Saturday, May 23, 2015

Preclusion, ascertainability, and civil rights classes

On this post about class certification in the Alabama marriage litigation, commenter "Hash" began an exchange about the scope of that class, whether it was properly defined, whether it was "ascertainable," and whether it allows for some gamesmanship by class members to avoid preclusion.

The class of plaintiffs is defined, in relevant part, as "all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex," with class members identifiable by their application for a license. Hash raises the following situation (I'm paraphrasing):

The plaintiffs lose and Judge Granade decides that Alabama's SSM ban does not violate the Fourteenth Amendment. A same-sex couple goes to federal court seeking an injunction against enforcement of the ban; the government argues preclusion, that the couple were part of a class in an action that already decided that the ban was constitutional. In response, the couple will argue that they were not part of the (unsuccessful) class because, at the time of the district court's ruling, they did not wish to be married. They only decided to get married afterwards, so the decision in the class action cannot be binding on them.

The problem, Hash argues, is that this couple will have no qualms about relying on the injunction to obtain the license, creating a one-way opt-out, claiming the benefits of the injunction if they win but avoiding the drawbacks if they lose.

My fuller thoughts after the jump.

First, Hash raises a genuine issue. All else being equal, this is how a couple would try to get around preclusion. And he is correct that the class definition should and generally will be merits-blind. True, it probably wasn't in this case, in part because, as another commenter notes, the class action is a follow-up to two previous individual injunctions in the same action, so we know exactly how Judge Granade comes out on the constitutional question. But it will not always be so.

Second, I do not believe this is unique to the marriage case, but rather is endemic to FRCP 23(b)(2) classes in constitutional actions. At pp. 7-8 of the class certification order, Judge Granade cites several 23(b)(2) precedents, with classes defined as, for example, "female students who seek to participate in varsity intercollegiate athletics" or "persons seeking abortions." These classes do not seem to be defined much differently than the class here, in that all are unspecified as to time. And I expect that, as Asher suggests in the comments to the earlier post, Judge Granade understood her injunction as applying to all people who wish to get married in the future. In fact, she cited one other case in which the class was defined as everyone who wished or expected to engage in some expressive activity in the future.

But does that raise due process concerns, in that someone will be bound in their future activity? Especially since 12(b)(2) requires neither notice nor opportunity to opt out of the class? I do not believe so for several reasons, somewhat tied to the nature of injunctive relief.

First, to the extent the government would argue issue preclusion, that generally does not apply to purely legal questions, such as the declaration that SSM bans do not violate the Fourteenth Amendment.

Second, even if the denial of the class injunction has claim-preclusive effect on every couple who may seek to marry in the future, this hypothetical couple will not be left without an option. Rather than filing a new action for an injunction--likely before Judge Granade, if in the Southern District--and having to face a preclusion defense, they could go back to Judge Granade as part of this action and seek relief from the judgment denying the injunction, under FRCP 60(b)(6) or (b)(5). The couple's arguments would be the same in both--the ban is, in fact, unconstitutional and the probate judge should be enjoined from enforcing it. And the trigger to both actions would be the same--some change in the law (for example, a decision from SCOTUS or the Eleventh Circuit) renders Judge Granade's denial of the injunction erroneous and inequitable. This, of course, is the converse of what defendants do to get out from under continuing injunctions and what the Alabama probate judges will do in Strawser if Obergefell comes out the opposite of what everyone expects. But it also is what an individual plaintiff would do, so why would it not work for class members?

Does this resolve the problem?

Posted by Howard Wasserman on May 23, 2015 at 04:18 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, May 21, 2015

Class certifcation in Alabama SSM litigation

Judge Callie Granade of the Southern District of Alabama took a giant step towards establishing marriage equality throughout Alabama. Judge Granade finally granted the motion for class certification in Strawser. She certified a plaintiff class of

all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have the 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.

And she certified a defendant class of

all Alabama county probate judges who are enforcing or in the future may enforce Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages.

In a separate order, she extended the preliminary injunction, previously entered against Probate Judge Don Davis, to Probate Judge Tim Russell and the rest of that defendant class, prohibiting them from enforcing the state's same-sex marriage ban and requiring them to issue licenses to any member of the protective class who follows the proper steps towards obtaining a marriage license. But Judge Granade then stayed the injunction pending SCOTUS resolution of Obergefell, which is "imminent."

Thoughts on the order and where this leaves us after the jump.

Assuming (as everyone expects) Obergefell establishes Fourteenth Amendment protection for same-sex marriage, Judge Granade will immediately lift the stay, establishing a binding injunction prohibiting enforcement of the Alabama SSM ban effective throughout the state and guaranteeing every same-sex couple a marriage license. That injunction is necessary to put Obergefell into effect in the state, since that decision will have nothing to say directly to Alabama law or to any Alabama officials. And because it protects all possible couples and binds alll possible probate judges, it spares couples the  trouble of having to initiate individual litigation against individual judges to obtain injunctions in light of Obergefell.

Judge Granade also swept aside various arguments that the federal court should defer to the state mandamus prohibiting probate judges from issuing marriage licenses to same-sex couples. Rooker-Feldman, the Anti Injunction Act, and every other abstention doctrine were inapplicable, since the plaintiffs were not parties to the state mandamus proceeding and, in any event, the federal injunction preceded the state mandamus.

Granade further insisted that, pursuant to the Supremacy Clause, the federal injunction enforcing the Fourteenth Amendment trumps state law and the state mandamus action, citing SCOTUS' discussion of the Supremacy Clause and Ex Parte Young from Armstrong. As she put it, the defendants "cannot be held liable for violating Alabama state law when their conduct was required by the United States Constitution."*

* I actually believe Judge Granade's analysis is wrong on this point. The conflict here is not between a state law and a federal injunction applying the Fourteenth Amendment against that state law. The conflict is between two judicial decisions and orders--one state, one federal--interpreting the Fourteenth Amendment. The Supremacy Clause does not raise the federal order above the state order. Judge Granade's view that the Fourteenth Amendment requires defendants to issuance of licenses does not trump the Alabama Supreme Court's view that the Fourteenth Amendment does not require, and in fact prohibits, issuance of those licenses. This analysis again reflects the erroneous view that one district court's declaration establishes the meaning of "the Constitution."

The correct answer is that there is, indeed, a potential conflict between the two orders. But the state mandamus expressly allows probate judges to show that they are under a conflicting federal obligation, offering a basis to be relieved from the state mandamus. In other words, the state court order itself eliminates any federal-state conflict, obviating the need for the federal court to avoid the conflict by staying its hand.

Of course, it would not be Alabama if someone did not misstate what is going on. Today, it was the Southern Poverty Law Center, which stated that this decision "ends the chaos and confusion that Attorney General Strange and Chief Justice Moore have intentionally caused through their reckless rejection of federal constitutional principles." As I have written and continue to write, I am not quite sure what "federal constitutional principles" Strange or Moore have rejected. That is, unless "any decision with which we agree, even a non-binding precedent from a single district judge, must be binding on everyone everywhere" is a federal constitutional principle.

Posted by Howard Wasserman on May 21, 2015 at 10:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Monday, May 18, 2015

Justice Scalia was not pleased

Justice Scalia was not pleased with Monday's decision or with the petitioners in San Francisco v. Sheehan. The Court dismissed certiorari as improvidently granted on one question, involving application of a provision of the Americans with Disabilities Act to police affecting arrests, because petitioners ended up not briefing or pursuing that issue. The court then resolved the other question, holding that officers were entitled to qualified immunity for an incident in which officers entered the room of a mentally ill woman and shot her when she charged at them with a knife.

While agreeing with the decision to DIG the first issue, Scalia, joined by Justice Kagan, argued that the Court also should have dismissed the second question as improvidently granted, because the Court never would have granted cert on a fact-bound qualified immunity issue standing alone. Scalia argued that while non-independently certworthy issues often are decided alongside connected certworthy issues, where the certworthy issues is dismissed, the Court should not decide the otherwise unworthy subsidiary issue. And he placed the blame squarely on the city and county; he threw around terms such as "induce," "bait-and-switch tactics," and "reward[ing]" petitioners by giving them "all they seek" to describe what San Francisco did and what the Court was allowing it to do. Scalia worried that future litigants will be encouraged to "seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court's docket, we will consider whatever workaday arguments they choose to present."

Otherwise, Justice Alito's opinion for six justices (Justice Breyer recused) was a straightforward restatement and application of the emerging modern law of qualified immunity, in all its unfortunate development. The Court again questioned, without deciding, whether binding circuit precedent or a "robust consensus of cases of persuasive authority" could clearly establish a right. And it showed how precedent-bound the analysis has become, with clearly established being all about how factually analogous or distinguishable prior cases are. At one point, the Court spoke of reasonable officers "carefully read[ing]" precedents and what officers could know from that precedent--giving voice to the fiction that police officers actually read case law and are put on notice and guided by the factual specifics of prior cases compared with the situation they currently face.

Posted by Howard Wasserman on May 18, 2015 at 05:51 PM in Civil Procedure, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, May 13, 2015

Muslim cartoons and Nazis in Skokie

Here is a nice post from Ron Collins (CoOp) on several different angles and issues in the controversy over Pam Geller and the cartoon contest. Interestingly, Collins compares this controversy to the Nazis marching in Skokie in 1977, which similarly divided the left on the appropriate protection for hateful, deliberately provocative speech that might provoke violence. Collins points out that the National ACLU has been unequivocal as to Geller, insisting that "it’s not even a tough question" that what she is doing is protected by the First Amendment. The ACLU famously lost money and members over its decision to represent the Nazis back in the day.

Collins also links to this piece in Reason comparing The New York Times' op-ed page position on Skokie with its position on the cartoons. It includes excerpts from last's week's editorial and from January 1, 1978's Nazis, Skokie and the A.C.L.U. The comparison reveals the shifting "yes, but" that Paul identified. Thirty-seven years ago, The Times never felt the need to suggest that Frank Collin's stunt was "not really about free speech," but instead was "an exercise in bigotry and hatred posing as a blow for freedom." Rather, that piece placed the burden on the People of Skokie to "demonstrate their respect for the law" by not engaging in violence.

Again, none of this affects the legal protection of anyone's speech. But there is a rhetorical and narrative difference that does make a difference.

Posted by Howard Wasserman on May 13, 2015 at 01:31 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Saturday, May 09, 2015

The First Amendment's Burden of Persuasion

In his post on that NYT editorial about Pam Geller and the cartoon contest. Paul says the following:

But their typical "yes, but" editorials on the subject would generally have ended with the civil libertarian point: yes, the speech is contemptible, but, followed by cut-and-paste quotes by Holmes and Brandeis. This is a "yes, but" editorial with the opposite orientation: yes, the speech is protected, but....

Of course, it is not only The Times that  has long utilized that first "yes, but" structure; courts do it, as well. Consider Chief Justice Roberts in Snyder v. Phelps:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But . . .

Or Roberts' former boss, Chief Justice Rehnquist, in Hustler v. Falwell:

There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard  . ..

Several years ago, Erica Goldberg wrote at CoOp that she regretted the continued need for that "yes but" structure: "The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus." In fact, really, it always has been thus.

This is why I believe Paul is onto something that reflects a change in how we think and talk about the freedom of speech. In a comment to Paul's post, I described this as shifting the burden of persuasion. The first orientation acknowledges the speaker and the speech as contemptible, but celebrates First Amendment principle; the second orientation acknowledges the First Amendment, but focuses on condemning the speech and the speaker. Put another way: The first version focuses on celebrating First Amendment principle while accepting the speaker/speech as the cost of that; the  second version focuses on condemning the speaker/speech while accepting the First Amendment as the cost, but one that demands the forceful condemnation as more necessary and more essential. Put a third way: The first structure seems to say "We don't like these speakers, but we have the First Amendment;" the second structure says "We're stuck with the First Amendment, but we really hate this speaker, he should not have spoken, and he may have even brought any injury on himself."

Compare that with how Roberts closed in Snyder: "As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case." That is different in tone, if not substance, from what The Times and others are saying about Charlie Hebdo, Pam Geller, the cartoons, etc. Now, I am not suggesting that it is not ok to criticize offensive speech and speakers even while defending their right to speak; the First Amendment does not immunize Pam Geller from criticism.

The point, I think, is a shift in which of those things we highlight. Perhaps this shifted burden will not make a difference doctrinally. But how we perceive the First Amendment affects how we talk about it, which perhaps  affects how free speech controversies play out. If the focus is on condemnation, does the constitutional principle lose some of its luster? If the focus is on condemnation, will speakers be less willing to speak or less willing to pursue efforts to protect these principles? This, in turn, may affect how the courts eventually come to think and talk about the First Amendment.

Posted by Howard Wasserman on May 9, 2015 at 07:39 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, May 08, 2015

Is public litigation better than private litigation?

The Obama Justice Department, first under Eric Holder and now under Loretta Lynch, is taking § 14141* out for a spin, opening broad investigations into an increasing number of local police departments. The most recent (and unsurprising) investigation is about to be opened in Baltimore.

* Update: Sidenote: How do you pronounce this section orally? Is it "one-four-one-four-one"? Is it "fourteen-one-four-one"? is it "fourteen-one-forty-one" (which is my preference)?

Section 14141 allows DOJ to file a civil action and obtain an injunction to stop patterns or practices of unconstitutional behavior by state and local law enforcement. In a sense § 14141 is a public counterpart to private actions under § 1983. The "pattern or practice" language of § 14141 mimics the judicially imposed standard for establishing municipal liability and the liability standards basically overlap. Both actions result in potentially broad structural injunctive relief (or a consent decree) requiring judicial monitoring of a local law enforcement agency and significant, sometimes costly changes to agency practices. Both may involve wide-ranging investigations; DOJ conducts a broad independent investigation pre-litigation, while a private investigation only can be conducted through post-filing court-supervised discovery. But this seems like a small difference. Yet there is much greater resistance to private than public litigation of this type, even though the result will be the same. Complaints about "government by judicial decree" are frequently leveled at § 1983 litigation, but not as much as at § 14141 claims.

So the objection, it seems, is not to federal injunctions against local police departments, but to injunctions entered through private litigation and at the urging/advocacy of private parties. Put differently, many people are opposed to (or at least less comfortable with) injunctions entered through the efforts of private attorneys general than through the efforts of the real attorney general. But why should that be? Both causes of action are established by Congress, so they have the same underlying political legitimacy. The resulting decree will not necessarily be different. Private attorneys general undertake the investigations for which DOJ may lack the resources, time, or political will. Consider that the amount of § 14141 activity in the Obama Administration is substantially greater than the activity during the GWB Administration.** And consider that DOJ is going into places--Ferguson, Baltimore, Cleveland--where long-simmering tensions created by longstanding (unconstitutional) police policies and practices finally exploded, creating the type of large problem that warrants intervention by the federal government. Perhaps, however, if private litigants had more leeway to pursue smaller systemic violations, they could stop them before they reach this breaking point.

** The head of the Civil Rights Division for several years of the Bush Administration is now my dean. His division preferred informal negotiated cooperative resolution or letters of understanding rather than the adversarial, confrontational approach entailed in litigation and formal decrees.

This expanded use of § 14141 makes some sense in historical context. It was enacted in 1996 1994 (sorry for the typo), so the law is less than 100 years old. The last four years of the Clinton DOJ was still trying to make heads or tails of the law. The Bush DOJ had other enforcement priorities and, as noted above, a different approach. The current Department understands how the law works, should work, and can work, along with a renewed interest on local policing that has become a flashpoint. But the question remains whether it would have become less of a flashpoint were more private litigation possible.

Posted by Howard Wasserman on May 8, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Thursday, May 07, 2015

Same-Sex Marriage: The (Ted) Kennedy Legacy

The odds-makers are generally in agreement that the deciding vote in Obergefell v. Hodges will be Justice Kennedy. While some have speculated that Chief Justice Roberts will find a way to join in a majority judgment (if not majority opinion) recognizing a Constitutional right to same-sex marriage, the more-prevalent view is that the liberal-conservative stalwarts on the Court will split 4-4 and that Kennedy will cast the decisive fifth vote one way or the other.  If he sides with the proponents of same-sex marriage, the winners will have another Kennedy to thank, albeit posthumously, for that result:  Senator Ted Kennedy.

The narrative goes like this:

 


In 1987, Justice Lewis Powell retired, leaving President Ronald Reagan his third Supreme Court vacancy to fill.   (The first occurred when Potter Stewart retired, and President Reagan appointed Sandra Day O'Connor.  The second occurred when Chief Justice Warren Burger retired, and President Reagan elevated William Rehnquist to the Chief Justice seat and appointed Antonin Scalia to fill the vacancy.) Reagan nominated Judge Robert Bork of the D.C. Circuit, leading to the infamous confirmation hearing that ended with a Senate vote rejecting Bork, 58-42.

Bork’s greatest and first nemesis in that nomination process was Senator Kennedy, who took to the Senate floor and urged that “Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”

Notably absent from that floor speech was any notion of rights for gays and lesbians. Remember, this was 1987.  Bowers v. Hardwick, the 1986 case that permitted states to criminalize sexual conduct between members of the same sex, was fresh law (and remained on the books until 2002, when Justice Kennedy wrote the decision in Lawrence v. Texas that overturned it).

Kennedy's speech galvanized the Senate, and the nation. Vice-President Joe Biden, then a senator and chair of the Judiciary Committee, had his own field day during the committee hearings. I was a fresh-faced first-year law student, and the protests on my law-school campus made indelible impressions on me. When Bork was ultimately defeated, we knew we had won. We didn't quite know what we had won, but we knew we had won something.

President Reagan next nominated Douglas Ginsburg to fill Powell's spot, but Ginsburg withdrew after reports surfaced that he had used marijuana. (Remember, it was 1987.) So Reagan turned to Anthony Kennedy. And here we are today.

Bork died in 2012. Had he won confirmation and remained on the Court until his death, President Obama would have been in office at the time of the vacancy. Given the likelihood that Obama would have appointed a justice favorably disposed to same-sex-marriage rights, some might say that blocking the Bork nomination had no ultimate impact on this issue. But it’s important to remember that Obergefell did not materialize out of thin air. It comes following years of development of legal protections for gay, lesbian, and bisexual people:  (1) the Kennedy opinion in Romer v. Evanswhich in 1995 struck down a state constitutional provision banning anti-discrimination laws protecting gays, lesbians, and bisexuals; (2) the 2002 Kennedy opinion in Lawrence; and (3) the 2013 Kennedy opinion in United States v. Windsor, overturning a portion of the Defense of Marriage Act. 

So some credit is due to Senator Kennedy, arguably responsible (at least in part) for the ultimate nomination of Justice Kennedy. And that Kennedy-Kennedy legacy may end up making a bigger mark on history when the Court announces the Obergefell decision at the end of June.

Posted by Andrew S. Pollis on May 7, 2015 at 12:20 PM in Constitutional thoughts, Current Affairs, Judicial Process, Law and Politics | Permalink | Comments (1)

Sunday, May 03, 2015

Scalia's Joke

During the break between the petitioner and Solicitor General arguments on the first issue in Obergefell, a protester began screaming about how the Bible tells us that supporters of gay marriage will burn in hell,  it's an abomination, etc. After the guy was pulled out of the courtroom (apparently it took four officers), the Chief offered Donald Verilli an extra minute to compose himself; Verilli first accepted, then declined. As Verilli was moving to the podium to begin his argument, Justice Scalia said "It was rather refreshing, actually," which was met with laughter from the gallery. (The whole thing is at pp. 27-28 of the transcript and at the very end of the petitioner's argument on the audio).

Jeffrey Toobin argued that the real ugly part was not the outburst, but Scalia's "shameful" joke. According to Toobin's article, expanded upon in this Political Scene Podcast, what Scalia found "refreshing" was that someone inside the courtroom was finally making the real argument against same-sex marriage--moral condemnation of homosexuality and LGBTQ people--rather than the sterile and ultimately incoherent arguments about accidental procreation and "biological moms and dads." Scalia was not joking; he was endorsing the viewpoint expressed by someone intentionally disrupting the proceedings and regretting that viewpoint's absence from the actual proceedings. Toobin even suggested that the response was not real laughter, but shock at what Scalia had said.

Honestly, it never occurred to me that Scalia was suggesting that this was the "real" argument that he wished would be made in the case. I heard this as genuine laughter rather than shock at Scalia's provocativeness (the advantage to being able to hear the argument, not just read it). It certainly is unusual for a justice to comment on courtroom protests, much less through a joke--and perhaps it is inappropriate. Perhaps Scalia meant that the protest broke the tension of the argument. If so, we can note that Scalia never finds the anti-Citizens United protests "refreshing," suggesting he simply was reacting to the rare protester who is not on the opposite side of an issue as he is. And that, too, might be inappropriate.

But was Scalia really "endorsing" the views expressed? Is Toobin right about this? Or is this another example of simplistic and reductivist coverage of the Court? And am I being too forgiving of Scalia?

Posted by Howard Wasserman on May 3, 2015 at 10:18 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Thursday, April 30, 2015

Upon further review . . .

I am rethinking my two posts on what happens in the lower courts outside the Sixth Circuit if the Court rejects marriage equality in Obergefell. I stand by my earlier suggestion that state officials will go back to the district court to dissolve the injunction.

But on further consideration, I am not sure this is significant or even necessary. And the reason goes back to the limited scope of the actual injunctions. None of the cases involved class actions; all were individual plaintiffs (generally 3-4 couples). Thus, when SCOTUS denied cert., state officials were obligated by the injunction only to issue licenses to the named plaintiffs, which they did. They were not obligated by the injunction to issue licenses to anyone else and no one else was entitled by the injunction to a license. So it is not the injunction that obligates state officials in California, Illinois, Utah, etc., to issue licenses to same-sex couples--it is the circuit precedent and the knowledge that they will be sued, enjoined, and made to pay attorneys' fees if they do not issue the licenses to new couples.

So there is no pressing reason for Scott Walker to get the Wisconsin injunction dissolved after Obergefell, at least in avoiding issuing new marriage licenses, although he will do it anyway. The injunction is not imposing any current obligations on him.

Posted by Howard Wasserman on April 30, 2015 at 11:01 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Wednesday, April 29, 2015

A new wrinkle on now-invalid injunctions

A colleague at an Oregon-based school offers a different twist on what happens to Article III-final injunctions if the petitioners lose in Obergefell: What happens if the relevant state actors (the Governor or the AG) favor same-sex marriage and decline to file the motion to dissolve the injunction? This would be most likely in Oregon and California, where state officials declined to defend the ban or appeal the district court's decision invalidating it. This, my colleague suggested, might offer state officials a "weird way" to get around their own state's laws.

I can see four possibilities, although I would like to hear more (or hear why my three are wrong).

First, the district court might raise the issue sua sponte and issue an order to show cause why the injunction should not be dissolved; the state officials will have to respond and either distinguish Obergefell (or the state laws at issue there) or acknowledge that changed legal circumstances require the injunction be dissolved. Judges are not obligated to raise merits issue in this way (contra subject matter jurisdiction). But they often will do so, especially when it means getting cases off their dockets. And the judge has incentive to do this, precisely to prevent state officials from not enforcing laws they do not like.

Second, someone might intervene in the district court and file the motion to dissolve. It might be a county clerk arguing that the injunction is compelling him to act in a way contrary to controlling Supreme Court precedent. Or it might be one of the sponsors of the voter initiative that produced the constitutional amendment (a Rule 24 intervenor need not have Article III standing).

This involves a couple of tricky FRCP 24 issues. First, it is not clear who would be able to intervene as of right under FRCP 24(a)--would a clerk or the initiative sponsor claim an "interest" relating to the case that will be impaired or impeded and is not adequately represented? If not, then intervention could only be permissive under 24(b) and subject to the court's discretion. In the initial Oregon litigation, the district court denied permissive intervention by the National Organization for Marriage, even on behalf of an anonymous county clerk who claimed a religious objection to having to issue licenses to same-sex couples. The question is whether the intervention analysis changes if the dispute is over the continuing validity of an injunction that is inconsistent with new Supreme Court precedent, as opposed to the validity of the underlying law. Certainly the district judge may be more willing to permit 24(b) intervention in this situation than in the underlying action.

Third, someone--again, probably a county clerk or the initiative proponents--goes to state court, themselves or on behalf of the state, seeking a mandamus ordering the Governor or AG to do their duty and file the motion to dissolve the federal injunction. Whether this option is available and depends on specifics of Oregon law.

Fourth, state processes in Oregon (another voter initiative or some other process to amend the state constitution) repeals the 2004 constitutional amendment, perhaps moving very quickly to do so. As my colleague argues, the political culture has so changed in Oregon in just a decade that no one wants to defend the ban or to reinstate it by taking steps to dissolve the federal injunction.

Thoughts? My original post assumed that state officials would be anxious to dissolve the injunctions. This example shows that there may be a few states where that will not be true.

Posted by Howard Wasserman on April 29, 2015 at 08:32 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Fontana and Braman empirically test the countermajoritarian difficulty

David Fontana and Donald Braman (both of GW) discuss their study showing that, on the question of marriage equality, people do not [ed: oops] care whether marriage equality is established by SCOTUS or by Congress. Opinions on same-sex marriage were unchanged by the institution that established it.

Posted by Howard Wasserman on April 29, 2015 at 10:58 AM in Article Spotlight, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6)

What if SCOTUS rejects marriage equality?

I have not yet read/listened to the Obergefell arguments (I plan to get to it as soon as I finish writing this), although I have read some reports. I am fairly confident the Court will declare that SSM bans are invalid (and I am kind-of confident it will be a 6-3 vote).

But for now, suppose the Court goes the other way and holds that the Fourteenth Amendment does not guarantee marriage equality and does not require states to recognize out-of-state same-sex marriages. After the jump, I want to consider four procedural questions: 1) What do the states do where same-sex marriage has come via  federal court order that has become final (including all the cases in which SCOTUS denied cert. last fall, as well as California);  2) What do the states do where a district court judgment invalidating the state ban is pending on appeal but was not stayed? 3) What happens to the same-sex marriages that have been entered in those states where the federal decision has gone to final judgment? 4) What happens to the same-sex marriages that have been entered in those states in which the district court decision is on appeal but has not been stayed (e.g., Florida and the four couples in my beloved Alabama)?

1) The states return to the district court supervising the injunction with a motion to dissolve under FRCP 60(b)(5) or (b)(6). The argument is that there has been a "significant change" in the legal circumstances, in that the conduct the injunction prohibited (denying marriage licenses to same-sex couples) has become constitutionally permissible; the injunction thus is no longer equitable, as it is based on a judicial decision that is no longer valid in light of the prevailing understanding of the Fourteenth Amendment announced by SCOTUS. It seems pretty obvious that an injunction based on some extrapolation from Windsor, Lawrence, Romer, and general Equal Protection principles cannot survive a decision from SCOTUS expressly declaring that  same-sex marriage bans do not violate the Fourteenth Amendment. So the motion will be granted, the injunction will be dissolved, and the state law barring issuance of licenses to same-sex couples will again be enforceable.

2) This situation presents three paths to the same outcome. First, these states could simply present Obergefell to the court of appeals, which will apply it to reverse the district court judgments and to order final judgment entered in favor of the states on the constitutional issues. Alternatively, the court of appeals could shift the work back to the district court by summarily vacating and remanding for reconsideration in light of Obergefell, with the district court itself applying Obergefell to enter judgment in favor of the state. A third possibility is for these states to file the sameRule 60(b) motion in the district court. Under FRAP 12.1 and local rules in several Circuits (including the Eleventh, one of the places in which appeals are pending), a district court can make an "indicative ruling" on a motion (including a Rule 60(b) motion) that it otherwise lacks jurisdiction to resolve because the case is in the court of appeals; if the district court indicates its intent to grant the motion, the court of appeals can remand the case to allow the district court to grant the motion and to enter the revised judgment. Under any approach, the result is that the injunction will be dissolved and the state ban on same-sex marriage again becomes enforceable.

3) These marriages remain valid. The states granted licenses to these couples under a federal injunction that had been appealed and had become final. The state of the law in these states was that prohibitions on same-sex marriage were invalid and unenforceable, meaning these couples were legally entitled to those licenses and state officials were legally obligated to grant them. And that remained the state of the law until the district court dissolved the injunction.

4) I am not sure of the answer to this. Mike Dorf argued here that there is no basis in federal constitutional law to "grandfather" some marriages, which would effectively give permanent force to a judgment that has been subsequently reversed. The validity of these marriages ultimately would be a matter of state law, unhindered by the U.S. Constitution. That sounds right, but I welcome competing arguments.

Thoughts?

Posted by Howard Wasserman on April 29, 2015 at 12:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (19)

Saturday, April 25, 2015

If I've lost the media . . .

I have made pretty clear my view that the Alabama Supreme Court and Alabama public officials have not been defying federal courts or federal law over same-sex marriage, given the limited scope of district court orders and injunctions. And I thought I had convinced Emily Bazelon when she wrote this, based in part on interviews with  Orin Kerr and with me.

But then on Friday's Slate Political Gabfest, in a preview of next week's Obergefell arguments, Bazelon used the words "rebel" and "defy" to describe recent events in Alabama. Oh well. A subsequent email exchange indicated differences in views about the interaction between the mandamus and the federal injunction and the effect of each on the other. In my view (which I explain further here), the injunction only obligated one probate judge, Don Davis, to issue licenses to the four couples who are plaintiffs in Strawser, which he did. At that point, the mandamus did not impose any obligations on Davis or anyone else that competed or conflicted with obligations from the federal court. We are back to one (functionally) lower federal court disagreeing with another lower federal court about federal law. That is disagreement, not defiance or rebellion.

Posted by Howard Wasserman on April 25, 2015 at 11:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, April 23, 2015

Forum selection, upside-down

The family of Michael Brown has filed a civil rights action against the City of Ferguson, the former Chief of Police, and Darren Wilson. The complaint is a bit confusing. It appears to assert multiple individual, supervisory, and Monell counts for Fourth and Fourteenth Amendment violations, including a claim for loss of familial relationship under the Fourteenth Amendment, as well as excessive force. The complaint goes after Ferguson's larger patterns-or-practices of unconstitutional behavior, describing events going back as far as 2010. At the same time, the introduction describes it as a wrongful death action under Missouri law for violations of the U.S. and Missouri constitutions, even though the state Constitution is never mentioned again and no torts (battery, whatever) are asserted.

It is noteworthy--and puzzling--that the family filed in state rather than federal court. There is nothing state-based about the legal rights actually asserted in the Complaint; this is a straight-forward § 1983 claim asserting federal constitutional rights. The idea behind federal question jurisdiction was to offer parties the expertise and respect for federal law and federal rights that federal judges offer, as well as the freedom to protect those rights that comes with Article III protections. And that idea takes on special importance when asserting constitutional claims against local governments and local government officials that only became possible with the Fourteenth Amendment, where federal judges are insulated from the local pro-government pressures that might work against civil-rights plaintiffs. Indeed, arguments against congressional jurisdiction-stripping always have fought against the bogeyman of plaintiffs forced to pursue federal constitutional rights against local government institutions before an uninsulated local judiciary.* Has federal judicial procedure--Twiqbal, summary judgment, limits on discovery--become so hostile to civil rights plaintiffs and so pro-defendant that plaintiffs would prefer to litigate against a local government in state court? Consider that the two biggest hurdles that § 1983 plaintiffs regularly face--qualified immunity and the heightened demands for making a Monell claim--follow them into state court anyway. So why pick state over federal in this type of case?

Addition: Note that I am assuming the choice was strategic rather than familiar. The three lawyers on the case include one attorney from Clayton, MO and two from Tallahassee. The web site for the latter two indicates that they largely specialize in personal injury and automobile accident cases, although Civil Rights is listed as a practice area. I cannot find anything about the local attorney (who has been in front of the media since the fall). If all three are primarily PI lawyers who primarily litigate in state court, the choice of forum might simply have been an automatic move rather than a deliberate choice based on specialized understanding of § 1983 litigation.

The interesting question is whether the defendants remove, seeing as how they might see themselves as being in an advantageous position in either court.

Posted by Howard Wasserman on April 23, 2015 at 03:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (22)

Additional thoughts on Wong and June and the FTCA

I have a SCOTUSBlog opinion analysis on Wednesday's decision in U.S. v. Wong (along with U.S. v. June). A  divided Court (Kagan writing the majority, for Kennedy, Ginsburg, Breyer, and Sotomayor) held that the statute of limitations in the Federal Tort Claims Act is not jurisdictional and is subject to equitable tolling.

This is the right conclusion--both that the statute is not jurisdictional and that it is subject to equitable tolling. But I have some additional thoughts after the jump.

The problem is that the Court continues to erroneously conflate the concepts of jurisdictionality and mandatoriness--using "jurisdictional" as inaccurate shorthand for "mandatory" (or "non-tollable," to the extent that is word). Properly understood, a statute of limitations should never be jurisdictional, because it has nothing to do with vesting a court with authority to hear and resolve the issues in a case. Timeliness goes to whether the pleader can bring and move forward with the claim in a court of proper jurisdiction. But that leaves unresolved whether the statute of limitations is or should be mandatory--understood and applied as "brooking no exceptions," to use language from Justice Alito's dissent. And the Court's inaccuracy on this spawns inaccuracy in Congress, which continues to legislate with the jurisdictional/non-jurisdictional divided in mind, rather than thinking expressly and explicitly about mandatory/less-than-mandatory. Or better, thinking expressly and explicitly about a rule (timely filing) and exceptions to the rule.

The Justices at least recognized this gap in Wong and the possible need to shift the analysis away from jurisdictionality language and to a direct focus on mandatoriness. Justice Kagan dropped a footnote agreeing that Congress could preclude equitable tolling of a nonjurisdictional limitations period, but punted on the issue by insisting that the government had made no arguments for non-tolling independent of arguments about jurisdictionality. Justice Alito's dissent sought to separate the issues, at least in part. Acknowledging that the Court might want to avoid the jurisdictional label given everything it entails, he insisted that § 2401 is nonetheless not subject to tolling. As I explain in the review, Alito argued that "'Forever barred' must mean something. It is 'no weak-kneed command,' nor is it 'qualified or aspirational.' These words are absolute and 'brook[] no exceptions.'” While the right approach, Alito's textual argument does not support the conclusion. All statutes of limitations offer a textual command--the claim is barred if not filed withing X period. If the statute offered a textual basis for tolling (through less-emphatic language or through enumerated exceptions), then a court would not be utilizing equitable tolling, it would be applying statutory tolling provisions. Congress still needed to do something more than it did in § 2401 to foreclose a court from wielding its inherent equitable discretion to toll.

Posted by Howard Wasserman on April 23, 2015 at 09:53 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, April 12, 2015

Teaching citizens to video--and to exercise the First Amendment

This PBS story from Friday discusses the "Video as Evidence" program, begun by the international human-rights organization WITNESS, to teach people how to record video of police and other public government activities. The goal is to train people to document events not only for use on YouTube and in public discussions of police misconduct, but also for effective use in court, which is where any "accountability" must occur through criminal prosecution and civil litigation. Issues include training in how to properly frame and follow images and events, as well as how to ensure authenticity and a proper chain of custody. WITNESS's primary focus is outside the United States, but the idea could and probably should be recreated here.

Of course, if this stupid bill becomes law in Texas, could one argue that the program is actually facilitating unlawful behavior and thus itself without First Amendment protection?

Posted by Howard Wasserman on April 12, 2015 at 10:13 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, April 09, 2015

Lost faith in the courts

A quick sidenote on Paul's excellent Commonweal essay. Of the people panicking about state RFRAs, Paul writes:

But RFRA laws do not grant an unrestrained license to exclude or discriminate. With the exception of some state bills, which were opposed even by champions of religious accommodation and which failed, most RFRAs (including Indiana’s) do not compel any result. What they do require is balancing.

The problem is where left/liberal/progressive advocates are on judicial enforcement of individual rights right now and their attitudes towards the current Supreme Court. The assumption is that any balancing done by this Court--the Court that gave us Hobby Lobby*--will always, unavoidably, and automatically favor the religious believer against the woman or LGBTQ person being disadvantaged in the marketplace. Any balancing will be informed by the pro-religion preferences of that five-Justice majority and the claim for accommodation will always prevail over anti-discrimination statutes and principles. So saying that RFRA does not compel a result but only balancing is no comfort, because one side believes it knows how that balancing is going to come out.

* When does Hobby Lobby replace Citizens United as the single-case synonym for everything wrong with the Roberts Court?

Posted by Howard Wasserman on April 9, 2015 at 04:19 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Abandoning counter-speech

Update (Friday): According to this story, UM reversed course and planned to show the movie at the originally scheduled time and place on Friday evening; a university official said the decision to cancel was "not consistent with the high value the University of Michigan places on freedom of expression and our respect for the right of students to make their own choices in such matters." The story also reveals that new UM football coach Jim Harbaugh is proud to be an American and does not care if that offends anyone. Glad to hear that, Coach; I was concerned.

Original Post (Thursday):

Ron Collins at CoOp (who has become my go-to person for new First Amendment news) reports on a controversy at the University of Michigan. A university organization, in response to a petition, cancelled a planned screening of Clint Eastwood's American Sniper; in  response to a counter-petition started by a 3L law student, the university moved the screening to an alternate location. According to the Daily Caller, the university will show Paddington Bear instead. Collins quote Floyd Abrams as saying "Surely, this is the best evidence yet that a speech-destroying storm is sweeping across American campuses. The students who seek to ban speech have much to learn but a university that yields to their demands can hardly be trusted to teach them.”

The First Amendment's preferred response, Justice Brandeis would tell is, is counter-speech. And the objecting students could have engaged in all manner of it here--protest outside or around the building, take to various fora real and virtual fora to urge people not to attend, show a different, contrary movie at the same time and in a similar location. But that never seems to enter the picture; the objector's move is to jump directly to silencing the message to which they object.

Why?

One possibility is that the harm caused by the speech being heard is simply too great--the harm comes with the film and cannot be alleviated by alternative messages. This view is bound-up with unique concerns about identity, disadvantaged groups, and social power imbalances. This is not your grandfather's censorship of socialism and dirty movies--the sorts of speech that progressives sought to protect once upon a time. This is about racism and hate crimes and its utterance cannot be tolerated.* This is the default (and likely?) explanation that so worries Abrams and others (including me) about the state of the First Amendment, especially on campus.

* Drawing on a point from some comments to this post: The First Amendment does not distinguish between a racist epithet or rant and a serious, if ugly and even racist, political message--both are protected. But that may be necessary because opponents of speech do not distinguish when they call for silencing--American Sniper is not qualitatively different than a long racist rant that promotes racist rhetoric "contributes" to hate crimes. In other words, American Sniper is the same as the SAE chant is the same as the stupid woman at South Carolina.

A second possibility is that counter-speech is hard. It requires people to get out there, organize, protest, etc. Obviously these students worked hard to create the groundswell necessary for the university to cave, sending out messages and garnering support. But organizing new events and protests requires another level of commitment. Plus, your side may lose with counter-speech--you may not convince anyone to come over to your position and more people may choose to see the movie anyway. The only sure way to win is not to let the other side be heard.

Finally, a third possibility shifts the blame back to the university. Acting on concerns for safety, convenience, and "order," universities (and governments generally) make counter-speech incredibly difficult. Universities demand permits, push many protests into "free speech zones," impose restrictions on the numbers of protesters and where they can be and when, and generally create all manner of time, place, and manner limitations designed to ensure that public protest not last and that it not inconvenience or annoy anyone else. The result is to deter counter-speech--it simply becomes too difficult to do it and not worth the candle. (Note that I am speaking generally here--I do not know anything about the specifics of UM's protest-and-demonstration policies). So I will reapply Abrams' criticism of universities: By limiting the type of counter-speech in which protesting students might engage, the university itself leaves protesting students with no option but to call for silencing.

Posted by Howard Wasserman on April 9, 2015 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, April 08, 2015

Where are June and Wong?

Back on December 10, the Supreme Court heard arguments in US v. June and US v. Wong, which together raised whether the limitations periods for bringing claims against the United States under the Federal Tort Claims Act were jurisdictional and not subject to equitable tolling. (I covered the cases for SCOTUSBlog). Four months later, the cases remain pending--one of only two cases from that sitting yet to be decided and despite the Court having quickly and unanimously disposed of the other jurisdiction case from that sitting.

The obvious conclusion is that the Court is divided. The Court has generally been unanimous in its run of jurisdictionality cases over the past decade and almost always finds the issue to be non-jurisdictional. One glaring exception is John R. Sand, which involved the jurisdiction of the Court of Claims over an action against the United States (and thus on which the U.S. has waived its sovereign immunity). So while statutes of limitations ordinarily are not jurisdictional, tying them into a waiver of sovereign immunity potentially alters the analysis. My initial reaction to the argument was that the Court would treat the periods as non-jurisdictional fairly easily; the four-month delay has me rethinking the easy part, if not the conclusion.

Posted by Howard Wasserman on April 8, 2015 at 04:25 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, April 06, 2015

University of South Carolina joins the mob

There may be more to this story than is reported here about the University of South Carolina suspending a student for writing a racial slur on a dry-erase board in a study room (as part of a list of complaints about the school). Based on the facts we have, this move is even more egregious than the expulsions at Oklahoma. The Fourth Circuit does not apply Tinker to universities; there is no remote possibility of this being a true threat, fighting words, incitement, or otherwise unprotected speech; and there is no suggestion that using the dry-erase boards in a study room is against university policies (so this cannot be likened to defacing university property). The school simply insists that "racism and incivility" are not tolerated and that the honor code requires everyone to "respect the dignity of all persons" and to "discourage bigotry." Those are all great ideas. But an institution that is subject to the First Amendment cannot further those values by removing from its community anyone who does not share them.

Again, however, if the student is not inclined to sue, the university's power grows.

Posted by Howard Wasserman on April 6, 2015 at 04:01 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (20)

Thursday, April 02, 2015

Where have you gone, Mary Beth Tinker?

Recent incidents of universities expelling students for racist or offensive speech have included an interesting feature--none of the students seem inclined to sue or otherwise contest the punishments as violating the First Amendment. The two guys from Oklahoma have been on a Regret Tour, seemingly apologizing to every African-American they can find (including random Oklahoma legislators). A story described one of them as having "withdrawn" from OU (interesting language given that OU President David Boren made it very clear that he had expelled them). The University of Maryland went after one student for sending racist emails and the student left, at least for a semester, by "mutual consent." This despite the fact that most commentators believe, doctrinally at least, that expulsion for the speech in these cases violates the First Amendment.

One explanation is that the social norms against racist and other offensive speech have so taken hold that people "caught" engaging in such expression do not want to own or defend it in public. Given the social reproach that they are subject to, ordinary people (as opposed to truly hateful sociopaths such as Fred Phelps) no longer want to fight for the right to say what they did or for the underlying principle that offensive speech is protected.  They instead run and hide to let the storm blow over. From a social standpoint, it perhaps is good for norms of equality to take hold.

From a legal standpoint, however, it is unfortunate. Legal rights are lost if not exercised and defended or if those who violate those rights are not called to account. In this context, that requires the speaker to challenge the punishment in court. Moreover, the reluctance to sue increases the power of university officials to impose constitutionally suspect punishment. As one emailer put it, a university president can impose any punishment he wants, "effectively daring the frat members to call his or her bluff."

I have no evidence for this notion, but I wonder if the students are not essentially settling--they agree not to sue, they step away from school for a semester or two, then they are allowed to return once things have quieted down.

Posted by Howard Wasserman on April 2, 2015 at 04:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, April 01, 2015

Ongoing conflicts over campus speech

Short story in the Chronicle of Higher Ed on various new controversies over offensive speech on college campuses, including at Oklahoma, Penn State, Maryland, Bucknell, and Mary Washington.

I would suggest the last two paragraphs, involving three students expelled for using racist epithets on the campus radio station, captures the disconnect and the inherent contradcition (yes, Bucknell is private and can do whatever it wants as a First Amendment matter, but it illustrates the prevailing attitude towards expression):

In an interview Tuesday, Bravman, Bucknell’s president, said that he and his university strongly support free speech and due process. He would not comment on the context of the language, but said that no matter the context, the three students crossed a line.

“There’s no question about that,” Bravman said. “This was hate speech. We own the station and the equipment, and the students were acting as agents of the university. They violated our community standards, and that’s really what this comes down to.”

Posted by Howard Wasserman on April 1, 2015 at 04:06 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (14)

Tuesday, March 31, 2015

Is § 1983 superfluous?

I do not have a whole lot to say about Tuesday's decision in Armstrong v. Exceptional Child Center, although I look forward to reading Steve's (no doubt blistering) comments. But I do wonder about the question posed in the title, as well as whether I need to rethink how I teach Ex Parte Young.

The majority and dissent agreed that Ex Parte Young--formally, an action for "injunctive relief against state [and federal] officers who are violating, or planning to violate, federal law"--is a long-standing creation of courts of equity, rather than a product of the Supremacy Clause. They disagreed over whether the Medicaid Act impliedly limited the availability of such an equitable action--Justice Scalia's majority opinion said it did, Justice Sotomayor's dissent said no. In particular, Sotomayor distinguished this type of equitable action from both § 1983 "and laws" actions and implied statutory actions, insisting that Congress must affirmatively override the former, while the latter are available only if Congress creates and permits them.

How does this affect § 1983? That statute allows for "an action at law, suit in equity, or other proper proceeding for redress" against a "person" acting under color of state law who deprives the plaintiff of a right secured by the Constitution. I generally explain Ex Parte Young, at least in constitutional actions, as an interpretation of § 1983--the state executive officer is a person, enforcing or threatening to enforce an unconstitutional law deprives the plaintiff of a right secured, and the request for injunctive relief makes this a suit in equity.*

* For similar reasons, I have always believed that using Young to enforce federal employment statutes (ADA, ADEA, FLSA) against states (thus easing the effect of the 11th Amendment) was incoherent, since the applicable statutes being enforced only regulated the employer, not the individual state official who would be enjoined.

But the position unanimously reflected today is that an individual could enjoin an executive officer from enforcing an unconstitutional or preempted law without § 1983. So what is the point of the "suit in equity" language if the equitable action predates 1871 and would exist without that statutory language? **This question is placed in sharper relief in the dissent, which acknowledges that § 1983 allows for many different remedies, but then lumps them all together under that statute in distinction to the free-standing equitable action.

** Just to clarify: My superfluousness concern is only as to the "suit in equity" clause, not for actions in law (i.e., retroactive relief), which still requires § 1983.

Posted by Howard Wasserman on March 31, 2015 at 06:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Monday, March 30, 2015

Why state officials fall in line

If, as I have been arguing for the past two months, an injunction and opinion barring enforcement of a state's SSM ban has no formal effect on anyone other than the parties, the question becomes why state officials ever voluntarily change their behavior absent a binding court order and why they do not instead always  force new litigation and a new, directly controlling court order.

One reason is attorney's fees, which can escalate pretty quickly. See, for example, Wisconsin, where the state agreed to pay more than $ 1 million in attorney's fees to the ACLU for successfully challenging that state's SSM ban. True, the fees would be nowhere near this high for an individual Alabama probate judge forcing a new couple to sue him to obtain a license. But even low-level fees may provide an incentive for officials to fall in line, even if not formerly obligated to do so.

Posted by Howard Wasserman on March 30, 2015 at 04:15 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, March 25, 2015

If not Holmes, then Kennedy?

Ron Collins discusses a new book by First Amendment scholar Burt Neuborne, Madison's Music: On Reading the First Amendment. NYU Law hosted a program on the book last week, featuring Justice Sotomayor. In the book, Neuborne refers to Justice Kennedy as "the most important First Amendment Judge that has ever sat on the Supreme Court."

When his book The Great Dissent was published in 2013, Thomas Healy had an exchange with Mike Dorf in which he wondered who might have led the charge on free speech had Holmes not changed his mind in Abrams; Healy ran through a number of names but found all lacking. In my new article, I argue that Justice Brennan (who Healy did not mention in his blog post) would have been the justice to take that lead, discussing the various areas in which Brennan set out (or tried to set out) a uniquely speech-protective First Amendment vision and often succeeded in pulling majorities with him.

Neuborne's book and his comments at NYU present Kennedy as another answer to that question. In the paper, I refer to Kennedy as Brennan's "speech-protective heir," particularly once he had been on the Court for a few years. So could/would Kennedy have been that First Amendment leader without Holmes or Brennan before him (put to one side the impossibility of the counter-factual)? In many areas--notably corporate speech and campaign finance--Kennedy outstrips Brennan in protecting expression. Quantitative studies (one by Eugene Volokh and one by Ashutosh Bhagwat) reveal Kennedy's voting record to overwhelmingly favor free-speech claimants.

 I did not think of Kennedy when I was writing the paper. Partly this is because the paper focuses on the First Amendment connections between Holmes and Brennan. Partly this is because Kennedy remains on the Court, so it is more difficult to assess him within the bigger historic picture.

More problematically, Kennedy's First Amendment near-absolutism gets lost in the unfortunately simplistic liberal/conservative rhetoric used to describe the Court, which overlaps with the newish trend that protection of free speech is not the automatically liberal position (as it generally was in Brennan's day). And there is the even-more-simplistic view of Kennedy as the swing vote who tips the balance in every case and at whom the attorneys all direct their arguments (this notion is captured in the line, which I have heard over and over from a practicing attorney, that "you don't count to 5, you count to Kennedy"). Whatever the truth of that view in many constitutional cases, it simply is not true in First Amendment cases. Kennedy is a sure thing for the free-speech claimant; lawyers need to worry about people like Justice Breyer.

Posted by Howard Wasserman on March 25, 2015 at 05:50 PM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (1)

Monday, March 23, 2015

A Texas bill that is both stupid and unconstitutional

There are stupid laws, there are unconstitutional laws, and then there is this bill introduced in the Texas House by Rep. Jason Villalba. The bill would define "interruption,disruption, impediment, or interference" with police (already a crime) to include a person "filming, recording, photographing, or documenting the officer within 25 feet of the officer," 100 feet if the person is carrying a handgun. The bill includes an exception for mainstream news media (defined in the bill). Breitbart Texas has a story, including reactions from various advocacy groups and Rep. Villalba's efforts to defend his creation on Twitter by insisting that it protects police without prohibiting recording or efforts to hold police accountable.

Assuming that recording public events is protected First Amendment activity (the Fifth Circuit has yet to decide the issue), this law would be in an immense amount of trouble. Where to begin?

It is not clear how the simple act of filming, recording, or documenting from 22 feet away, without more, can constitute "interruption, disruption, impediment, or interference." Certainly, a general prohibition on interference could be applied to expressive activity and need only survive intermediate scrutiny under O'Brien. But defining expressive activity as interference raises different constitutional issues. The only interference/impediment from recording alone is that the act of being recorded will cause the officer to change his behavior lest he be caught on camera doing something wrong. If that is the goal, the law would have to satisfy strict scrutiny.

The bill treats expressive conduct differently than non-expressive conduct that implicates the same government concerns. A person who is not "filming, recording, photographing, or documenting" can be within the 25-foot mark, even if he has a handgun. In other words, where I can go depends on whether I am engaging in expressive activity. But if being within 25 feet of the officer interferes, it interferes whether the person is recording or just watching the events. A 25-foot buffer zone around police officers probably might be permissible; limiting that buffer zone only to those engaged in expressive activity is not. That makes the law underinclusive. And worse, it is underinclusive in a way that singles out expressive over non-expressive conduct.

The differential treatment of the mainstream media from non-traditional media and individuals cannot survive strict scrutiny (I doubt it could survive rational basis review), which applies when a law regulates based on speaker identity. Again, no way it survives strict scrutiny, because there is no reason that MSM recording is different from individual or blogger recording in terms of the government interest.

Finally, the real effect of this bill is less on bystander witnesses than on suspects or those in immediate contact with suspects. People directly involved in confrontations with police--themselves or their friends--will not be permitted to record when the police initiate contact. In other words, no Eric Garner video. The cynic in me says that is Villalba really is trying to do.

This has no chance of surviving constitutional scrutiny. It should have little chance of passing. The question is how much this guy wants to stick to his guns. The interesting question is, based on the Breitbart piece, it is Republicans/Libertarians/conservatives who are pushing back on this.

Posted by Howard Wasserman on March 23, 2015 at 06:15 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

The First Amendment and the Redskins trademark, Part I: Government speech

The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is the first several guest posts on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog

The ACLU recently filed an amicus brief in the Washington Redskins trademark case, arguing that the Patent and Trademark Office’s (PTO) cancellation of Redskins registrations constitutes viewpoint discrimination contrary to the First Amendment, and urging the federal court to strike down those portions of Section 2(a) of the Lanham Act that prohibit the registration of “immoral,” “scandalous,” or “disparage[ing]” marks.  We are deeply concerned with the ACLU’s position.  Its proposal to thrust First Amendment law into an area of commercial regulation in unprecedented ways would wreak havoc with trademark law’s careful balance of concerns for property rights, economic exchange, and consumer protection.  We believe that the ACLU’s fundamental misunderstanding of trademark law has caused it to misapply First Amendment doctrine. 

In this first post, we wish to focus on the ACLU’s invocation of two First Amendment doctrines: viewpoint discrimination and unconstitutional conditions (we leave for a separate post whether the commercial speech doctrine might be appropriate).  The ACLU’s position erroneously elides the various forms of government regulation and their contexts, treating trademark law like criminal law, municipal ordinances dealing with protests, laws creating public fora, and public subsidies.  But the strongest First Amendment doctrines designed to ensure robust public debate simply don’t map on to trademark regulation without creating a major upheaval in trademark law.  First Amendment doctrine requires strict scrutiny whenever there is a direct, content-based regulation of private speech.  The federal trademark registry, however, does not operate like a direct regulation of private speech, nor does it create a forum for the expression of private speech.  

Congress’s power to regulate trademarks flows from, and is constrained by its constitutional authority over interstate commerce.  Federal registration of a mark confers certain benefits (e.g., registration is treated as prima facie evidence of validity and ownership of a mark, gives a nationwide priority over subsequent users, and offers access to certain remedies), but it does not create rights. These advantages are more procedural in nature than substantive, closer to internal court rules than criminal laws, permit ordinances, or public subsidies.  Trademark rights are instead established by common law from the actual commercial use of the mark; these rights can be asserted in federal court without a registration.  It is in this crucial sense that the Lanham Act does not directly regulate expression as such—certainly not in the same way that a criminal law preventing offensive speech, a regulation banning parades without a permit, or even laws that subsidize private speech do.  Section 2(a) does not prohibit the utterance of the word “Redskins” or attach any conditions on anyone’s use of that term.

This provision simply refuses to confer the benefits of registration on the Washington football team.  The team would still retain the right to assert itself as the first and exclusive user of the term for commercial purposes under federal law.  Consequently, the provision offers the Native American challengers in this case only the possibility of a symbolic victory—there would be no need for the team to change its name as it may still use and enforce the mark.  Section 2(a) neither chills the free expression of ideas nor inhibits robust public debate.

Unable to point to a public forum or a direct inhibition of expression, the ACLU contends that the PTO registry imposes an unconstitutional condition on speech.  In support of this proposition, the ACLU cites Legal Services Corporation v. Velazquez, where the Supreme Court struck down a federal law that prevented publicly-funded legal services lawyers from challenging “existing law.”  As Robert has discussed elsewhere, this restriction of subsidized advocacy was tantamount to a ban on anti-government speech.  But there is nowhere near the same threat to freedom of expression entailed by Section 2(a) of the Lanham Act—it is not even in the same ballpark.  After cancellation of its registration, the Washington football team remains just as free to use the Redskins marks, in commerce or political discourse.  Moreover, the fact that registration is cancelled in no way inhibits the mark user’s legally-oriented expression or distorts the normal operations of the legal system, two findings central to the Velazquez ruling.  Section 2(a) does not restrict what lawyers can say in court and does not even prevent the mark’s owner from relying on statutory and common law trademark doctrines.  It imposes no condition whatsoever on non-commercial expression.  As Adam Cox and Adam Samaha have shown, truly unconstitutional conditions are rare, and virtually every constitutional issue can be reframed as an allegedly unconstitutional condition (as the ACLU has done).  It is a mistake to do that here.

Closer examination of the idea of viewpoint discrimination shows that it doesn’t really capture how Section 2(a) of the Lanham Act actually works.  That concept has been invoked in cases where there is a serious fear of chilling of political speech, i.e., when one side in a debate has to fight with an arm tied behind her back.  But there’s no serious concern that anyone’s ideological message is hampered or distorted by the Lanham Act.

Section 2(a) does not turn on a speaker’s actual perspective on an issue.  It instead permits an objective determination that a mark, regardless of the owner’s viewpoint, will be perceived as disparaging by the referenced group when used in commerce.  Someone who wishes to coopt a disparaging term for positive ends may be barred from registry just as someone whose intended use is to disparage.  Thus, Section 2(a) operates without regard to the ideological intention of a speaker.  For example, the PTO refused the registration of the mark “The Slants” finding it was disparaging to Asian Americans despite the fact that the applicant was a band whose members are Asian and who intended to take on stereotypes about Asians.  The applicant’s viewpoint was irrelevant.

Moreover, enforcement of Section 2(a) does not prevent the utterance of noncommercial pro-Redskins speech, just as it does not prohibit the utterance of non-commercial anti-Redskins speech.  Decisions like Rosenberger v. Rectors of Virginia and R.A.V. v. City of St. Paul are simply inapposite.

We think that the best analogue for this type of government regulation is government speech.  Under that body of caselaw, the PTO registry constitutes “government speech” rather than regulation of private speech.  The doctrine permits government-wide latitude to design its own programs and express its own views, consistent with Congress’s mix of commercial and ideological goals.  Reliance on this doctrine would recognize that the PTO registry simply is not a forum created for the exchange of private ideas; rather, it is a tool to facilitate Congress’s goals of regulating interstate commerce and protecting a diverse population of consumers from business practices that foster racial discrimination and stereotyping.  These core programmatic goals place Section 2(a) well within the reasoning of two government-speech rulings by the Supreme Court: Rust v. Sullivan, where Congress barred government-funded doctors from advising about the availability of abortion, and FCC v. Pacifica Foundation, which permitted Congress to protect listeners from “obscene, indecent, or profane” broadcasts.  

Accepting the ACLU’s invitation to apply First Amendment law maximally to the PTO registry would improperly convert the registry into a free speech forum.  It would force the PTO to register all manner of marks, interfering with the government’s delicate balance of regulatory objectives.

A ruling in this case against the football team does express the government’s belief, after careful fact finding, that the term “Redskins,” as used by the Washington football team in commerce, is disparaging to an entire group of people.  Under the government speech doctrine, Congress is free to express the view that racially-inflected commerce is wrong, that certain ideas harm consumers in a pluralistic marketplace, and that government sanction of the trademark’s usage might inhibit commercial activity.  The PTO, relying on Section 2(a), has expressed that view here, leaving private actors at liberty to agree or disagree.

Finally, consider what actually happens when the PTO refuses to register a mark on the ground that it is “disparaging.”  It means that the mark owner cannot claim that the federal government has endorsed or supported that expression for commercial reasons.  But he or she can continue to use it in public debate.  Moreover, to the extent that the benefits of registration hinder the mark owner from excluding others from using the term in commercial activity, the absence of a registration guarantees a more robust public debate.  That result seems far more consistent with ensuring wide-open conversation on matters of public importance than a federal court ruling invalidating this portion of Section 2(a).

Posted by Howard Wasserman on March 23, 2015 at 09:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

The emergence of political hate

An interesting take on hyper-partisanship and deeper political commitments from Keith Humphreys at RBC. But is he right about this being a new phenomenon? I am not so sure.

People hated Lincoln so much they tried to leave the country. Some of the rhetoric directed against, say, Jefferson or Andrew Jackson or FDR was as hateful and hate-filled as anything directed at Clinton, GWB, or Obama, or that will be directed at Hillary. And as for the niche press, the image of the impartial press dates, at the earliest, to the mid-19th century. If we go back to the Founding, there was a Federalist press and an Anti-Federalist press and the lines between them were clear and the rhetoric emerging from them was hostile much in the way Keith describes--that is why John Adams wanted the Alien and Sedition Acts.

Posted by Howard Wasserman on March 23, 2015 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, March 18, 2015

Floyd Abrams responds

In this February post, I posited that one reason the ACLU's 2015 Workplan had no First Amendment issues among its 11 "major civil liberties battles" was that, in the ACLU's view, there were no major systematic threats to free speech. In a speech at Temple Law School on Monday, Floyd Abrams responded, identifying two such areas--campus speech and the political left's abandonment of the First Amendment.

First, I am obviously flattered to be on his radar, especially for a blog post. Second, I fear that I was not clear enough in my original post that I was not endorsing the "we won" position, but only proferring one explanation/justification that the ACLU might have been thinking about; on re-reading the post, I do not think that came across as well as it should have or as well as I would have liked.

Third, I agree as to both areas Abrams identifies as systematic problems (I mentioned campus speech codes as one problem area in my post--and that was before Oklahoma and UCLA). Note that they sort of overlap, to the extent many on-campus censorship efforts are directed by the left against right-leaning speech.* And to bring it back to the ACLU Workplan: They share the common feature that the national ACLU and local affiliates may be quite at odds internally and with one another over both issues. And neither are issues that the ACLU is going to use to spearhead its fundraising efforts.

    * Here is an Intelligence Squared debate on that very overlap.

Posted by Howard Wasserman on March 18, 2015 at 02:06 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (16)

Tuesday, March 17, 2015

What conflict?

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.

Posted by Howard Wasserman on March 17, 2015 at 08:20 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Monday, March 16, 2015

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).

Posted by Howard Wasserman on March 16, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, March 13, 2015

Stacking the rhetorical deck

I think we can agree on the following two propositions: 1) It is a bad thing when someone shoots a police officer. 2) It is a bad thing when a police officer shoots an unarmed 11-year-old or chokes to death a man selling loose cigarettes.

But only the critics/reformers/protesters of police abuse are forced to fall all over themselves to condemn a shooting that has nothing to do with them. There is no similar pressure on police or police officials to disavow an absurd pattern of abuse by their fellow officers. In fact, police (quite literally) turn on any public official who dares to criticize one of their own.

So the story is now going to be that President Obama did not quickly or forcefully enough condemn a shooting that no rational thinks was right and that has nothing to do with efforts to reform police pratices, but not a documented pattern of police abuses that some people are still defending.

Posted by Howard Wasserman on March 13, 2015 at 10:48 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

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.

Posted by Howard Wasserman on March 9, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, March 05, 2015

SCOTUS's incoherent media policies

I am on record (here and elsewhere) favoring video-recording of SCOTUS arguments. It follows that I view its current policy--same-day transcript, same-week audio, no-week video, same-day audio for certain important cases if the Justice so deign it--as a lesser approach. But even accepting the current scheme, I cannot understand the inconsistency as to what or how the Court defines as an important case meriting same-day audio. This week's arguments in King were not sufficiently important, even though the future operation of the Affordable Care Act might be at stake (at least in Red states), but next month's arguments in the same-sex marriage cases are important enough to merit audio by 2 p.m. that day.

Note that I am not complaining about the Court's move on the SSM case. I am just struck by the seeming randomness and incoherence in its definition of importance.

Posted by Howard Wasserman on March 5, 2015 at 04:40 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

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.

Posted by Howard Wasserman on March 4, 2015 at 11:21 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, March 03, 2015

Symbolic mandamus

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.]

Posted by Howard Wasserman on March 3, 2015 at 11:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (27)

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.

Posted by Howard Wasserman on February 24, 2015 at 10:02 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, February 23, 2015

John Oliver on electing judges

Obviously, I would disagree with the part that suggests Roy Moore is defying federal courts or federal orders. But the rest, as it highlights the ridiculousness of electing judges and the perverse incentives that creates, just sings.

 

 

Posted by Howard Wasserman on February 23, 2015 at 05:35 PM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

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.

Posted by Howard Wasserman on February 17, 2015 at 05:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

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.

Posted by Howard Wasserman on February 15, 2015 at 11:15 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

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.

Posted by Howard Wasserman on February 12, 2015 at 05:32 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

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.

Posted by Howard Wasserman on February 12, 2015 at 05:15 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

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.

Posted by Howard Wasserman on February 12, 2015 at 09:29 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

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.

Posted by Howard Wasserman on February 11, 2015 at 02:31 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Dorf on Roy Moore and Alabama

Mike Dorf's take on Roy Moore and the events in Alabama. Mike concludes "that while Chief Justice Moore's memo was a lawyerly piece of work, it ultimately does not advance his (distasteful) cause. It's at best a cover for his Faubusian agenda." He argues that Moore ultimately was playing a losing hand because couples always could sue the probate judges in federal court (because, as I have argued, issuing the licenses is not a judicial function). In playing it, therefore, Moore was simply trying to play Orval Faubus (or George Wallace, to keep it in the same retrograde state).

I agree that Moore likely is doing all this for bigoted reasons. But that is not necessarily established by the fact that the probate judges could be sued and enjoined. I never read Moore as denying that or denying that this would change the analysis and their obligations (certainly some probate judges recognized as much). Moreover, what difference should it make that Moore's position will ultimately prove a loser? The question is whether it is wrong to force the plaintiffs go through the process of establishing their legal rights and of not departing your preferred position (non-issuance) unless formally compelled to do so, even when you know exactly how it will play out (and even when it likely will cost the taxpayers attorney's fees).

There is an obvious comparison between Alabama and Florida. In both states, officials charged with issuing licenses (county clerks in Florida, probate judges in Alabama) took the position that they were not bound by the initial district court order or opinion invalidating the state ban. And in both, the federal court issued a "clarification" that the earlier injunction did not compel any non-parties to issue licenses, but the Constitution did (whatever that means). But then they part ways. In Florida, the county clerks folded their tents following the clarifying order and began issuing licenses across the state,* although I they were not legally compelled to do so by that clarification and did so only as a strategic choice of avoiding being sued. But the Alabama probate judges, and Moore, have not done the same; unlike the Florida clerks, they seem intent on making the plaintiffs take the steps of obtaining those individualized federal injunctions.

* Mostly. Clerks in several counties avoided having to issue licenses to same-sex couples by ceasing issuing licenses at all.

So two questions: 1) Why is Alabama playing out differently. Is it Moore and other officials playing Wallace/Faubus by demanding formal legal processes? 2) Is it wrong of them to demand those processes be followed (and by that I mean not merely less preferable or more expensive, but morally or legally wrong)?

Posted by Howard Wasserman on February 11, 2015 at 12:44 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

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.

Posted by Howard Wasserman on February 10, 2015 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

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").

Posted by Howard Wasserman on February 10, 2015 at 07:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

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.

Posted by Howard Wasserman on February 9, 2015 at 04:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Same-sex marriage comes to Alabama

Read the whole thing for reports and photos of same-sex marriages in Alabama (my favorite is the two African-American women posing with the white male judge who married them in Birmingham--maybe we have come some ways.. Roy Moore's Sunday gambit had mixed results; marriages are taking place throughout the state, although not in particular counties. Lawyers are preparing to file an action in federal court against the probate judge in Mobile asking for an injunction--exactly how this should play out.

[Update: Or not. The lawyers for a couple actually filed a Motion for Contempt and Immediate Relief against Judge Don Davis, probate judge in Mobile. But since Davis is not a party to the original action or subject to the original injunction, he cannot be held in contempt by this judge. All they had to do was file a new action, which would have been assigned to Judge Granade for a new preliminary injunction. This is insane.]

[One More: Marty Lederman reminds me that Judge Davis was originally a party to the case, but was dismissed with prejudice for reasons I cannot fathom, beyond, again, no one knows what they're doing here. But it is even less possible to hold in contempt a person who was explicitly dismissed from the case.]

SCOTUS this morning denied a stay in Searcy, from which Justices Thomas and Scalia dissented. In response, AG Luther Strange clarified that, while he is barred from enforcing Alabama's ban, he has no power to issue license, and that probate judges should consult their attorneys and associations.

Josh Blackman has some thoughts on Thomas's dissent. I may have more to say later.

Posted by Howard Wasserman on February 9, 2015 at 12:03 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sue Moore?

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.

Posted by Howard Wasserman on February 9, 2015 at 12:08 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (11)