate, economic pressures would almost certainly lead states to reimburse providers at the lowest possible levels, which in turn would likely relegate Medicaid recipients to the worst available providers. The problem, as the ACA litigation helped demonstrate, is that HHS doesn't have a lot of choices when faced with a state violating the Medicaid Act. The only real "stick" HHS possesses in such a scenario is the drastic remedy of cutting off Medicaid funding--which punishes the beneficiaries far more than it punishes recalcitrant states.
To that end, and tellingly, HHS did not sign the SG's Douglas brief, even though it had signed the SG's more equivocal cert.-stage amicus in the same case (which had recommended that the Court not take the case). Instead, in Douglas, I helped to put together an amicus brief on behalf of "Former HHS Officials," explaining why, because of the reality described above, (1) HHS has historically supported private enforcement of the Medicaid Act (and Section 30(A) in particular); and (2) partly as a result of this historical pattern, and partly for other reasons, lacks the institutional, political, financial, or administrative resources effectively to enforce Medicaid all by itself.
As in Douglas, the SG has once again sided with the states in Armstrong--albeit in an amicus brief that appears, at first blush, to be far more modest. Instead of opposing Supremacy Clause-based claims for injunctive relief in general, the SG's Armstrong amicus punts on that question, arguing that the Court need not resolve that general issue because "recognition of a private right of action under the Supremacy Clause in this case would be incompatible with the statute, the methods for its enforcement, and respondents’ claim."
And as in Douglas, a group of former HHS officials (including 15 senior administrators from three different administrations, led by former Secretaries Califano and Shalala) has now filed an amicus brief disputing the SG's position--and documenting how,
Since the early days of the Medicaid program, federal courts have recognized that providers may sue to ensure that state Medicaid plans conform to the requirements of federal law. Congress intended for such enforcement, and HHS has understood—and come to rely upon—its existence.
The brief, which I co-authored along with Matt Hoffman and Andrew Kim from Goodwin Procter, is in some important ways different from the brief we filed back in Douglas. There, our focus was on the SG's (since abandoned) position that private enforcement of the Medicaid regime would generally interefere with HHS's enforcement authorities and discretion. Here, our focus is on the SG's more modest claim about congressional intent and judicial enforcability of Section 30(A). Thus, the SG's Armstrong brief argues that Congress never intended for such private enforcement--and, even if it did, that courts would struggle to provide such enforcement given the vague language of the "equal access" provision's mandates.
Our brief rejects both of those claims, demonstrating how, not only have courts routinely applied Section 30(A)'s procedural and substantive requirements without serious difficulty (and, indeed, would have to do the same thing if HHS started to reject state Medicaid plans on the ground that they violate Section 30(A)), but how that provision--one of the Medicaid Act's most important requirements--would effectively be unenforcable without private enforcement by Medicaid beneficiaries or providers through some vehicle.
In other words, insofar as the SG's brief tries to duck the larger question implicated in Armstrong by arguing that Section 30(A) is an especially weak federal statute to enforce through such a Supremacy Clause-based injunctive action, our brief argues that it is, in fact, a textbook case for such a claim--since it is an essential federal mandate against states that, without such private enforcement, would almost certainly be frustrated.
Friday, December 19, 2014
Civ. Pro. is the New Black
And...they're off! My 1Ls just began taking their exam, which I titled "Civ. Pro. is the New Black." Eschewing Ferguson-style controversy (I hope), I'm ruining using the TV show "Orange is the New Black" as the basis for the fact pattern. Piper and Alex are in a fight, the Correction Officers put Piper in the SHU, and there is some tainted meat sold by "Felon Meats, Inc." that makes Piper sick. Piper sues Alex, the prison (run by a private company, Prisons R Us), Felon Meats, and one of the Correction Officers. Various other prisoners attempt to intervene. I made sure to vet the exam with someone who doesn't know the show so students who have never seen it are not disadvantaged.
I always feel nervous while my students are taking their exams. Perhaps I'm just reflecting their nerves; more likely I'm afraid that I have not really taught them much over the semester, which their answers might reflect.
In this way, I suppose the exam is also an assessment of me as a teacher. Here's to hoping I pass!
Thursday, December 18, 2014
Civil Procedure "Creativity" Extra Credit
Stealing an idea from Andi Curcio of Georgia State University, which she shared on the Civ. Pro. list serv last year, for the past two years I have allowed my Civil Procedure students to earn extra credit by doing a "creative" project that helps to explain one of the main topics in the course. About a quarter of the students did something this year, ranging from amusing videos, to cartoons, to a spoof on the poem "The Raven," to a magazine article about "the talk," when a young girl asks her mother, "where do lawsuits come from?!" I show all of the projects at the beginning of the review session the day before the exam (earlier today). In my view, these projects provide some nice stress release, help make the concepts "sticky," and allow the students to exercise their creative juices. They often do things well beyond what I expected. Below the jump I've posted some of my favorites from this year. Enjoy!
Civil Procedure rap video (warning: there's a swear word at the beginning) (Alex Magara, Pete Rosene, Brandon Wells):
Hilter Rant Parody on International Shoe (Myranda Cotant and Emily McClure):
Civ. Pro. Cartoon (Ashley Angello):
Twas the Night Before the Civ. Pro. Exam (Catie Coldiron and Mary Tanner, performed wearing tacky Christmas sweaters!)
1. ‘Twas the night before Civ Pro, and all through finals hell,
2. Not a creature was stirring, not even a 1L
3. The outlines were made so no one need cram
4. In hopes that 28 USC §1367 would be on the exam
5. The 1Ls were nestled all snug in their beds
6. While visions of A pluses danced in their heads
7. And everyone still wearing their thinking cap
8. Had just settled their brains for a long winter's nap,
9. When all of a sudden, someone’s brain shuddered
10. The rules of 28 USC §1367 began to be muttered:
11. Where district courts have initial jurisdiction
12. All related state claims in the action
13. Give district courts supplemental jurisdiction
14. United Mine Workers of America v. Gibbs
15. Clarified when a district court does have dibs:
16. A state law claim gets into court when it reacts
17. From a common nucleus of operative fact
18. I knew in a moment there was more to the rule
19. So I asked friends for help so I’d keep my cool
20. And I whistled, and shouted, and called them by name:
21. "Now, Dasher! now, Dancer! now Prancer and Vixen!
22. On, Comet! on, Cupid! on, Donner and Blitzen!
23. There is still more to say so my grade does not fall
24. Now lets recite 1367 in all:
25. Unless there’s an exception, as already stated,
26. Supplemental claims are in if sufficiently related;
27. If a claim is based just on diversity
28. There is an exception: we’ll explain so that you see—
29. There’s no jurisdiction for certain defendants
30. Rule 14, 19, 20, 24 get no pendant
31. This rule extends to plaintiffs on occasion–
32. 19 and 24 may have no relation
33. But now there’s another exception afoot:
34. Supplemental claims can still be caput!
35. There are four situations in which to apply;
36. It can make district courts seem very sly
37. If novel or complex, the state law issue at hand,
38. The court may decline, and thus would remand;
39. If the secondary claim is too much to bear
40. The court can decide it need not be heard there;
41. If the district court has dismissed all other claims
42. The secondary cause can go down in flames;
43. The final reason a district court can decline
44. It’s more broad in definition and can seem asinine.
45. In exceptional circumstances a court can refuse,
46. Their supplemental jurisdiction in this case to use
47. It’s really quite simple once all in your head
48. There’s really no reason to feel any dread;
49. So now you can see supplemental jurisdiction is a breeze
50. You are able to ace this exam with great ease,
51. So in the morning when you awake from slumber,
52. To school you will skip, not drag, moan or lumber;
53. Your fingers will fly, your brain quick as a whip
54. And nary a problem which you must skip.
55. At the end of the final you realize with delight—
56. “Happy Christmas to all, and to all a good night!”
(The) Personal Jurisdiction (a play on The Raven) (Whitney Grider and Grant Sharp):
Once upon a Civ Pro class, while I pondered, weak and weary,
Over many concepts and cases of forgotten lore—
While I nodded, nearly napping (not true), suddenly there came a “Miss Grider,”
As of some one gently calling, calling my name, heart hitting the floor—
“Tis my day to be called on,” I muttered, “calling my name, heart hitting the floor—
Hopefully this time and none more.”
Ah, distinctly I remember it was in the Mid-September;
And each classmate sighing that it was not their name called.
Eagerly I wished the morrow;—vainly I sought to borrow
From my casebook, I thought in sorrow—sorrow for the loss of Pennoyer—
For the forgotten about Mitchell and Neff whom because of Pennoyer—
Nameless here for evermore.
“Pennoyer!” said I, “thing of evil!—still making students learn you!—
Whether by the Professor, or whether tossed at thee from attorneys before,
Desolate the ideas of Pennoyer, deserted lands—
In this jurisdiction—is there minimum contacts? –tell me—tell me, I implore!”
Quoth the Jurisdiction “Nevermore.”
“Be the minimum contacts needed for personal jurisdiction!” Mr. Sharp shrieked,
“Be continuous and systematic and related to the claim!”
An unrelated and isolated and infrequent contact is unconstitutional!
Leave Pennoyer in the past!—quit referring back to the forgotten lore!
Take the International Shoe doctrine, and take it out the door!
Quoth the Jurisdiction “Nevermore.”
And Jurisdiction, never flitting, still needed, still needed
In every case or otherwise not constitutional
And first look for minimum contacts,
And look for if they offend traditional notions of fair play and substantial justice;
Tuesday, December 16, 2014
Dodson on Twombly Creep
The following is by Scott Dodson (Hastings):
Yesterday’s Supreme Court’s opinion in Dart Cherokee held that a notice of removal need not be accompanied by evidence of the amount in controversy in a CAFA-removal case. The Court split 5-4 on the nerdy question of whether the Court could even review the issue itself because the Court of Appeals declined, in its discretion, to hear the appeal from the district court. That latter issue got quite a bit of play at oral argument, and coverage of the opinion’s resolution of that issue has overshadowed the Court’s decision on the merits, which pretty much everyone—myself included—thought fairly obvious.
But there’s something funny, and potentially important, in the merits part of the decision that people seem to be overlooking.
Section 1446(a), which sets the standards for a notice of removal, requires the defendant to file a notice “containing a short and plain statement of the grounds for removal.” This language mirrors Rule 8(a)(1), which sets the standards for pleading the jurisdictional basis for a claim filed in federal court, requiring a complaint to provide: “a short and plain statement of the grounds for the court’s jurisdiction.” The parallel language is not coincidence. In drafting the removal standard, Congress meant to borrow and incorporate the liberalized pleading standard from Rule 8(a)(1), which contains the identical language “a short and plain statement of the grounds for,” and focuses on allegations of jurisdiction. Removal, after all, is concerned primarily with jurisdiction rather than the merits of the claim.
The Court has interpreted these standards before. For jurisdictional allegations, both in cases filed in federal court and in cases removed to federal court, the amount-in-controversy alleged in good faith by the plaintiff controls unless contested by the defendant. Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 276 (1977); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938). Thus, the standard for a “short and plain statement of the grounds for” the jurisdictional allegation of the amount in controversy for diversity jurisdiction is “good faith.”
This standard of a good-faith allegation leaves no room, at least prior to contestation by the defendant, for an evidentiary requirement. Dart was surely correct, then, in holding that a notice of removal requires no evidence beyond the good-faith allegation of the jurisdictional amount.
But, oddly, the Court did not phrase the question that way. The opinion sets the question presented a somewhat different way, with my emphasis added:
To assert the amount in controversy adequately in the removal notice, does it suffice to allege the requisite amount plausibly, or must the defendant incorporate into the notice of removal evidence supporting the allegation? That is the single question argued here and below by the parties and the issue on which we granted review. The answer, we hold, is supplied by the removal statute itself. A statement “short and plain” need not contain evidentiary submissions.
The answer is correct: A “short and plain statement,” at least without other requirements, need not contain evidentiary submissions. But the italicized language is perplexing. It suggests that, though evidence is not required, the standard does require that the removal notice allege the requisite amount “plausibly.”
And, later, the opinion concludes (my emphasis added): “In sum, as specified in § 1446(a), a defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. Evidence establishing the amount is required by §1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant’s allegation.” Again, last sentence is clearly correct. But the Court also seems to hold that the removal standard requires a “plausible” allegation of the amount in controversy.
Where in the world did the insertion of the “plausibility” standard come from? The Court offers neither citation for it, nor textual support for it, nor reasoning for it. Further, the Court’s reasoning repeats the proper standard of “good faith.” What’s up with plausibility?
The answer must be the infectious case Twombly, which established a new pleading standard of plausibility under Rule 8(a)(2) in federal court. This plausibility standard had never before been a part of any pleading regime; rather, Twombly imported it from the substantive antitrust context.
But importing plausibility to removal makes little sense. For one, removal already has a perfectly fine standard that has worked for 75 years: good faith. It is possible that the Court thinks that “plausible” is a useful, clarifying synonym for good faith. But it’s far from obvious that “good faith” and “plausible” are synonyms in this context. And there’s no indication that the standard of “good faith” was unclear (as if the gloss of “plausibility” would be helpfully clarifying).
For another, Twombly grafted plausibility onto Rule 8(a)(2), which has a different standard from either the removal standard or the Rule 8(a)(1) standard. True, all three standards use the same preliminary language requiring “a short and plain statement.” But the removal and Rule 8(a)(1) standards go on to use the phrase “of the grounds [for jurisdiction],” while the merits pleading standard of Rule 8(a)(2) uses the different language “of the claim showing that the pleader is entitled to relief.” In developing the “plausibility” standard, Twombly focused on Rule 8(a)(2) and its unique concluding language: “The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.’” Twombly’s textual support for the plausibility standard—such as it is—has no bearing on jurisdictional allegations under Rule 8(a)(1) or § 1446(a).
For yet another, the rationale of Twombly maps poorly onto plausibility for removal allegations. Twombly foisted plausibility on merits allegations to guard against excessive discovery costs imposed on defendants at the behest of an implausible claim for relief: “Probably, then, it is only by taking care to require allegations that reach the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of discovery in cases with no ‘“reasonably founded hope that the [discovery] process will reveal relevant evidence”’ to support a . . . claim.” Removal, of course, merely shifts the forum; discovery cannot be avoided simply by defeating removal. And, in removal, the notice is filed by the defendant, the putative beneficiary of the plausibility standard. Applying the plausibility standard to removal turns Twombly on its head.
So, in Dart, it appears that, without citation or, frankly, any reasoning at all, “plausibility” has snuck in to yet another place where it doesn’t belong: removal. If so, this opens the door to arguments that Twombly’s standard is even more broadly applicable than previously thought.
Monday, December 15, 2014
Pfander on Dart
SCOTUS on Monday decided Dart Cherokee Basin Operative Co. v. Owens; the Court held that a notice of removal need only contain a short and plain statement of the amount in controversy and evidence is necessary only if the plaintiff contests the amount. It was a 5-4 decision, with Justice Scalia, joined by Justices Kennedy and Kagan and in part by Justice Thomas, in dissent, arguing that the Court lacked authority to review a court of appeals summary denial of discretionary review of a remand order. Justice Thomas also filed a separate dissent.
James Pfander and Daniel D. Birk (Northwestern) have a piece called Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisidction (Yale L.J., forthcoming); Dart fits with some of what they wrote there (see, especially, pp. 27-28 and 79-80). Jim emailed the following (posted with his permission):
Dart serves as a nice illustration of the work that a construct of non-contentious jurisdiction can do in simplifying the exercise of jurisdiction over some uncontested matters. As you know, the problem in Dart arose from the one-sided and discretionary application for appellate review of the remand decision. Justice Thomas, echoing a position first articulated by Justice Scalia in Hohn v. United States, argued that the petition in Dart was not a “case” in the appellate court and was therefore not a matter within the Court’s cert jurisdiction. There were no adverse parties joined and nothing was contested.
It’s here that the construct of non-contentious jurisdiction can help. If one recognizes that federal courts have long presided over uncontested applications for the certification or recognition of a claim of right, so long as they require the exercise of judicial judgment (as Brandeis explained in the leading case, Tutun v. United States), then the treatment of ex parte applications for discretionary review (as in Hohn and Dart) presents no real mystery.
Friday, December 12, 2014
Procedure week at SCOTUS
I have recaps at SCOTUSBlog of this week's oral arguments in Gelboim v. Bank of America on finality in MDL cases and in United States v. Wong/United States v. June on the jurisdictionality of the FTCA's limitations periods.
I do not predict an outcome in either recap and I usually am bad at predicting these things. But I will go out on a limb: The Court reverses in Gelboim and holds that a judgment disposing of all claims in one action within an MDL is a final judgment. The Court affirms in both Wong and June and holds that the FTCA limitations periods are non-jurisdictional and subject to equitable tolling. (Apologies in advance to all three attorneys if I just jinxed your cases).
Tuesday, December 09, 2014
SCOTUSBlog Preview: Jurisdictionality and the FTCA
I have a SCOTUSBlog preview of tomorrow's arguments in United States v. Wong and United States v. June, which jointly consider whether the timing requirements for filing claims under the Federal Tort Claims Act are jurisdictional or procedural and whether they are subject to equitable tolling.
Monday, December 08, 2014
Another police video produces confusion
Wow. It does appear that an FBI civil rights investigation still is ongoing (the mayor's claims nothwithstanding) and a § 1983 surely will follow. But this suggest the key framing of the two limits on video (and thus of body cameras): 1) Video is not certain, so everyone (courts, officials, and the public) errs when elevating video over all other evidence (call this the Scott/Plumhoff issue), but 2) What video says to you is not the same as what it says to someone else (call this the Dan Kahan issue).
This means we should not necessarily be surprised by the Eric Garner grand jury or by Hammond's mayor. They simply saw something different on that video than I (and many other people) did.
SCOTUSBlog Preview: Finality and MDL
I have a SCOTUSBlog preview of tomorrow's arguments in Gelboim v. Bank of America, which considers whether a decision dismissing all the claims in one action, where that action has been consolidated for pre-trial purposes with other still-pending actions through multi-district litigation, is a final and appealable order.
Thursday, December 04, 2014
Repost: First Annual Civil Procedure Workshop
Repost: Please note that the deadline for submissions is Monday, December 15.
We are pleased to announce the First Annual Civil Procedure Workshop, to be co-hosted by Seattle University School of Law, the University of Washington School of Law, and the University of Arizona Rogers College of Law. The Workshop will be held at Seattle University on July 16-17, 2015. Future conferences will take place at the University of Washington and the University of Arizona.
The Workshop will give both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. We hope the Workshop will strengthen the study of procedure as an academic discipline. By assembling annually, colleagues will have regular opportunities to meet to exchange ideas, to collaborate, and to participate in a national conversation on civil procedure scholarship.
Scholars whose papers are selected will present their work in small panel sessions. A senior scholar will moderate each panel and lead the commentary. Confirmed participants for 2015 include Stephen Burbank, Scott Dodson, Myriam Gilles, Suzette Malveaux, Judith Resnik, Suja Thomas, and Tobias Barrington Wolff.
We welcome all civil procedure scholars to attend this Workshop. Those wishing to present a paper for discussion in the Workshop should submit a two-page abstract by December 15, 2014. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for ten years or fewer. Workshop organizers will select papers to be presented by January 31, 2015. Please send all submissions or related questions to Brooke Coleman.
The Workshop will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.
Feel free to contact us with questions:
Brooke Coleman (Seattle), firstname.lastname@example.org
Liz Porter (UW), email@example.com
Dave Marcus (Arizona), firstname.lastname@example.org
Saturday, November 15, 2014
JOTWELL: Pfander on Bruhl on lower-court precedent
The latest Courts Law essay comes from Jim Pfander (Northwestern), reviewing Aaron-Andrew Bruhl's Following Lower-Court Precedent (U. Chi. L. Rev. 2014), which considers how and when SCOTUS cites to lower-court authority.
Wednesday, November 12, 2014
District court invalidates South Carolina SSM ban
And spend a lot of time talking about Fed Courts stuff. Of course, the discussion mostly demonstrates that, quite often, neither parties nor courts fully understand this stuff.
1) The suit named three defendants: A probate judge (authorized under state law to issue licenses); the attorney general; and the governor. The court held that the judge and the AG were proper defendants because both were responsible for enforcing the state ban--the judge by issuing (or refusing to issue) licenses and the AG by initiating state-court litigation and by defending the ban in court. But the court held that the governor was not a proper defendant, because other than a generalized power as the chief executive, she is not responsible for enforcing these laws. The court thus dismissed that claim under the Eleventh Amendment.
The Eleventh Amendment dismissal makes no sense (to the extent any of this makes sense). The state is not a named defendant, nor is the state the "real and substantial party in interest" in an action nominally against the individual officer that would require payment from the state treasury. This was a purely equitable action against a named officer; that she is not the correct officer does not convert it back into an action against the state.
Most courts facing the "wrong Ex Parte Young defendant" rely on standing as the basis for dismissal, on the theory that the plaintiff's injury is not "fairly traceable" to that defendant's conduct. I am still not a fan of that, as I think this is all about substantive merits. But it makes at least a bit more sense than saying that suing the wrong individual creates an action against a state.
2) The AG instituted an original jurisdiction action against the probate judge in the State Supreme Court, seeking to enjoin him from issuing licenses in accordance with the Fourth Circuit's decision invalidating Virginia's ban. The supreme court stayed that action, pending resolution of an already-pending action in federal district court. The AG tried to argue that Rooker-Feldman barred jurisdiction over this action, because the issues were involved in the pending supreme court action. But the court easily swept that aside, finding 1) the state supreme court had stayed its action in deference to the federal proceedings, and 2) RF would not apply here, because the plaintiffs are not state-court losers challenging the validity of a court order or seeking to enjoin that order.
I must say, though--that the AG even brought this up reflects a misunderstanding of the recent direction of that doctrine.
3) The AG also tries to argue Younger abstention. Again, easily swept aside, since mere parallel litigation is not a basis for Younger abstention. Again, the plaintiffs want to enjoin enforcement of the SSM ban, not the state court proceedings. Again, the AG needs a Fed Courts class.
Friday, October 24, 2014
The Eleventh Amendment is a pain
This lawsuit, filed today, alleges that the NCAA violates the Fair Labor Standards Act by not paying student-athletes (who, it alleges, are akin to work-study students). Named defendants are the NCAA and every Division I school, many of which are state schools; the suit seeks unpaid wages and an injunction requiring the schools to stop violating the FLSA (meaning that students be paid wages going forward). The problem: States cannot be sued by name under the FLSA, which is a Commerce Clause enactment on which Congress cannot abrogate sovereign immunity. And Ex Parte Young is not available for recovering the unpaid wages, so the plaintiff cannot retrench and sue the president of each state university.
Without even getting into the FLSA merits, this is a case in which the Eleventh Amendment is genuinely a barrier to relief. The plaintiffs' best move is to try to proceed with their claims against the private schools, then hope the Department of Labor will be persuaded by the arguments and will jump into the case.