Monday, March 21, 2022

Exclusivity and personal rights in bounty litigation

Those insisting that SB8 is unprecedented and those warning of every new law "modeled" on SB8 ignore that we have been leaving in a similar world for some time. Two Ninth Circuit cases show the prevalence of such laws and the broader implications of the surrounding procedural arguments.

California law requires businesses to post signs when their produces contain certain carcinogens. "Any person in the public interest" may bring suit against a business that fails to post signs; the penalty is $ 2500 per violation per day, with "any person" keeping 25 % plus attorney's fees. Like California's former false-advertising laws, private enforcement is not exclusive and the AG and other public officials can initiate enforcement actions.

In B&G Foods, the target of a state enforcement action brought a § 1983 action against the "any person" state plaintiff (a serial enforcer). The court assumed the "any person" was a state actor, then held the lawsuit barred by Noerr-Pennington, under which a person cannot be liable under federal law (including a § 1983 constitutional action) for the petition activity of seeking relief in state court. In California Chamber of Commerce, the court declared the state law constitutionally invalid as violating business' First Amendment rights against compelled expression; it enjoined the AG and an intervenor environmental organization from future enforcement.

The federal plaintiff in B&G did what Rocky and I proposed--sued the "any person" state plaintiff as a state actor to enjoin that enforcement action and to establish precedent about the constitutional validity of state law. I think the court was correct in rejecting the claim, although for the wrong reason. I would say the state plaintiffs did not act under color because their enforcement authority is not exclusive and they do not keep the entire public-serving penalty. If these plaintiffs act under color, then every private A/G and qui tam plaintiff acts under color; it should not be that broad. At the same time, although seemingly consistent with Ninth Circuit precedent, this expands Noerr-Pennington by giving state and local governments petition rights. It thus protects private persons who act on behalf of the government, as opposed to petitioning on behalf of their personal/private interests, which was the original basis for NP. We may have to explore that more in-depth.

Chamber did not address whether the advocacy group acts under color, which should have been necessary to enjoining them from future enforcement. On the other hand, I credit the court with self-restraint in not enjoining non-party private persons from bringing new enforcement actions.

Posted by Howard Wasserman on March 21, 2022 at 04:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

JOTWELL: Endo and Beerdsen on discovery as practice

The new Courts Law essay comes from Seth Katsuya Endo (Florida), reviewing Edith Beerdsen, Discovery Culture, 57 Georgia L. Rev. (forthcoming 2022). The article and the review are great. I used this idea of discovery as norms and practices in teaching that section last week.

Posted by Howard Wasserman on March 21, 2022 at 10:45 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, March 18, 2022

Maybe we have always been crazy as a nation

Long teaching story coming up.

I end the Discovery portion of Civ Pro by having the class argue the discovery issues in Coca Cola Bottling Co. v. Coca Cola. The case involved a contract dispute between a bottling company and Coca Cola following introduction of Diet Coke and New Coke; the bottler sought production of the formula for original Coca Cola, the court agreed and ordered production, and Coca Cola refused to comply with the order, resulting in sanctions. (Marcus, Redish, Sherman, Pfander included this as a note case--I repurposed it as an in-class hypo). I split the room in half, each representing one party. Many students highlight it as an especially fun class session.

Slate's Hang Up and Listen podcast ends each episode with the line "Remember Zelmo Beatty" (Beatty is a Hall of Fame professional basketball player from the '60s and '70s, the "remember" thing is a riff on an old interview in which David Letterman asked Shaq about old-time players and Shaq admitted to not knowing who Beaty was). I stole the idea end each Civ Pro class session by telling the students to "Remember" someone who is in some obvious or non-obvious way relevant to something we did in class that day. Sometimes it is clear--David Souter on the day of Twiqbal or Milton Shadur on the day of his quixotic effort to get defendants to follow the damn rules in their responsive pleadings. Sometimes it is more obscure--Raymond James Donovan on the day of relation back, Tennessee Williams on the day of International Shoe, or Preston and Charlotte Grace on the day of tag jurisdiction Sometimes it is about the day rather than the course materials--Robert Briscoe (the Jewish former Lord Mayor of Dublin) yesterday. (I leave it to readers to figure all of these out). Once students overcome the initial confusion of why they are supposed to remember some random person, they have fun with it; at least one person does an end-of-semester creative project with pictures or biographical information on everyone they are supposed to remember.

Today we did the Coca Cola problem and I told them to remember Roberto Goizueta Cantera, the CEO of Coca Cola during the New Coke fiasco. Goizueta was born in Cuba, educated in the U.S., and worked for Coca Cola in Cuba before defecting after Castro came to power. Nevertheless, in the public blowback to New Coke, some people pointed out that he was Cuban and suggested that New Coke was a communist plot.

Thus the title of this post.

Posted by Howard Wasserman on March 18, 2022 at 01:29 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, March 16, 2022

The Younger analysis was not much better

Gerard explains why the district court in Cawthorn was wrong on the merits. Here is why the court was wrong in not abstaining under Younger.

    1) The court held that the federal proceedings had gone further and faster than the state proceedings, therefore the federal proceeding did not interfere with the state proceedings. This reverses the presumption that a state proceeding be allowed to continue and that the district court stay its hand. Courts consider the relative progress of the proceedings where the federal action is filed first; courts abstain if the federal action had not gone very far. (This is problematic, because it creates perverse incentives for prosecutors, but it is what we are stuck with). It does not work in reverse; if the state proceeding is filed first, the federal court cannot proceed, full stop.

    2) The court also said the relative progress and the multiple layers of state proceedings meant Cawthorn did not have an adequate opportunity to raise his constitutional arguments i. But adequate opportunity is about whether the party has an opportunity to raise and have resolved issues in the state proceeding, including on subsequent state judicial review of an administrative proceeding. Federal courts do not superintend (otherwise-constitutional) state processes and decline abstention if those state proceedings do not move to the liking of the district court.

    3) The court said this case iimplicates "federal interests in interpreting federal law and the U.S. Constitution." As stated, this swallows Younger. All Younger cases require interpretation of federal law and the U.S. Constitution; if the state proceeding involved only state law, the federal court would not have jurisdiction from which to abstain. So if interpretation of federal law is sufficient, no court would abstain. The whole point of Younger is that any "federal interest" in interpreting federal law is not exclusive or can be satisfied by SCOTUS review of the state proceedings.

The Fourth Circuit should not reach the merits, as Gerard suggests, because abstention, as defined, is warranted here.

Posted by Howard Wasserman on March 16, 2022 at 11:15 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Monday, March 14, 2022

What is a SLAPP law?

The Southern District of New York denied Donald Trump's motion for leave to amend to add an affirmative defense and counterclaim under New York's amended (and-retroactive?) anti-SLAPP law. I will test on this case this year or next, because it discusses several elements of denying leave to amend--undue delay, dilatory motive, futility. The court called out Trump's incompetent newish attorney for insisting that leave should not be denied for futility because they should not have to defend every use of the SLAPP at this stage; that argument ignored (or did not understand) that futility applies a dismissal analysis at the amendment stage--the court explores whether an amendment can survive dismissal and if it cannot, the court denies leave. The case also raises a nice Erie question--Judge Rakoff in Palin held the SLAPP law is retroactive but an intermediate state court held it is not; what is a district court to do going forward?

For this post, I want to focus on the court's analysis of the SLAPP law as it affects the futility analysis, because I think people are confused as to what a SLAPP law is and does. Trump wanted to add an affirmative defense and a counterclaim under the SLAPP law. The court rejected both. I think it reached the right conclusion for the wrong reason as to the former and may have been wrong as to the latter.

Defense

The court rejected the affirmative defense as futile because the SLAPP does not create an affirmative defense. It does not involve new facts and does not "knock[] plaintiff out of court if all the allegations of her complaint are true." Instead, it provides for recovery of fees for success and changes procedures applied to state-law actions.

But this seems to hang on semantics. We typically think of two types of defenses--failure of proof (the plaintiff cannot prove her alleged, disputed facts) and affirmative (new facts preclude liability if the plaintiff proves her facts). The SLAPP law does require new facts--the speech sued on must have some "connection with an issue of public interest" to trigger special procedural protections or to make attorney's fees available; although it is not clear Trump's lawyer pleaded them in the proposed amended answer (a distinct basis for futility), they are additional facts. Without those new facts, the SLAPP law still provides some type of defense--a way to avoid liability for a claim.

If the court is correct that SLAPP is not an affirmative defense to be pleaded in an answer, how or when does a defendant raise an anti-SLAPP law? Perhaps the law comes into play by providing the legal standards and mechanisms when Trump moves to dismiss. It is not a distinct defense, but the legal standard governing dismissal. I am not sure that is right. A party can assert failure to state a claim as an affirmative defense in a pleading rather than via motion; the SLAPP law provides a different standard for deciding a plaintiff  fails to state a claim. We might think about it this way--would/could Trump have pleaded the SLAPP law as a defense in an original responsive pleading? If a defendant planned to ask for anti-SLAPP attorney's fees (which are available in federal court) should he prevail, would he include that among the defenses pleaded in the answer? If so, it is a defense that can be raised in an amended responsive pleading.

If the court is right, this decision does not hurt Trump. Without this new answer, he can move to dismiss the complaint (coming post-answer it would be a motion for judgment on the pleadings, but same difference for these purposes) and argue that SLAPP procedures apply to that motion. He will lose on that, as explained below; but he will be able to at least attempt to assert the law not as an affirmative defense but as the legal standard for attacking the validity of the claim.

If the court is wrong and the SLAPP law is a defense that can be raised in a pleading, the court correctly denied leave as futile for a different reason--the SLAPP law's procedural provisions (other than the fees provision) do not apply in federal court, where FRCP 12 and 56 provide the standards and mechanisms for pre-trial review and rejection of a state claim. The amendment would be futile because the new defense would not survive a Rule 12(f) motion to strike an insufficient defense.*

[*] Futility generally applies to new claims that cannot survive a motion to dismiss. But an affirmative defense, which involves new facts and new law in the same way as a claim, can be futile if it cannot survive a motion to strike (the counterpart to dismissal for a defense).

Counterclaim

The court held amendment was futile as to the counterclaim because the SLAPP law does not apply in federal court, so the counterclaim would not survive a motion to dismiss. This was wrong.

New York's amended SLAPP law allows a defamation defendant to recover compensatory and punitive damages on a showing of improper purpose in bringing the defamation action; it is analogous to the tort of abuse of process (which often is asserted as a counterclaim to a specious tort claim). A counterclaim cannot be swept aside on Erie/Hanna grounds. Used as a counterclaim, the SLAPP law does not dictate the manner and means for adjudicating substantive defamation rights in Carroll's claim (the manner and means derive from the FRCP); it provides a distinct set of state-law rights and remedies for Trump for a distinct injury. Regardless of the counterclaim's chance of success, it is different than ordinary procedural rules for defending the defamation claim and cannot be deemed categorically unavailable in federal court.

Again, I am criticizing the court's reasoning more than its conclusion to deny leave, which was probably correct. It might have found the amendment futile (and denied leave to amend) by focusing on other reasons  the counterclaim would not survive a motion to dismiss. Perhaps the SLAPP law is not retroactive; perhaps the proposed amended pleading did not allege facts showing improper purpose. Alternatively, the court may have rightly denied leave for reasons other than futility, such as undue delay--Trump waited more than 14 months before seeking leave without good explanation. But the court's reasoning in rejecting amendment is problematic.

Posted by Howard Wasserman on March 14, 2022 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, March 11, 2022

No offensive challenges to SB8 against licensing bodies

In Whole Woman's Health v. Jackson, an offensive challenge to SB8, eight Justices (all but Thomas) held that litigation could proceed against state licensing bodies (medical, nursing, pharmaceutical, etc.) to enjoin them from "indirectly" enforcing the heartbeat ban by using performance of a prohibited abortion as the predicate for an administrative sanction. The Court remanded to the Fifth Circuit, which certified to the Supreme Court of Texas whether state law allowed such indirect enforcement. The state court on Friday answered that certified question "no," holding that making private civil litigation the "exclusive" enforcement mechanism meant that no state body had any power to regulate or sanction any person for any SB8 violations in any way.

This is a setback, although a relatively minor one because the action against the medical board could have limited effect. An injunction would have stopped the boards from pursuing licensure actions against providers. It would not have protected those aiders-and-abetters (advocates, Uber drivers, etc.); the state does not license or regulate them or their behavior. And it would not have stopped private "any persons" from bringing civil suits. The suit and injunction would have provided federal precedent declaring SB8 constitutionally invalid and a speedier path to SCOTUS review of the merits. But it would not have stopped the main enforcement mechanisms or cleared the way for providers to return to medical practice as usual.

There may be a way to salvage this action and push federal litigation. One plaintiff, Alan Braid (the doctor who announced having performed a prohibited abortion in the Washington Post), is a defendant in two state-court actions over that abortion, one brought by the Texas Heartbeat Project and one by a disbarred Arkansas lawyer under house arrest. Braid could amend the complaint to name them as defendants acting under color and seeking to enjoin them from pursuing their civil actions. (Braid also has a § 1983 and interpleader action in federal court in Illinois against a third SB8 plaintiff who nonsuited).

Meanwhile, Braid can move to dismiss the pending state actions on the ground that SB8 is constitutionally invalid and proceed to litigate the constitutional issues defensively in state court.

In a bizarre way, this might help judicial challenges to SB8. As Rocky and I argue, this offensive challenge was dubious, given how SB8 was drafted and how it operates. Unable to pursue any "ordinary" mechanism, providers and advocates can focus on unusual-but-available mechanisms on which they are more likely to succeed.

Posted by Howard Wasserman on March 11, 2022 at 01:20 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, March 07, 2022

Disaggregating government and its employees

Civil rights doctrine suffers from strange and inconsistent disconnects between government and government officials, especially law enforcement. Municipal liability is difficult (and state liability impossible) because individual officers are the presumptive targets of litigation. Individual officers have qualified immunity because it is unfair to hold them individually liable for all but the most egregious mistakes (and even then . . .). But indemnification means the municipality pays any judgment and thus bears the costs, if not the liaiblity, for the rare non-immune constitutional misconduct. The government bears the burden (and costs) to handle misbehaving officers outside of constitutional liability.

But that disconnect leaders to this Second Circuit case holding that the New York Police Benevolent Association, the officers' union, could intervene in a lawsuit challenging New York and NYPD policies during the 2020 George Floyd protests. The PBA, on behalf of its members, had a distinct interest in defending police policies and practices against constitutional challenge, an interest the government of New York City could not adequately protect. It is true that an employer's interest may diverge from that of its employees. But the logic of this decision places the union, on behalf of its members, on an equal footing with the municipal government and the department (which has never shown itself hostile to or willing to do anything about misbehaving officers) in making public policy and in deciding what policies are constitutionally valid and wise.

Posted by Howard Wasserman on March 7, 2022 at 09:19 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, March 03, 2022

If only they could sue the state

SCOTUS holds that the (new) state AG should have been allowed to intervene when the (new) secretary of health services declined to continue litigating the offensive challenge to the constitutional validity of a 15-week abortion ban. Justice Alito writes for 6; Kagan writes for herself Breyer, agreeing that intervention should have been allowed but objecting to majority grounding its analysis in constitutional imperatives surrounding state power to defend its laws; and Sotomayor dissents.

Of course, all of this could be avoided by recognizing that the state enforces state law (through whichever individuals state law designates) and allowing rights holders to sue the state to stop enforcement of the law (by whichever individuals state law designates). Were the challenges to the abortion ban able to sue and litigate against Kentucky, there would be no need for the federal court to consider intervention; the question of who is deciding Kentucky's litigation choices and strategy could be resolved within the state executive.

Posted by Howard Wasserman on March 3, 2022 at 05:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Egbert v. Boule argument

My SCOTUSBlog recap and the transcript. A couple of moments of levity, which I used in the headline. The first involves Gorsuch saying the Smuggler's Inn "has been disparaged in its quality today" and Boule's counsel interjecting "unfairly." The second involves Alito, asking why Boule told Egbert about his arriving guest and wondering what he might do if "one of us was going to check in" and Kagan adding "suspicious characters," which made Alito laugh.

I do not predict these things because I always get them wrong. But the argument went better for Boule than I expected. Everyone pushed Egbert's counsel and the U.S. about how this case differs from an ordinary 4th Amendment Bivens claim and did not push back much on Boule's argument that the analysis ends when events occur near the border. I do not know if that means Boule wins. But they seemed to be wrestling with the mess they created in Abbassi.

Posted by Howard Wasserman on March 3, 2022 at 09:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, March 01, 2022

The future of Bivens

I am covering Egbert v. Boule for SCOTUSBlog; argument is tomorrow. My preview is here. The plaintiff is a character--he runs the "Smuggler's Inn" B&B near the Canadian border, has "SMUGLER" as his license plate, knew that some guests used his property to get into Canada (his land abuts a fenceless border), and was convicted of violating Canadian immigration law for helping people cross the border. The case arose from Boule trying to keep a Border Patrol agent from questioning a B&B guest and the agent getting pissed off and reporting him to the IRS and other agencies. Given the characters involved, the case resembles Wilkie v. Robbins--western iconoclast who does not trust or want to cooperate with the government and government officials responding by abusing legal apparatuses to make his life difficult.

The case will tell us what, if anything, remains of Bivens. The cert petition asked the Court to reconsider Bivens, but the Court did not grant on that QP. The agent (although not the U.S.) argues that Bivens extensions are categorically barred. The question is whether being a Border agent and/or being near an international border overcomes the many ways this case is closer to Bivens than to the Court's recent rejections.

Posted by Howard Wasserman on March 1, 2022 at 10:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, February 28, 2022

JOTWELL: Erbsen on Bookman & Shanahan on lawyerless courts

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. (forthcoming 2022), which considers how procedure operates in the many courts dominated by pro se litigants. This is the latest in a run of articles and JOTWELL essays considering procedure on the ground outside of the federal courts we focus on in the classroom and in much scholarship.

Posted by Howard Wasserman on February 28, 2022 at 08:48 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, February 16, 2022

Solving the Procedural Puzzles of the Texas Heartbeat Act, Part I

The first of Rocky's and my (hopefully) three SB8 articles has been published in American University Law Review. This focuses on how providers cannot and can challenge SB8 through offensive litigation, including why WWH was correct and other offensive options the Court did not consider. AULR's editors were impressive in turning the piece around in less than three months after the Court's decision We are editing the second piece, forthcoming in SMU Law Review and focused on how defensive litigation may play out. The third piece, on New York Times as historical analogue, sits on a law review editorial desk near you.

Posted by Howard Wasserman on February 16, 2022 at 10:28 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, February 14, 2022

Weird procedure and Palin v. New York Times (Updated Several Times)

Jed Rakoff is an excellent judge. But his approach to Palin v. NYT has been procedurally bizarre.

First, he held an evidentiary hearing (testimony from James Bennett, the op-ed's primary author) in deciding a 12(b)(6) motion, without converting to summary judgment; the Second Circuit reversed. Second, Rajoff denied summary judgment, hinting that the evidence did not support actual malice by clear-and-convincing evidence but that it was not his job to weigh the evidence. This was proper, although unusual--most judges are not so forgiving of plaintiffs.

Today, Rakoff announced he would grant the Times's motion for judgment as a matter of law, although the jury is deliberating and he will allow the jury to reach a verdict. It is not unusual for a judge to let a case go the jury knowing he will grant JML. He gives the jury a chance to get it "right" and enters judgment on the verdict, insulating his opinion from appellate review. But he can resolve the case as he sees fit if the jury gets it "wrong." But it is unusual (and perhaps improper?) to announce that intention while the jury is deliberating. If any juror learns of Rakoff's announcement, that seems to provide a basis for reversal of a judgment on the verdict or at least a new trial--the deliberations become a sham if the jurors know how the case ends regardless of what they do. If there is a chance the jury learns of his announcement it presents at least a colorable new-trial or appellate issue that will make life tougher for the Times in defending the judgment. [Update: On further thought, Rakoff could grant a new trial, then grant summary judgment before the new trial begins or JML after the plaintiff's case n the second trial]

Further Update: Jury finds for NYT. This moots the above discussion, although it remains a weird process, unless we somehow learn that jurors learned about Rakoff's plan before the verdict. Watch out for news reports saying that NYT lives another day or that the Court or jury reaffirmed NYT, which reflect basic ignorance about what district courts do.

Further, further Update: It turns out the use of NYT and actual malice as the standard is based in part on New York's anti-SLAPP statutewhich codifies actual malice (likely as a hedge against SCOTUS overruling)* although in an amendment enacted after the op-ed was published. Judge Rakoff held, as a matter of New York law, that the law applied retroactively and the instructions to apply actual malice applied the statute and the First Amendment. Overruling New York Times as the constitutional standard would not change the standard under New York law, meaning the result would be the same. SCOTUS typically does not take cases that turn on state law.

[*] This presents the opposite of a zombie law--a statute that continues providing heightened protection of individual rights when the Constitution does not require that heightened protection. Like RFRA or RLUIPA. What do we call them? Super Laws, as they not only are no undead but enjoy extraordinary powers? I wish I had thought to include this opposite category in the paper.

Further, further, further update: The jury found out via push notifications on their phones. The jurors insist it did not affect their deliberations. Judge Rakoff notifed the parties and gave them the opportunity to seek any relief they believe appropriate based on this, while noting that no party objected to his plan to issue his FRCP 50 order while allowing the jury to continue deliberating. Everyone is scrambling to figure out what effect, if any, this will have.

Posted by Howard Wasserman on February 14, 2022 at 07:17 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, February 11, 2022

JOTWELL: Smith on Citron & Solove on privacy harms

The new Courts Law essay comes from Fred Smith, Jr. (Emory) reviewing Danielle Keats Citron & Daniel J. Solove, Privacy Harms, 102 B.U. L. Rev. ___ (forthcoming 2022), which explores how to better recognize and remedy privacy violations.

Posted by Howard Wasserman on February 11, 2022 at 10:04 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, January 22, 2022

District court preliminarily enjoins UF conflicts policy

From Friday. The opinion by Judge Mark Walker is near perfect. He loses a point at the end when the court appears to make the injunction universal by ordering UF to take no steps to enforce the conflicts policy "with respect to faculty and staff requests" to testify or consult on cases, not limited to requests from the plaintiffs. The court denied relief as to the policy prohibiting faculty from including institutional identification when signing amicus briefs, because the court could not determine whether that was a university or a "figment of Dean Rosenbury's imagination."

This is not a good opinion for defendants or their lawyers. The opinion begins by comparing UF to the erosion of academic freedom and free speech at Hong Kong University (including removal of a memorial to the victims of Tiananmen Square) not from overt actions of the Chinese government but from university administrators wanting to keep Beijing happy; footnote 12 adds that "[i]f those in UF's administration find this comparison upsetting, the solution is simple: Stop acting like your contemporaries in Hong Kong." The court emphasized the intemperate statements of the chair of the Board of Trustees, which Walker said "made plain that UF was beholden to the Florida Legislature and that it would not permit its faculty to continue offending lawmakers in Tallahassee." Walker calls out UF's lawyers for: 1) failing to adequately brief Pickering or to recognize Pickering as applicable; 2) trashing the plaintiff professors (who continue to work for their client and to educate the students who pay their client for an education) as traitors, robbers, mercenaries, political hacks, and disobedient liars; and 3) failing to identify UF's interests or how professors' testimony disrupts UF's mission despite four opportunities to do so (including the court continuing argument for a week to give defense counsel an opportunity prepare).

The opinion came on a rough day for the State University System. FIU President Mark Rosenberg resigned out of the blue citing family health reasons, an explanation the Miami Herald eyed with suspicion. This comes a week after FIU's provost resigned. Four Florida universities--FIU, UF, North Florida, and South Florida--are about to enter presidential searches. And the state is considering legislation (when not working on bills compelling the national anthem, prohibiting public-school teachers from talking about LGBTQ+ issue or helping LGBTQ+ kids, and prohibiting teaching historical events that make white people feel bad) that would exempt early stages of presidential searches from sunshine laws. And now a federal court found that the flagship university regards faculty with, at best, contempt.

Posted by Howard Wasserman on January 22, 2022 at 04:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Judicial Process | Permalink | Comments (0)

Friday, January 21, 2022

Republicans and conservarives love univeral injunctions now

Again. As if the handwringing and all that legislation was not based on any real commitment to particularity.

Judge Brown tries to play reluctant universalist, citing Gorsuch and Thomas, calling it a product of the "unique facts before it" and the only way to avoid confusion. Nonsense. He offers one fact to justfy universality--the plaintiff, Feds for Medical Freedom, has a lot of members and continues to add more. But like most justifications for universality, this proves too much. Many organizations have a lot of members. Is universality appropriate in all associational standing cases? Only in associational standing cases involving large associations? And if so, what makes an organization large? Feds for Medical Freedom (Except The Other Vaccinations We Had To Take And Blood-And-Urine Samples We Must Provide) has 6000 members*--where does largeness begin? Or is it only large organizations fighting for causes Judge Brown likes?

[*] Does largeness depend on some denominator? The federal workforce is more than 2 million people.

The claim that tailoring relief is not practical is a cop-out. Here is a tailored injunction--"The US cannot enforce the vaccine policy against members of FMFETOVWHTTABAUSWMP." Ordinary rules of equity have the parties and court monitor ongoing compliance with that injunction and adjust the injunction to changing circumstances--identifying group members, litigating attempts to enforce the policy against individuals, and notifying the court of new FMFETOVWHTTABAUSWMP members who gain the protection of the injunction (which does not even require the court to modify the injunction, since the association is the protected party). It makes no sense to preemptively declare that process "unwieldy" and expand the scope of the injunction from the 6000 members to more than 2 million people who are not members.

Don't worry, though. Judge Brown will take a strong stance against universality beginning in 2025.

Posted by Howard Wasserman on January 21, 2022 at 03:50 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 19, 2022

Judge Scola pulls no punches

From Judge Robert Scola of the Southern District of Florida, pulling no punches in cancelling a scheduled jury trial.

Posted by Howard Wasserman on January 19, 2022 at 01:18 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 17, 2022

Fifth Circuit certifies to Texas Supreme Court

Over a dissent, the panel certifies the following to the Texas Supreme Court:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207 and 171.208(a) of the Texas Health and Safety Code.

I think this is nonsense, an obvious attempt to delay resolution of the question of SB8's constitutional validity. And I agree (for once) with Slate's Mark Joseph Stern that the lower courts are trying to run out the clock until Dobbs (they hope) overrules Roe and Casey. But this delay is not keeping abortion a dead letter in the state.

Imagine everyone had not dragged their feet. The case returns to the district court, which declares SB8 invalid (Judge Pitman so held in U.S. v. Texas). Now what? The injunction would prohibit the medical boards from taking administrative actions against any plaintiff doctor or provider who performs a post-heartbeat abortion. That is the extent of the court's remedial power in that limited case. The injunction would not prohibit private individuals, who are not parties to the case, from filing SB8 lawsuits for damages. The injunction would not protect non-medical providers (who are not subject to the boards' regulatory authority) from aiding-or-abetting lawsuits. The decision would provide persuasive precedent as to SB8's constitutional validity and would move the case towards SCOTUS review on that issue. But the judgment would not enable providers to resume post-heartbeat abortions, because it would not protect them from the private suits that is the real cause of the chilling effect.

Meanwhile, three state-court actions remain pending and no one seems to be doing anything in them.

Posted by Howard Wasserman on January 17, 2022 at 07:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 13, 2022

Zombie Laws

Has been published in Lewis & Clark Law Review. Here is the abstract. Forever grateful to Judge Costa for labeling this concept I had been thinking about.


A judicial declaration of constitutional invalidity does not erase a challenged law. Such a law is “dead” in that enforcement efforts will not succeed in court, where judicial precedent binds and dictates the outcome in future litigation. But such a law is “alive” in that it remains on the books and may be enforced by a departmentalist executive acting on an independent constitutional judgment. Judge Gregg Costa has labeled these statutory remainders “zombie laws.”

This Article describes several principles that define constitutional litigation, how those principles produce zombie laws, and the scope and nature of zombie laws. It then describes how Congress or state legislatures can eliminate or enable future enforcement of zombie laws by repealing or retaining them, depending on their views of judicial precedent and what they want to see happen with their laws in the future.

And just because all scholarship should have music attached to it:

 

Posted by Howard Wasserman on January 13, 2022 at 08:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 10, 2022

JOTWELL: Kalajdzic on Freer on class actions in the Roberts Court

The new Courts Law essay comes from Jasminka Kalakdzic (Windsor), reviewing Richard D. Freer, The Roberts and Class Litigation: Revolution, Evolution, and Work to Be Done, 51 Stetson L. Rev. (forthcoming 2022).

(Freer's article is part of a symposium on procedure in the Roberts Court after 15 years; my piece on the Year-End Reports is part of the issue, which arose from a 2020 SEALS discussion group).

Posted by Howard Wasserman on January 10, 2022 at 11:14 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, January 07, 2022

The return of three-judge district courts?

Steve Vladeck proposes as a solution to the problems of shadow dockets, emergency litigation, and plaintiffs shopping for one judge (often in a single district or division) to issue the injunction that will provide the basis for emergency relief. Steve is correct about three-judge courts with immediate SCOTUS review as the solution to those problems--plaintiffs cannot judge-shop, cases move quickly but in a less emergent way, decisions should better and better explained, and the process will look more normal.

I would propose an addendum that three-judge courts do not solve the distinct problem of universal injunctions, because having three judges as opposed to one judge does not overcome the basic limitation on the court's remedial power and the inability of any court to bind or protect non-parties with its judgment.

Posted by Howard Wasserman on January 7, 2022 at 11:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thursday, January 06, 2022

The spreading demand for offensive litigation

The demand/assumption that all constitutional and civil rights litigation must be offensive forms the core of the procedural complaints surrounding SB8. It is constitutionally and legally intolerable for there not to be a mechanism for offensive, pre-enforcement constitutional review, before anything happens. And it is constitutionally and legally intolerable to make a rights holder suffer a violation and seek defensive or retroactive remedies for the violation. And the insistence is spreading, which gives lie to the SB8-exceptionalism arguments. Consider:

Med mal plaintiffs unwilling to deal with the constitutional validity of the state's damages cap within the tort suits they brought, instead trying to carve the constitutional issues into a separate federal lawsuit.

Animal rights organizations suing to stop the filing of tort claims that might implicate the First Amendment. This one is particularly relevant to the SB8 debate. Critics of my arguments have insisted that the abortion right is different because of the large numbers affected, so that allowing the claims in WWH would not allow speakers to beat potential tort suits into court.

• In a case currently before the Fifth Circuit, United Airlines pilots allege that the company's vax requirement constitutes religious discrimination under Title VII and seek an injunction to stop the airline from placing them on unpaid leave for failing to get vaccinated. This lawsuit has no basis in Title VII, which requires an actual adverse employment action (such as placement on unpaid leave) that has not occurred; the expectation under the statute is that the plaintiffs suffer the adverse action, then sue for damages or to undo it. Nevertheless, two judges on the Fifth Circuit panel seemed receptive to the plaintiff's argument, accepting the view that retroactive remedies against a completed (as opposed to threatened) are insufficient.

• The First Circuit denied rehearing en banc in Equal Means Equal v. Ferriero, leaving a unanimous panel dismissing for lack of standing. Plaintiffs are women and women's organizations seeking an injunction compelling the U.S. archivist to declare the ERA ratified. The plaintiffs claimed that, without the archivist certifying and publishing the ERA as ratified, Massachusetts and state law did not do enough to stop or prosecute gender-based violence. The court held that the archivist did not cause plaintiffs' harm--that harm resulted from Massachusetts not vigorously protecting women from gender-based violence, including by punishing it as a hate crime (query whether the ERA would require states to bring hate-crimes charges in all gender-based violence cases, any more than the 14th Amendment requires hate-crime charges in all racist violence). The lawsuit also presumes that ERA-compelled hate-crimes charges would stop future gender-motivated violence. The whole thing reflects an insistence that legal questions--is the ERA valid--must be decided in the pre-enforcement ether, rather than on the ground where the state acts ex post and the question for the court is the state of the law in response to that situation.

• On this unfortunate anniversary, we can return to a question that was all the rage one year ago--what if Trump had self-pardoned and who would have standing to challenge that pardon and how. Everyone created all manner of fanciful lawsuits, ignoring the obvious--DOJ would prosecuted Trump, Trump would defend with the pardon, and the court would decide its validity. The idea that the constitutional issue would be resolved defensively never entered the conversation.

Posted by Howard Wasserman on January 6, 2022 at 12:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, January 05, 2022

UF profs have standing to challenge outside-activities policies

I was wrong on this one. The district court held that the professors have standing and that the amended policies did not moot the case. A few thoughts:

• The court was more forgiving than I expected in defining the plaintiff's intention to engage in future conduct. It was sufficient that they intended to participate in future litigation adverse to the state; the court ignored the speculative intermediate steps by third parties that must occur before the policy can be applied to them (someone must file a lawsuit, someone must seek to hire these plaintiffs, etc.). This is a better approach, but it is more forgiving than courts often are, certainly outside the First Amendment context.

• The court found an intention to enforce the (amended) regulations and either deny permission or retaliate against them for testifying off several points. First, the court inferred intent to enforce from the fact that the state continued to defend this lawsuit. Eleventh Circuit case law allows that, but it seems circular--there is standing if the state defends, but if the state failed to defend the plaintiff would win by default or the state would confess judgment. Second, and much more fun, the court relied on a rant by the Chairman of the Florida Board of Governor, then days after the UF president adopted the new policy with the hope of lowering the temperature or making the problem go away. The chairman went off about putting a stop to the "wrong" of faculty members who "improperly advocate political viewpoints" and how state leaders who support the school are "fed up" with what professors are doing. As the court characterized it, "[i]n short, Plaintiffs’ activities anger Tallahassee, that threatens the University’s funding, and so the University must halt Plaintiffs’ activities. . . . Here, the threat is explicit, and so Defendants have 'a problem.'” Sometimes they cannot help themselves and they make this too easy.

• The case was not mooted by the school granting permission to testify or by recent changes to UF's outside-activities policies, following the recommendations of an advisory committee (creating a presumption in favor of permission and requiring heightened proof to deny permission). As to the latter, the amended policies do not correct what the plaintiffs allege to be the constitutional defects in the policy--the lack of a time limit for deciding (which allows the university to run out the clock), the unbridled discretion, and the possibility that the university might deny permission to avoid pissing off the governor and the Board.

As to the former, this illustrates the importance of framing the case. To the extent the plaintiffs sued to reverse the recent denials of permission, the rescission of those denials would moot the case--they got what they wanted. But the plaintiffs framed the case as a broader challenge to future applications of the outside-activities policy against future attempts to serve as experts, which are likely once the current "firestorm" dies down. That latter framing works only if they will testify in the future, which they satisfied through the court's forgiving approach to future intent.

Posted by Howard Wasserman on January 5, 2022 at 09:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, January 03, 2022

Federal Judge: "Stop wasting my time with your § 1983 lawsuits"

(H/T: Eugene Volokh), from Brock v. City of Ord, NE: Guy Brock is a town gadfly who sent letters of complaint to various municipal officials; those officials agreed to sue Brock in state court seeking damages and an injunction prohibiting from sending letters to town officials unless related to him or his property; the state claim was dismissed. Brock then filed a § 1983 action seeking damages; the court denied a 12(b)(6) motion, concluding Brock stated a claim and the officials were not entitled to qualified immunity (because it should be pretty damn obvious that you cannot get a prior restraint to stop people from complaining about public officials).

But then there is this:

But just because this case will be permitted to proceed doesn't mean it ought to. All of the people involved with this lawsuit should regret being here. To begin with, nearly every public official draws the attention of critics and cranks who have opinions they insist on sharing. This Court has no shortage of its own pen pals. But rather than accept that as one of the privileges of public service, the defendants decided to pursue a lawsuit that asked a state court to impose a prior restraint on the plaintiff's speech. The plaintiff, for his part, prevailed in that case, and for his part could have been content with having his First Amendment rights vindicated by that victorybut instead, he's filed another lawsuit in response, despite facing no current peril.

This Court's docket is full of cases genuinely implicating lives,livelihoods, and libertybut instead of addressing those claims, the Court finds its attention diverted by having to referee this squabble.

Shorter: "Yeah, I guess the defendants did a bad thing, but the plaintiff is really in the he wrong here. He fought back the attempted constitutional misconduct and no longer faces any constitutional violations, so he should take that victory and go home. Stop bothering the nice officials of Ord, NE or wasting my precious life-tenure time."

Judge Gerrard (an Obama appointee, by the way, so this is not partisan) is essentially telling people not to file § 1983 damages actions, at least where no physical or property injury, and thus real money, is not at stake. A purpose of § 1983, as expanded in Monroe, is to provide a vehicle for retroactive remedies after the constitutional violation has ended and the constitutional peril has ended. Damages compensate the plaintiff for any costs incurred (e.g., Brock hired a lawyer to defend the bullshit state-court proceeding) and to deter defendants from future constitutional misconduct (not getting away with an attempted violation will not deter--that officer may say "oh well, it didn't work that time, maybe it will work next time"). Addendum: We also should take issue with how Gerrard minimizes this as a "squabble" that he must "referee," as opposed to a blatant, if small-value and non-systemic, abuse of government power and attempt to stop a member of the polity from exercising a constitutional liberty.

Imagine a judge writing this about Monroe, which involved some physical misconduct (pushing or kicking Monroe and his family) but no real physical harm; mostly it was about police entering and trashing the house without a warrant and Monroe's arrest and 10-hour detention. He was released from detention and never charged, meaning his rights were "vindicated" and he faced "no current peril." Perhaps Fourth Amendment rights are different and more worthy of retrospective litigation--they affect lives, livelihoods, and liberty. But the First Amendment is a pretty important liberty, even if its monetary value is small.

This is a timely issue because I am waiting to see whether we see § 1983 actions from the various municipal attempts to make people remove "Fuck Biden" signs from their yards and homes. Those actions would fit the category of case Judge Gerrard does not like--their rights were vindicated when the municipal-court actions failed and they face no current peril, so they should take their victory and go home rather than wasting his precious time.

I am preparing to teach Civil Rights this semester and I am working on the next edition of my book. Judge Gerrard's rant will find a place in both.

Posted by Howard Wasserman on January 3, 2022 at 11:28 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, December 31, 2021

2021 Chief Justice Year-End Report

This ball still drops, even during a pandemic.

This year's theme is the Judicial Conference (which marks its centennial in the coming year) and the importance of the judiciary's "institutional independence," as the "power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government." The opening historical ditty is about Taft and the origins and development of the Conference. Roberts then analyzes three topics flagged by Congress and the press as requiring the Conference's attention: Recusal obligations (in light of the recent WSJ report), judicial misconduct (implementing the Working Group's recommendations), and venue in patent cases.

I have an article coming in early 2022 in Stetson Law Review on the history of the Year-End Reports and how the chiefs have used them to address and push for changes in civil procedure and civil litigation.

Posted by Howard Wasserman on December 31, 2021 at 06:23 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, December 28, 2021

An inexplicable lawsuit

A class of of state med mal plaintiffs sued a bunch of doctors, hospitals, professional associations, health networks, the Attorney General, and several state judges; the plaintiffs want a DJ and injunction declaring that the Seventh Amendment is incorporated and that Texas' cap on non-economic damages violates the Seventh Amendment. Bloomberg reported on the order dismissing claims against the judges in light of WWH (because everything comes back to SB8). Otherwise, the case seems to be moving towards a hearing on the request for injunctive relief. But I am baffled by how this case is moving forward. Other than the AG arguing that plaintiffs lack standing because their federal claims depend on winning their cases and showing entitlement to non-economic damages that would be limited by the cap, the remaining defendants' briefing has focused on the merits of whether the Seventh Amendment should be incorporated and whether the damages cap is constitutionally invalid.

But this case should never go near the merits. That the parties and the court are steaming headlong towards that reveals how litigants and courts have disconnected constitutional litigation from, well, litigation.

First, we should be clear about context. This is not SB8--potential state-court defendants run to federal court with their potential federal defense to liability, seeking a remedy that would prevent state litigation. Here, the federal plaintiffs are the state plaintiffs and most of the federal defendants are state defendants; the plaintiffs have lopped off one piece of the state litigation that they initiated--their constitutional challenge to their anticipated defense--and turned that into a federal case, the resolution of which would control the state litigation. Let us count the ways that this is not permissible.

No Cause of Action. Both § 1983 and Ex parte Young require a defendant who acts under-color. Private litigants do not act under color when they avail themselves of ordinary laws and rules within litigation--especially when they are defendants in that litigation, dragged into court by the plaintiffs. So the state-court defendants (doctors, hospitals, and providers) should not be subject to this suit.

Eleventh Amendment/Lack of Standing. The AG did not argue, relying on WWH, that it does not enforce the damages cap, which arises in private tort litigation, not through any governmental enforcement. Maybe the AG has some "residual" enforcement power that has not been disclaimed. But it seems odd not to raise it.

Lack of Subject Matter Jurisdiction. Standing aside, I do not see how this action arises under federal law. Mottley provides the analogue--plaintiffs have state-law claim, defendants have a statutory defense (federal in Mottle, state here, but the point is the same), plaintiffs argue that the statute on which the defense will rely is constitutionally invalid. Mottley held that the defense and response to the defense does not provide federal jurisdiction under the Well Pleaded Complaint Rule; instead, the state court adjudicates the defense and federal response and the Supreme Court can review that judgment. But imagine that after filing their breach-of-contract claim, the Mottleys sued the railroad in federal court for a DJ that the free-pass law (which they expected the railroad to raise in defense) was constitutionally invalid--that is this case. But allowing that claim would undermine the WPC, by allowing the federal response to a defense to provide the basis for a federal forum, rather than leaving the entire case in state court subject to SCOTUS review.

If the medical defendants do not act under color and § 1983/EPY cannot provide the cause of action, the cause of action must be the DJA. But then we have a version of a Skelly Oil problem--a party impermissibly basing federal jurisdiction off an issue that would not arise on the face of the WPC in the enforcement claim in state court. And, again, this case is a step removed from Skelly because this is not the state defendant trying to beat the state plaintiff into court, but the state plaintiff trying to forum-shop by breaking up the case.

Now there is an argument, with which I would agree, that the WPC is wrong--cases such as the underlying med mal actions, in which a federal issue is certain to play a major role, should be deemed to arise under. But that is not the world in which we live. And plaintiffs should not be able to subvert the rule that we are stuck with.

Abstention. No one has raised Colorado River abstention, although it would seem to fit. The state actions were filed first (by the same people filing the federal action), it creates piecemeal litigation by breaking a key issue in the state case into separate federal litigation, and there is no reason to believe the state court cannot adjudicate the federal issues.

I do not understand the point of this strategy--what do they gain by pursuing the issues in this posture? They must want a federal forum, but they are not legally entitled to it. They must want one injunction and judgment stopping defendants from raising the damages cap. But not every doctor or (I presume) every hospital, clinic, and health-care provider is a defendant and thus not every doctor and provider can be subject to the injunction. No single person or entity can be enjoined in a way that protects the entire class. They are proceeding on the understanding that the law itself can be declared or enjoined, but that is not how this works--remedies run against persons ("any interested party" in the language of § 2201).

This action should be rejected on procedural grounds. But neither the defendants nor the court seem to recognize the many problems with this suit.

Posted by Howard Wasserman on December 28, 2021 at 02:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, December 20, 2021

Trump tries to fight Younger again

Donald Trump filed suit in federal court against New York AG Letitia James, seeking to enjoin James from continuing with the state investigation of him and the Trump Organization. He supported the pleading with an unhinged rant. The suit has everyone reviewing their notes on Younger abstention. George Conway read Trump's rant as an attempt to invoke the "plaintiff-is-cuckoo-for-Cocoa-Puffs" exception to Younger.

This is not the first time Trump has run to federal district court to avoid a state investigation or that he has had to tangle with Younger. He did the same thing against Manhattan DA Cy Vance's subpoenas seeking Trump's tax returns. The district court abstained, rejecting arguments about bad faith and presidential immunity. But the Second Circuit reversed on that (while affirming on the merits, which SCOTUS then affirmed). The Second Circuit held that Younger's core justification is avoiding friction between state and federal governments, but that friction is present in actions involving state proceedings against federal actors, thus the avoiding-friction rationale does not push the federal court towards abstention.

It was a nonsense basis for avoiding abstention. But whatever its merits, it does not apply to a former President hoping to avoid conduct unrelated to his office. Trump's best shot is bad faith (which the complaint and the rant set-up), but I doubt a court will find that it would be impossible to obtain a valid investigation or conviction. And that a prosecutor is a political rival of the target, without more, should not establish harassment.

Trump's Younger problems mirror a point in a Guardian article about Trump's increasing anxiety over the January 6 investigation--"The trouble for Trump – and part of the source of his frustration, the sources said – is his inability, out of office, to wield the far-reaching power of the executive branch." His position within the executive branch and holding federal power helped him avoid Younger the first time; it is not available now.

Posted by Howard Wasserman on December 20, 2021 at 06:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Friday, December 17, 2021

Dorf on limiting bounty hunters

In (properly, IMHO) rejecting what he called the courts-and-clerks theory in WWH, Justice Gorsuch argued that this litigation theory lacks a limiting principle--every defamation defendant with a First Amendment defense would sue the clerk to stop the filing of the threatened lawsuit. Michael Dorf offers a limiting principle; Rick responded on Twitter to question the idea that the federal Constitution prohibits states from selectively weakening their standing rules; pointed to my post arguing that the Florida law allowing parents to sue schools for teaching that slavery and Jim Crow were bad things is not like SB8; and urged me to respond to Mike's column. So here goes.

I think this is the money graf from Mike's column:

Likewise, if a state so loosens its standing rules in the way that Texas did for SB8, and if it does so for the obvious purpose of insulating from federal judicial review a law that chills the exercise of a constitutional right, then it is appropriate to adapt the analysis of Vermont Agency for a different purpose: to determine whether the plaintiffs who sue under that law are bounty hunters who have been delegated power by the state rather than garden-variety private parties whose efforts to seek remedies for their own injuries also provide public benefits. In the rare circumstances of a law like SB8, then, the equitable remedy of Ex Parte Young would be available against state court clerks, the state attorney general, and any other government officials over whom jurisdiction would be necessary to vindicate constitutional rights and frustrate the state’s efforts to circumvent its legal obligations.

I will respond with three points.

I do not think there are any circumstances in which clerks and judges can be sued as the mechanism for enjoining enforcement of a law for which they are not the enforcing officials. Ex Parte Young nor § 1983 are designed to allow suits against those who enforce the laws--in § 1983 terms, those who "subject or cause to be subjected" the plaintiff to a violation. Judges and clerks do not do that.

Mike may be correct that there are federal constitutional limits on state standing or procedural rules, including equal protection limits to selectively altered standing or venue rules. But those constitutional defects do not create the predicate for offensive federal litigation where none existed; instead, they are further federal defenses to be raised in the state proceeding and that might provide a basis for SCOTUS review.

There is something to Mike's distinct between bounty hunters and ordinary plaintiffs. What flows from that is not an overhaul of the process. Instead, it is to convert the bounty hunters--who are the enforcers of the law--into state actors subject to pre-enforcement suit or to a post-enforcement § 1983 action for damages.

Posted by Howard Wasserman on December 17, 2021 at 12:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Fed Soc Courthouse Steps on SB8

Stephen Sachs and I did an episode of the Fed Soc Courthouse Steps podcast on the SB8 cases and what happens next. We were wrong about one thing--the Court remanded not to the district court (the expected move after cert before judgment and the partial affirmance of the district court) but to the Fifth Circuit, where Texas now asks for certification to the Texas Supreme Court of the state-law question of whether the licensing boards can use SB8 violations as the predicate for administrative action.

These steps slow the already-limited effect of any pre-enforcement offensive injunction. The focus must shift to defending the three pending state-court actions.

Posted by Howard Wasserman on December 17, 2021 at 11:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, December 16, 2021

Not everything is SB8, or abandoning the private attorney general

Anthony Colangelo (SMU) warned that people seem "hypnotized" by the admitted strangeness of SB8, at the risk of throwing away established procedure, much of which benefits left positions.

Case-in-point: Florida Governor Ron DeSantis announced Wednesday a new proposal giving parents a cause of action to sue schools for teaching Critical Race Theory (which a different law enacted earlier this year prohibits). This is a stupid proposal, which, given the source, is redundant. But the use of private civil litigation sparked immediate, and inaccurate, comparisons to SB8. Ed Kilgore in New York Magazine complained about "pernicious vigilante enforcement"  that allows parents who do not want their children to learn accurate history to "[s]trike a blow against wokeness and get paid!" It "create[s] a witch-hunt atmosphere complete with financial incentives for nuisance lawsuits."

This overeaction--again, to a stupid, pernicious, anti-intellectual, ahistorical proposal that should be opposed on its merits--threatens to throw away essential private civil rights enforcement in a way I doubt the author wants to intends.

An action under this bill is indistinguishable from a § 1983 action challenging the removal of a book from the library or the a school conducting a Mass as part of its Christmas play. The school has legal obligations (do not remove books in a way that violates the First Amendment, do not endorse religion), students (and their parents) have rights (not to lose access to a book, not to be compelled to engage in religious practice), § 1983 authorizes a person to sue the school and school officials for remedies for those practices, and § 1988 allows them to recover attorney's fees. This stupid bill imposes on schools an obligation (do not teach CRT), gives students (and parents) a right (not to be subject to learning CRT), and authorizes the students and their parents to sue for remedies for those practices, including attorney's fees. The rights at issue in the § 1983 action are constitutional while this is a state statutory right, but that distinction does not matter. (Imagine a federal statute requiring schools to "maintain age-appropriate literature in the library" and a private right of action and we would be in the same place).

The distinction lies in how critics of this law such as Kilgore feel about the substantive rights at issue. He (like most liberals) does not want school to pull Beloved or Slaughterhouse Five from the school library and does not want schools to impose on students participation in a Catholic Mass; he does not want schools barred from teaching CRT (which we all know is code for teaching the historical truth about slavery, Jim Crow, segregation, redlining, police abuse, etc.). But then frame the objection in those terms; focus on the inanity of saying that stopping the teaching of Jim Crow is necessary to stop the U.S. from becoming Cuba in 1961. The problem with this bill is its substance, not the enforcement procedures.

Kilgore's complaints about the private cause of action could have come from any conservative critic of students and parents who file civil rights lawsuits against schools: "Section 1983 allows parents to '[s]trike a blow against [Christianity, good morals, age-appropriate education, simple patriotism] and get paid!'" "Section 1983 and § 1988 create a witch-hunt atmosphere giving financial incentives to file nuisance lawsuits."  Framing the objection in procedural terms and treating all private attorneys general as the equivalent of SB8 undermines essential civil rights enforcement. And the point becomes more obvious if we take it out of schools and think about anti-discrimination laws or environmental laws. Conservatives have been complaining about these frivolous lawsuits against government for years. Making that the crux of the debate over this stupid Florida bill plays into their hands and will have harmful consequences for civil rights enforcement.

There is interesting potential for dueling claims that put schools in a bind. Can a parent bring a claim because Beloved is in the school library? And what happens if removing the book to appease that parent subjects the school to a First Amendment suit by someone who wants the book in the library? Fun times.

Posted by Howard Wasserman on December 16, 2021 at 12:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, December 12, 2021

California threatens to follow Texas

California Governor Gavin Newsom reacted to SCOTUS's decision in WWH by announcing plans to create an SB8-style law making actionable the manufacture, sale, or distribution of assault weapons or ghost gun kits or parts. Everyone is trotting out the told-you-so's, as we see the slippery-slope prophecy realized. Except for the lefties insisting that the five Justices who rejected most offensive claims in WWH will find a nonsense distinction in this case.

I would be shocked if this produces a formal bill, much less a law, as opposed to Newsom grandstanding. Especially if the few pending SB8 actions move forward to their appropriate and inevitable defeat, perhaps followed by successful § 1983 damages actions against those plaintiffs. This strategy cannot work in the long term; judicial procedure is equipped to address and vindicate rights in a defensive posture. Litigation takes time, energy, and resources--which is what the objections to these laws are about.

The irony of the first threat coming from California, of course, is that California's pre-2004 consumer-protection laws authorized "any person" to sue for damages against false advertising. When a plaintiff sued Nike over false statements in what clearly should have been understood as non-commercial speech (addressing public controversy over its foreign-child-labor practices), no one questioned the lawsuit, and the First Amendment issues, playing defensively in state court. Justice Breyer wrote a blistering dissent from the DIG, but never doubted that it was proper for California to rely on private enforcement of its laws, even by someone lacking any injury.

Posted by Howard Wasserman on December 12, 2021 at 11:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, December 11, 2021

Putting the "judicial" in judicial departmentalism

Justice Sotomayor's dissent rests on judicial supremacy, that popular branches violate the Constitution when they act contrary to SCOTUS precedent, likening this law to Calhoun and nullifcation. Josh Blackman takes the dissent to task, mostly on the principle that the Supremacy Clause does not include judicial opinions as part of the supreme law of the land.

I want to offer a different spin on two points Josh makes in conclusion.

He writes:

I think Abraham Lincoln would be appalled by Justice Sotomayor's ode to judicial supremacy. Lincoln favored the supremacy of actual federal law, but sought to narrowly construe the scope of Dred Scott, a judicial usurpation. Indeed, S.B. 8 was enacted in the spirit of Lincoln--do not violate a Supreme Court precedent, but do not give it any more effect than the law requires.

SB8 violates a Supreme Court precedent--it enacted a law banning pre-viability abortions, which precedent says a state cannot enforce. (In other words, the state enacted a zombie law, a new law whose constitutional validity (under judicial precedent) is plain. I think Lincoln would say "indeed, but that is ok." Lincoln's First Inaugural hinted at a more brazen position. He would have continued to enforce the Missouri Compromise--the law declared invalid in precedent--as to parties and situations not involving Dred Scot and Sanford. That is, he would have violated the precedent of Scot. Lincoln recognized that judgments as to parties are binding; everything else is fair game.

Josh concludes this way:

Justice Sotomayor, and her colleagues, do not understand who decides. They firmly believe that a gaggle of Justices can set national policy, and those decisions are in fact the Supreme Law of the land. They are wrong.

The practical reality is that the Court gets the final word on most constitutional questions. At some point a case challenging the validity of the heartbeat ban finds its way into court and litigation; a court applies Roe and Casey to declare the law invalid or overrules Roe and Casey to declare it valid. Either way, the court decides. The point of judicial departmentalism is that the court decides within litigation and that outside litigation other branches can do as they wish. Litigation takes time and effort and is not always efficient or simple; a state can delay the inevitable if wiling to pay political or actual costs, with negative consequences to rights and rights holders. And litigation is piecemeal, resolving issues as to discrete parties and discrete disputes, but leaving for future litigation issues involving different parties or disputes. The dissent's position insists that subsequent and repeated litigation should not be necessary--a state must fall in line with the Court's basic statements and it undermines the Constitution by acting otherwise and forcing new litigation and forcing the court to decide anew.

Update: I mistakenly left comments open and a few people left thoughtful comments. Then the bullshit started, so I have closed them.

Posted by Howard Wasserman on December 11, 2021 at 12:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Suing sheriffs

The Court's SB8 decision is, depending on perspective, a limited victory for providers (some limited path to offensive litigation, a federal DJ, and federal precedent) or a tragic defeat (nothing stops private plaintiffs from filing SB8 actions against providers and advocates). The search continues for some defendant(s) whom a federal court could enjoin so as to stop all SB8 suits.

A new theory is to sue sheriffs and other local law-enforcement who would enforce the damages and injunction awards in a successful SB8 case. This has been kicking around the ConLaw Prof listserv for months and Ilya Somin lays out the case. The theory is that by an enforcing a negative judgment against the defendant, the sheriffs are adverse to that defendant; that is different than clerks and judges, who act before the defendant's liability has been established.

I do not believe it works--or at least I doubt the five Justices who rejected what Gorsuch called the "clerks-and-courts" theory would accept it. Here is why:

1) The sheriff and the litigation loser are not adverse, independent of the judgment. The adverseness remains between the defendant and the plaintiff who successfully sued him for violating the law. The sheriff and the clerk operate the state machinery in which the party's adverseness plays out (machinery that allows assertion of constitutional issues), at opposite ends of the process. But both are neutral between the parties and the rights, claims, and defenses asserted, other than as they are found by the court. The sheriff has no interest other than in enforcing a presumptively valid judgment.

2) It similarly interferes with the state judicial process by depriving courts of the opportunity to hear and decide cases within their jurisdiction. It rests on the same erroneous premise that having to litigate (as opposed to being held liable on the claim) violates rights. The state judge may rule in favor of the provider (in fact must, if she follows binding prededent), in which no constitutional violation occurs. A losing party cannot challenge an unfavorable state judgment by enjoining the sheriff from enforcing that judgment; the loser is expected to appeal. It makes no sense to allow a party who has not yet lost (or even been sued) to preemptively challenge the judgment before it is entered. Along those lines, note that no federal claim lies against the sheriff if the judgment is enforced and later reversed; the defending party goes through the state proceedings to disgorge whatever he lost.

3) The sheriff's task in enforcing the judgment is ministerial. The sheriff has no discretion whether to enforce the judgment, as the clerk has no discretion whether to accept the order. The sheriff likely does not know or review the substance or merits of the underlying judgment. Sheriffs would have to review and evaluate every judgment, perhaps having to parse a judgment on multiple claims, some of which can be enforced and others of which cannot.

4) The theory is boundless and without limiting principle. It cannot be limited to SB8, so every defendant would avail itself of this strategy.

5) The claim is too speculative. The sheriff violates rights by enforcing the judgment; that violation requires an intervening act by a separate actor--the judge must enter judgment against the provider. But that may not happen, if the judge acts as she should in following precedent to reject liability under SB8. The court will not presume the state judge will do this. The sheriff theory goes a step beyond the clerk theory. The latter required one presumption--that someone would file the suit they are authorized to file. The latter requires that presumption, plus the additional presumption that the judge will get it wrong.

My guess is the WWH plaintiffs and their lawyers recognized this. They threw every defendant they could think of into that lawsuit. That they did not include sheriffs must mean they knew that was a longer shot than the unprecedented theories they attempted.

Posted by Howard Wasserman on December 11, 2021 at 11:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, December 10, 2021

SCOTUS gets SB8 right

Contrary  to my reading at oral argument, the Court (per Justice Gorsuch) basically adopted our position: 1) Unanimously reject claims against state judges; 2) 5 (Gorsuch, Thomas, Alito, Kavanaugh, Barrett) reject claims against clerks; 3) same 5 reject claims against the AG because he lacks enforcement power, including the attempt to reach private plaintiffs through the AG; 4) 8 Justices (all but Thomas) allow claims against licensing boards; 5) Unanimously reject claims against Dickson because there is no indication he intends to sue. Gorsuch explains perfectly that: some constitutional issues are raised as defenses;  there is no constitutional right to pre-enforcement federal review; the existence of SB8 does not create an actionable constitutional injury; and if states enact copycat laws, they can be addressed in the same ways.

The Court dismissed U.S. v. Texas as improvidently granted, over Sotomayor's dissent. That case returns to the Fifth Circuit.

The Chief and Justice Sotomayor dissented. Both, particularly Sotomayor, continue the theme that Texas is undermining the Court's authority over the Constitution and undermining constitutional rights and the constitutional system of government. The Chief pushed claims against the AG (who has enforcement power co-extensive with the boards) as a way to get at individual enforcers, just as one can sue an AG to reach individual DAs.

Now what? The case returns to the district court for the claims by the providers (but not advocates) against the licensing heads.  The Court rejected the Fifth Circuit's insistence that "exclusive means exclusive"--the absence of public enforcement extended to indirect enforcement. At this point, the Court says, it appears the licensing board have authority to sanction licensees for failing to enforce "all laws" governing medical practice, including the heartbeat ban, thus a provider can obtain a DJ and injunction preventing administrative action against them. This claim is subject to a possible state law claim (which Gorsuch acknowledges) that boards cannot use SB8 violations as a predicate act. The best claim rests with Dr. Braid (the TX doctor who announced performing a post-heartbeat abortion in the Washington Post), because an anti-choice group submitted a complaint against him to the Medical Board,

No injunction against the boards stops private plaintiffs from bringing SB8 actions. Any injunction will protect providers against administrative proceedings seeking to sanction, suspend, or revoke licenses. But it creates federal litigation and a federal judgment that can be fast-tracked to SCOTUS for conclusive precedent on the heartbeat ban's validity. (Query whether SCOTUS might grant cert before judgment again and consider the merits of the heartbeat ban alongside Dobbs). And the district court opinion can have persuasive effect in the meantime.

Meanwhile, providers likely will continue to refrain from performing abortions, at least until they get that district court judgment of the law's constitutional invalidity to use as a defense. That is bad. But the reality is that constitutional litigation takes time. The NYT did not cover Alabama for more than a year prior to Sullivan.

Posted by Howard Wasserman on December 10, 2021 at 11:05 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

7th Annual Civil Procedure Workshop

Seventh Annual Civil Procedure Workshop
Cardozo Law School
May 19-20, 2022

We are excited to announce the Seventh Annual Civil Procedure Workshop will be hosted by Cardozo Law School in New York City on May 19-20, 2022.

The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Confirmed participants for 2020 include Pamela Bookman, Maureen Carroll, Zachary Clopton, Brooke Coleman, Myriam Gilles, David Marcus, Elizabeth Porter, Alexander Reinert, and Diego Zambrano.

We welcome all civil procedure scholars to attend. Please register for the conference here (if the link does not work please use the following address: https://cardozo.yu.edu/registration-seventh-annual-civil-procedure-workshop). Those wishing to present a paper for discussion should submit a two-page abstract by February 11, 2022, using the same registration site: https://cardozo.yu.edu/registration-seventh-annual-civil-procedure-workshop. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by March 18, 2022.

The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. If you have any questions, please feel free to contact Alex Reinert ([email protected]) or Myriam Gilles ([email protected]).

Posted by Howard Wasserman on December 10, 2021 at 10:08 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, December 07, 2021

Who's afraid of judicial departmentalism

Jason Mazzone argues that Mississippi's SG missed the mark in the Dobbs argument. Asked whether overruling Roe/Casey invites challenges to Griswold, Lawrence, and Obergefell, the SG said those are different because they have clear lines. The correct answer, Jason argues, should have been:

Right now there is no groundswell to overrule those cases, but so what if there is and states ban contraception, same-sex sex, or same-sex marriage? "Legal challenges will then be filed, lower courts will hear the cases, and this Court might eventually be called weigh in. That's how our system works. Nobody thinks that just because the Supreme Court has said something others cannot make use of the legal system to advance a different position and seek to change minds."

Without using the term, Jason describes judicial departmentalism--SCOTUS adopts a constitutional position, states enact and attempt to enforce new laws that might disagree with and challenge that constitutional position, and new litigation resolves the issue, with the Court adhering to its jurisprudence or changing its mind.

But the Court cannot hear this and such an honest (if accurate) answer would have created more problems for the state. The Justices remain wrapped in the judicial supremacy of Cooper in which the Court gets the last word on the Constitution, the states fall in line, any departure is suspect, and anything that gives states new wiggle room is problematic. Justice Sotomayor was explicit about this position (citing Marbury for the proposition, although Marbury says nothing of the sort). Even those Justices inclined to declare Mississippi's law valid and perhaps overrule Roe/Casey would have pushed back against the idea of doing this again with contraception or same-sex marriage.

The same issue arose in the SB8 arguments. Roberts asked the Texas SG about an amicus brief that made, in sharper terms, Jason's point: The system is designed to allow states to enact laws that diverge from SCOTUS precedent, with future litigation resolving the dispute. The Texas AG ran from the idea, saying that everyone is bound to take and faithfully implement the Court's constitutional interpretation.

Posted by Howard Wasserman on December 7, 2021 at 12:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, December 03, 2021

Now what with SB8?

As Gerard and I wrote, it is not clear why the Court took the SB8 cases, much less on an expedited schedule, or why they would bother deciding them now.

New and deeply cynical take, courtesy of my co-author: The Court overrules Roe and holds in SB8 that states cannot insulate laws from offensive constitutional challenges, allowing claims against clerks, judges, or whomever. Note where that leaves us. The fetal-heartbeat law is likely valid (depending on how much the Court overrules Roe--whether rejecting viability as a line or eliminating all constitutional protection for reproductive freedom), so no harm in allowing those offensive cases to proceed in federal court, as they fail on the merits. But the Court protects the rights the majority cares about--guns, religious freedom--from similar laws channeling constitutional litigation onto defense.

Posted by Howard Wasserman on December 3, 2021 at 11:27 AM in Civil Procedure, Constitutional thoughts | Permalink | Comments (0)

JOTWELL: Bookman on Summers on eviction court

The new Courts Law essay comes from Pamela Bookman (Fordam) reviewing Nicole Summers, Civil Probation, on the absurd procedure in eviction court.

Posted by Howard Wasserman on December 3, 2021 at 11:04 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

I say obnoxious things so I have standing

A Connecticut law prohibits ridiculing or holding people or groups up to contempt on account of creed, religion, color, etc. Although the law is limited to advertisements, it has been applied in other situations. Eugene Volokh explains why the law violates the First Amendment. One infamous recent case occurred in late 2019/early 2020, when two U Conn students were prosecuted for shouting racial epithets in the air; that charge was dismissed. The attorney for one of those students, Mario Cerame, filed suit last month, asking the court to declare the law violates the First Amendment.

How does Cerame have standing for this offensive pre-enforcement suit? A plaintiff must show that he intends to engage in constitutionally protected conduct that is proscribed by law and that there is a credible threat of enforcement against the plaintiff. Check out ¶¶ 13-18: Cerame alleges that he regularly ridicules Italian-Americans (he is Italian-American), Scientologists, and other racial or religious groups, and he retells jokes and shares video clips of comedians. He also alleges that he speaks, trains, and works on free-speech issues and and in doing so "uses words that are not uttered in polite company."  In other words, "I like to say obnoxious things in my personal and professional life, therefore I reasonably fear prosecution under the law."

This is an interesting theory, although I am not sure it works. "I like to do X, have done X in the past, and plan on doing X in general terms at some indefinite point in the future" is usually not sufficiently specific or concrete. Much of the obnoxious speech he describes occurs in his personal life or with his "closest and dearest friends," so is unlikely to be prosecuted. He may have a better shot with the argument that his professional free-speech work has him using the bad words involved in free-speech controversies. A few district courts have accepted this standing theory in challenges to new anti-harassment/anti-discrimination bar rules. The theory makes sense with a  bar rule--"I use these words in my work and am worried that the Bar may come after me;" it seems less of a credible gthreat that the government would pursue criminal charges against a lawyer for his professional work. Courts are forgiving of standing in First Amendment cases, but I do not know if it goes that far.

Cerame has never had the law enforced against him despite past ridicule of Italian Scientologists and posting of Dave Chappelle videos, which pulls him out of SBA. The next question is whether the pattern of charges being brought against others shows that Cerame's is the type of speech targeted; Eugene has written about recent enforcement. The one I know about is that UConn case--two students shouting racist epithets in the middle of campus (not at any person), where they were heard by people in surrounding buildings--which seems far afield from Cerame's speech. That the charges in the UConn case were dismissed raises an interesting question of what we mean by credible threat of enforcement for standing purposes. Does "enforcement" mean arrested or charges brought or does it mean prosecution? If charges are brought and dropped, has the law been "enforced" as to make future enforcement substantially likely?

Posted by Howard Wasserman on December 3, 2021 at 07:11 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, November 29, 2021

Still no SB8

Weird. With each passing day, the logic of cert before judgment (which required four votes) and expedited review (which required five, I believe) fades. It makes no sense to rush the case, then decide it in the ordinary stream of the Term.

New cynical take: The Court releases the decision on Wednesday morning, prior to the Dobbs argument, allowing WWH to proceed. That "victory" for reproductive freedom pulls public attention off Dobbs, which will contain numerous hints that Roe/Casey are not long for this jurisprudential world.

Posted by Howard Wasserman on November 29, 2021 at 10:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, November 23, 2021

Procedural defects can be raised in state court

SB8 critics highlight the procedural problems in the private cause of action--statewide venue, limitless plaintiffs, limits on affirmative defenses, no non-mutual preclusion. They argue that these render state court an insufficient forum, because the deck is stacked in favor of the plaintiff, requiring a federal offensive litigation.

One problem with the argument is that it constitutionalizes sub-constitutional issues such as venue and preclusion. A second problem is that this is not unusual. Many state-court cases involve constitutional challenges to state-court procedures, which are litigated in state court and can provide a basis for eventual SCOTUS review. The defect in state procedure does not provide a basis for a constitutional claim or federal district-court jurisdiction in the underlying action.

Recent case in point: Third Circuit in DeGennaro v. Grabelle. This is a med-mal action in which plaintiff failed to comply with the state's pre-suit affidavit requirement, which plaintiff argues (erroneously) violates due process. Plaintiff tried to use this to get his claim into federal court by including a claim challenging the validity of the affidavit requirement. The court (properly) rejected this under the Well Pleaded Complaint Rule--this case is no different than Mottley (state claim, defense, constitutional challenge to defense). The plaintiff can challenge the affidavit requirement in state court, then appeal the requirement through the New Jersey courts and to SCOTUS.

No one would let DeGennaro bring a § 1983 action against the clerk of the state court, since he would accept the lawsuit requiring an affidavit, or against the  state judge for demanding the affidavit. But the logic of the (anticipated) decision in the SB8 cases is that constitutional defects in state procedure--those that stack the deck in favor of one private civil litigant against another private civil litigant--provide a basis to sue a state clerk or state judge to prohibit state litigation. Other than which party the deck is stacked against--it is against the defense in SB8, the plaintiff in this (and most) cases--the basic issues and arguments are the same.

I am repeating myself on this. But the point bears repeating--most of what people dislike about SB8 is not unique.

Posted by Howard Wasserman on November 23, 2021 at 10:10 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, November 19, 2021

The Times plays defense and no one cares

Apropos of my post on the obviously First-Amendment-violative injunction the state trial court issued against The New York Times: No one has argued that The Times should be able to bring a federal action against Judge Wood to enjoin him from holding that hearing on the OSC or from further adjudicating the case. No one has argued that The Times can sue the clerk of the Supreme Court Court of the State of New York, County of Westchester to stop him from docketing the order or accepting further papers from PV in pursuing this case. It appears sufficient--for First Amendment, due process, and "judicial review" purposes--that The Times can defend in state court, appeal through state court, and reach SCOTUS if necessary. No one has argued that allowing PV to bring this private suit and to make The Times defend in state court "thwarts federal judicial review" of a significant constitutional issue.

Posted by Howard Wasserman on November 19, 2021 at 09:38 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (11)

The puzzle of prior restraint

"Prior restraint" is trending today following a New York trial court's show-cause order to The New York Times. The court ordered the paper to show cause why it should not be required to remove and cease publishing certain document from Project Veritas (which allegedly contain attorney-client-privileged material), not publish such documents in the future, and cease efforts to obtain further documents. And it orderied The Times to cease those activities pending a hearing on the OSC.

The "prior restraint doctrine" distinguishes "prior restraint" from "post-publication punishment." A prior restraint is a law or order that prohibits speech before it occurs and requires a speaker to obtain government permission before speaking--e.g., a licensing or permitting system or, as here, an injunction barring future speech. A post-publication punishment identifies some speech as unlawful, but functions through through the mechanism of sanction or punishment after the speech has occurred--e.g., criminal penalties for burning a flag or fines for displaying an off-premises sign. The distinction originates in the Blackstonian conception of free speech (which, depending on who you believe, may have been incorporated as the original understanding of the First Amendment), which held that prior restraints are impermissible but that the government has unfettered power to punish the speech after the fact. The distinction survives under the modern First Amendment further along the spectrum--government generally cannot punish speech after the fact and it really generally cannot impose prior restraints.

While a cornerstone of modern free expression, the distinction is somewhat artificial. From the speaker's standpoint, there is no distinction between an agency saying "you must get permission before burning a flag and we hereby deny you permission" and a statute saying "you will go to jail if you burn a flag"--the result is that I am not allowed to burn a flag. From the speaker's standpoint, a law threatening jail time for engaging in speech "restrains" my speech "prior" to it occurring--I will not speak if I know I will be sanctioned. And all restrictions on speech, however characterized, are enforced through post-speech punishment. If I fail to obtain permission (whether because I do not bother trying or because I am denied permission) and I speak anyway, the sanction (jail, fines, whatever) will not come until after I speak without a license. If I am enjoined and I speak anyway, the sanction will be contempt after I speak, enforced through jail, fines, and other fun.

The prior-restraint doctrine purports to limit unfettered discretion in licensing. But no one has more unfettered discretion than a police officer deciding whether to stop me from speaking or waving my sign in the moment or a prosecutor deciding whether to prosecute me. That is, a system requiring a permit (e.g., to hold a protest) cannot grant the officials running the system unfettered, before considering the protected nature of the speech for which the permit was sought; the First Amendment does not care about police having unfettered discretion once the person is holding a protest and the challenge to the arrest or prosecution would consider the protected nature of the speech involved.

Moreover, if a judge ultimately must decide whether some speech is protected and publishable, it strange to distinguish between the judge making that decision pre-speech and post-speech.* Consider the Times/Project Veritas dispute. The case turns on whether The Times obtained PV's documents lawfully (which appears to be the case) and whether stopping a third-party from disclosing attorney-client-protected material is a need of the highest order (which probably is not the case, unless the privacy interests in attorney-client communications somehow are more important than the privacy interests of a sexual-assault victim). There is no obvious distinction between the court deciding that now and stopping the speech and further search for documents and the court deciding that later and imposing damages for the speech and the search for documents. In theory the former is worse because we lose the benefit of the speech getting "out there" and contributing to the market in the interim. But imagine that The Times had conspired with the leaker to obtain the documents--it would refrain from publishing knowing that the court will impose damages or another sanction on it at the end of the day. Or take a defamation case. Is it worse for a court to prohibit X from publishing defamatory statements about A than imposing damages for X's defamatory statements after he published them?**

[*] Or, to add a third layer--pre-speech in an offensive action by the newspaper challenging the permitting law.

[**] Beyond the point of this post, but there may be a distinction between an interim or preliminary judicial determination and a final judicial determination following trial. That is, a court can issue a preliminary injunction, stopping speech off a preliminary or initial review of the merits; a court imposes post-publication punishment following a full hearing on the merits. Eugene Volokh has urged this line with respect to defamation injunctions--a court can prohibit X from speaking about A going forward, but only after a full proceeding determining that what X wants to say is defamatory.

There is one possible distinction, at least with injunctions. If I am denied a permit, I can speak anyway and in the subsequent enforcement proceeding I can challenge the permitting system and the decision to deny the permit, in addition to arguing that my speech was protected. If I am enjoined, the collateral-bar rule holds that I cannot speak or publish in violation of the injunction and challenge the contempt order by arguing that the injunction is invalid or should not have been entered; I must comply with the injunction and appeal it.

Posted by Howard Wasserman on November 19, 2021 at 09:22 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, November 18, 2021

JOTWELL: Michalski on Burch & Williams on voices of MDL

The new Courts Law essay comes from Roger Michalski (Oklahoma) reviewing Elizabeth Chamblee Burch & Margaret Williams, Perceptions of Multidistrict Litigation: Voices from the Crowd, ___ Cornell L. Rev. (forthcoming 2022), a study of individual MDL plaintiffs and their views of the process.

Posted by Howard Wasserman on November 18, 2021 at 03:49 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 17, 2021

Points of departure on SB8

As we await the SB8 decisions,* I want to respond to Ilya Somin's "final word" on the case.  Here is his conclusion:

[*] A few people have pointed out that recent time-crunched merits questions (e.g., census) have come down within 18-19 days from argument, which could make Friday a good target.

And, here, judicial review is an extremely effective tool, particularly in cases where effective enforcement simply requires striking down a law or regulation and barring state officials from enforcing those policies. In the case of SB 8, that means preventing state courts from hearing SB 8 cases that violate the Constitution and enforcing judgments that plaintiffs might win in such cases. States must not be allowed to forestall effective judicial review in such cases by exploiting loopholes in procedural doctrines. If the only way to prevent that is to close those loopholes by limiting the scope of some procedural precedents, then that is a small price to pay for vindicating much more important constitutional principles.

I expect the Court to adopt this reasoning, and perhaps this language, in allowing WWH's injunctive action to proceed. Ilya's argument (and the argument II believe the Court will adopt) rests on four principles: 1) "Effective judicial review" means offensive litigation in federal district court, such that a law that pushes constitutional litigation into a defensive posture "forestalls" effective review; 2) "Striking down a law" is a meaningful judicial remedy; 3) the court can "bar[] state officials from enforcing" an invalid law as a global matter, as opposed to granting rights-holder-specific remedies; 4) the bringing of SB8 cases, as opposed to imposition of liability in those cases, violate the Constitution.

I disagree with each of these principles and therefore with Ilya's conclusion about SB8. There is effective judicial review of the heartbeat ban--providers can raise constitutional invalidity as a defense in state court before state judges bound by the Supremacy Clause and SCOTUS precedent, with SCOTUS review at the end of the process. It is not the ideal forum or the forum that providers and other SB8 defendants would choose, but that is not the same as saying that requiring defensive litigation independently violates due process or that it is constitutionally deficient. SCOTUS has established significant precedent, including precedent about the constitutional validity of certain laws, through defensive litigation, including private civil litigation that originated in state court. SB8 does not differ from these prior cases, from a future defamation suit against constitutionally protected speech, or from a future damages lawsuit against Jack Phillips.

Posted by Howard Wasserman on November 17, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, November 06, 2021

Standing problems in UF prof lawsuit

Despite UF backing down, the three professors filed suit Friday, seeking to enjoin as violative of the First Amendment "any policy or practice that provides the Univerity discretion to limit Plaintiffs' ability to undertake outside activities, on a paid or unpaid basis, on the ground that the proposed activity is not aligned with the “interests” of the State of Florida or any of its entities or instrumentalities."

Standing is a problem here. The plaintiffs got the relief they are suing for--permission to testify in the case and be paid for it--so they are not suffering an ongoing injury traceable to university policy or practices (or, in my preferred framing, their rights are not presently being violated). They try to get standing through Susan B. Anthony List, where the Court held a plaintiff can establish standing for a future injury where she intends to engage in arguably constitutionally protected activity that is proscribed by the challenged law and there is a credible threat of future enforcement. Consider ¶ 43 of the complaint:

Unless and until it is rescinded or declared unconstitutional to the extent it equates the University’s “interest” with that of the State, the University’s Policy will continue to impede Plaintiffs from serving as expert witnesses or otherwise lending their analysis or expertise to litigation challenging State policies, in violation of the First Amendment.

As pleaded, that does not work. It is framed as if the existence of the policy without a declaration of its invalidity is a unique ongoing or future injury, which it is not. A declaratory judgment requires standing beyond "this policy is in place and will impede us." They need more, but I am not sure if or how they show a likely future injury. They can allege that they regularly testify as experts, including against the state; they will need to request permission; and they risk being denied in a future case because of the anti-state positions they wish to take and the university's discretion. And courts are forgiving of standing in First Amendment cases.

The problem for the plaintiffs is that this is not the typical First Amendment case. In the typical free-speech case, standing is based on the plaintiff's unilateral intended actions ("I want to handbill;" "I want to make possibly false statements about a political candidate") and the obvious presumption that the government will enforce its laws against violators (arresting the handbiller or charging the false statements). Here, standing depends on actions of others. Five things must happen--the state must future rights-infringing laws; those laws must touch on subjects on which the plaintiffs possess expertise; someone must challenge those laws in court; those plaintiffs must need expert witnesses; and plaintiffs must seek to hire these profs as experts. Each is necessary before the plaintiffs would suffer a future injury traceable to the policy--seeking and being denied permission to testify because they are acting contrary to university interests. Until each happens, these plaintiffs need not request permission for these activities and will not be subject to the policy. The court must overlook how speculative and beyond the plaintiffs' control these facts are. Perhaps the court will decide that past history makes each likely to occur and perhaps it will not that this is a First Amendment case and be more forgiving. But a court is unlikely to abide such speculation in an environmental case.

The complaint is inconsistent in identifying the First Amendment problem with the policies, which might affect the standing analysis (showing, again, how intertwined merits and standing are). It identifies four defects. 1) The problem is making profs request permission before testifying, which it calls a prior restraint. 2) The problem is the discretion the policy vests in the university, a position the Eleventh Circuit rejected last year in a challenge to conflict policies at a different SUS institution. 3) The problem is the university denying permission to engage in positions contrary to Florida's "interests," which creates viewpoint discrimination (because a professor could testify in favor of Florida in the same action). 4) The problem is the university equating its interests with those of the state, which is problematic but not necessarily violative of the First Amendment.* These are distinct First Amendment theories with varying likelihoods of success. The likelihood of future injury varies depending on the theory of the case. For example, if the constitutional problem is making profs ask permission for any outside expert activity or testimony, that injury is more likely (since it is obvious they may testify in the future), although the constitutional merits argument is weaker.

[*] If the university and the state are the same, UF's position that the university is the state may prove too much, affecting the eligibility of federal judges to hear these cases. Many judges on the Eleventh Circuit and the Florida district courts serve as adjunct professors, whether teaching full classes or as part of a group of trial-advocacy instructors. They recuse in cases involving the university. But if the university and Florida are the same, then must they recuse in any case to which Florida is a party? That would have dramatic consequences.

The X-factor is the task force that the UF President convened to recommend a new policy for professors who want to testify in cases in which Florida is a party, which was charged to submit a preliminary recommendation by November 29. That new policy could end this dispute, depending on what it says and which of the distinct alleged constitutional defects it resolves. A court may not want to do anything with this complaint for a month, knowing that the situation will in three weeks and the complaint will go away or be materially changed. Perhaps the court will let the case sit until those further developments, especially since the plaintiffs do not need preliminary relief.

Finally, not to (again) beat a dead horse: But how much simpler would it be for a court to say "your First Amendment rights are not being violated in this situation, so you lose your claim"?

Posted by Howard Wasserman on November 6, 2021 at 11:33 AM in Civil Procedure, Constitutional thoughts, First Amendment | Permalink | Comments (2)

Thursday, November 04, 2021

JOTWELL: Pfander on Bray & Miller on equity

The new Courts Law essay comes from James Pfander (Northwestern), reviewing Samuel L. Bray & Paul Miller, Getting Into Equity, 97 Notre Dame L. Rev. (forthcoming 2022), including a shout-out to the SB8 litigation on everyone's mind.

Posted by Howard Wasserman on November 4, 2021 at 02:20 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, November 02, 2021

Limiting principles

I co-sign this Stephen Sachs post on the failure of the WWH plaintiffs and the Court to identify limiting principles to justify an offensive action (especially against clerks) here that would not allow for offensive actions whenever a state-court defendant may have a constitutional defense. Any limitation still makes SB8 look like many non-extraordinary laws that have been handled defensively. And the things that make SB8 extraordinary (namely the limitations on state processes) can themselves be raised defensively.

This is a perfect framing of the problem that neither the plaintiffs nor the Court discussed yesterday--the courts possess the tools to handle this case as it does many others. The only way this falls outside of historical defensive litigation is if offensive litigation is constitutionally required--something no one argues but that everyone seems to assume as a background principle.

 

Posted by Howard Wasserman on November 2, 2021 at 08:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, November 01, 2021

More thoughts on the SB8 argument

Additional random thoughts on the SB8 argument after the jump.

Assuming I (and the prevailing wisdom) are correct that the Court affirms the denial of dismissal in WWH and allows it to proceed, the big question is what happens to United States. Everyone, including the Texas AG, seemed to sense where the Court might go in WWH, arguing that this obviates the federal sovereign interest and thus the federal suit. One issue involves interim relief. Note where things stand. If SCOTUS reverses in US, the case goes back to the Fifth Circuit to review the district court decision that the heartbeat ban is invalid under Roe and Casey; it would make sense for SCOTUS to lift the stay of the district court's preliminary injunction, barring enforcement of the law pending review. If SCOTUS reverses in WWH, the case goes back to the district court for further litigation, including of a motion for a preliminary injunction. To the extent there is concern for enforcement of the law between the SCOTUS decision and the district court ruling in WWH, it may be necessary to keep US alive for the interim relief. The Court can resolve that by enjoining enforcement in WWH pending litigation; WWH counsel asked for such relief if the Court believed appropriate.

A few random further random thoughts:

    • Judicial departmentalism is dead. During his round-robin questioning  in WWH, Roberts asked about language from an amicus (I believe it was Jonathan Mitchell's) that "states have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court's." Stone said "other officers within Texas are bound likewise to . . . take the interpretations from this Court and federal law and to faithfully implement them." But that is true only if we accept judicial supremacy. A state legislature or executive can do what it pleases until it reaches court and encounters a judge who is bound by SCOTUS interpretations and the state's case goes up in flames. But saying the state will lose in court is not the same as saying all state officials are bound. Stone could offer no other answer, I suppose. But that is too bad--it shows how far down the judicial-supremacy hole we have gone and how unable we are to speak about constitutional litigation and adjudication with some precision.

    • There was distrust of state-court litigation that has never been part of the doctrine here. The following points were argued explicitly or as foundational assumptions, although none has ever been the case.: 1)  Having to litigate and defend against a claim under an invalid law is a constitutional injury and violations, regardless of whether the person is held liable or sanctioned for protected conduct; 2) Procedural due process limits rules of venue, preclusion, and other procedures; 3) It is not sufficient for a defendant to be able to raise due process challenges to state procedures in state court; there must be a federal forum for it; 4) a state-court forum is insufficient to litigate federal constitutional rights, at least if the state chooses certain procedural rules. I thought Stone did a good job of pushing back on these, but to no avail.

    • The potential copycat laws (guns, religion, etc.) reared their heads from several Justices. I thought Stone did as good a job as he could pointing to other non-hypothetical examples in which rights-holders have been pushed into state court and no one questioned it, including New York Times and Masterpiece Cakeshop in the face of a similar chilling effect.

    • No one acknowledges the process in which Shelley v. Kraemer was decided and how that affects what the case stands for. Several Justices asked whether Shelley overrides the can't-sue-judges language of EPY, because the Court in Shelley spoke repeatedly of how state judges "enforce" the law. But it matters that Shelley was not an offensive action against the judge and did not enjoin the judge; it was a defensive action in which the constitutional limitations on restrictive covenants provided a basis for SCOTUS review and reversal. Broad language about enforcement was unnecessary to the holding or principle of that case. The Court applied the same principle in New York Times, without the inaccurate language about enforcement. But NYT and Shelley involved the same idea--private plaintiff sues for a remedy under state law, the federal constitution limits the state law as applied in court; neither rests on the judge being the "enforcer" or a proper subject for a lawsuit.

A more accurate way of framing it would be that some enforcement occurs through the judicial process, but the enforcer is the person who initiates the process and seeks to establish liability, not the court who adjudicates. When the state prosecutes someone for a crime, that enforcement occurs within the judicial process and it is up to the judge to adjudicate the case; we all would say the AG or DA, not the judge, "enforced" the law by seeking to convict and punish the defendant. Shelley should be framed the same way--Kraemer enforced the restrictive covenant by suing to divest Shelley of the property. The litigant enforces the law; the enforcement occurs within litigation.

    • The WWH attempts to make SB8 seem unique by arguing that it lacks the elements of an ordinary tort claim or ordinary private civil litigation and that it imposes special litigation rules. But that begs the question (yes, I am using that term correctly) of what constitutes the essence of ordinary civil litigation or ordinary tort law or what are "ordinary" litigation rules so we can tell when the state has departed them. Otherwise it is impossible to limit SB8 in any principled way. And that is before we get into why the state's choice of venue or preclusion rules is constitutionally proscribed (see above).

        WWH counsel and Breyer came up with six: Anyone can sue; anywhere; no preclusive effect; Atty fees (heavy and one-way); damages heavy; limits on defenses; Damages not tied to harm; Mandatory injunction to prevent further violations. But no one explains what is problematic about any of those, individually or as a whole. Unless another unspoken point is true--Art. III is constitutionally required in state court, which no one has ever suggested.

Posted by Howard Wasserman on November 1, 2021 at 03:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

A solution in WWH (Updated)

That did not go as I expected. If I had to read tea leaves, the Justices seemed inclined to let WWH go forward while allowing US to die on the vine, whether by rejecting the US's theory of the suit or counting on the US to voluntarily go away in deference to the private action. Some thoughts after the jump. I had predicted the opposite, thinking that the "this is a unique law" would justify a unique case by the US, whereas allowing WWH to go forward opens up a new realm of federal constitutional litigation that the Justices are not anticipating.

My theory has been that WWH cannot work because there is no one to sue--no executive enforces and Mark Dickson has not shown an intent to sue. WWH's theory--sue the judges and clerks--does not work because they are not responsible executive officers and they are not adverse to WWH and other providers. But Justice Sotomayor, with Kagan and Breyer weighing, offered something that works (which I had not thought of) without the slippery-slope concerns.

Part of the EPY fiction is that enjoining the attorney general (or whomever the responsible executive officer is) reaches everyone below the AG who enforces the law; an injunction barring the AG from enforcing a criminal law would prohibit a DA from initiating an individual prosecution.* So apply that idea to the deputized private SB8 plaintiffs who act as the equivalent to DAs--enjoin the AG based on his residual enforcement authority and the injunction applies to every individual private enforcer beneath him. The theory requires the additional step (which never came up during argument) of whether and why SB8 plaintiffs act under color of state law, which would have cut through Stone's resistance to the idea that private individuals were agents or deputized. They are not agents or deputies, but they are performing a traditional-and-exclusive public function in enforcing law for the public benefit. Under SB8, private individuals serve the role of individual DAs or other enforcing officers captured in an injunction against the highest responsible state officer.

    [*] Texas SG Judd Stone pushed back on Texas DA's independent authority. Kagan attempted to get at this by asking what would happen if a state enacted a heartbeat ban with ordinary criminal punishment. She never got a good answer. But she (and I) cannot believe that if Texas enacted a law criminalizing all abortions that an injunction prohibiting Greg Abbott from enforcing that law would not be read to prohibit every DA from enforcing the law).

WWH narrowed its theory in its Reply and in the argument, focusing clerks as the real target of the suit and remedy. My guess is they ran from language in EPY saying federal courts cannot enjoin judges from adjudicating, as well as the argument that judges do not enforce and are not adverse to the litigants. Docketing a case is "administrative" in a sense, so it fits better with the idea of stopping enforcement. The problem remains that clerks are no more adverse to the litigants than the judge is. The clerk is a neutral recipient and processor of the lawsuit enabling the (neutral, non-adverse) judge to adjudicate. [Update: Stephen Sachs explains why suing clerks makes no sense, including why the shift from enjoining enforcement of the law to enjoining "commencement" of the suit does not work, because the enforcer and commerncer remains the party bringing suit, not the clerk who puts it in the system).

Sotomayor's new theory works because it does not eviscerate private civil litigation or the state power to decide what laws to enact and how to enforce them. It applies to unique circumstance in which the delegation of exclusive enforcement authority for the benefit of the public renders private state-law plaintiffs state actors/persons acting under color of state law It would not apply to ordinary civil litigation to remedy a personal injury that will be met with a federal constitutional defense. This theory works because the expansion of the injunctive power under  fits the elements of the law being challenged. "Sue the AG to reach the deputized enforcers" can be limited to the extraordinary law that deputizes private plaintiffs to enforce state law--absent deputized enforcers, the theory does not work and so does not affect other lawsuits.

On the other hand, thereis no logical way to limit "sue-the-clerks" to the extraordinary case than by fiat--declaring SB8 (and presumably its imitators) as unique (based on several elements the Court and WWH identified) and creating a Bush v. Gore-good-for-this-trip-only process. Otherwise, the option of suing clerks to avoid the chilling effect of having to litigate defensively in state court logically must be available to any state-court defendant with a constitutional defense. Suing clerks also has serious administrability problems. Clerks ordinarily do not (and cannot) review or analyze lawsuits before docketing them, so an injunction would require them to do something they typically do not do. Moreover, Alito offered the hypothetical of a plaintiff who brings an SB8 claim along with a malpractice or IIED claim; lawyers for WWH said that the clerk could not accept that suit, although it would be under ordinary tort law, with none of the special problems of SB8. This suggests that "sue the clerks" cannot be limited to SB8 claims.

Update: Consider a real-life example, courtesy of Eugene Volokh: There is ongoing debate about whether the right of publicity can exist in light of the First Amendment and the constitutional limits on the scope of that tort. The First Amendment battle is fought defensively--plaintiffs suing for violations of the right of publicity and speakers defending on First Amendment grounds. If the Court allows suits against clerks, any speaker fearing a right-of-publicity claim would take that option rather than waiting for a suit and a defensive posture. The only way to avoid that is for a court to say "SB8 is different," although those differences have nothing to do with the choice between offensive and defensive litigation.

Now we wait, I expect for a few weeks--I believe the Court will decide this before argument in Dobbs on December 1. The question whether the Court takes the smart way to resolve this without blowing up the ordinary rules of constitutional litigation. Sototmayor's question offers a way that is less destructive than allowing EPY actions against clerks and judges.

Posted by Howard Wasserman on November 1, 2021 at 03:18 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)