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.”
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.
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.
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.
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.
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).
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.
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.
Tuesday, March 17, 2015
Judge Granade refused to stay the preliminary injunction against Probate Judge Don Davis ordering him not to enforce the state SSM ban in deciding on marriage licenses. The linked story insists that this now creates a conflict for Davis, as he remains under both the state mandamus declaring the SSM ban constitutionally valid and prohibiting him from issuing licenses to same-sex couples and a federal injunction declaring the ban invalid and ordering him to issue licenses.
But is there actually a conflict? Granade has not yet acted on the plaintiffs' motion to amend and certify a class action. Without that, what we have against him is a federal declaratory judgment of constitutional invalidity that is persuasive-only and an injunction that he already has satisfied as to the currently named plaintiffs (there are four or five at this point, all of whom have been granted licenses). So Davis is under no current federal obligation to issue a license to anyone who does not already have one, thus he faces no conflict with the mandamus prohibiting him from issuing licenses to same-sex couples. Judge Granade's opinion by itself imposes no obligation on him to do anything, so it alone does not create conflicting obligations. That is the fundamental mistake everyone is making.
Fortuitously, here is Will Baude (Chicago) making a similar argument in The Times,* not as to marriage but as to the Affordable Care Act. Baude argues that, if the plaintiffs prevail in King, the administration can comply with the Court's judgment as to the four named plaintiffs, but continue granting subsidies to everyone else, since the Court's order does not apply to them and nothing requires the government to extend the reasoning of an opinion to other people. (H/T: My colleague Tom Baker, who refers to this as the "Dred Scott Move"). In essence, the state mandamus is forcing Davis to do the same--not extend Judge Granade's reasoning to other couples.
If the administration can legally (even if not politically) do this with a Supreme Court opinion, then certainly Don Davis can legally do this with an opinion from Judge Granade.
* On a different note: The headline on Will's op-ed--Could Obama Bypass the Supreme Court--perfectly captures the media's fundamental confusion about how judicial decisionmaking operates. Will's very point is that Obama would not be bypassing the Supreme Court at all in doing this, that he would be complying with the Court's order but not extending its reasoning, which typically is done only as a matter of convenience (to avoid getting sued again and again), not legal obligation. So in no way would this be "bypassing" anything. The headline writer clearly missed that point.
Monday, March 16, 2015
Defending the barely defensible
This weekend, I published two guest commentaries for JURIST defending some reprehensible folks. First, I argue that Oklahoma's expulsion of the SAE members over the racist chant on the bus probably violates the First Amendment. Second, I try to bring some procedural sanity to the discussion of same-sex marriage in Alabama (this puts together everything I have been writing here for the past month or so).
Friday, March 13, 2015
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.
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.
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.
Wednesday, March 04, 2015
Missing the signals
Ed: This post originally was published under Dan's name because I was inadvertently signed-in on our administrative password. My apologies.
The worst thing that can be said about the Supreme Court of Alabama's mandamus decision (besides its legal reasoning, which on a quick read seems wrong and somewhat intemperate) is that the court disregarded the "signals" that have been emanating from the Court since the fall (if not since Windsor itself) about the likely outcome on this issue. A question for the signalling people (Richard and others): Does a lower court act inappropriately if it ignores (willfully or otherwise) signals and insists on applying only the formally established precedent? In a way, this feels like another aspect of the question of whether lower courts should decide cases by attempting to "predict" what SCOTUS will do or by applying their own best judgment and analysis to reach what they believe is the correct result.
Tuesday, March 03, 2015
Adam beat me to the announcement of the Supreme Court of Alabama issuing the mandamus ordering all non-enjoined probate judges to cease issuing marriage licenses (it is nice to have another Fed Courts geek around for a month). I have written about the mandamus petition before, but I will repeat the key points.
SCOTA is going out of its way to make its voice heard on marriage equality. This is arrogant and probably wrong, since none of the arguments against SSM hold water. But it cannot be regarded as "defiant" in any way, since the court is not acting in defiance of any legal authority.
This ultimately is entirely symbolic. As Adam notes, the mandamus order makes clear that it does not/will not apply to Judge Davis to the extent he is under the federal injunction to issue licenses to anyone. Presumably, any later-issued federal injunctions, against Davis or any other probate judge as to any other couples, will be grounds to release that judge from the mandamus, thereby avoiding any conflict with a federal order (this was Alabama's position in opposing a motion in the Southern District to stay the mandamus action). The mandamus solidifies the legal status quo--anyone wanting a license must sue the appropriate probate judge and obtain a federal court injunction.
Two wrinkles. First is that the probate-judge defendant in that future federal action may try to argue abstention, although I expect the argument to fail, for the same reasons it failed in Oklahoma and South Carolina. Second, I wonder if anyone will ask SCOTUS to stay the mandamus pending review. [Update: An emailer reminds me that SCOTUS review might be impossible, since no license-seeker is a party to the state court action. One of the respondent probate judges would have to petition, but I don't know that any of them cares enough to appeal.]
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.
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.
Tuesday, February 17, 2015
And more crazy in Alabama
With briefing moving forward in the state mandamus action, the plaintiffs in Strawser have filed an Emergency Motion to Enforce the federal injunction, specifically by ordering Alabama Attorney General Luther Strange to assume control over the mandamus action and dismiss it; the government has responded. (H/T: Reader Edward Still, a civil rights attorney in Alabama). The gist of the plaintiffs' argument is that the Attorney General controls all litigation brought by or on behalf of the state, including through private relators; in order to comply with the injunction, which prohibits him from enforcing the state ban on same-sex marriage, he must end the state litigation.
The state's response is interesting for what it acknowledges about the mandamus action, confirming that it is largely symbolic and annoying.
First, the state acknowledges that the mandamus, if issued, cannot run against Probate Judge Don Davis of Alabama, who is a party in Strawser and is enjoined from denying licenses to same-sex couples. The state also acknowledges that, even if the mandamus issues, a couple denied a license could sue the denying probate judge in federal court and obtain an injunction, and that judge would be compelled to comply with that injunction. In other words, the state mandamus action does not set-up any conflict with the federal court or federal court orders, which the state acknowledges would trump the mandamus, whether existing orders or future orders. Thus, the sole effect of the mandamus would be to prevent non-party probate judges from being persuaded by Judge Granade's order or from issuing licenses so as to avoid suit and an award of attorney's fees. The only way they could issue licenses is if sued and ordered by a federal court to do so, which in turn has the effect of forcing every couple to sue every probate judge in the state. This is annoying and time-consuming. But, again, it does not reflect state defiance so much as state legal obstinacy.
Second, as has frequently been the case here, the big question is one of Alabama law--how much control the attorney general has over privately initiated litigation on behalf of the State. The Attorney General can seize control over litigation initiated as the state by local prosecutors and other executive officers; it is less clear whether he can do the same when suit is brought by private actors. The plaintiffs argue for a a broad understanding of FRCP 65 as to the scope of injunctions.
Third, as predicted, the state tries to play the abstention card. Also as predicted, they screwed it up. The state tries to argue that the Anti-Injunction Act bars the federal court from enjoining this pending state proceeding, emphasizing the narrowness of the statute's exceptions. But one exception is when Congress expressly authorizes an injunction by statute, which it did in enacting § 1983. Strawser and all other actions challenging SSM bans are § 1983 actions, so the AIA imposes no limit on the injunction here. The state also tries to argue Rooker-Feldman, a doctrine which also has no application here, since the plaintiffs are not state-court losers or even parties to the state court action.
Sunday, February 15, 2015
If possible, Alabama could get more confusing
Al Jolson said it best. Two anti-marriage-equality groups have filed a Petition for Writ of Mandamus in the Alabama Supreme Court's original jurisdiction, seeking an order preventing probate judges from issuing licenses on the strength of Judge Granade's decision and ordering them to wait until a "court of competent jurisdiction"--which petitioners define as only SCOTUS--decides the matter. The court ordered briefing on the petition, with two justices dissenting; Chief Justice Moore apparently took no part in the decision.
So how will this play out and what effect will it have?
This sort of mandamus action has been attempted before, in a slightly different context. In Oklahoma and South Carolina, state attorneys general sought to mandamus individual county clerks who intended to issue licenses in light of a federal appeals court decision invalidating SSM bans in other states. These clerks were under no federal injunction and there had been no decision addressing bans in their own states. But now-binding Fourteenth Amendment precedent made legally certain what would happen in any federal action challenging those bans, so the clerks were simply avoiding that lawsuit and injunction. The mandamus was intended to make the clerks wait and not to issue licenses unless and until compelled to do so.
In Alabama, probate judges other than Don Davis of Mobile who are issuing marriage licenses are doing so on the persuasive force of the district decision, but without an injunction. They, too, are trying to avoid a lawsuit, one whose outcome is both more and less obvious than in the other two cases. Here, there is only persuasive, and not binding, federal precedent, although it involves a declaration as to this state's marriage ban.
The mandamus action raises a whole series of state-law questions. One is whether these organizations have standing, as their only injury seems to be that probate judges are doing something the petitioners don't like. It also would require the court to conclude that a probate judge is forbidden (not simply not obligated, forbidden) from adhering to district court precedent. It is not clear whether the petition also will require the court to decide the constitutionality of its marriage ban, which would be the only federal issue in play; otherwise, any decision is insulated from SCOTUS review.
The mandamus petitioners rely on one fundamental misunderstanding--that the only court of competent jurisdiction to declare the state's marriage-equality ban unconstitutional is SCOTUS. This erroneously minimizes the effect of lower-court precedent. While only SCOTUS precedent binds state courts, here probate judges are performing administrative functions; they can be sued in federal court, where circuit court precedent will be binding and district court precedent is at least persuasive. Again, I really believe the question of federal precedent in state court is beside the point. And in taking this step, petitioners misunderstand that point.
Finally, if the mandamus issues, the real effect will depend on how broad the order is. If it simply applies until a probate judge comes under a federal-court injunction, then its effect is more practical than legal. Formally, no probate judge has any direct legal obligation to issue a license until sued in federal court and enjoined; the mandamus would simply provide a court order emphasizing that reality. It would force every couple seeking a license to sue every probate judge individually, rather than allowing couples to gain the benefit of persuasive authority. This is inconvenient and inefficient (although not costly, since plaintiffs should get attorney's fees), but not a significant change to the landscape of actual legal obligations. The mandamus also would open the door to the probate judges trying to raise Younger, Rooker-Feldman, Pullman, and Burford in the federal district court; this is what happened in both the Oklahoma and South Carolina cases, although both courts soundly and properly rejected those arguments.
On the other hand, if the mandamus bars probate judges from issuing any licenses until SCOTUS decides the issue of marriage equality, we have genuine problems. The inevitable federal injunction would set up the very direct conflict and confusion the petitioners purport to be trying to resolve. There actually would be directly conflicting orders--a state mandamus prohibiting every probate judge from issuing a license and a federal injunction commanding a named probate judge to do so.
Thursday, February 12, 2015
Lower federal courts and state administrative actions
Thanks to Amanda for her post about her article and the effect of lower-federal-court precedent on state courts. I look forward to reading it and using it in a larger article on the procedural insanity we are seeing between Windsor and the decision this June.
But I wonder if this issue is just a distraction here, partly triggered by Moore's memo and order, which focused heavily on it. Probate judges are not acting in a judicial capacity or deciding cases in issuing (or declining to issue) marriage licenses. They are acting in an executive or administrative capacity, such that there is no such thing as "binding" or "persuasive" precedent. Absent a federal judgment against him, precedent does not act directly on any executive or administrative actor; its force is in the fact that, if sued, the precedent will bind the court hearing the case and the executive will almost certainly be enjoined.
So the non-binding nature of Judge Granade's original decision is in play here. But not because it is not binding on state courts; rather, because it is not binding on other federal district courts. Thus, the possibility of a different district judge disagreeing with Judge Granade justifies a probate judge, acting in an administrative capacity and performing an administrative function, in not immediately following that decision.
Now we have a meaningful federal order
The New York Times reports that Judge Granade has enjoined Mobile County Probate Judge Don Davis from denying marriage licenses to same-sex couples. The injunction comes in Strawser v. Strange, an action by a male couple to obtain a license. In January, Judge Granade enjoined the attorney general from enforcing the ban on same-sex marriage, an injunction that, as we have seen, has no real effect on the issuance of marriage licenses. On Tuesday, the plaintiffs amended their complaint to add Judge Davis as a defendant.
So, since even the Times article linked above does not have it quite right, let's be clear on where we are now:
1) Judge Davis is legally obligated to issue a marriage license to Strawser and his future husband; if he fails to do so, he can (and probably will) be held in contempt.
2) Judge Davis probably is not obligated by the injunction to grant anyone else a license, since there are no other couples joined as plaintiffs, this was not brought as a class action, and Judge Davis does not exercise supervisory authority or control over other probate judges. But anyone in Mobile denied a license will be able to intervene or join as a plaintiff in Stawser and Judge Granade will immediately extend the injunction to cover the new plaintiffs. So Judge Davis should pretty well understand that he should issue licenses to everyone who requests one.
3) No other probate judge in the Southern District of Alabama is obligated by the injunction to grant anyone a license. But they all should be on notice that, if they fail to do so, they will end up before Judge Granade (either because a new action goes to her or because the new plaintiff jumps into Strawser and adds the next probate judge as defendant) and she will enjoin them.
4) No probate judge in the Middle or Northern District is obligated by the injunction to do anything, nor are they bound by the precedent of her opinion. Formally, it will take a new lawsuit by a different couple and a new opinion and injunction by a judge in each district. But as I wrote earlier in the week, I believe that, once one probate judge in the state had been enjoined, everyone else would fall in line, even if not yet legally obligated to do so. So while Roy Moore may continue to shout at the rain, I would be very surprised if any other probate judge bothers denying anyone else a license; it just is not worth the effort, as I cannot see a federal judge in either district reaching a different conclusion about the constitutionality of same-sex marriage bans.
Update: Important addition: If a probate judge in situations ## 3-4 did decline to issue a license to anyone, they would not be acting in disregard or defiance of Judge Granade's order, which still does not bind them or compel them to do anything. And I feel pretty confident that Judge Davis would not be acting in defiance of the order in situation # 2. In other words, today's order likely will have the practical effect of getting probate judges statewide to fall in line; it does not have that legal effect.
Bazelon sort-of defends Roy Moore
Emily Bazelon makes a sort-of defense of Roy Moore in The New York Times Magazine, turning out many of the arguments I have been making here.
Wednesday, February 11, 2015
The wrong vehicle?
Judge Granade has scheduled a hearing for Thursday to decide whether to add Alabama Probate Judge Don Davis back into the case as a defendant and whether to enjoin him from enforcing the state ban on same-sex marriage. That injunction is all-but-certain to issue. Believe it or not, however, it may not end the controversy. We still have a scope-of-the-injunction problem. Since Searcey and her wife remain the only plaintiffs, the injunction would only compel Davis to allow Searcey to adopt her wife's child. That's it. Even as to Davis, the effect of the opinion as to anyone else's rights would be merely persuasive.
The problem is that Searcey may be the wrong litigation vehicle for getting probate judges to issue licenses, since it is not a marriage-license case but an adoption case. And it seems to me that it is impossible to turn it into a license case by adding new plaintiffs (through joinder or intervention) who are looking for licenses rather than to adopt, since they are seeking entirely different relief. Perhaps the fact that the same-sex marriage ban (and whether the plaintiffs are or can be married) is a common question of law or fact. But the questions are arising in such wildly different contexts and settings.
Update: Thanks to the commenter below for correcting me. The events are happening in Strawser, an action brought by a male couple in January, originally against Attorney General Luther Strange and which produced a (largely meaningless) injunction against him; Davis has been added as a defendant and a hearing on a preliminary injunction against Davis is scheduled for Thursday. In addition, according to this story, there is a second action in the Southern District by several couples, naming Davis and Moore as defendants.
Now we are beginning to see some progress. Once Davis is directly enjoined to issue licenses, expect everyone else to fall in line.
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)?
Tuesday, February 10, 2015
The irony of trying to have it both ways
Much of what is happening with same-sex marriage in Alabama right now is a product of a hierarchical and geographically dispersed judiciary. The district courts hear cases first and may decide quickly, but the decision (beyond the parties themselves) has limited precedential value. The courts of appeals and SCOTUS create sweeping binding precedent, but it takes longer to get those decisions.
Had the Eleventh Circuit or SCOTUS ruled that the Fourteenth Amendment prohibits same-sex marriage bans, the obligations of state officials would be clearer. It would be certain that any district court would order them to issue the license because the precedent would be binding and that to not issue licenses would subject them to contempt. It also would be certain they would be on the hook for attorney's fees. And they may even be on the hook for damages, because the law would be clearly established. But we are still early in the process in Alabama, so we only have a persuasive-but-not-binding opinion from a district court. And we see what we would expect--it is persuading some actors, not persuading others; when lawsuits start coming, it may persuade some district courts and not persuade others.
In the short term, of course, this may give us Swiss cheese--one report this morning said 16 out of 67 counties are issuing licenses. Uniformity within the state comes with that binding precedent from the reviewing court. But it takes time.
There is a way to avoid Swiss cheese, of course: Have the district court decision and order stayed pending appeal. Then everyone will be able to marry at the same time--once the reviewing court provides binding precedent that same-sex marriage bans are invalid, after which everyone is bound. Of course, no one on the pro-marriage equality side wants to wait. I would guess everyone would strongly prefer marriages in 16 counties to marriages in none.
But that is the choice. You can have marriages begin without binding precedent, but not every official or court will go along with the precedent, so not everyone will gain the benefit of it. Or you can get uniformity from the eventual binding precedent so that everyone will be bound and everyone will benefit, but you have to wait. You cannot get both. And while frustrating, it is wrong to attribute this procedural reality to malfeasance by state officials.
And the media does not help
Most counties in Alabama were not issuing licenses as of yesterday, not improperly so as a matter of process. But you would not know it from the media, with headlines such as Most Alabama Counties Defy Feds by Blocking Gay Marriage (ABC News, complete with video of George Wallace in the doorway) and Judicial Defiance in Alabama: Same-sex marriage begins, but most counties refuse (Wash. Post); The Supreme Court Refused to Stop Gay Marriage in Alabama, But the State's Governor and Chief Justice Are Refusing to Listen (TNR); and Alabama's Roy Moore Defies Federal Order, Refuses to Allow Gay Marriage (Slate's Mark Joseph Stern, who can't help himself, calling it a "stunning display of defiance against the judiciary").
Monday, February 09, 2015
No contempt for you
Motion for Contempt denied--as expected and as appropriate. Judge Granade emphasized that Judge Davis is not a party. And she pointed out that her clarification order "noted that actions against Judge Davis or others who fail to follow the Constitution could be initiated by persons who are harmed by their failure to follow the law." In other words, plaintiffs' lawyers, pay attention to what the judge tells you.
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.
Ever looking to escalate, Alabama's Chief Justice Roy Moore has issued an Administrative Order stating:
Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with [Alabama's constitutional and statutory prohibitions on same-sex marriage].
Moore seems to be relying on the fact that no probate judge is subject to Judge Granade's order. So we probably need to read this as implicitly applying "as of Sunday, February 8," but no longer effective when probate judges start getting enjoined by federal district courts on Monday morning.
But Moore's move now has me thinking that commenters to my earlier posts had it right--Moore is the statewide officer who should be named as defendant, with an injunction ordering him to order the state's probate judges to issue licenses. Moore clearly has set himself up as the official with the power to control the enforcement of this particular state law by controlling what state probate judges do, much as California's AG could control county clerks and order them all to issue licenses. Moore concedes he is acting in an administrative capacity. And since this is not a decision arising from actual litigation, neither Younger nor Rooker-Feldman should come into play.
Sunday, February 08, 2015
More from Alabama
This article lays out the competing sides of the dispute pretty well. And it shows how complicated this may be getting and how confused many people are by this area of the law.
First, the article talks about Alabama probate judges being jailed for contempt. This would be utterly impossible--Judge Granade cannot hold in contempt anyone who was not party to the federal action, which is only the state AG. But the story then clarifies that contempt would be for violating a future order against a probate judge sued on Monday for refusing to issue a license, not for violating Judge Granade's original order. Which is right, although unlikely--at least Judge Bowden has stated that he will comply with any injunction that may issue should he be sued.
Second, someone mentions the possibility of "sanctions" against the judges, including attorney's fees. This is one of the things Judge Granade mentioned in her "clarification" order, which block-quotes from Judge Hinkle's similar clarifying order in the Florida case
Calling this a "sanction" is wrong, in that it suggests wrongdoing by the non-issuing judge for which he would be punished. Instead, fees would be a routine part of the injunction action. Under § 1988(b), a prevailing party can recover attorney's fees; this would cover a same-sex couple that sues and obtains an injunction ordering the judge to issue the license because the state SSM ban violates the Fourteenth Amendment.
But the attorney's fee question gets another layer because Alabama has vested the licensing power in judicial officers. Section 1988(b) has an exception--"in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction." This was added in 1996, along with an amendment to § 1983 which limits the availability of injunctions against a "judicial officer for an act or omission taken in such officer’s judicial capacity." The amendments together were intended to limit the effect of the Court's 1984 decision in Pulliam v. Allen, which held that absolute judicial immunity does not extend to injunctions or attorney's fees. The effect is to grant judges absolute immunity from attorney's fees to the same extent they enjoy absoulute immunity from damages--whenever they acted in a judicial capacity or performe a judicial function and did not act in the complete absence of jurisdiction.
It seems pretty clear that issuing a marriage license lacks the hallmarks of a judicial function (adversary proceedings, appellate review, formal processes) and lacks the exercise of the learned judgment that characterizes judicial decisionmaking and justifies judicial immunity. This is a purely ministerial function, such that a judge acts in an executive capacity in performing it. As such, a probate judge refusing to issue a license would not enjoy judicial immunity from an action for damages,* would not fall within the exception to § 1983 regarding injunctions against judges, and would not fall within the exception to § 1988(b) regarding attorney's fees against judges.
* A judge performing an executive function still can claim qualified immunity. And since it is not clearly established in Alabama that a ban on same-sex marriage is unconstitutional, any Alabama probate judge sued next week almost certainly would enjoy qualified immunity.
Attorney's fees play an interesting and unexpected function in a situation like this--they act as a deterrent to recalcitrant state officials. While formally not bound by the district court decision invalidating the SSM, the threat of attorney's fees puts these officials to a choice: 1) Force plaintiffs to go through the additional step of another lawsuit to obtain an (almost-certain-to-issue) injunction at the risk of having to pay fees or 2) Go along with the district court, even if not legally obligated to do so, to avoid fees. Neither option is right or wrong, but § 1988(b) puts a thumb on the scales in favor of the latter.
Saturday, February 07, 2015
Ben Bowden, a probate judge in Covington County, AL, announced on Friday that, on his reading of the law, he will not issue marriage licenses to same-sex couples on Monday, when the stay of a district court injunction expires. Bowden concluded that he the district court decision and injunction invalidating the state's marriage-equality ban is not binding on him, thus he will continue to follow the state-law ban until an appropriate court directs him otherwise.
So the issue now is queued up. A couple wanting a license in Covington County can now sue Judge Bowden for an injunction compelling him to issue the license; the issue is ripe, given Bowden's announcement, and the couple will have standing. Covington County is located in the Southern District, so the case likely will be assigned to Judge Granade (most districts have a rule sending "related cases," often broadly defined, to the same judge); she will quickly issue an order reaffirming her earlier opinion that the marriage-equality ban is unconstitutional, ordering Bowden to issue the license, and refusing to stay the order. And Bowden recognized that he will be sued and insisted that he would "fully comply" with an order in a case to which he is a party.
Obviously, this is not the most efficient way of doing things. But the point is that couples will be able to get their licenses, probably on Monday, in fairly short order.
Thursday, February 05, 2015
Roy Moore gets it right
And without bigoted or anti-federal rhetoric.
Moore sent a memo on Tuesday to all state Probate Judges, explaining why probate judges are not bound by two recent district court decisions invalidating state marriage-equality bans. (Ed Whelan analyzes the memo at NRO). Moore makes two points, both correct: 1) The attorney general, the only defendant in both Alabama cases, is part of the executive branch while probate judges (who issue marriage licenses) are part of the judicial branch, thus the AG exercises no supervisory authority over them; and 2) federal lower-court precedent is not binding on state courts.* The memo includes an appendix analyzing how the Alabama AG came to be the sole defendant in the two Alabama cases and why he is not, in fact, the appropriate defendant in cases challenging the refusal to issue marriage licenses when (as in Alabama) that task rests with judges or court clerks.
Tuesday, February 03, 2015
Julian Zelizer, a historian at Princeton, has a new book titled The Fierce Urgency of Now: Lyndon Johnson, Congress, and the Battle for the Great Society; he did a talk on it at Politics & Prose. Zelizer's thesis is that LBJ was not the all-powerful "Master of the Senate" who could push through whatever legislation he wanted--and that LBJ recognized that fact. His period of great legislative achievement was really just the two-year period from 1964-66, when he had overwhelming majorities in both houses and power had shifted away from conservative Southern Democrats. That ended with the 1966 mid-terms, when Southern Democrats returned to power, Republicans gained seats and were less likely to cooperate with him, making it far more difficult for him to achieve as much in the final two years of his presidency (including appoint a replacement for Warren).
This illustrates the broader point that what we think of as eras of particular legal and political achievements often are a product of a much smaller window within that broader era. So, Zelizer argues, the "Great Society" was created largely in two years of Johnson's five-year presidency, when the numbers and personnel lined up. Much less was happening during the other three years.
This matches Lucas Powe's argument about the small window for what we regard as "The Warren Court" and Justice Brennan's power as the intellectual engine of the Warren Court. While Warren was Chief for 15 years, "The Warren Court" really was a seven-year period from 1962-69, when the appointment of Goldberg provided five solid votes (Warren, Black, Douglas, Brennan, Goldberg) for most liberal or civil libertarian positions on speech, civil rights, and criminal procedure. Or, even more narrowly, it might be limited to only the two-year period beginning with Marshall's appointment in 1967, in which there were six liberal Justices and the bloc could afford one defection (by that point, it often was Black) and still maintain a majority.
Thinking About Prosecutors
Thank you to Prawfs for having me back to guest-blog again this month. I want to use my time here to (publicly) work through some very-early thoughts on what motivates the most important, yet most under-examined, actor in criminal justice: the prosecutor. Prosecutors have certainly been in the news a lot lately, but by and large we have very little empirical information on what motivates them or shapes their decisions—in no small part because we have almost no data on what they are doing.
There are two question in particular I want to think about here. The first, which is the more high-profile these days but arguably the less important, is about how to resolve the clear agency problem that arises when prosecutors are asked to prosecute members of their local police departments. In the wake of Ferguson and Staten Island, numerous proposals have been floated, from Wisconsin’s policy of referring police-related killings to outside district attorneys to appointing special prosecutors housed inside state attorneys general offices to handle such cases.But most of these proposals note the incentive problems faced by local prosecutors without really confronting the incentives of the replacement. Why would we expect a prosecutor from Buffalo to anger the BPD by aggressively going after the NYPD? As for special prosecutors, unless there is some clear referral rule (“all killings go to the AG”—and are killings the only things that should be handled by the AG?), what are the AG’s (or DAG's) incentives for choosing cases? And given these incentives, whatever they are, will they choose cases that align with what “matters”? And who decides what matters in the first place: the heavily-policed community in which the victim is more likely to reside, the broader community protected by that police force, the state-wide electorate that votes for the AG, etc….?
Obviously, the current system cannot stand, but how to design an optimal alternative strikes me as actually quite tricky.
The second question concerns a recent change in prosecutorial behavior that has had a profound impact on punishment in the United States over the past twenty years (and one I have raised in earlier posts as well). Since the early 1990s, prison populations have continued to soar even as crime rates steadily dropped. Why? Well, before asking “why,” we need to ask “who”—whose actions are most responsible for the change.
The basic facts are straightforward: since the 1990s, crime has fallen, and so too have arrests. The likelihood that a felony case results in a prison admission has been flat. The time that admitted person spends in prison has been flat too (I swear—though contrary to conventional wisdom, this is in fact the case). Only one thing has increased: the probability that an arrest results in a felony charge.
The change has been dramatic: over the course of the 1990s and 2000s, the probably that an arrest resulted in a felony case soared, from about 1-in-3 to 2-in-3, and this appears to be the primary engine of prison growth during the crime decline. Thus the story of post-crime decline prison growth is a story of increased prosecutorial aggressiveness.
So what caused prosecutors to become more aggressive? Sadly, no one knows. I thus want to start talking through some of the possibilities, such as other political incentives, changing budgets, improved policing, tougher sentencing laws (which do not necessarily result in longer sentences, but may facilitate plea bargains), etc. Any real reform of criminal justice outcomes in the US will require some change in prosecutorial behavior.
But that’s a tricky thing to accomplish. Not only do we not really understand what motivates or shapes prosecutorial outcomes, but DAs are very hard to regulate: directly elected at local levels, generally unchallenged and politically popular. Any effort to modify prosecutorial behavior will thus likely have to operate indirectly and by persuasion, which of course requires us to know what is persuasive.
So those are the topics for the time ahead. Like I said, my thoughts here are raw and green—and, in many places, likely wrong—and I’m tossing them out in an effort to get real, substantive feedback. I’m looking forward to what everyone has to say.
Monday, February 02, 2015
Cameras at SCOTUS, again
Lots of new stuff on cameras in SCOTUS. Dahlia Lithwick's Amicus podcast discusses them this week, interviewing Sonja West (Georgia) and RonNell Andersen Jones (BYU), who together do a great job pretty much destroying the anti-cameras arguments. The only thing they did not mention was what I think is the key response to the "people will only hear snippets" argument--people already only hear snippets, but now they read the text and hear it in Nina Totenberg's voice, rather than in Scalia's or Kagan's. John Oliver pretty well demonstrated this in his Supreme Court Dogs segment (after the jump).
Second, Justice Kagan did a Q&A appearance at University of Chicago last weekend, in which she admitted to being "very conflicted" about the issue. The same article indicates that Justice Sotomayor is hardening her position against cameras (despite saying in her confirmation hearing that she had "positive experiences" with cameras while a lower-court judge).
Kagan being "conflicted" about this will not move the needle at all, for a reason that West and Jones discuss in their Amicus interview--the collegiality norms on the Court mean that, as long as one Justice remains strongly opposed to cameras, the rest of the Justices are never going to push the issue.
First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this. It’s wonderful to see how what Dan started continues to grow and thrive.
Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.
As everyone knows, we in the United States are in the middle of an outbreak of measles that started when two un-vaccinated children who had been exposed to measles visited Disneyland. My focus will be on legal issues, but lets start with an overview. As of today, there are 102 cases reported in 14 states-anyone interested in tracking the outbreak can so here. Measles is that “worst case scenario” virus that Ebola wasn’t—it is highly contagious, spreads through the air, can live a long time on surfaces, and is infectious well before people feel sick enough to stay at home. This is a very helpful graphic. In 2000 measles was “declared eliminated in the United States” because, for an entire calendar year, there had not been a case of one person catching measles from another in the United States. But measles is nowhere near eliminated globally and we haven't had a year like 1999 in a long time. Globally, 400 (mostly) children die of measles every day, 16 die every hour. Unfortunately, “globally” does not, in measles’s case, mean remote areas of the planet, Europe, India the Philippines and Vietnam—are all seeing increases in measles cases.
The good news about measles is that there is a highly effective, widely available vaccine that fully protects 97 out of every 100 people vaccinated. It’s a “threefer” in that the vaccine provides immunity from not just Measles but two other very serious viruses, Rubella (German measles) and Mumps.
Like most vaccines, however, it can’t be given to infants younger than six months old and in the absence of an immediate threat, usually isn’t given until a child is twelve months old. There are also counter-indications (more about them later) about who shouldn’t get the vaccine. Finally, people on chemotherapy or who have had bone marrow transplants lose whatever immunity they had before. Without doing the math that means at any one time, even if every person in the United States eligible to vaccinated had one, many people would still be susceptible to infection. And of course the point of this post on a law site, is that far from everyone eligible to be vaccinated has taken advantage of the opportunity.
The current controversy is a great teachable moment for any law school class considering the balance between the rights of an individual and that of the state. Over the next month, I will be diving deeper into this area of the law to examine the parameters of state authority under the Tenth Amendment and then the different aspects of federal power that create the parameters of governmental authority to prevent, and control outbreaks through public health measures like mandatory vaccination, treatment, quarantine and isolation. Spoiler alert—neither sincerely held religious belief nor autonomy to raise one’s children have prevailed against a state’s interest in requiring vaccination for attending public school.
To be continued.
Posted by Jennifer Bard on February 2, 2015 at 03:10 PM in Constitutional thoughts, Current Affairs, First Amendment, International Law, Law and Politics, Religion, Science, Teaching Law | Permalink | Comments (0)
Friday, January 30, 2015
LBJ and the Supreme Court
This is a couple days old, but I will second Gerard Magliocca's recommendation of KC Johnson's post on LBJ's conversations about the nomination of Abe Fortas as Chief Justice; the post includes audio links to excerpts of the Johnson White House tapes along with transcripts and some commentary. The conversations touch both on Fortas's elevation and on who should replace him as Associate Justice (Homer Thornberry was nominated, but the nomination was withdrawn when Fortas was rejected as Chief). KC argues that Fortas represents the tipping point on judicial nominations, the point at which it became contentious and partisan and at which a nominee might realistically be filibustered or rejected. (I will leave that debate to others).
Beyond the general enjoyment of listening to the conversations and, in Gerard's words getting to "hear LBJ . . . well . . . being LBJ," I found a couple of individual points of interest.
First, Johnson mentions the possibility of bringing Arthur Goldberg back to the Court (Goldberg had resigned in 1965, at Johnson's urging, to become UN Ambassador and to allow Johnson to put Fortas on the Court), but rejected that idea because "I oughtn’t to have two Jews." (I have written before about how jarring it is to hear "Jews" as opposed to "Jewish people." It sounds worse with a Texas drawl).
Second, Johnson specifically talks about the states represented by the different possible nominees and how "seats" for each state is a consideration. This brings to mind Nancy Leong's JOTWELL essay reviewing Sharon Rush's article on geographic diversity on the federal bench, particularly on a non-regional court such as SCOTUS.
Third, it raises some cute historical counter-factuals. What if Johnson had not pushed Goldberg to resign in 1965? Johnson basically conned Goldberg into believing that 1) Goldberg could make a difference with Vietnam from the UN and 2) It might put him in position to run for President. Neither of those things is remotely true.
So what happens if Johnson leaves Goldberg alone? Johnson got to make (or at least try to make) two more nominations after 1965--1967, when he appointed Thurgood Marshall to replace Tom Clark, and 1968, when Warren indicated his intent to retire. Johnson wants Fortas and Marshall on the Court and also wants to make Fortas Chief when Warren steps down. So consider:
1) Johnson still appoints Marshall in 1967 because "it's time," then nominates Fortas as Chief from outside the Court in 1968 (back then a Chief without judicial experience was not uncommon). If Fortas has not been on the Court for three years when nominated, does that change the Senate's reaction to him? Certainly some of the problems that killed his nomination go away--he no longer is tagged with what many viewed as the "excesses" of the late Warren Court on criminal procedure and obscenity; there no longer is anything untoward in his having recently advised Johnson on matters; it is at least less untoward that he took money for giving various speeches. On the other hand, as KC describes in his post, by June 1968, everyone expected that Nixon would win the White House, so Republicans (and others) in the Senate wanted to leave the nomination for the new president rather than the lame duck. This concern does not go away.* So which way do things go?
* In the tapes, Johnson several times mentions the age and failing health of Black, Douglas, and Harlan, by way of showing Republicans that Nixon would get to make several appointments fairly quickly even if Johnson got to appoint the Chief in 1968. And, indeed, Nixon got to replace both Black and Harlan by the end of his first term. And but for Watergate, he would have appointed Douglas's replacement in 1975, towards the end of his second term.
2) Johnson appoints Fortas in 1967 to get his friend on the Court, then tries the same move in 1968 of trying to elevate Fortas, this time nominating Marshall as Associate. Does Fortas fare any better with two fewer terms (and decisions) on the Court? Does Marshall draw too much opposition to make the two-fer work (one of Thornberry's virtues was that it was unlikely anyone in the Senate would oppose him)? Does Johnson not nominate Marshall at all because of that opposition? In which case, when does the Court get its first African-American Justice?
Wednesday, January 28, 2015
If you say so
Judge Callie Granade of the Southern District of Alabama has clarified her order holding that Alabama's marriage-equality ban violates the Fourteenth Amendment. She block-quotes Judge Hinkle's position--which I previously labeled "unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four"--that the injunction does not apply to anyone other than the Alabama A/G (the only named defendant), but that the Constitution does apply and the Constitution requires the probate judges to issue marriage licenses.
On reading it this time around, these seems a framed example of an advisory opinion. A court is telling someone what to do or not to do, but that person is not a party to a case within the court's jurisdiction and not subject to any valid order of the court. Judge Granade can insist all she wants that the Constitution requires the state's probate judges to issue marriage licenses--if they disagree, no one can do anything about it (unless and until new litigation is brought and a court with jurisdiction--perhaps Judge Granade--directly compels them to do so).
Of course, the news is not all normal, because Alabama Supreme Court Justice Roy Moore is back in the news, insisting that state law remains in place, that he will continue to follow state law, and that the probate judges should continue to do so, as well. This, in turn, prompted the Southern Poverty Law Center to file an ethics complaint against Moore, alleging he violated judicial ethics rules in commenting on a matter that will be coming before him in the coming weeks.*
* Although I am not sure why. I would expect the move for anyone denied a license would be to sue the probate judge in federal court, so I do not see how this is going to make its way through the Alabama courts.
(H/T for all of this: Josh Blackman and Howard Bashman)
#Not all convictions
Sadly, the only lessons anyone will learn about campus sexual assault from the convictions of two former Vanderbilt football players is 1) Don't be so stupid (or arrogant) as to record and share your criminal activity and 2) You cannot get away with as much when you are not the star quarterback at a championship-contending football factory. More sadly, I am not sure what would happen if you have a star quarterback who is stupid enough to record. Still more sadly, we already know what happens if the non-star is smart enough not to record.
Monday, January 26, 2015
Epilogue: Moral Panics and Body Cameras
Almost immediately after my essay on body cameras was published in Wash. U. L. Rev. Commentaries in November, stuff blew up--the Michael Brown non-indictment, the Ferguson and national protests, the Eric Garner non-indictment, and the protests from that. The editors were kind enough to publish an Epilogue, now available on Commentaries, discussing those subsequent events and how they further illustrate my points about video, body cameras, and moral panics.
Sunday, January 25, 2015
The process of marriage equality, once again
This time in Alabama (H/T: Josh Blackman), with the pushback coming from the state's probate judges, who are empowered under state law to issue marriage licenses. The plaintiffs asked the district court for a "clarification" of her ruling and its scope, although it is unlikely that her clarification will announce that these non-party probate judges are subject to the injunction, since, just as in Florida, they cannot be. The district court has issued a 14-day stay, so the race to figure this all out by Monday has become moot--the district judge gave the state a chance to ask the Eleventh Circuit for a stay.
Comparing this to George Wallace standing in the doorway at the University of Alabama is incredibly overstated and flat wrong. And at some level, this is on the plaintiff's lawyers--they framed the case, only sued the Attorney General in a state in which the AG does not have the power to issue licenses or to control or advise those who do, and did not include any "responsible" executive officers in the action. The AG is ordinarily the proper defendant in an Ex Parte Young action (notably where the challenged law is a criminal provision); but not here and not for the issuance of marriage licenses. And the failure to recognize that is creating these procedural complications, at least until SCOTUS or the Eleventh Circuit weighs in.
With all that, calling everyone a bigot in a legal document is not particularly helpful.
Wednesday, January 21, 2015
MDL consolidation and appealability
SCOTUS on Wednesday decided Gelboim v. Bank of America, holding that a district court order dismissing the sole claim in a single-claim action, consolidated with other actions for pretrial proceedings in multidistrict litigation, was a final and appealable order, even if claims remained in other actions included in the MDL. I have an opinion analysis at SCOTUSBlog. And I am happy to say I called this one.
Tuesday, January 20, 2015
Joachim Prinz, American Jews, and the Civil Rights Movement
This article is a few years old, but I came across it, appropriately, on MLK Day. It is about Joachim Prinz, the most prominent Jewish leader in the Civil Rights Movement and the only Jewish leader to speak at the March on Washington (he spoke just before King). I was personally interested in the story because Prinz performed my Bar Mitzvah in 1981 at B'nai Abraham in Livingston, N.J., where he was Rabbi Emeritus. As students at the Hebrew School, we sort of knew about his involvement with King. But my friends and I were more interested in being outside playing baseball.
Monday, January 19, 2015
Thurgood Marshall and the limits of the judicial role
Mike Dorf poses an interesting question: Why is Thurgood Marshall never in the conversation about civil rights icon--it is only MLK, with Macolm X as the only possible alternative. Mike offers three reasons, which all seem plausible.
I want to consider a fourth option--the limits of the judicial role. Marshall spent the last thirty years of his career on the bench (with a two-year break as SG, an unusual government-attorney position that is part advocate, part court advisor, part administrative official). As such, he was less of an "advocate" for civil rights than King was or than Marshall had been earlier in his career. While he was a great liberal voice from the Court, he was no longer an advocate. And he was deciding not only civil rights cases, but cases on many other subjects--some of which were at least indirectly about civil rights and racial equality (criminal procedure), others having nothing to do with them (for example, he wrote Shaffer v. Heitner). And even in that role, Marshall was hampered by the fact that by 1971 and certainly by about 1981, he was no longer regularly in the majority on many of these issues; he was a strong voice in dissent, but he, unfortunately, was not directly shaping the law.
Finally, consider Richard Posner's suggestion that Marshall's great strength was as a trial lawyer, not as an appellate judge/justice or as SG. In other, Marshall spent the last half of a sixty-year career playing to less than his stengths, thus weakening his influence. Perhaps had Marshall remained in a different role--while continuing to have the same success in that role (and admittedly huge if)--he might have been in an even-more exalted space in the civil rights pantheon.
Tuesday, January 13, 2015
Guaranteed salary and understanding the Supremacy Clause
Bills have been introduced in Texas and South Carolina attempting to prevent courts from recognizing same-sex marriages, in part by controlling salaries and funding. The Texas bill prohibits any state or local government employee from recognizing, granting, or enforcing a same-sex marriage license, with anyone who does losing her salary; a separate provision extends this to state judges. The bill also requires the court to dismiss any constitutional challenge to the law and to require plaintiffs to pay fees. The South Carolina bill is similar--no recognizing, granting, or enforcing same-sex marriage licenses, no public funds or salaries spent for doing so, required dismissal of any challenges to the law, while also specifically prohibting the use of any public funds to enforce any court order (including, presumably, a federal court order) to issue a same-sex marriage license.
Obviously, neither bill has a remote chance of passing; trying to stop marriage equality is simply a fool's errand at this point. And there are too many constitutional defects to count. But I want to highlight a couple.
First, a shout-out to the unsung Article III protection--judges "receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." Everyone focuses on life tenure as the great bulwark of judicial independence (or as a bad idea whose time has passed); there is less focus on guaranteed salary, even though, as these crazy bills show, it otherwise would be a prime target for a legislature angling to control constitutional adjudication.
Second, I have questioned Slate's Mark Joseph Stern before for the legal errors in his articles (I have no idea if he has a J.D.). Today, he argues that these bills are in "clear violation" of the Supremacy Clause by imposing a sanction on a judge who is just following federal law as declared by the Fourth Circuit (which includes South Carolina) and many, many federal district courts. But neither a federal court of appeals nor a federal district court binds a state court. A state court is free to ignore these decisions. And, at least as a matter of the Supremacy Clause, a state legislature is free to compel its courts to ignore those decisions (there may be other reasons the legislature cannot do this). So why make up reasons that are simply wrong.
Third, what would the Constitution of either state have to say, specifically about the provisions requiring state courts to dismiss challenges to these laws. During the Theresa Schiavo Controversy, the Florida Supreme Court adopted a principle very much like United States v. Klein as a matter of state separation of powers. These bills run afoul of Klein's idea that legislatures cannot tell courts how to decide cases, to the extent that principle applies to state governmental structures.
Monday, January 12, 2015
More on rotating Chief Justices
At CoOp last week, Gerard Magliocca asked whether it would be constitutional to shift away from the current system of a separately appointed Chief Justice in favor of a system of rotating Chiefs, either based on seniority (as on the Federal Districts and Circuits) or based on selection by thesitting Justices (as happens on some state supreme courts). I have used this question in Fed Courts, in the last days of the class when we discuss the theoretical stuff on congressional control over the courts. Edward Swaine (GW) considered the question in a 2006 piece in Penn Law Review, concluding that the present scheme of appointing/confirming one person to the position of Chief Justice of the United States was not constitutionally required and that Congress could change the manner of selecting a Chief Justice (the Constitution requires that there be a Chief Justice). I agree with Swaine on the constitutional point.
But is it a good idea? Gerard argues that a rotating system distributes the powers to preside and to assign opinions, which otherwise remain exclusively with the Chief or with the senior-most Associate Justice in the majority, possibly for quite awhile. And if the Chief and the senior-most Associate often disagree, the assignment power remains firmly in two sets of hands for a significant number of cases.* How might deliberations and decisionmaking change if there were more variance over time in the assignment power? How might oral arguments change if the presiding Justice changed more often?
(*) This would make an interesting empirical question, actually. In the past 40 years, we have had two such lengthy periods--1975-90 (Burger/Rehnquist as Chief, Brennan as seniormost Associate) and 1994-2005 2010 (Rehnquist/Roberts as Chief, Stevens as seniormost Associate). [Ed: I cut Stevens short, forgetting that he spent five additional years as senior associate after Rehnquist's death, with Roberts, a Justice with whom he often disagreed, as Chief. This 2011 article explores how and how often Stevens exercised the assignment power as senior associate justice]
The counter-argument attaches to the idea that the Chief carries a unique connection, allegiance, and obligation to the "Supreme Court as an institution." This affects how the Chief performs administrative functions as the head of the entire federal judiciary--for example, by chastising Congress for insufficient funding and failure to fill vacancies, regardless of which party is in control. And it may carry into decisionmaking. Chiefs have cast surprising votes in cases that are atttributed, rightly or wrongly, to that loyalty and to an interest in protecting the Court's institutional legitimacy, even at the expense of their own jurisprudential preferences--people often point (again, rightly or wrongly) to Roberts upholding the individual mandate in NFIB or Rehnquist affirming the constitutional basis of Miranda in Dickerson. The concern is that someone serving only 6-8 years as Chief (the typical term for a lower-court Chief Judge) as part of longer service as a Justice will not feel that same institutional obligation, potentially at some cost to the Court as a body. Moreover, there is a sense that someone must "grow" into the Chief Justiceship and learn to perform well the various administrative and institutional functions, which takes more time than a rotating term would allow; the longer, permanent chiefdom is necessary to allow for that leaning curve.
Monday, January 05, 2015
Merging systems in the wrong direction
I have written before that I have come to prefer a UK-style parliamentary system, in which the executive is guaranteed legislative majorities and we are open about the partisan connections between the executive and the legislature. But Keith Humphreys, blogging at the Reality-Based Community, discusses how the UK (where an election is coming in May) is, unfortunately, looking more like the US than the other way around.
First, the focus of the election is now on the prime minister candidates and their personalities and views, ignoring the connection between the party leader and the party-in-the-legislature. Second, there is an increasing preference for divided government, with voters moving towards divided government and coalition governments, in which mutliple parties have enough seats to be at the negotiating table and the major party is unable to govern as it wishes; Humphreys sees this as a departure from Britain's historic preference for "giving the other fellow a chance."
Saturday, January 03, 2015
The process of marriage equality, redux
I do not have the energy to provide background; SCOTUSBlog offers a nice analysis of what is happening in Florida, as an opinion by U.S. District Judge Robert Hinkle (N.D. Fla.) invalidating Florida's ban on marriage equality is due to take effect next Monday evening. I am simply going to link to a bunch of documents and ask whether anyone in the State of Florida has a clue about procedure, remedies, or jurisdiction.
First is a December memorandum from the attorney for the Florida Association of Clerks and Comptrollers stating, correctly, that Hinkle's a decision and injunction is binding only on the Washington County Clerk of Courts (named as defendant) and only as to the named plaintiff; all other clerks are not legally obligated to issue licenses and may, in fact, be prohibited by state law from doing so and subject to criminal penalties. (Slate's Mark Joseph Stern, somewhat losing it, labels the memo "bogus," "deceptive and borderline unethical," and "willfully misleading").
Judge Hinkle responded on Thursday with this order acknowledging that his injunction is as limited as the FACC lawyers suggested. But he then goes on to insist that "the Constitution requires the Clerk to issue" (italics in original) licesnes to other couples. Implicitly, that means the Constitution require all other clerks to issue licenses. And it reminds all clerks that other litigation may follow his ruling and that they may be subject to suit, injunction, and attorney's fees if they do not follow his ruling.
The FACC's lawyer responded that, in light of the new order (which it also interprets as threatening money damages, although the order says no such thing), all "clerks should follow the judge's ruling for all marriage-license applications or face the consequences identified by Judge Hinkle." Florida Attorney General Pam Biondi similarly responded: "This office has sought to minimize confusion and uncertainty, and we are glad the Court provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed."
Finally, the Orange County Clerk of Courts sought and received a state declaratory judgment; the state judge agreed that the state prohibition on SSM violates the Constitution (essentially adopting and incorporating by reference Judge Hinkle's opinion), that the clerk could rely on the federal decision, and would not be violating state law or be subject to criminal penalties if she issues licenses to same-sex couples once the Hinkle order becomes effective next Monday.
My coments on why this all is so insane after the jump.
The original memo from the FACC's lawyer had it right. The district court's injunction only requires the named defendant clerk to issue a license to the named plaintiff. There was no class of plaintiffs or defendants before the district court. There was no statewide officer enjoined to issue, or order the issuance, of licenses across the state. The district court's declaration that the SSM ban violates the Fourteenth Amendment is not binding or preclusive as to any non-party and is not binding on any other federal or state court. The memo is a bit overwrought in suggesting that a clerk is going to be prosecuted for issuing a license. But the basic point--the district court decision is nothing more than persuasive authority to all other couples and all other clerks--is correct.
None of this is new, of course. We have been discussing procedure underlying marriage equality since last summer, when, post-Hollingsworth, we were left with an incredibly (and possibly unlawfully) overbroad injunction in California and procedural wrangling about what happens next. But Judge Hinkle's original injunction is not so broad, as he acknowledges. So any non-party clerk remains free to deny a license in light of state law on the books; it then is on any couple wanting a license to sue and challenge the constitutionality of the denial and the state SSM ban, likely winning on the strength of the persuasiveness of Hinkle's opinion. This is all messy and inefficient, but that is how constitutional litigation works, at least short of a decision by SCOTUS or a class action.
So what to make of Judge Hinkle's supplemental order? It is either unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four. That everyone seems to be praising this order for "clarifying" things shows how just confused everyone is.
The italicized insistence that the Constitution requires the issuance of licenses by all clerks to all same-sex couples is nonsense. Yes, licenses are required by the Constitution, as interpreted by Judge Hinkle. But that interpretation is not the only one and it does not bind (or even necessarily influence) anyone not a party to that case. There is controversy enough over whether SCOTUS does/should get the last word on constitutional meaning and what the Constitution requires; there is no way that a single district judge could possibly have the last word, even within one state. But the supplemental order insists that is the effect of the original decision--in essence, "I have announced what the Constitution means with respect to the Fourteenth Amendment and marriage equality and every clerk in the State of Florida is bound by that meaning I have identified (even if not subject to the injunction)." One district court opinion cannot be read to have that much binding effect, particularly on people outside of that judicial district and not subject to the court's jurisdiction or venue.
Moreover, since Article III courts cannot issue advisory opinions, it is logically impossible to separate the Constitution (as interpreted) from the injunction or to have the former apply more broadly than the latter. The only people who can be bound by the court's interpretation are those bound by its remedial order. And Hinkle concedes the narrowness of the original injunction.
Beyond that, the supplemental order does not tell us anything we did not already know (or should have already known). Any same-sex couple could have sued any county clerk (beside Washington County) at any time to invalidate the ban and, if successful, could have gotten an injunction and attorney's fees; Judge Hinkle's original decision would have been important binding precedent in that lawsuit, but nothing more. But the right of other couples to bring that suit does not emanate from Judge Hinkle or his order. And the threat of injunction and attorney's fees against a non-compliant clerk is a consequence of basic rules of constitutional litigation of which everyone should have been aware even without the supplemental order.
Nor should it be news that any clerk may (italics again Judge Hinkle's) follow that original ruling that the ban violates the Fourteenth Amendment. Of course a clerk may follow the ruling, for the same reason she could ignore it--absent injunction, preclusion, or binding precedent, every clerk retains the authority to decide her legal and constitutional obligations, unless and until her interpetation is overruled by a higher state official or a binding court decision. Otherwise, note the internal contradiction of the supplemental order--a clerk who agrees with him may follow the ruling, but a clerk who disagrees must follow the ruling.
Everyone is also reading the supplemental order to threaten money damages for any clerk who does not issue a license. I do not read the order as suggesting damages as a consequence. But even if Hinkle did threaten that, I do not see how any damages action could overcome qualified immunity--that it was clearly established that the Fourteenth Amendment required clerks to issue licenses to same-sex couples. There is no binding precedent on this in Florida; neither SCOTUS nor the Eleventh Circuit has spoken. We have a circuit split nationally (even if it is largely one-sided) and decisions from one federal and two state trial judges within Florida. I believe that banning same-sex marriage violates the Fourteenth Amendment. But no way is that conclusion clearly established, as that concept is currently understood. So damages are not remotely possible.
The only appropriate procedural move was by the Orange County Clerk of Courts, who got that state-court declaratory judgment. In essence, the state court established a state-court order that the SSM ban is unconstitutional and that the Orange County Clerk, as a party to the state-court action,is not bound by the state prohibition, is free to issue licenses to same-sex couples, and is now protected by an order of a court that actully had jurisdiction over her (which Judge Hinkle did not).
As a policy matter, I like where we end up: every clerk in the state is likely to issue marriage licenses to same-sex couples and the attorney general is not going to stop them. A mass ceremony is planned for just after midnight Tuesday in Broward County. And I am surprised that Florida, which hardly the leading edge on SSM, is not going to be one of the recalcitrant states dragged kicking and screaming to marriage equality by SCOTUS. Still, it would have been nice if everyone involved, including the federal judge, had a better sense of the underlying processes.
Friday, January 02, 2015
It's Been Real!
I think they're going to take away the keys soon, so while I still have access I wanted to say thanks for a great month on Prawfs. I touted my current scholarship, talked about teaching, wrote a post that generated over 35 comments, and even seemed to annoy some of the so-called "scambloggers" in the process! That sounds like a success!
I plan to head to the Markelfest tomorrow night at AALS, so I hope you'll stop by and say hello.
Thursday, January 01, 2015
Sunday is Election Law Day at AALS
I'm declaring Sunday to be "Election Law Day" at this year's AALS Annual Meeting. I don't think there has ever been as much programming on election law at a prior meeting. This is in part due to the fact that the brand-new Section on Election Law is hosting its first substantive panel, focusing on the 50th Anniversity of the Voting Rights Act. The Section on Civil Rights is holding a panel on voter suppression in the morning, and there is a hot topics panel on campaign finance in the afternoon.
All three panels contain an all-star list of scholars in the field (putting me in awe as to how I was included!). After the jump I've pasted the details of each of these panels. I hope you'll join us!
Section on Civil Rights: Voter Suppression, the 2014 Elections and Beyond
Sunday, January 4, 2015, 8:30-10:15
In the last two years, numerous laws targeting underprivileged voters were enacted. The concrete effects and application of these laws in their respective states have yet to be measured. The 2014 midterm elections provide the first opportunity to document these effects. It is crucial, particularly in light of the Shelby County decision, to monitor these dynamics. Grassroots solutions to help counter their detrimental impact are also needed. In light of the current legal landscape, it is important to craft these grassroots solutions in tandem with any proposed legal reform. This year’s panel will discuss manifestations and application of these voting rights laws around the country. In addition, panelists will offer insight and suggestions regarding legal and grassroots processes that could help alleviate recent setbacks in the voting rights context.
Business meeting at program conclusion.
This panel will feature legal academics who are also advocates, candidates, legislators and lobbyists. One of our panelists ran for Governor of New York on an anti-corruption platform, another launched a Super PAC to promote campaign finance reform, and another has introduced a bill in his capacity as a state legislator to require corporations to have majority assent from shareholders before backing political candidates. In this program, panelists will begin by evaluating the fallout from the recent defeat of the 28th Amendment and consider non-constitutional strategies to regulate money in politics in the face of judicial and political barriers. Panelists will subsequently explore how the law teaching profession has been involved in theorizing, developing, advocating and campaigning for new strategies to reform electoral campaign finance.