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Friday, November 08, 2019

State-level universality

Much of the controversy over "nationwide" or "universal" injunctions has arisen in suits challenging federal las and regulations. But the reason for finding and using the appropriate nomenclature is that the real problem--injunctions protecting beyond the plaintiffs--can arise in challenges to all laws at all levels.

A divided Eighth Circuit addressed this in Rodgers v. Bryant, a challenge by two individual beggars (their term) to Arkansas's anti-loitering law. The district court granted a preliminary injunction prohibiting all enforcement and the majority of the court of appeals affirmed, relying on the district court finding that the law is "plainly unconstitutional," so it should not be enforced against anyone. Even the courts most willing to issue non-particularized injunctions in challenges to federal law have advanced beyond "the law violates the Constitution, so it can't be enforced against anyone" rationale.

Dissenting, Judge David Stras gets it perfectly right--the district court granted a universal preliminary injunction, prohibiting state police from "enforcing the law against anyone, anywhere, at any time based on the harm faced by two individual plaintiffs." It is "universal" in that it protects the universe of people who might be subject to Arkansas law-as universal as the travel ban, only applicable to a smaller universe.

Stras examines the history equity to conclude that such non-particularized relief was not proper in individual actions and that equity's representative actions are now reflected in FRCP 23. Stras also hits the essential point that there is no reason to believe (and neither the district court nor the majority found) that "safeguarding Rodgers’s and Dilbeck’s right to speak somehow depends on preventing enforcement of the anti-loitering law against anyone else." The plaintiffs, he argued, sued to vindicate their own rights, so they obtain "complete relief" from an injunction protecting them from arrest under the statute.

Posted by Howard Wasserman on November 8, 2019 at 07:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Prof. Wasserman: Granted, the paragraph on injury to Arkansas is irrelevant to the legal analysis. But Stras includes it to save his opinion from mere formalism. If the only objection to the district court’s injunction is a theoretical one—if there are no real-world problems it creates—it’s hard to see why courts shouldn’t adopt this sort of short-cut. We can stipulate that the ideal would be certification of a (b)(2) class: but in a case like this, that step, though it would be procedurally simple (and the result virtually automatic), would also be expensive and time-consuming. To my mind, criticism of “universal” injunctions is more effective when tied to actual problems like forum-shopping or competing court orders (problems much less likely to arise at the state level). But in this case the criticism seems academic.

Posted by: RQA | Nov 9, 2019 5:26:35 PM

RQA: That was a throwaway part of the analysis. It was not necessary to balance the equities because universality was not necessary to provide complete relief.

Bogart: Those are good questions that I have not played around with. A class would be easy enough here and notice would be no more difficult than in any other (b)(2) class for a pre-enforcement challenge. You are right that police may stop enforcing--to avoid damages and to avoid the confusion over who is protected. Much as states began issuing marriage licenses to everyone. But that compliance is voluntary, an executive choice as the best way to conduct business. It is not enforceable by the hammer of contempt.

Posted by: Howard Wasserman | Nov 9, 2019 3:07:25 PM

How does this work exactly? Do the two plaintiffs carry around copies of the injunctions to show the police wherever? (Which means they get rousted and then show the police that the police are wrong.). Are the police to carry around a list of persons against whom the statute may not be enforced? Or are we counting on someone taking on the burden of a class action to block the statute? If so, how exactly do the class members get notice of the suit? Or is your idea that the police will stop enforcing generally because cities/counties will want to avoid the damage claims which might result? Given the various immunity doctrines, why would that be a realistic threat?

Posted by: J. Bogart | Nov 9, 2019 11:48:00 AM

Stras’s opinion seems to me to exemplify the weakness of the “anti-universalist” position. On the one hand, he concurs that the statute is probably unconstitutional on its face. On the other hand, he identifies as the serious harm to the state the possibility—however remote—that it will ultimately turn out that (a) the statute is somehow found not to be unconstitutional and (b) in the meantime the state will have been prevented from applying it to “thousands” of violators. Not only is that a tenuous, speculative sort of harm, but it’s essentially indistinguishable from the harm that arises out of any final adjudication—the possibility that a later appellate decision will overturn an earlier one. At any rate, even if one thinks Stras got it right, one should then consider whether it would have made any practical difference had the court of appeals adopted his reasoning. I see no reason to think so, which suggests this is an issue of pretty limited significance.

Posted by: RQA | Nov 9, 2019 8:56:25 AM

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