Thursday, February 06, 2025
What happens on Pullman Abstention
The Fourth Circuit abstained under Pullman from the dispute over the North Carolina Supreme Court election; the district court had abstained under Burford, which the court of appeals said was the right conclusion for the wrong doctrinal reason.
But the court's explanation of the difference in coverage and effects seems off. Pullman is appropriate because unclear state laws may moot a federal constitutional claim. True enough. But Pullman differs from Burford in that Pullman requires the federal court to retain jurisdiction should state litigation not moot the federal issues. Under Burford, the district court dismisses because the dispute will be resolved in the state's complex remedial system (the reason for abstaining in the first place) and the case will not return to the district court. The court ordered the district court to retain jurisdiction over the federal issues, citing England.
The court relied on long-standing precedent for this, but it seems wrong. Pullman should require dismissal of the action to allow the parties to fully litigate state issues through the state judiciary. The case may return to federal court, but it does so as a new lawsuit. England does not address the court retaining jurisdiction. It allows the plaintiff to "reserve" the federal issues in state court, thereby avoiding claim preclusion upon possible return to federal court with the new purely federal action.
Retaining jurisdiction following Pullman abstention also destroys the distinctions with certification. Certification was a more expedient alternative (a "more precise tool," as Justice Sotomayor put it) because: 1) it went straight to the state's highest court and 2) the federal court otherwise retained the action pending resolution of the state questions. The Fourth Circuit's approach destroys one of those two distinctions.
Not the biggest deal given everything else being litigated in federal courts (more on that later). But a notable example of how lower courts go in strange directions.
Posted by Howard Wasserman on February 6, 2025 at 10:48 AM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Tuesday, January 28, 2025
303 Creative, Exclusive Private Enforcement, and Blue State Revenge
My latest with Rocky Rhodes, in the Journal of Legislation. We argue that a Blue State wanting to create a real counterpart to S.B. 8 and its copycats should enact an exclusively privately enforced public accommodations law, targeting the First Amendment opt-out recognized in 303 Creative.
Abstract after the jump.
Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this forces targeted federal rights-holders to vindicate their rights by raising the law’s constitutional invalidity as a defense to liability rather than through pre-enforcement offensive litigation against the government or government officials responsible for enforcing the law. This threatens rights-holders with a wave of costly and burdensome litigation and liability.
Blue states and liberal scholars and advocates have sought a progressive counterpart targeting a favored conservative right. This Article finds that counterpart in 303 Creative v. Elenis (2023), in which the Supreme Court recognized a (not clearly defined) First Amendment right for expressive businesses to decline to provide expressive goods and services related to same-sex marriage and not to be compelled to express messages violating their religious, political, or ideological beliefs. The decision angered liberals, who criticized the “fake case” and “legal performance art” that produced the decision, and delighted conservatives, who had long sought recognition of such a First Amendment right. We hypothesize a Blue state enacting the Discrimination Is Not Expression Act, a public-accommodations law prohibiting such First Amendment opt-outs and compelling all businesses to provide all services, including expressive ones. By removing any public enforcement mechanism and relying on exclusive private enforcement, this law places business owners seeking to exercise a conservative-favored federal right in the same bind that S.B. 8 placed abortion providers and patients seeking to exercise a liberal-favored right.
This paper, the fifth in a series on the procedure of exclusive private enforcement, details this privately enforced public-accommodations law as a response to 303 Creative. It explores how the law offers Blue states “revenge” for S.B. 8 and other anti-abortion laws by burdening a conservative-favored right; how it might fare in constitutional litigation of any posture; how it exposes procedural inconsistency in the face of substantive preferences; and why the prospect of this law might cause both sides of the spectrum to abandon private-enforcement schemes and the burdens they impose.
Posted by Howard Wasserman on January 28, 2025 at 02:26 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Sunday, January 26, 2025
Craven, cowardly, and clueless
Republicans in the Idaho legislature are pursuing a resolution urging SCOTUS to overrule Obergefell. The exercise is performative bullshit. SCOTUS resolves lawsuits, not requests from random people to do things. The article quotes Tobais Wolff (Penn) as saying "the Supreme Court will no more respond to a letter from the Idaho Legislature than they would a letter from me." It also quotes one legislator emphasizing the need to make a statement about protecting rights.
The clueless part is that the legislators could make a statement that would have actual legal effect: Pass a law limiting marriage to one man and one woman (presumably a new version would specify cis-man and cis-woman) and set up a lawsuit by a couple denied a license; then they can marshall their legal brilliance to argue to the Court why it should overrule its precedent. They cannot claim a belief in judicial supremacy; the proposed resolution begins "[s]ince court rulings are not laws and only legislatures elected by the people may pass laws." Such a view of the balance between the judicial and legislative powers suggests the legislature can (and should) pass a law reflecting the views of the people of Idaho and let the legal controversy play out.
The answer is the cowardly part. They do not want the political blowback to enacting a law contradicting SCOTUS precedent. They likely fear being lumped with Massive Resistance and the authors of the Southern Manifesto--who, to their (limited) credit, offered a procedurally and substantively coherent vision of constitutional judicial review. They also likely fear the hundreds of thousands of dollars in attorney's fees they will pay for litigating two guaranteed losses in the lower courts and a likely loss in SCOTUS (which I do not believe is so anxious to overrule Obergefell, as opposed to limiting its application). But these people will not put their money or their power where their mouths are.
And so we get the craven part--a legally, procedurally, and practically meaningless performative gesture.
Posted by Howard Wasserman on January 26, 2025 at 11:39 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Monday, January 13, 2025
Can Donald Trump block people on Twitter?
I taught Lindke v. Freed in Civil Rights today and I genuinely do not know the answer. But I think it is yes, he can--Knight Foundation v. Trump comes out the other way under Lindke.
Step One of the analysis requires that the official exercise government-provided authority to speak for the government in that forum, derived from some statute or other source of law. The President has the power to speak to the public and what he says may reflect official policy. But no statute or constitutional provision obligates him to do so, certainly not on Twitter. And the fact that he uses Twitter to repeat things that the government announces more formally elsewhere (e.g., an executive order) does not make the social-media page the formal government mechanism.
It is unfortunate that the government used a case about a government employee (Lindke was city manage) to address this question rather than a case involving elected officials who are expected (as a matter of representative democracy) to speak to the public about the business of government but are not required by law to do so.
Curious to hear what others think. What's that definition of insanity everyone uses?
Posted by Howard Wasserman on January 13, 2025 at 02:42 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Friday, December 13, 2024
Hypocrisy and question-begging on standing
A few days late on this: Justice Alito (joined by Justice Thomas) dissented from denial of cert in Parents Protecting Our Children v. Eau Claire Area Sch. Dist., where lower courts found a group of anti-trans parents lacked standing to challenge trans-supportive policies. The lower courts relied on Clapper; Clapper's author, Alito, was not having it. He finished with this:
I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions. While it is important that federal courts heed the limits of their constitutional authority, it is equally important that they carry out their “ virtually unflagging obligation . . . to exercise the jurisdiction given them. ” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976).
Alito seems to want to single-handedly prove the point that conservative justices are abandoning standing now that conservative litigants are challenging liberal policies. This is of a piece with his dissents in Murthy (the jaw-boning case) or California v. Texas (standing to challenge an unenforceable law). He was not worried about courts avoiding such contentious constitutional questions as the validity of a federal law authorizing warrantless searches. Richard Re argues that the Court is, so far, holding the line on standing. Not so Alito.
Note the question-begging dishonesty in that last sentence. The "virtually unflagging obligation" goes to abstention--when to decline exercise jurisdiction granted. Standing (for better or worse) goes to whether jurisdiction has been granted. And it should not affect how the Court understands the scope of jurisdiction--courts do not expand their interpretation of standing (and thus jurisdiction) because of the virtually unflagging obligation.
Posted by Howard Wasserman on December 13, 2024 at 01:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Tuesday, October 22, 2024
Attorney courage and state interference
More on the controversy over the Florida Department of Health efforts to stop tv stations from airing ads supporting an reproductive-freedom constitutional amendment: John Wilson--the attorney who drafted letters threatening tv stations with civil and criminal nuisance actions, was named as defendant in the EpY action, and loudly quit his job--filed an affidavit with the district court (presumably in support of a motion to dismiss) saying: 1) people in Governor DeSantis' office drafted the letters and ordered Wilson to send them under his name and department; 2) people in DeSantis' office ordered Wilson to enter contracts with outside counsel; and 3) Wilson resigned a week later rather than send a second round of letters.
As to ## 1 and 2: It is not surprising that DeSantis is behind these efforts or that he tried to launder those efforts behind Public Health. Nor do I imagine there is more fallout, other than perhaps to get DeSantis and his aides added to the suit.
As to # 3: There is a nice PR question as to how much to praise Wilson. Usually the "I'm drawing a line" involves someone willing to do X but not Y--"I'll decline to report this wrongdoing, but I won't forge documents to hide it." Here, Wilson's "line" was I will do X once but not twice. What changed--why did his conscience not stop him from attaching his name and sending letters on October 3 but stopped him from doing the identical thing with identical letters on October 10? In what way could the wrongfulness of those letters become apparent in those seven days?
Posted by Howard Wasserman on October 22, 2024 at 10:36 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Friday, October 18, 2024
More free speech in Free Florida
Things move fast when the Free State of Florida decides to show its true censorious colors. Following that absurd letter threatening TV stations with liability if they ran the "Caroline" ad supporting passage of an abortion-rights constitutional amendment, documents revealed that the state retained two law firms for possible litigation. On Wednesday, the Floridians Protecting Freedom, sponsor of the ballot initiative and the ad, brought a § 1983/EpY action against the surgeon general and the general counsel of the department of health (the author of the letter). On Thursday, the court granted a TRO enjoining the SG from taking further actions to stop people from running the ad. Also on Thursday, reports leaked that the attorney, John Wilson, quit, saying "A man is nothing without his conscience. It has become clear in recent days that I cannot join you on the road that lies before the agency." Of course that burst of conscience 1) came after he wrote the letters and 2) did not stop him from getting sued.
Some thoughts on the suit and the decision:
• The First Amendment violation here is so obvious as to be funny. In his Murthy dissent, Justice Alito complained that the comparative outcomes in Murthy (finding no standing) and Vullo (finding a plausible violation) showed "[i]f a coercive campaign is carried out with
enough sophistication, it may get by. That is not a message this Court should send." Ron DeSantis and his cronies do nothing with subtlety or sophistication.
• The case has an interesting standing wrinkle. The state directed the challenged letter to the tv stations, but the ad sponsors filed suit and sought the injunction. The plaintiffs offered two theories of standing: 1) although sent to the tv stations, the letter threatened action against everyone involved with the ad and 2) one station stopped running the ad. The court adopted the first theory and did not reach the second.
Is that right? The letter expressed views about the unlawfulness of running the ad. But can a threat referencing wrongdoing and intent to prosecute directed to specific people create an imminent threat of enforcement against everyone not named in that letter who may engage in related-but-different conduct? In other words, the letter expresses intent to come after one tv station but standing seems clear for another tv station that might run the ad. But the ad sponsor is differently situated.
I also wonder if the court adopted that theory to avoid a Clapper/chain-of-inferences problem, in that the injury to the plaintiff depends on the action of the tv stations, not the action of the defendant government officials. The chain here is much shorter, so it should not be a problem. Or maybe the court was worried about Murthy and the possibility that the station would have declined the ad without
• Naturally, the court creates scope-of-injunction problems. The injunction enjoins the SG from "taking any further actions to coerce, threaten, or intimate repercussions directly or indirectly to television stations, broadcasters, or other parties for airing Plaintiff’s speech, or undertaking enforcement action against Plaintiff for running political advertisements or engaging in other speech protected under the First Amendment."
The problem goes to whether the remedy must match the theory of standing (or the theory of the constitutional violation). The court accepted the theory that the letter threatened FPF with prosecution, an injury remedied by an injunction prohibiting the state from pursuing enforcement actions against FPF over the ad. An injunction stopping the state from threatening or acting against the tv stations remedies a very different injury to FPF, not one the court considered or found.
• The ad features a woman with terminal brain cancer who sought a 20-week abortion that would have allowed her to receive life-extending (not live-saving) treatment that would give her more time with her husband and extant child; it claims she could not terminate that pregnancy under current law, while the state (in the letter Wilson wrote and sent before discovering his conscience) insists she could lawfully obtain an abortion in that circumstance. What is "true" or "false" in questions of legal interpretation and legal meaning and how can a legal argument be false--if I interpret the law differently from the SG, am I "lying?" Does the statement become true if, even if a doctor could not be convicted for performing that abortion, some crazy prosecutor might try or no doctor will take the risk of performing the procedure, forcing the woman to leave the state? To paraphrase Henry Monaghan, if such a technical legal question qualifies "as a 'fact,' it is nevertheless a very different kind of fact from the bigness of Cyrano's nose."
Posted by Howard Wasserman on October 18, 2024 at 11:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, October 17, 2024
Limits of private enforcement in a mixed scheme
In our taxonomy of private enforcement, Rocky and I focused on when the scheme leaves open private-enforcement options. But we neglected to consider a distinct feature--when the public piece limits the private piece. That is, a statutory scheme limits the situations in which public enforcement gives way to private.
And thus ends the saga of Masterpiece Cakeshop and Autumn Scardina, the trans activist who ordered and was refused a cake to celebrate the anniversary of her transition. I wrote previously about the case, but in brief: The Civil Rights Commission found probable cause of a violation of state antidiscrimination law and instituted proceedings; Phillips filed a federal action to enjoin the Commission from proceeding; the federal court refused to abstain under Younger (citing the bad-faith and harassment exceptions); the Commission voluntarily dismissed. Scardina brought a civil action and won in the trial court and court of appeals, both courts rejecting Masterpiece's
A divided Colorado Supreme Court reversed on procedural grounds. The private right of action does not stand alone. A complainant must pursue and exhaust the administrative process. Subject to several limited off-ramps to the process involving the commission's failure to act, the complainant must follow that process to the end, including by appeal into the state judiciary. The commission's resolution of Scardina's complaint--unilateral dismissal following a finding of probable cause--does not satisfy any of those off-ramps. Scardina instead was required to appeal the commission dismissal to the Colorado Court of Appeals.
So consider this a fifth category of private-enforcement scheme--mixed, with a preference for (at least initial) public administrative adjudication. That somewhat limits the scope of private enforcement.
We avoid that problem in our new paper by eliminating public enforcement, including in administrative agencies.
Posted by Howard Wasserman on October 17, 2024 at 02:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Monday, October 14, 2024
Vagaries of public enforcement
As states (especially Red) increase the use of private enforcement of culture-war laws, states may get creative with vestigial public-enforcement authority and courts must wrestle with how much public authority allows for offensive pre-enforcement EpY litigation.
Case in point: Free Speech Coalition v. Anderson. Utah's porn age-verification law creates a private right of action against sites that fail to establish age-verification. FSC sued the AG as the default "enforcer" of state law and and the Commissioner of the Department of Public Safety as the overseer of a state program allowing for digital drivers' licenses, one of three statutory age-verification mechanisms (and, according to plaintiffs, the only one that satisfies the statute).
The court unanimously held that the AG's general enforcement authority is insufficient, that an EpY defendant must have a particular duty to enforce the challenged statute, at least where the statute describes a particular enforcement method. The panel divides over the Commissioner. The majority rejects the claim--DPS has not yet created the type of digital license that satisfies the statute and the Commissioner's obligation to create that license exists independent of the statute. The dissent argues that the challenged statute depends on DPS creating the necessary functionality (the only way to satisfy the statute) and the Commissioner's failure to perform that duty cannot allow him to avoid suit. The Commissioner "implements" the law because the law cannot function unless DPS creates the digital license; it does not matter that he draws the obligation to create the digital license from a different statute.
In our taxonomy of private enforcement, Rocky and I argue that offensive litigation remains when states combine public and private enforcement. This case adds a layer of complexity. By designating specific enforcement mechanisms and responsibilities, states can make it difficult for plaintiffs to find the "correct" state officer connected to the challenged statute, with no "default" official. By adopting private litigation as the primary enforcement mechanism, states leave officials in ancillary "implementing" roles. States thus may find a way to insulate mixed-enforcement schemes from EpY.
Posted by Howard Wasserman on October 14, 2024 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Wednesday, September 18, 2024
Fifth Circuit makes a Heck-of-a-mess
I wrote last December about Wilson v. Midland Cty., a § 1983 action by a woman convicted (and given a suspended sentence) two decades ago by a prosecutor who was moonlighting as a clerk for the judge who presided over her trial. The case wades into a circuit split over whether a person seeking damages arising from constitutional violations within a criminal prosecution must show favorable termination under Heck when she is no longer in custody (and thus able to get habeas relief in federal court).
At the time, I wondered whether the plaintiff would seek rehearing on en banc or go straight to SCOTUS; she chose the former. Not only did she lose, but the Fifth Circuit made a hash of Heck.
Judge Oldham wrote for a plurality (9/18) to say that Heck is not about the line between two statutes (§ 1983 and § 2254), as everyone has long understood. Instead, it is about the requirements of common law torts. Citing the Court's most recent decision--which defined favorable termination as an element of a malicious-prosecution claim and which the Court did not decide as a Heck case--the plurality holds that favorable termination is an element of all § 1983 actions challenging violations around a criminal conviction. The unavailability of federal habeas was of no moment, so long as state mechanisms remained open to her. Judge Haynes concurred in part for two, approving of the disposition of the case--dismiss without prejudice so plaintiff can pursue state favorable-termination mechanisms. Judge Willett--who wrote the panel majority while expressing outrage over the result--dissented in even higher dudgeon. Not only does he object to applying Heck to non-prisoners (the result, he argues, of following pure dicta), be he must take on Oldham's nonsense.
Haynes' concurrence actually illustrates the problem with the outcome (and the plurality's analysis). Insisting that he does not argue that Heck imposes a state exhaustion requirement, he argues that Heck includes as a favorable-termination mechanism "the ability to go to the state," includng a state appellate or post-conviction court. That is, he rejects the idea that federal habeas represents the only mechanism for obtaining favorable termination, since Heck itself identifies state mechanisms for obtaining favorable termination.
But that gets everything backwards. The issue is not the availability of state mechanisms to undo a conviction. The issue is what happens when those state mechanisms fail; the text, history, and purpose of § 1983 and § 2254 show that the states cannot have the last word on the validity of the conviction and the rights-holder must have a federal forum at some point. The question is which vehicle. A person-in-custody uses § 2254, which requires state exhaustion anyway. But habeas is not an option for a person not in custody. Under the Fifth Circuit approach, that rights-holder is stuck with the state result, with no option for federal reconsideration. That functions as an exhaustion requirement. And it is inconsistent with what § 1983 is supposed to do.
I cannot believe the Court will not take this case. Lord knows how badly they will botch it.
Posted by Howard Wasserman on September 18, 2024 at 02:30 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Monday, September 02, 2024
Musk suit proceeds v. Media Matters
So says Judge Reed O'Connor, denying motions to dismiss for lack of personal jurisdiction, improper venue, and failure to state a claim in Twitter's suit against Media Matters and a reporter.
On personal jurisdiction, I wrote at the time Musk filed suit that I did not see the necessary "Texasness" in stories written about a California company by a D.C.-based reporter and published to the world by a D.C.-based entity. The court found that Texasness because two of the "blue-chip" companies Media Matters featured as having ads running next to Nazi content (and who stopped advertising on Twitter) were Oracle and AT&T, both Texas companies located in the Northern District. On one hand, a claim that plaintiff's speech tortiously interfered with defendant's contact and relationship with a Texas company can be seen as directed to Texas or involving Texas conduct. On the other, this seems far more attenuated than stories about forum conduct by forum citizens in the forum; paraphrasing Walden v. Fiore, Twitter suffers the same injury regardless of the location of the companies featured advertising next to offensive content. The same analysis basically resolves venue--a substantial part of the events giving rise to the claim occurred in the Northern District as the location of the businesses interfered with.
On the merits, this suit raises the prospect of businesses using tortious interference to end-run New York Times for broad public speech. The Court has blocked past efforts, as by imposing an actual malice requirement on intentional infliction distress. I think the same thing needs to happen here, although O'Connor did not require plaintiffs to plead those additional facts. The merits discuss was, to coin a phrase, conclusory and failed to show what allegations establish which elements (to say nothing of the fact that MM's statements, as described in the complaint, were true).
While not a final judgment, denials of dismissal for lack of personal jurisdiction represent a common use of mandamus in federal court. Query whether Media Matters pursues that course to try to get away from Judge O'Connor as quickly as possible.
Posted by Howard Wasserman on September 2, 2024 at 11:50 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)
Saturday, August 31, 2024
Do reasons for non-enforcement matter?
The Eighth Circuit declared invalid a Missouri law that a bunch of federal laws related to firearms "shall be invalid to this state, shall not
be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state." No state or local officials possess enforcement authority. And the law creates a private right of action (because Republican lawmakers believe that is the magic bullet to stop everything they do not like) against any public official who enforces the law.
Missouri argued (correctly) that it can refuse to allow its officers to enforce federal law; thus, the reasons for refusing to enforce do not matter. Here, in full, is the Court's response:
That Missouri may lawfully withhold its assistance from federal law enforcement, however, does not mean that the State may do so by purporting to invalidate federal law. In this context, as in others, the Constitution “is concerned with means as well as ends.” Horne v. Dep’t of Agric., 576 U.S. 350, 362 (2015). Missouri has the power to withhold state assistance, “but the means it uses to achieve its ends must be ‘consist[ent] with the letter and spirit of the constitution.’” Id. (quoting McCulloch, 7 U.S. (4 Wheat.) at 421) (alteration in original). Missouri’s assertion that federal laws regulating firearms are “invalid to this State” is inconsistent with both. If the State prefers as a matter of policy to discontinue assistance with the enforcement of valid federal firearms laws, then it may do so by other means that are lawful, and assume political accountability for that decision.
I am a formalist and even I recognize this as utterly mindless formalism. This is not 1833 South Carolina preparing to wield the militia against federal enforcers. There is no meaningful difference between "federal law is illegal in this state and we will not enforce it" and "federal law is stupid and we will not enforce it" and "we don't wanna enforce it just 'cause and you can't make us--nyah." Missouri can reenact the identical law tomorrow and rely on #2 or #3 and land in the same place--no state or local enforcement, private right of action against any officer who attempts to enforce.
Maybe the law could include a preamble or finding saying "We, the legislature, believe these laws are invalid to this state, should not be recognized by this state, should be specifically rejected by this state, and shall not be enforced by this state, but the activist federal judges will not let us say that."
Posted by Howard Wasserman on August 31, 2024 at 08:21 AM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Friday, August 16, 2024
It should be constitutional
In answer to Gerard's question: Suzanna Sherry proposed a system in which the Court issues one per curiam majority opinion, without names or counts. She defends constitutionality by arguing, in essence, that Congress cannot dictate or influence resolution of a case but can control how the Court communicates its decision. I think her argument would support the choice of who communicates the decision for the Court as well as how the Court presents that decision.
Posted by Howard Wasserman on August 16, 2024 at 11:23 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Thursday, July 18, 2024
Why is this jurisdictional?
Hunter Biden moved to dismiss his indictment for lack of jurisdiction arguing that special prosecutor David Weiss' appointment is constitutionally invalid under the Appointments and Appropriations clauses, in light of Thomas' Trump concurrence and Judge Cannon's decision to dismiss the documents case.
I leave to others the constitutional merits. My question: Why is this a jurisdictional defect? The motion describes this as an indictment "brought by an unauthorized prosecutor" and concludes that this means the court lacks jurisdiction, citing Trump and a 1991 9th Circuit case treating a challenge to a special AUSA's authority as going to the court's jurisdiction. But the cited portion of Trump does not use the word jurisdiction and the 9th Circuit case came a decade before the Court righted the ship on the jurisdictional label.
I focus on civil cases and perhaps criminal cases are different. But I think this comes back to conflating types of jurisdiction. The jurisdiction (i.e., "authority" or "authorization") problem is one of executive or prosecutorial authority--the official pursuing the prosecution lacks the constitutional authority to pursue the case. But the absence of executive jurisdiction to act should not strip the court of adjudicative jurisdiction, just as the absence of legislative jurisdiction to enact the law being enforced does not strip the court of adjudicative jurisdiction. Both require the court to exercise its power and grant judgment for the defendant on the merits.
Is there something different about criminal law and the prosecutorial power that changes this analysis?
Posted by Howard Wasserman on July 18, 2024 at 06:46 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)
Saturday, July 13, 2024
More on the continued usefulness of Younger
A third post on the 11th Circuit and rethinking Younger:
The Volokh Conspiracy's weekly Short Circuit roundup includes the case, along with a link to an Institute for Justice amicus brief. IJ offers a slightly different argument than Judge Rosenbaum for rethinking Younger. Pre-enforcement offensive litigation has expanded since the 1970s when the Court decided Younger and its early progeny, because the Court has developed a greater willingness, especially in First Amendment cases, to find the threat of prosecution sufficiently imminent. In this case, that means a "phonebook's worth" of similarly situated PACs and organizations could sue Georgia in a pre-enforcement challenge to these laws. Abstention in this case therefore does not serve Younger's stated purposes: Someone else can bring the federal court into the mix via pre-enforcement action, leaving state courts and agencies no room to operate, just not the plaintiffs with the most concrete injuries (the ones facing actual rather than threatened enforcement).
An interesting argument, although it might prove too much. Constitutional litigation is atomized, with different cases challenging a particular law as to different rights-holders. So there is nothing inconsistent if some cases involving some rights-holders must remain in state court while other cases involving other rights-holders can be in federal district court. Maybe a case such as this one, involving general campaign-finance regulations, is different.
Posted by Howard Wasserman on July 13, 2024 at 01:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Friday, July 05, 2024
More on collateral order review of presidential immunity
The latest episode of Divided Argument with Will Baude and Dan Epps explores Trump. Baude praises Barrett's conception of presidential immunity as an as-applied constitutional challenge to the law. So conceived, however, Baude questions Barrett's conclusion that denial of the defense is immediately reviewable. Immunities receive immediate review, as they protect the person from having to stand trial or stay in litigation for too long. Constitutional defenses--e.g., a separation-of-powers defense to the CFPB (Barrett cites Seila Law as an example) or a First Amendment defense to a flag-burning law--do not, as they protect the person from liability. I want to unpack what I wrote about this.
COD appealability should not turn on labeling something as "immunity" or as a "right not to stand trial." Barrett's point is that immunity is never a distinct concept; it is shorthand for the argument that a law does not apply to the defendant's conduct.* And it is not obvious what makes something a right not to stand trial as opposed to a defense to liability, beyond the label--every defense can be characterized as one or the other. There is no obvious reason that double jeopardy and qualified immunity are immunities according a right not to stand trial while preclusion and the FTCA judgment bar are defenses to liability.
[*] Justice Alito has said the same about MLB's antitrust immunity--he describes it as a judicially interpreted exclusion of MLB from the scope of antitrust laws and the application of those laws to MLB's conduct
Justice Souter tried to wrangle this issue in two unanimous COD opinions--Will (FTCA judgment bar) and Digital Equipment (private covenant not to sue). Reviewability should turn on the systemic import of the interests sought to be vindicated by immediate review and that would be lost by "rigorous application of a final judgment requirement." Thus, "it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is 'effectively' unreviewable if review is to be left until later." This analysis considers the source of the asserted right (Constitution, statute, common law, contract) and who and what the right protects (individual or systemic interests). Unfortunately, Souter's approach has been lost in favor of simple labels.
Back to Barrett and presidential immunity. Her conception of a constitutional defense to a prosecution places presidential immunity on the same footing as the separation of powers and First Amendment defenses above. So why is the first immediately reviewable and the other two not? She never explains. Souter's considerations about underlying interests provide a way out. Although all derive from the Constitution, the latter two (and certainly the third) protect individual liberty interests; the first protects broad systemic interests of the presidency and the ability of the President to act within the constitutional system. That distinction may be wrong. Separation of powers in Seila Law serves structural interests of preserving the President's removal power; one could argue individual liberties serve structural interests of limiting government power. Maybe Barrett's position, taken seriously, explodes the COD or forcse the Court to make absurd distinctions to ensure COD remains a "small class of claims."
But Barrett's position about presidential immunity is not necessarily wrong or inconsistent with COD--if we accept Souter's position that COD turns on the underlying interests and policies at issue and begin the analysis there.
Posted by Howard Wasserman on July 5, 2024 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, July 03, 2024
Presidential immunity, Speech-or-Debate, and evidentiary privilege
An email exchange with Lee Kovarsky (Texas)--who has great analysis of the immunity decision on Twitter and in a Seattle University Law webinar --offers a possible justification for treating presidential immunity different from Speech-or-Debate immunity in terms of anevidentiary privilege. Lee concedes this may not justify the criticism or differential treatment--maybe both should include the evidentiary privilege. But it is the first possible distinction anyone has presented to explain unique complaints about the evidentiary privilege and to explain why the majority had to do more to defend it.
My mistake was in thinking about the evidentiary privilege as downstream from immunity simpliciter rather than as downstream from the underlying textual and policy bases for immunity. The issue is not "both are incidents of absolute immunity." The issue is "whether this is properly an incident of the underlying basis for that immunity." They are not the same. Summarizing (not quoting) Lee's argument:
Under the Speech-or-Debate Clause, members "shall not be questioned in any other place." That is a uniquely broad framing; it has a "what happens in the House stays in the House" flavor to it. An evidentiary privilege fits the core of that language--to use legislative acts in court in any manner is to "question" such acts in another place. Presidential immunity rests on policy--ensure "bold and unhesitating action." An evidentiary privilege may be less core to that policy--it is less obvious that using presidential actions as evidence to prove other, non-immune misconduct causes the President to be less bold or more hesitating in his official actions.
Take bribery as the paradigm. Offering evidence in court of a corrupt floor speech or vote as evidence of a bribery scheme questions that act in another place, something the text precludes. Offering evidence of one corrupt pardon to prove a bribery scheme does not run afoul of any textual limitation and does not obviously cause the President to be less unhesitating in offering pardons.
I will add one more piece to this--None of the other policy-based immunities--for example, absolute prosecutorial and judicial immunities under § 1983--includes an evidentiary privilege. Thus, an evidentiary privilege is not inherent to immunity. Something makes Speech-0r-Debate unique among all other immunities--its grounding in far-reaching text.
The counter to this argument is that the Framers (according to James Wilson) included the Speech-or-Debate Clause to "enable and encourage the Representatives of the public to discharge their trust with firmness and success." So legislative and presidential immunities serve similar policies, albeit at different levels of remove.
At the very least, however, this requires analysis and explanation on everyone's part. The majority needed to explain why this evidentiary privilege was essential* to the underlying policies justifying the immunity it established; Justice Barrett needed to explain why it is not essential to an immunity she agreed with, in light of Speech-or-Debate's evidentiary immunity; and the dissent and everyone else criticizing the evidentiary piece needed to identify and work through the distinction Lee came up with.
[*] In that Seattle Law webinar, Steve Vladeck suggested it was not within the QP.
Posted by Howard Wasserman on July 3, 2024 at 12:48 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
Questioning prosecutorial immunity
Justice Sotomayor respecting (although not dissenting from) denial of cert in Price v. Montgomery County questions prosecutorial immunity--its origins (including noting Alex Reinert's article that Congress abrogated all common law immunities when it enacted § 1983); the misalignment of its scope compared with its policy goals; and the inadequacy of alternative means of remedying prosecutorial misconduct. She does not argue the Court should have granted cert. She argues that the cert denial should not be read as tolerance of the prosecutor's conduct (the Court denies cert for many reason); that the Court may need to step in; and that lower courts must keep immunity with "'quite sparing'" bounds.
Posted by Howard Wasserman on July 3, 2024 at 11:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Jurisdictionality and presidential immunity
On top of everything else that was bad in Trump, the majority and Justice Sotomayor use language that could be read to suggest that this immunity is a limit on the court's adjudicative jurisdiction rather than a defeat on the merits.
Discussing the first bucket of presidential conduct (conclusive and preclusive), Roberts quotes Youngstown that this bucket "'disables the Congress from acting upon the subject'" and Marbury that "the courts have 'no power to control [the President's] discretion'" and that discretion "cannot be subject to further judicial examination." He repeatedly speaks in the same breath of what Congress and the courts cannot do--"Congress cannot act on, and courts cannot examine, the President’s actions;" Congress "may not criminalize the President's actions . . . Neither may courts adjudicate a criminal prosecution;" or the removal power "may not be regulated by Congress or reviewed by the courts." Justice Sotomayor does the same in arguing against immunity, as by insisting that "'common tribunals of justice should be at liberty to entertain jurisdiction of the offence'" or stating that "'judicial action is needed" such that "the exercise of jurisdiction is warranted.'"
To be fair, some of this comes from quoting old sources (Marbury and Story's Commentaries) or cases from before the Court grew more careful about using the word jurisdiction or speaking about courts exercising judicial power (Nixon v. Fitzgerald). But it would be unfortunate if the language causes courts (such as Judge Chutkin and the DC Circuit on remand) to backslide. Trump recognizes a disability on Congress and its legislative (or prescriptive) jurisdiction--Congress cannot enact criminal statutes that regulate certain presidential conduct. It is not a limit on the court's adjudicative authority, except in dictating how the courts must resolve any future attempt to prosecute a president and likely dismiss such a prosecution, if attempted.
Justice Barrett's distinct framing of immunity--as a challenge to the constitutional validity of the statute as applied to the President's conduct--also understands immunity as merits rather than jurisdictional limitation. Where the would-be statute of conviction is constitutionally invalid as-applied, the court is not stripped of adjudicative jurisdiction; it rejects the prosecution on the merits due to a defect in the congressionally enacted substantive law.
Posted by Howard Wasserman on July 3, 2024 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Monday, July 01, 2024
The Court's craven view of politics and other thoughts
• The Court holds a craven view of "ordinary politics"--everyone abuses power for their personal self-interests and gain and that exchange of self-interest defines the political game. The legal problem thus is not that self-interest or abusing power but the supposed efforts of legislatures and overzealous prosecutors to criminalize such self-interest and abuse-that is, to criminalize ordinary politics. That explains the Court's efforts to limit anti-corruption laws or SOX's obstruction provision--gratuities and gifts and outsiders' efforts to affect official proceedings are part of the political process and the criminal laws should not be interpreted to stop that. I think the same view explains presidential immunity. Of course the President needs immunity for everything he does in office because of course the President will abuse his office for personal gain--that is just how the political process works and Congress cannot criminalize it or allow an over-zealous prosecutor to prosecute it. Stated differently, Trump using the levers of office to stay in power or for other personal gain does not create a problem--that is the game. Prosecuting one's successor creates the problem.
• Richard Primus on Twitter: Fundamentally, the problem is the same as it has always been: the system is not built to withstand a Holmesian Bad Man as president. I agree. But it seems to me the Court believes the Holmesian Bad Man is our typical (if not ideal) public official.
• I re-up this exchange between Gerard and Paul about why we succeeded as to Nixon and Watergate and have failed as to Trump and January 6. Today's decision took judicial action and criminal law off the table. But the exchange is relevant because I read the decision to repudiate all of Watergate. Under this opinion, it seems to me Nixon could not have been prosecuted for the key actions that got him in trouble--the taped conversations with Haldeman and pushing the CIA to obstruct the FBI investigation--and that Ford's pardon was unnecessary.
• I am surprised by the many people surprised that the Court extended immunity to include a privilege against evidentiary use of immune acts. Legislative Speech-or-Debate immunity has long included such an evidentiary privilege--government cannot use immune legislative acts (e.g., a floor speech or vote) to prove a bribery case.* If the President enjoys a similar absolute immunity from prosecution for "presidential" functions, it seems logical that immunity would extend to evidentiary use. I am not agreeing with the Court's decision to create a speech-or-debate analogue from whole cloth, with the existence of either evidentiary privilege, or with the principle that presidential immunity, lacking a similar textual basis, must be co-extensive with legislative immunity. My point is that if an evidentiary privilege is inherent in one immunity, it is not surprising that it is inherent in the other. And so I am curious why Justice Barrett, who appeared skeptical of immunity during oral argument, drew that as her line and declined to join that portion of the Roberts opinion.
On that note, by the way: I would love to hear from people who study this issue why that textualist point never arose in this case. The framers included the Speech-or-Debate Clause because they did not believe the Article I vesting clause sufficient to establish legislative immunity. No one argued that the Article II vesting clause is not sufficient to establish presidential immunity. Why not?
[*] The court applied this in the prosecution of NJ Senator Bob Menendez, excluding from evidence certain texts referring to Menendez's actions in delaying or not delaying aid to Egypt.
Posted by Howard Wasserman on July 1, 2024 at 03:50 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
Thoughts on NetChoice
I decided to begin the day with NetChoice, the case about which I would have something to write. Then I can read about how the framers, 11 years removed from a revolution against a king, created a monarch (more powerful than the one it replaced) who is selected and serves for a few years at a time but otherwise can do no wrong.
Anyway, NetChoice. The argument somewhat previewed the result, but the internal dynamics may have been messy.
• The Court is unanimous on the disposition of this appeals--vacate both lower courts and tell them to do the analysis over, because this is a facial challenge. Justice Kagan writes for six (the Chief, Sotomayor, Kavanaugh, Barrett, Jackson) to explain a proper approach to facial challenges and to trace the Court's editorial-judgment jurisprudence (Tornillo, PG&E, Turner, Hurley, Pruneyard, and FAIR). She writes for five (loses Jackson) to explain how that jurisprudence applies to render the core provisions of the laws constitutionally invalid and to highlight how badly the Fifth Circuit messed up. Justice Barrett concurs to complain about the complexities of facial challenges and to suggest plaintiffs would have an easier time with a narrower as-applied challenge. Justice Jackson does not join the parts of Kagan's opinon (III-B and C) that explain how that jurisprudence ought to apply to these laws, deeming it premature. Justice Thomas concurs in the judgment to explain why facial challenges should not be allowed. Justice Alito concurs in the judgment for three (Thomas and Gorsuch) to explain why the Court should not have opined on the First Amendment questions and then to offer a contrary First Amendment analysis.
• This will be lost in the procedural mud and the news of the day, but: Five-and-a-half Justices offered a strong vision of First Amendment protection for curators of all kinds and of the limits of government trying to balance the market in ways it deems proper or in ways that will help the speakers and speech it likes.
• Justice Jackson's choice is odd. She joins Kagan's summary of the jurisprudence (III-A) but not its application (III-B and C). But Kagan completes that summary with three general points--1) the First Amendment protects curation of third-party speech; 2) that does not change when the compiler allows most speech or only excludes a small amount of speech; and 3) the government does not have an interest in balancing the expressive marketplace. Those three principles imply the resolution as to the core provisions--the sites have a First Amendment right to do this and Florida and Texas cannot rely on the only interest either has offered for these provisions. So if Jackson believes the statement of legal principles (with their obvious implications) is proper, I am not sure why she departed from the actual application.
• Justice Thomas explains everything that is wrong with facial challenges, including that they enable universal injunctions. But this is wrong, as Dick Fallon has argued. A declaration of facial invalidity is a statement about the law that has preclusive effect on the parties and precedential effect on future parties. It does not disappear the law, it does not adjudicate the rights of non-parties, and it does not stop future enforcement against non-parties. Although facial resolution from SCOTUS dictates the outcome of that future enforcement as a matter of precedent, that is how precedent is supposed to work. Perhaps apprehensiveness about facial challenges is of a piece with the idea (observed more in the breach) that the Court should decide no more than necessary to decide the case. But that is a prudential rule, not grounded in Article III or separation of powers. Of course, the Court could get to the same place if it did not insist on judicial supremacy, on it having the final word on the constitutional question that binds all other actors.
• The Court limits (majority view) or rejects (Thomas view) facial challenges as a way to keep the Court from wielding too much power at the expense of the other branches, where those branches would be stymied by the Court's pronouncements on the Constitution to make or enforce the laws against non-parties in the future. But the Court would not need that limit if it did not assume that a declaration of facial validity binds the executive in the future.
• Murthy v. Missouri held that states and users lack standing to challenge the Biden Administration's jawboning of social-media sites, reflecting the Court's distaste for "massive kitchen-sink, lots-of-plaintiffs/lots-of-defendants/lots-of-bad-conduct constitutional claims." Something similar might be at work here. These laws have core provisions raising constitutional problems (limits on curation and notice requirements) for specific actors (Facebook and YouTube) for specific conduct (their home pages or news feeds). Litigation by a trade association challenging all provisions of the law goes too far. Again, that limit might have cross-ideological effects.
• It will be interesting to see what happens going forward. Might it be worth it for NetChoice (or just Facebook and YouTube) to rework this as an as-applied challenge to the moderation and notice provisions (which a majority of the Court said violate the First Amendment) and leave the rest for another day? There is an argument (Ilya makes it) that the invalidity of these core provisions is sufficient to create the necessary overbreadth compared with any legitimate sweep of the law (such as Gmail or Uber reviews).
• Florida AG Ashley Moody took to Twitter to announce that the Court unanimously sided with it--"We are pleased that SCOTUS agreed with Florida and rejected the lower court’s flawed reasoning—invalidating our social media law. While there are aspects of the decision we disagree with, we look forward to continuing to defend state law." This is impressive in its understatedness and in its cynicism that my fellow Floridians will not read the opinion or get their news from an accurate source. "Aspects of the decision we disagree with"--the Court rejected the entire First Amendment edifice on which Florida relied. Kagan's opinion sees "the First Amendment issues much as" the Eleventh Circuit did in Judge Newsom's excellent opinion. Moreover, in emphasizing the Fifth Circuit's wrongness, the Court impliedly announced the Eleventh Circuit's correctness as to the constitutional invalidity of the core provisions.
Posted by Howard Wasserman on July 1, 2024 at 02:46 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, June 27, 2024
Oops (Updated and Moved to Top)
Final Update: The Court released the opinion Thursday.
SCOTUS [on Wednesday] inadvertently posted the opinion in the EMTALA case, dismissing the writ as improvidently granted and lifting the stay of the district court injunction prohibiting enforcement of the law. (Bloomberg has the story behind a paywall). Bloomberg says the vote was 6-3 (Thomas, Alito, Gorsuch dissenting) as to the DIG and stay, although it also says Jackson wrote to say she would not have dismissed (which sounds like a dissent, if the disposition is a DIG).
The upshot is that the district court's preliminary injunction prohibiting Idaho from enforcing its abortion ban remains in effect pending continuing litigation.
Let the conspiracy theories of how this happened bloom.
Update: Bloomberg posted an oddly formatted draft. If it is authentic, here is the deal:
• Six Justices vote to DIG and lift the stay of the district court injunction. Three vote not to DIG but to keep the stay in place. Jackson votes to keep the stay in place but not to DIG.
• Kagan concurs with Sotomayor to argue that the Court never should have taken the case and with Sotomayor and Jackson to respond to Alito's dissent, especially his stupid argument (which he previewed during arguments) that the reference to protecting an unborn child means EMTALA does not require abortions.
• Barrett concurs with the Chief and Kavanaugh to argue the DIG is appropriate because the case changed between the grant of cert and now--both from the U.S. positions as to federal law (especially as to conscience objections) and from Idaho as to the scope, meaning, and application of state law. Given these changes and the "difficult and consequential" argument that the Spending Clause cannot preempt state criminal law, the Ninth Circuit should consider the new issues in the first instance.
• Jackson argues the Court should decide the case--having taken it, heard argument, and distorted the litigation process, the Court should decide rather than delay the issue. In particular, she criticizes Barrett's view that Idaho's legal representations before SCOTUS have changed state law or how state law will affect doctors in ERs, such that the supposed injuries to Idaho that justified intervention have gone away.
• Alito, joined by Thomas and Gorsuch, explains why EMTALA does not require abortions as a matter of text and the special rules for finding preemption from a Spending Clause enactment. Gorsuch does not join the portion dissenting from the vacatur of the stay.
This clearly illustrates the theory of a 3-3-3 Court. So speculation on what happened at conference and what changed between conference and now? Was the Chief/Kavanaugh/Barrett planning to go with Thomas/Alito/Gorsuch, then Kagan/Sotomayor/Jackson got them to cool their heels for now? Were they willing to delay knowing: 1) President Trump makes this issue go away in 2025 and 2) the DIG leaves in place a Fifth Circuit decision that EMTALA does not preempt, pending the Ninth Circuit creating a true circuit split worthy of review? Did that group not want to hand conservatives another defeat by joining with Sotomayor/Kagan/Jackson, knowing they could wait (see the prior ¶?)? Something else?
To be clear, Justice Jackson is not happy here: "Today's decision is not a victory for pregnant patients in Idaho. It is a delay." It gives "a few months--maybe a few years--during which doctors may no longer need to airlift pregnant patients out of Idaho."
Posted by Howard Wasserman on June 27, 2024 at 10:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
Wednesday, June 26, 2024
No standing in jawboning case (Updated)
Murthy v. Missouri--6-3, per Barrett, finding that any injuries were not fairly traceable to the government defendants; Alito dissents for Thomas and Gorsuch.
• The decision limits these massive kitchen-sink, lots-of-plaintiffs/lots-of-defendants/lots-of-bad-conduct constitutional claims--a record of undifferentiated "stuff that looks bad" is not sufficient to get a broad injunction stopping the government from engaging in future conduct. Instead, plaintiffs must show "a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff's speech on that topic." These plaintiffs encountered two further problems--1) any (questionable) past injuries were merely evidentiary on claims for prospective relief but could not themselves establish standing; 2) they needed to link the government defendants' actions to those of the non-party social-media sites, a longer chain of causation. As Jonathan Adler puts it, the Court's message to litigants is "do the work" if you want to push aggressive legal claims.
• The decision will have cross-ideological effects, as liberal plaintiffs must similarly tailor their lawsuits. Of course, courts have hamstrung liberal plaintiffs for years, so this is nothing new for them.
• The case illustrates why standing makes no sense independent of the merits. Even for the one plaintiff (Jill Hines, a medical commentator) able to "eke[]" out a showing of traceability, the challenged conduct does not rise to the level of coercion that would violate the First Amendment. So talking about whether she is suffering an "injury" traceable to not-unlawful conduct as a basis to enjoin not-unlawful conduct seems like a waste of time. The essence of this decision is the plaintiffs sued the wrong people, which would be a merits decision in, for example, a tort claim. It should not be different in a constitutional action.
Update: Michael Dorf argues that the majority hides within the standing analysis "a view on the merits--namely this: wherever the line between permissible jawboning and impermissible coercion lies, the sorts of actions taken by the Biden administration fall on the permissible side." But by framing this as standing, it leaves the Court room to find coercion in future jawboning efforts that go farther than this does.
But this case and Michael's hypothetical future case both address the merits, distinguishable only by the facts and the constitutional line. Why is it not better for the Court to be honest about that, rather than disguising a determination that no rights were (or presently are) violated as the absence of jurisdiction.
I wonder if the answer to the incoherence of standing is Thayerian judicial review. Courts will reach the merits more often, so review should be more deferential. Have to give that some thought.
• The Court recognized the standing of Louisiana and Missouri as nonsense. But here are the arguments the states tried to make: 1) States suffer an injury when sites moderated posts from state legislators; and 2) States suffer a sovereign injury when the federal government prevents their citizens from speaking to them and prevents them from hearing from their citizens. The latter is prohibited parens patriae in disguise. But it seems hard to square both arguments with the positions states and state officials took in Lindke and O'Connor-Ratcliff about the power of state officials to block citizens from social-media pages. Lindke made clear that officials do not want to hear from their citizens all that much. And under Lindke, which required the defendant to have the legal power and obligation to speak for the government, no legislator will be subject to suit because no individual legislator possesses that power or obligation. It seems hard to square the argument that states are injured if legislators cannot speak on social media with legislators are not sufficiently connected to the state when their blocking readers on social media.
• Although spread across two sittings, three cases--Murthy, NetChoice, and Vullo--danced around similar issues about the extent to which government can affect or influence one actor as it relates to the speech of others. We have two and await NetChoice. Alito's dissent linked them: He argued that the "censorship" (his word) here was as dangerous, if more subtle, than the action declared invalid in Vullo; and he argued that social media sites are more susceptible to government coercion because of their dependence on § 230 and susceptibility to antitrust suits. Might the latter point hint that the Court will declare the state laws in NetChoice invalid--with Alito placing his marker for a dissent arguing it is inconsistent to limit state power over site moderation to the detriment of particular speakers while leaving the federal government free to (indirectly) run roughshod over the same group of speakers.
• Will this bring the Fifth Circuit to heel--the second time in less than a month the Court has reversed, on standing grounds, an overbroad universal injunction in a conservative constitutional challenge to a Democratic administration, forum-shopped into the Fifth Circuit? I doubt it. (Note: Adler adds California v. Texas as another example of the Fifth Circuit ignoring traceability problems to pass on the invalidity of federal law).
Posted by Howard Wasserman on June 26, 2024 at 12:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Monday, June 24, 2024
Tea leaves on gender-affirming care? (Updated)
SCOTUS granted cert in United States v. Skrmetti on whether Tennessee's ban on gender-affirming care for minors violates equal protection. This is a fool's errand, but I am trying to read the tea leaves on what it might do.
• The grant was narrow. It granted the petition of the U.S. on the equal protection issue as to Tennessee (where the Sixth Circuit held the bans were not gender-discriminatory and not subject to intermediate scrutiny). It did not grant (although it also did not deny) petitions from the private plaintiffs, their due process and parental-rights arguments, or as to Kentucky's similar law. (Compare this with Obergefell, where the Court granted as to all four states whose laws were addressed in the lower court).
• Update: I forgot an important piece, related to the fact that the U.S. is the sole plaintiff/petitioner before the Court. What happens if Trump wins the election, which likely will occur before argument (expect the case to be on the November or December calendar) and certainly will occur before a decision? The Court is suspicious of SGs changing legal positions with every new administration. But a Trump Administration could not act quickly enough to stop this litigation. How quickly can Trump get his AG confirmed?
• There is no direct circuit split (yet). A divided Court in April stayed a district court injunction barring enforcement of Idaho's ban pending appeal in the Ninth Circuit, although without getting deep into the merits and with a lot of scope-of-injunction noise; not sure how much to read into the merits there. The en banc Fourth Circuit held that states violate equal protection by denying Medicaid coverage for gender-affirming care. And the Eleventh Circuit held that an insurance provider violated Title VII in not covering an employee gender-affirming care. But no other circuit has ruled on care bans to minors. The Court typically does not take cases to affirm, absent an actual split between courts of appeals (not district courts). And it typically does not take cases anticipating a circuit split--i.e., reviewing (and affirming) the Sixth Circuit to head off the Ninth Circuit. Maybe this changes in the Court's Imperial Phase, more inclined to believe it knows the correct answer now and less inclined to allow multiple circuits to weigh on the other side before SCOTUS' ultimate resolution.
• This may be a test of Bostock and whether what remains of that majority (Chief, Sotomayor, Kagan, Gorsuch, and (presumably) Jackson in place of Breyer) holds and expands to the 14th Amendment.
I will go out on a limb: The Court holds that these bans constitute gender discrimination requiring intermediate/heightened scrutiny, then remand for the lower court to apply that. See you in about 10 months.
Posted by Howard Wasserman on June 24, 2024 at 12:43 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
The limits on judicial departmentalism
In response to Steve:
I agree it presents difficult line-drawing problems. There are prudential limitations--lawmakers should not do this lightly and perhaps requires some good-faith belief that the law should or might change. Two legal doctrines impose a drag on officials. A successful § 1983 plaintiff can recover attorney's fees under § 1988--this increases the cost of defending these laws by placing government on the hook for the plaintiff's legal fees if the courts ultimately declare the law constitutionally invalid. And state officials would lose on qualified immunity in a post-enforcement damages action--SCOTUS precedent clearly establishes most rights.* Elections and the electorate provide the ultimate check--a functioning polity (and yes, we do not have that in all respects now) might punish officials for wasting public money on performative legislation that loses in court and costs the state money in damages and funding litigation costs for both sides.
I take the point that those drags apply only where actual or threatened enforcement allows offensive § 1983 litigation, whether pre- or post-enforcement. This would be more difficult with Steve's example of a state reinstating capital punishment for minors. A defendant could not sue for damages over the decision to pursue the death penalty--prosecutors would enjoy absolute immunity for the litigation decision. An offensive EpY action also may be problematic, although this is a tricky question. A minor not yet subject to a capital prosecution would lack standing; someone facing an ongoing capital prosecution could be Younger barred from going to federal court ("could" because a capital prosecution contradicting binding precedent might fit within Younger's "flagrantly unconstitutional" exception). In any event, a truly brazen example such as this would be litigated to an immediate, potentially pre-trial answer in the first case in which the state sought the death penalty against a minor (assuming case fits, as I think it would, in Cox Broadcasting's fourth finality category of seriously eroding federal policy if SCOTUS must await final judgment).
The capital-punishment example raises concerns for injuries--minors pleading out or spending time on Death Row until SCOTUS resolves (again) the constitutional issue. This warrants a few responses.
1) Those costs exist in every period before SCOTUS decides any constitutional issue. Not to minimize, but they are inherent in the system of constitutional litigation. Minors sat on death row before Roper; I doubt they were less injured than any minors placed on death row while the state attempts to relitigate Roper. Especially were SCOTUS to overrule Roper and affirm the propriety of those sentences.
2) They assume lower courts will ignore Roper, allow capital prosecutions of minors, and sentence minors to death. I instead would expect lower courts to apply Roper, bar the capital portion of the prosecution, and force the state to appeal to SCOTUS for new precedent.
As for where it ends, it may not not have an "end," so long as we tie constitutional decisionmaking into adversarial litigation and require some mechanism for reconsidering precedent. The alternative is that rights-increasing constitutional precedent survives forever (unless overruled by constitutional amendment).
Posted by Howard Wasserman on June 24, 2024 at 11:29 AM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Friday, June 21, 2024
Judicial departmentalism and the Ten Commandments
A quick word on the new Louisiana law allowing a sect-specific version of the Ten Commandments in all public-school classrooms.
The governor and legislature acted in a legitimate way. They believe the law constitutionally valid and acted on that view, even if that view runs contrary to binding SCOTUS precedent. And they acted in something other than a purely performative, wasting-taxpayer-dollars way, to the extent they believe (not unreasonably) that the current Court might overrule Stone.
Critics must wrestle with this problem: If Louisiana did not or cannot do this, a court could never reconsider or revisit precedent. It takes a new law or enforcement of an old law to create new litigation allowing the court to resolve the constitutional question and to change the law if it sees fit. If a state cannot do this, decisions declaring that government cannot do something are set in stone (no pun intended) and never can be changed. Whatever one thinks of the constitutional validity and/or wisdom of these displays and whatever one thinks about whether the Court should reconsider Stone, it cannot be that any judicial precedent lies procedurally beyond reconsideration.
Posted by Howard Wasserman on June 21, 2024 at 12:32 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Fifth Circuit overrules Ex parte Young
Exaggerating only slightly in Mi Familia Vota v. Ogg. Groups brought an EpY challenge to Texas's bullshit post-2020 "election integrity" law, including through some criminal prohibitions. They initially sued the attorney general, but the Texas Supreme Court held that the power to bring criminal charges rested with local prosecutors, not the AG. So plaintiffs amended to add the DA of Harris County (includes Houston). But the Fifth Circuit held that the DA does not fall within EpY (and thus has 11th Amendment immunity from the § 1983--some statutory claims remain) because: 1) Ogg has general discretion to bring criminal charges and no specific obligation to enforce the challenged statute; 2) her specific duty is to do justice, not to enforce criminal laws through convictions; 3) Ogg has never enforced the challenged law (the lawsuit was filed six days after it took effect) and has agreed not to enforce during litigation.
If not making EpY actions impossible, it offers state officials a roadmap for how to get out of it.
• The court requires that every provision impose a duty on a particular officer to enforce that provision. The DA's general obligation to enforce "criminal laws" is insufficient. But most states do not legislate that specifically. Worse, Texas law generally obligates DAs to "see that justice is done," which is not a duty to enforce. Moreover, discretion is inherent in executive functions, especially prosecutions--the DA possesses some discretion on which cases to bring and when. So even the clearest connection between an official and a particular statute runs aground on that inherent discretion.
• The promise not to enforce is even more problematic. Whether an official will enforce a law is part of justiciability (especially standing); the court now imports that into EpY, exacerbating the conflation of these concepts. Even if this should be part of EpY, the analysis is circular. Ogg promised not to enforce while litigation is pending. But if that promise gets the target defendant out of the suit, the plaintiff has no one to proceed against in the EpY action--the promise not to enforce until the end of litigation ends the litigation.
• The promise not to enforce may not control if plaintiff's can point to enforcement history (again importing a piece of standing analysis). But the court emphasizes that Ogg had no history of enforcement because plaintiffs filed suit less than a week after the law took effect, leaving Ogg no opportunity to do that. The lesson: Do not pursue offensive litigation too quickly. Stated differently, if you use EpY too quickly, your EpY action will fail because the target defendant never enforced the law.
• The court cites Whole Woman's Health for the proposition that rightsholders are not entitled to bring pre-enforcement EpY challenges to all laws and that some constitutional rights must be asserted defensively. But WWH bars an EpY action against state officials who have no authority or obligation to enforce a challenged law that is subject purely to private enforcement; it does not purport to narrow EpY or to limit the right to bring pre-enforcement challenges to publicly enforced laws. And while some rights in some circumstances must be litigated defensively, a Fourteenth Amendment challenge to a criminal law has never been one of them. At the same time, the court adopts a cribbed reading of the part of WWH that allowed medical professionals' claims against the licensing boards; it refused to credit as binding the fractured views of two four-person opinions.
So at least in the Fifth Circuit, rightsholders cannot pursue offensive pre-enforcement litigation against a law unless that law expressly imposes a non-discretionary duty to enforce on a specific official, the official does not agree to withhold enforcement until the end of the case, and the official has had time to enforce in the past and build a record of intention to enforce.
EpY aside, the case features some interesting appellate jurisdiction issues. Ogg appealed the denial of her sovereign immunity defense, which is generally subject to COD review. But plaintiffs asserted claims under the Rehabilitation Act, Voting Rights Act, and Americans With Disabilities Act, all of which (or at least arguably are--the court played coy as to all but the VRA) abrogate sovereign immunity; they argued that immediate review was improper here, since the case would not end if the court of appeals reversed and found sovereign immunity. The court also considered, but declined, to exercise pendent appellate jurisdiction over the question of the plaintiffs' standing; Ogg argued that because standing and EpY turn on the same issues, the court should consider all.
Posted by Howard Wasserman on June 21, 2024 at 12:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, June 13, 2024
Paring back strange standing doctrines
SCOTUS decided FDA v. Alliance for Hippocratic Medicine Thursday, holding 9-0 (per Justice Kavanaugh) that a collection of anti-choice doctrines lack standing to challenge FDA's expansion of Mifepristone availability.*
* And implicitly holding that the Fifth Circuit and the district judges within Texas are off the rockers, although that is unlikely to have any effect.
The case hints at paring back more strained forms of standing.
The Court emphasizes that the plaintiffs are unregulated parties seeking to challenge government regulation of others, requiring a "predictable chain of events." It refuses to accord standing to anyone who sees an increase in her workload or job burdens as a result of government policy (e.g., the doctors here alleging they will have to treat more patients suffering side effects of Mifepristone or firefighters alleging they will face more fires because government relaxes fire codes).
The Court cabins Havens "organizational" standing. An organization cannot claim standing because it diverts resources in response to the defendant's actions, as by spending money to oppose or work around some policy. The plaintiff organization in Havens (HOME) providing counseling services to homeeseekers; Havens injured HOME in that function by providing Black testers false information about the availability of housing. But Havens does not accord standing to any advocacy group that spends money or otherwise acts to oppose a policy. Note that this conclusion is cross-partisan. Immigrant-rights groups such as HIAS relied on a similar theory in challenging Trump's travel ban--they diverted resources to try to bring people into the country around the travel ban and to educate people about the new rules and limitations.
Finally, Justice Thomas concurs to reaffirm his stated distaste for third-party standing and to add associational standing (which he sees as another form of third-party standing) to his hit list. (He relies on an amicus brief by friend-and-spouse-of-the-blawg Andy Hessick of UNC). He links the expansion of (and thus defects in) associational standing to the problems of universal injunctions--protecting beyond plaintiffs, undermining FRCP 23, and creating preclusion problems. And he rejects any "practical" justifications for the vehicle. (Update: Andy and Michael Morley made the full critique of associational standing here.
Posted by Howard Wasserman on June 13, 2024 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, May 22, 2024
Shadow Docket Sunlight Act of 2024
Introduced by Sheldon Whitehouse with a number of Dem co-sponsors. It requires disclosure of votes and at least one written opinion for the Court explaining any decision granting, denying, or vacating injunctive relief or vacating a stay of injunctive relief. The bill makes clear this covers cases within the Court's appellate jurisdiction and thus is an exercise of the exceptions-and-regulations clause.
Two thoughts.
1) Different complaints about the Court trigger different solutions--and those solutions may contradict one another. The need for transparency on the shadow docket requires opinions and vote counts. But the need to get the Court to act less like a body of self-serving individuals requires eliminating vote counts and limiting opinions.
2) Attempts to control what, when, and how the Court reaches and explains its judgments presents an interesting question about the line between Congress' exceptions-and-regulations power and the "judicial power"/Klein/dictating case outcomes principle. Previous discussions have focused on whether Congress can stop or limit the form and content of opinions; this bill presents the flip side of whether Congress can require opinions. But both go to the same idea--how much can Congress control the presentation of a decision once made.
I expect to use this in Fed Courts in the fall, even if it has no chance of ever becoming law.
Posted by Howard Wasserman on May 22, 2024 at 04:42 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Judge Reeves on Qualified Immunity (Updated)
Judge Reeves offers his second judicial takedown of qualified immunity. He hits the usual hits--atextual; ahistoric; fails to achieve supposed policy goals; contrary to intended text; judicially created and silently modified; a tool for injustice; inconsistent with every other area of law (e.g., a physician cannot avoid malpractice liability because no court of appeals had imposed liability on another physician who made that precise mistake). Shout-outs to the work of Alex Reinert, Joanna, Schwartz, Will Baude, Karen Blum, Andrew Pollis, and others, as well as to the string of the most absurd cases in which courts found QI. Reeves adds a new tool to his argument--Dobbs and why Justice Alito's arguments justifying overruling Roe provide stronger justification for overruling the entire QI line. For example, if women lack an abstract reliance interest in the ability to control their lives by controlling when and if to have children, police officers lack such an abstract interest in being able to violate the Constitution.
The puzzle comes at the end. Describing what he calls a "more democratic vision," Reeves argues that courts must "tell the jurors the truth." He lists a series of points on which jurors should be instructed--police may act in split-second, rapidly evolving circumstances; the law gives less deference to officers who engage in a pattern of misconduct or who act in a calculated fashion with advice of counsel; unnecessary suits against public officers divert energy and attention from the public business and deter qualified people from entering public service. The jury should be able to resolve these tensions and contradictions on a case-by-case basis.
But where is he getting this from? Is it tied to the constitutional right--the officer does not violate the Fourth Amendment in that fast-moving situation? Or does this retain the basic idea of qualified immunity (an officer avoids liability for policy reasons despite violating plaintiff's rights) but place the decision in the jury's hands? If so, the same criticisms remain--this sort of immunity has no basis in law, and putting the balance in the "more democratic" hands of the jury does not change that. Reeves wants "the People" to resolve the contradictions in "America's DNA," although without any actual law or legal basis for doing so. This new approach retains the analytical gap between when an officer can be liable for damages and when he can be liable for an injunction--a gap that similarly has no legal basis.
The opinion is a tour de force in identifying and illustrating, in plain language, the absurdity of modern qualified immunity. It has some unnecessary hyperbole--a reference to Southern trees bearing strange fruit and to the 3/5 compromise--but I'll law allow it. But the opinion also highlights problems in the "get rid of qualified immunity" discussion. What, if anything, replaces it--strict liability (as exists for prospective relief)? a different form of qualified immunity more in line with 1871 common law? narrower substantive constitutional rights? something else? And where does the replacement come from--if the Court does it, the atextualism objection remains. Can we reform qualified immunity without addressing the other two legs of Judge Ho's "unholy trinity"--prosecutorial immunity and Monell?
The opinion offers an additional insight that I had not considered--its place in the backlash to the Civil Rights Movement, particularly to civil disobedience and public protest. Pierson v. Ray introduced qualified immunity (common law good-faith-and-probable-cause) in an April 1967 case arising from the arrest of several Black ministers who entered a segregated bus-terminal waiting area. The Court (except Justice Douglas) lost its stomach for protecting civil rights and undoing Jim Crow when it came to imposing damages on Southern officers enforcing constitutionally dubious laws against people who knowingly and intentionally violate those laws for political purposes. We might see Pierson of a piece with Walker v. City of Birmingham, decided two months later, where the Court applied the collateral bar rule to a First Amendment challenge to those who ignored a nakedly racist injunction against a public march. Or Adderly v. Florida (earlier in the term), rejecting a right to protest on the driveway of a county jail. Although raising distinct legal issues, all reflect the Court allowing government greater leeway and authority in stopping public protests.
Posted by Howard Wasserman on May 22, 2024 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Wednesday, May 08, 2024
TikTok ban and 3-judge district courts
TikTok challenged the new law banning it (at least with Chinese ownership), alleging violations of the First Amendment, equal protection, bill of attainder, and taking. Pursuant to § 3(a) of Division H of the Act, it filed the petition with the D.C. Circuit.
Congress essentially adopted for challenges to the statute the procedure for challenges to regulations implementing and enforcing the statute. But reviewing regulatory action looks appellate, while reviewing the validity of enforcing legislation involves an exercise of original jurisdiction, including taking evidence about standing (unfortunately) and the plaintiff's factual allegations about things such as the impossibility of compliance and the effect on speech. And Congress had such a process if it wanted quick multi-judge review--3-judge district courts.
Posted by Howard Wasserman on May 8, 2024 at 08:58 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, April 18, 2024
Why Roe is different
When SCOTUS decided Dobbs, I wondered what made it "unprecedented," as pro-choice critics argued. It was not overruling precedent simpliciter, because the Court had overruled other precedent. It was not overruling precedent to limit a right, since the Court had overruled other rights-creating precedent (Lochner, death penalty, and some crim-pro protections).
While doing an interview about the Arizona case, I think I hit on what might be different: The massive number of zombie laws, many more than 100 years old, that Dobbs reanimated. Abortion raises two related features: 1) the large number of old laws dating back to a prior understanding of medical science and a prior perspective on women's bodily autonomy and 2) the large number of abortion laws, many inconsistent or contradictory, that states enacted between 1973 and 2022 to test Roe or to prepare for its demise. Courts must now sort laws out. Women, providers, and advocates to understand a confusing landscape. The same thing did not happen after West Coast Hotel. And probably would not happen if the Court overruled Brown, New York Times, or Obergefell.*
[*] Many zombie anti-SSM provisions remain, including in state constitutions. But the issue is more straight-forward compared with the myriad laws and ways to regulate abortion.
Posted by Howard Wasserman on April 18, 2024 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Tuesday, April 16, 2024
SCOTUS stays (in part) injunction Idaho transgender-care ban, justices debate (Updated)
SCOTUS stayed the injunction prohibiting enforcement of Idaho's ban on gender-affirming care for minors, to the extent the injunction applied beyond the plaintiffs. We end up in the right place--no enforcement against the plaintiffs pending appeal--but by the wrong process.
Justice Gorsuch, joined by Thomas and Alito, spends 12 pages on the evil and error of universal injunctions. He ends on this:
Lower courts would be wise to take heed. Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office; promote more carefully reasoned judicial decisions attuned to the facts, parties, and claims at hand; allow for the gradual accretion of thoughtful precedent at the circuit level; and reduce the pressure on governments to seek interlocutory relief in this Court. A return to a more piecemeal and deliberative judicial process may strike some as inefficient. It may promise less power for the judge and less drama and excitement for the parties and public. But if any of that makes today’s decision wrong, it makes it wrong in the best possible ways, for “good judicial decisions are usually tempered by older virtues.”
That last sentence shoots at Justices Jackson's dissent, criticizing the Court's early involvement. The rest, including as to the inefficiency of constitutional litigation is, as far as I am concerned, spot-on. Note this is the first time Justice Alito has taken a public stance against universal injunctions.
Justice Kavanaugh, joined by Justice Barrett, concurs to ponder a standard for SCOTUS early involvement, especially the need to consider likelihood of success on the merits on emergency stay and injunction-pending-appeal motions. He links the rise in universal injunctions to the rise of shadow docket activity. And he continues Barrett's hobbyhorse about determining the "status" quo for interim and emergency relief--whether the status quo is prior to enactment of the law, prior to the injunction, or something else. He expresses skepticism of universal injunctions, although noting APA as a separate issue.
Justice Jackson, joined by Sotomayor, dissented from the stay. She primarily focused on reducing the Court's early involvement in cases. She emphasized the split of scholarly and lower-court authority, suggesting the issue is not as clear as Gorsuch suggests, but also criticizes Gorsuch for "reach[ing] out" to resolve an unsettled remedial issue on less-than-full presentation. She also argued the injunction was not universal--it was a "party-specific, fact-specific" expansion to ensure full protection to the named plaintiffs--another reason not to resolve the universality question. Justice Kagan dissented from the stay but did not join Jackson's opinion.
Update: Sam Bray has more. Including the point that no one on the Court endorsed universality--at best Jackson says it is unresolved and difficult.
Posted by Howard Wasserman on April 16, 2024 at 10:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Monday, April 01, 2024
Briefplaints, press releases, and long-shot lawsuits
A woman indicted and jailed for murder over a medication abortion brought a § 1983 action against the DA and ADA who pursued the charges. The ADA obtained the indictment and the arrest; the woman spent three days in jail until the DA dropped the charges. The DA was hit with ethics charges for bringing the case, which is unheard of.
There is a lot here related to what I teach.
• Prosecutorial Immunity. Prosecutors are immune for presenting a case to a grand jury, including intentionally lying about facts or misstating law in doing so. The complaint tries to reframe the relevant conduct as the pre-grand-jury investigation of the case, which the DA'ss office ran without the sheriff or local PD; prosecutorial immunity does not attach to investigations or to a prosecutor performing law-enforcement functions. It combines that with an exception to the independent intermediary doctrine--because prosecutors played both the "police" and "prosecutor" roles, the prosecutor was not independent of the police so the immune prosecutorial conduct does not break the causal chain between the non-immune investigation and the injury.
• Entity Liability. The complaint names the DA and ADA. Although the ADA ran the case, the complaint alleges the ADA ran everything through the DA (the office policymaker) and the DA ordered the arrest. But the Fifth Circuit has long held that county prosecutors act as arms of the state, not the county, in enforcing state penal law. So the County is not a person and enjoys sovereign immunity.
• Briefplaints and Press Releases. Two terms I use in class in explaining how many attorneys approach pleading. I found the term "briefplaint" on Twitter to describe a complaint in which the plaintiff's lawyer anticipates and responds to affirmative defenses and legal arguments, filling the complaint with case citations and the arguments she will make in response to a motion to dismiss or for summary judgment. Beth Thornburg (long at SMU) coined the term "pleading as press release" to describe a complaint aimed at the public and the media rather than the court and opposing party--loaded with flowery language and rhetoric and designed to be quoted. The concepts fit together. A briefplaint is more likely in a high-profile case in which the attorney knows people are watching and feels the need to get ahead of defenses and arguments, knowing that the people watching do not understand the difference between a pleading alleging facts and a brief presenting legal arguments. It thus is not enough to provide a short-and-plain statement of the claim (the plaintiff's best version of events) and let everything else happen in time. The plaintiff feels the need to show everything she knows or anticipates about the case.
This complaint exemplifies that. Part V (the complaint is numbered oddly) lists applicable statutes and constitutional provisions and Part VI lays out a fully cited legal argument for why prosecutorial immunity--an affirmative defense--does not apply. The case has (unsurprisingly) drawn national press attention, so the attorney may believe she has to show the public and the media that she has considered these issues and has a strong case.
Posted by Howard Wasserman on April 1, 2024 at 05:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Monday, March 18, 2024
SCOTUS narrows when officials act under color online
SCOTUS on Friday decided when public officials can block people from their social-media pages. Lindke v. Freed (from the Sixth Circuit, a claim against a city manager) became the lead case; O'Connor-Ratcliff v. Garnier (from the Ninth Circuit, claims against school-board members) was vacated-and-remanded for reconsideration in light of Lindke.
Justice Barrett wrote Lindke for a unanimous Court, describing the standard as:
a public official’s social-media activity constitutes state action under §1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.
A few thoughts:
• The court properly recognized that the question is not when a nominally private person acts under color, but when a state official engages in state action or functions as a private official. While SCOTUS has had few cases on the latter issue, it ignores the obvious analogy to off-duty officers who use the badges of authority to engage in misconduct; there is a wealth of lower-court precedent, typically (although not exclusively) involving law enforcement. The court emphasizes (and this arose a lot during argument) that public officials retain private lives and First Amendment rights when they are "off duty." The Court thus repurposes the idea that "the state-action requirement 'protects a robust sphere of individual liberty;'" rather than grounds for not subjecting private actors to constitutional liability, it limits the scope of a public official's job responsibilities., a requirement that the official have some "off-duty" time to engage in his own First Amendment activities.
• The Court takes a narrower approach to state action than I would have liked to see. The official "must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action." If maintaining and posting content to the site is not part of the official job functions and responsibilities that bind the government, the official does not act under color, no matter how much the site appears to be official. The open question is how courts apply this to sites that an elected official uses to "further" her job duties or as a "tool of governance" but which are not required by state law and not a formal part of her job duties. Perhaps custom gets there, except courts do not easily find something so persistent, permanent, and well-settled as to have practical force of law. It seems unlikely social media (10-years-old) and even web-based communications (maybe 25 years old) reach that level.
• Davison v. Loudon Cty. and Knight Foundation v. Trump--the leading cases finding state action in a public official maintaining an official or quasi-official for purposes of communicating and interacting with constituents about government business--must come out the other way. Both courts focused on the appearance and function of the activities on the site--the discussion of public content, the indicia of official status. But that is step two under Lindke. The courts now never reach that issue if the official does not have actual authority to speak on the government's behalf about the matters at issue. For example, even on her official "chair" site, the chair of the Loudon County Board of Supervisors does not have actual authority to speak on the government's behalf about, say, a recent school-board meeting. And her web site site is not the only space in which that information appears--the city likely posted it to the government's official site. The chair uses the site to engage with constituents and keep them informed about government events as an elected official, which is not a formal part of her job on behalf of the government. Maybe the President is different, although he still lacks formal speaking authority about a lot of what he posts on social media. Along those lines, I doubt a legislator or member of a multi-member body can ever be a state actor. As individuals, they do not speak for or otherwise bind the government and are not authorized or required to speak for the government or the body. Future litigation in O'Connor-Ratcliff might tell us more--that case involves elected officials who used their campaign sites to discuss public matters after taking office.
• I think the opinion downplays the importance of engagement between the public and officials (especially elected officials) within formal official-controlled channels, even where such engagement does not bind the government and does not constitute a legally authorized or compelled part of the job. Yes, an official should be able to maintain a private site that touches on public matters, just as an official should be able to discuss public issues with friends at a barbecue. But when an official opens a site and invites the public to communicate with her about public affairs, that looks like something other than a barbecue with friends. The Court could have concluded that Freed's site is private without erecting the additional hurdle that renders many job-adjacent functions--those that "further" the job without being legally authorized--not state action.
• I will link to this Will Baude post trying to make heads or tails of the Court's odd mandate in the case--vacating the Sixth Circuit "[t]o the extent that this test differ from the one applied by the Sixth Circuit." My best guess is that this is sloppy language, reflecting that the Justices ignore (if they even grasp) the procedural nuances, the differences between judgments and opinions, etc. The Court uses more expected language-vacating and remanding for further proceedings consistent with this opinion--in O'Connor.
• The Court at one point gives us this: "'editorial control over speech and speakers on [the public employee’s] properties or platforms' is part and parcel of it. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own." Is editorial control also part and parcel of Facebook's First Amendment rights and control of its site immune from government command? Or will the Court give us the farce that a government official exercises editorial control to keep citizens from speaking to them but that private entities lack the same editorial control to control who speaks on their spaces?
Posted by Howard Wasserman on March 18, 2024 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Friday, March 08, 2024
Amendment gaps
Gerard's post about near amendments and search for sources reminded me of my similar request to a listserv a few months ago. I had been thinking about the 61-year gap between the 12th (1804) and 13th (1864) Amendments, the longest period between amendments in history. More recently, I was thinking that we are closing in on that record, at 53 years and counting since the 26th Amendment and no amendment likely to be ratified any time soon. But I forgot about the 27th Amendment, ratified in 1992, although proposed in 1789. Resetting the clock, we are at 32 years--about half the record and a decade short of the 43-year gap (to the day--February 3) between the 15th and 16th.
Posted by Howard Wasserman on March 8, 2024 at 08:53 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
Wednesday, February 28, 2024
Universality and litigation procedure in the social-media cases (Updated)
Universality reared its head in the social-media cases, especially the Florida case. The plaintiffs brought a facial challenge, which perplexed the Justices who found some applications of the law that would be valid (e.g., DMs and email services). Michael Dorf offers one solution. In trying to avoid this problem, Paul Clement (arguing for the providers) tried to emphasize the particularity of the preliminary injunction--it protects his clients but does not prohibit enforcement against anyone other than his clients and it should remain in place to protect his clients from a wave of statutorily authorized $ 100,000 civil actions while litigation continues on remand to the trial court.
Clement is half right on this. The injunction protects only his clients, so the state could enforce against violators not within the NetChoice consortium. But the injunction does not (or at least should not) protect his client from civil suits. The unknown random people who might sue are not parties to the action and do not work in concert with the state, therefore the injunction cannot bind them. They likely do not act under color and thus could not be sued or held liable in an offensive § 1983/EpY action--they are not exclusive enforcers and sue to enforce their own rights to be on the platform, making them ordinary litigants pursuing an ordinary (if constitutionally dubious) state-law cause of action.
The case thus illustrates another limitation on offensive litigation in a mixed enforcement regime--any pre-enforcement injunction cannot stop private enforcement as a matter of the judgment, only as a matter of precedent. (Edit: My initial post said we forgot to mention this in our Cornell piece--turns out we did talk about it at 151-52. Mea culpa).*
[*] Anyone else experience the feeling of writing so much on a topic you forget what you've said?
Posted by Howard Wasserman on February 28, 2024 at 11:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Thursday, February 15, 2024
Jurisdictional confusion never goes away
This decision from the District of Delaware has everything from every class I ever teach 8 pages from a frivolous case--courts with Eleventh Amendment immunity, judges with judicial immunity, § 1983 claims against private actors, absence of a private right of action, incomplete diversity, declination of supplemental jurisdiction, and perhaps Rooker. Everything. The case seems to be an elderly couple lashing at after their adult children moved them off of some property.
The case caught my attention because of footnote 1. After dismissing for failure to state a claim the claims against several private individuals (family members, two private practice attorneys, a law firm, a legal aid organization, and the electrician who cut off the power to their property) for lack of action under color, the court drops this footnote:
See Itiowe v. Trentonian, 620 F. App’x 65, 67 n.2 (3d Cir. 2015) (per curiam) (noting that dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction may be appropriate where a plaintiff brings constitutional claims against non-state actors without plausibly alleging that they acted under the color of state law); see also Hagans v. Lavine, 415 U.S. 528, 536-37 (1974).
Jurisdiction/merits confusion will never go away. State action/under color presents one of the early examples of conflation (along with Title VII's numerosity requirement) and an easy case for merits treatment. One of my early cases clerking on the Eastern District of Pennsylvania involved a defense 12(b)(1) motion for lack of state action* and us writing an order instructing the parties to treat this as a merits/12(b)(6) issue, citing a published opinion from Judge Becker on the Third Circuit. How much we forget. Or it is continued malign influence of Bell v. Hood, under which courts find lack of jurisdiction if an otherwise obviously federal claim is sufficiently weak. See also Judge Newsom's take.
[*] I don't recall all the details and we did not publish anything. But the case arose from an assistant DA assaulting a defense attorney in open court. I used it as a class problem for years--how seriously should we take the idea of a state position "enabling" conduct for under color purposes?
Posted by Howard Wasserman on February 15, 2024 at 12:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Fifth Circuit and favorable termination
I wrote in December about the Fifth Circuit decision in Wilson v. Midland Cty., about the application of Heck to a claim by a woman convicted of crimes in Texas where an ADA was moonlighting as the judges' law clerk. Judge Willett's panel opinion held the claim Heck-barred because Wilson was no longer in custody (she completed her sentence a decade ago), while decrying the injustice of the result.
The court granted rehearing en banc and scheduled argument for May. As I wrote, there is a circuit split on whether Heck applies to a person who no longer is in custody. No matter the result here, the issue seems to be teeing up for SCOTUS resolution.
Posted by Howard Wasserman on February 15, 2024 at 09:40 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Saturday, February 10, 2024
Thoughts on the disqualification case
• The prevailing wisdom seems to be reversal on the ground that states lack the power to adjudicate eligibility, at least without congressional approval. Many of the exchanges about that lack of power took a procedural focus--the process by which state courts would do this; differing evidentiary rules and standards of proof; the risk of disuniformity; the absence of federal control; etc.
None of these is real--or at least each is answerable and resolveable. But the justices never seemed inclined to hear those resolutions. Consider:
• Disuniformity can arise in any adjudication in any court system in any posture, unless the Court exercises original jurisdiction over all cases, which it cannot and will not do. But we could get disuniformity from one process the justices accepted--prosecution for insurrection. Imagine Trump committed separate allegedly insurrectionary acts--January 6 and, then after leaving office, he pulls an Aaron Burr. That prompts separate prosecutions in separate federal districts in separate circuits, perhaps under different interpretations of the rules of evidence--and perhaps disuniform rulings as to his eligibility. (Admittedly slightly different because it is two distinct insurrectionary acts--but we could imagine a link between the two or a single conspiracy with acts in two places).
• SCOTUS exists to resolve disuniformity. But the Court demurred from control over this issue contra most other current legal issues. And it did so in a way that placed the plaintiffs and states in a catch-22. An exchange between Justice Barrett and Jason Murray illustrates. Barrett expressed concern for being stuck with the record from the lower court; Murray responded that the Court could adopt independent factual review as it does under New York Times and for other "constitutional facts;" Barrett replied by complaining about having to decide without deference from lower-court fact finding. Which is it--SCOTUS must control the lower courts or SCOTUS must have lower courts to defer to? We could find a similar solution to Justice Alito's concerns for different evidence and proof rules--NYT dictates, as a matter of substantive constitutional law, the standard and burden of proof for defamation. Why not for § 3?
• A system in which constitutional enforcement occurs in courts must account for enforcement mechanisms. Nothing "just happens." Accepting that the "self-executing" nature of § 3 means Trump became ineligible as soon as he engaged in insurrection (as Murray argued), that ineligibility still must be enforced through some mechanism. And, Murray argued, the only available mechanism once someone occupies the office is impeachment (accepting, from Griffin's Case, that collateral attacks on presidential action are impossible). But Gorsuch would not hear it, insisting that is a separate question. But that separate question is one of the issues at the heart of the case--how to enforce § 3.
• The President is a national officer. But he is not selected nationally--he is selected by some combination of 50 states and D.C., potentially through 51 selection mechanisms. I have not heard a good argument for why § 3 is different from other things states can consider and use to control ballot access and selection of federal offices, including the presidency.
• An unfortunate narrative has developed about "how could all these supposedly brilliant law professors have been wrong." Most legal scholarship is normative rather than predictive--scholars do not predict what the Court will do, they write about what the Court should do and what the law should be. That the Court disagrees does not make the scholars "wrong" and the Court "right," other than in the (Robert) Jacksonian sense in which infallibility follows from finality and from actually having power to impose their constitutional views on others.
Posted by Howard Wasserman on February 10, 2024 at 06:00 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Thursday, February 08, 2024
The constitutional validity of the Presidential Succession Act
Following on Steve's point: The Presidential Succession Act does not permit someone to simultaneously serve as a House and act as president. Section 19(a)(1) states the "Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President." Section 19(b)(1), should it devolve to the PPT, states "the president pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President." The West Wing producers did not have the character do this for the good of the country--the statute requires resignation. And it does so to avoid the Incompatibility Clause problem.
Legislative succession may raise other constitutional problems. Article II § 1 cl.6 empowers Congress to provide by law for a double vacancy by "declaring what Officer shall then act as President." This raises two possible problems. There is some question whether the Speaker or PPT, while legislative officers, qualifies as an officer of or under the United States; legislative officers may not qualify for succession, incompatibility aside. Alternatively, in the moment he resigns the Speakership and his House seat, the person ceases to be an officer--the condition to act as president--who can then take the oath to act as president.
So there may be constitutional problems with § 19. It is not the problem Calabresi identifies because the statute does not say what he suggests it says. And the statute, by requiring resignation, does not prove the larger point about whether the President is an officer.
Posted by Howard Wasserman on February 8, 2024 at 10:50 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
Tuesday, February 06, 2024
Reining in the lower courts
The Tenth Circuit rejected a Bivens claim against U.S. Marshals who beat a man unconscious outside his home while executing a warrant. The Court noted, but did not rely on, the fact that the plaintiff was assaulted outside his home, whereas officers attacked Bivens inside his home. The Court relied on the differences between deputy marshals and ATF agents and the availability of USMS grievances against the officers. The case reveals how absurd Bivens has become. And the court uses language that seems to acknowledge that absurdity while blaming SCOTUS for forcing lower courts to reach such absurd results.
SCOTUS often grants cert to pull lower courts back into line when decisions get to far afield, even if SCOTUS forced them there through its decisions and the language of its decisions. That is, SCOTUS pulls lower courts back when they take the doctrine too far, even if the lower courts' decisions reflect natural extensions of SCOTUS precedent. Some cases allow the Court to say "we didn't mean that." This arguably explains Taylor v. Riojas, where the Court held (in a summary reversal) that leaving a prisoner in a cold, barren, feces-strewn cell obviously violated the Eighth Amendment without precedent. It arguably explains HHC v. Talevski, where the Court ensured of the continuing vitality of § 1983 "and laws" actions.
Might the Court take this case or a similar case--in which the basic logic is "no Bivens claim because this guy is not named Bivens"--to pull back from the worst nonsense? Or is Bivens so doomed that the Court's next move will be to overrule it?
Posted by Howard Wasserman on February 6, 2024 at 03:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Saturday, January 20, 2024
Every animal who, under color . . .
Fun case from the Eighth Circuit: Whitworth v. Kling (8th Cir.), arising from a K-9 (named Dutch) biting a guest in his off-duty handler's house. The court rejected a Fourth Amendment unreasonable-seizure claim against the handler, because the bite was unintentional and not part of the officer's official efforts. The court treated the K-9 as the officer's weapon used to engage in force--in this case, the sort of unintentional force that does not violate the Fourth Amendment.
But the court ignored two other paths to the same result.
One is that Dutch did not act under color because he did not pretend to perform his official duties----he was playing fetch in his yard off-duty, got distracted, and ignored commands to disengage--or use his position to enable his conduct. That is obviously silly. Section 1983 precludes that approach--"[e]very person" under color. And cases treat K-9s as an officer's tool rather than as the officer. But the thought is fun. And consistent with my use of the pleadings in Naruto v. Slater (the "monkey selfie" case) in Civ Pro.
Another path is that the officer--off-duty, playing fetch in the yard, and not attempting or appearing to perform any job-adjacent acts through Dutch--did not act under color. The dog bite is analogous to an off-duty officer's service revolver accidentally discharging and injuring a visitor to his house. I wonder why the court did not pursue this.
Posted by Howard Wasserman on January 20, 2024 at 05:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
Friday, January 19, 2024
The law of Trump and easy cases
I mentioned previously that people have proposed classes on "Law of Trump"--a discussion of the many, many legal issues that have arisen in litigation involving Trump and those in his orbit. A lot of it has touched on Civ Pro and Fed Courts, hence my interest.
Much of the Law of Trump involves not new law, but easy application of established principles, applied to a new, often-unprecedented context receiving outsized attention. Take Clifford Frost, one of Trump's fake Michigan electors, now facing eight state felonies over the scheme. Frost filed a federal action to enjoin the prosecution, although he does not assert a constitutional defense; he recasts a sufficiency-of-the-evidence defense as a 14th Amendment violation and as bad faith. This was, and should be, an easy case for Younger abstention.
Posted by Howard Wasserman on January 19, 2024 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, January 03, 2024
A new Bivens Catch-22
After federal officials attempted to strip Michael Cohen of his home confinement and placed him in solitary confinement in retaliation for his public statements, Cohen obtained habeas relief. He then sought Bivens damages against Donald Trump, Bill Barr, and a bunch of officials in the corrections system. The Second Circuit affirmed dismissal of the Bivens action, to no one's surprise (except perhaps Cohen and his attorneys)--this is a new context (because the cause is not called Bivens or Carlson) and there are always special factors counseling hesitation. The court relied on the special factor or availability of alternative remedies--the habeas relief that Cohen sought and received.
But note the double work habeas does here. Because Cohen challenged, in part, the terms of his sentence (imprisonment rather than house arrest), a successful damages claim would have implied the invalidity of that part of the sentence. Such a claim is Heck-barred unless he can show "favorable termination" of the criminal proceedings, such as through habeas relief undoing the sentence. But his success in satisfying that preliminary requirement to pursue damages means he has no Bivens claim at all. On the other hand, had he failed in obtaining habeas relief, he might have been able to pursue the Bivens action, only to find it Heck-barred because he failed to show favorable termination.
Posted by Howard Wasserman on January 3, 2024 at 09:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Monday, December 18, 2023
The Times, Dobbs, and SB8
The New York Times had a big piece Friday on the behind-the-scenes events leading to Dobbs. I want to comment on SB8's cameo in the story.
The piece describes the SB8 case as the beginning of the fall of Roe and the failure to stay enforcement before the law took effect as the point at which "Roe was partially undone." I saw one surprising bit in this section--that Justice Gorsuch was incommunicado except through Justice Alito on the evening of August 31 (the law took effect at midnight September 1). He expressed no view until the next day (which Alito relayed to the rest of the Justices), then voted to deny any injunction the following day. Beyond that weirdness, everything the Justices said in internal memos (as quoted in the Times) appeared in the opinions in the stay order--Roberts' view that the existence of the law might create an independent violation and Justice Sotomayor's view that it was a "pity that we cannot do the right thing."
The problem with giving SB8 a meaningful role in the drama leading to Dobbs is that the outcome of the case should have been obvious. The Court had never said the mere existence of the law violates the Constitution independent of enforcement. The Court cannot stop the law from taking effect, because the Court cannot enjoin a law, independent of its enforcement. And the Court could not, in a § 1983/EpY action, enjoin unknown private actors from doing anything. All of this should have been obvious when the private case reached the Court.
Posted by Howard Wasserman on December 18, 2023 at 12:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
Friday, December 15, 2023
Favorable termination and miscarriages of justice
Case out of the Fifth Circuit, written by Judge Willett, on Heck v. Humphrey and the so-called Heck bar or habeas exception to § 1983:
A former county ADA in Texas moonlighted for two decades as law clerk to the judges of that district. He was discovered in 2019 and disbarred. Erma Wilson was convicted of cocaine possession in 2001 and received an 8-year suspended sentence. Wilson learned about the conflict when a capital conviction was overturned on habeas (she was not among the many people who received written notice from the DA about the conflict) and brought a § 1983 action, more than two decades after her conviction and more than a decade after completing her sentence.
Heck precludes § 1983 damages actions that would functionally call into question the validity of a conviction or sentence; habeas provides the sole federal vehicle for challenging state convictions. A § 1983 plaintiff must show "favorable termination" as an element of her claim. The problem arises when, as in Wilson, an individual no longer is in custody and thus cannot challenge the conviction or sentence through habeas. The Heck majority adopted favorable termination as an absolute rule. Justice Souter concurred in the judgment to argue that favorable termination should apply only at the "intersection" of habeas and § 1983, where both vehicles might be available; it should not apply when habeas is unavailable because the plaintiff no longer is in custody. Souter illustrates with a hypo that basically matches this case--a procedurally compromised conviction where the person does not learn about the compromise until after his release from custody. In Spencer v. Kemna, five Justices in three separate opinions adopted that position. This precipitated a circuit split--five circuits, including the Fifth, hold that Heck always applies; six allow for some exceptions; the answer depends on whether lower courts can count noses to find binding precedent or whether SCOTUS creates binding precedent only through a single majority opinion. Because the Fifth Circuit requires favorable termination, Wilson's claim was Heck-barred.
Judge Willett was outraged. He described the conduct and the outcome as "utterly bonkers," "difficult to explain," "hard to take in," and "underscor[ing] that the American legal system regularly leaves constitutional wrongs unrighted." He footnotes the last with references to prosecutorial immunity, Monell, and qualified immunity, stating "Upshot: Many Americans’ rights are violated but not vindicated."
Two questions of interest going forward:
1) What happens next. Willett emphasizes that the en banc court or SCOTUS could overrule its precedent on this point. Which avenue will and should the plaintiff pursue? En banc Fifth Circuit review (and overruling) allows Wilson to avoid Heck and pursue her claim. But it does not resolve the broader circuit split; even if the Fifth Circuit changes its position, five other circuits continue to deny relief to plaintiffs in Wilson's shoes.* Much depends on what Wilson and/or her attorneys want to achieve--a remedy for her in this case or a broader change in the law. I guess this case may offer an interesting example of the occasional gap between cause lawyering and individual representation.
[*] The Seventh Circuit went the other way--it moved to the "Heck applies" position in 2020 after years of allowing plaintiffs to avoid Heck where they diligently pursued the federal issues diligently and lost the opportunity to pursue habeas through no fault of their own.
2) Wilson's Other Options. The court fails to mention that Wilson had other options or whether she attempted to take advantage of them. Heck lists several ways to obtain favorable termination, including where the conviction has been "expunged by executive order, [or] declared invalid by a state tribunal authorized to make such determination." Lower courts have held the former to include pardons and executive clemency, at least where the pardon makes clear the basis and why it reflects favorable termination. Did Wilson seek a pardon? Alternatively, did she ask the state trial court to vacate the conviction? Neither the complaint, magistrate report, district court opinion, or Fifth Circuit opinion say so. Either would provide the needed favorable termination, mooting the question in this case of when favorable termination applies.
From the standpoint of § 1983's history, those options are unacceptable because they require plaintiffs to rely on state-law processes, whereas § 1983 reflects congressional distrust of state courts and state institutions; Souter makes this point in his Heck concurrence. At least in this case, however, I would expect even Greg Abbott to be receptive to a pardon; the optics and politics seem obvious.
Posted by Howard Wasserman on December 15, 2023 at 03:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Wednesday, December 06, 2023
Harvard Hillel responds to President Gay
Harvard Hillel was not pleased with university President Claudine Gay's testimony, especially her answer about "context" to Stefanik's question. It sent the following email:*
[*] For those wondering, since I did not go to Harvard: I donated to Harvard Hillel in Dan's memory years ago. One cannot escape their mailing list.
Here is the key paragraph:
We are appalled by the need to state the obvious: A call for genocide against Jews is always a hateful incitement of violence. President Gay’s failure to properly condemn this speech calls into question her ability to protect Jewish students on Harvard’s campus. Chants to “globalize the intifada,” an endorsement of violent terrorist attacks against Jewish and Israeli civilians, and “from the river to the sea,” an eliminationist slogan intended to deprive Jews of their right to self-determination in Israel, have become tragically routine at Harvard. President Gay’s testimony fails to reassure us that the University is seriously concerned about the antisemitic rhetoric pervasive on campus. We call on President Gay to take action against those using threatening speech that violates our community standards.
Again, this errs as matter of basic U.S. free speech law. And note the move--in the first sentence it is incitement of violence, in the second it is threatening. But with more--- context---nothing in this paragraph is legally accurate.
In fairness to Hillel, its mission is different than that of members of Congress or attorneys; it acts on commitments other than free speech. But if politics is the art of the possible, Hillel would be better served by recognizing and working within the limitations that free-speech commitments impose, rather than denying they exist and thus demanding what a university or government cannot give.
I reprint the email in full after the jump.
Dear Harvard Hillel Community,
Earlier today, Harvard President Claudine Gay testified before Congress about rising antisemitism at Harvard. When pressed during her testimony, President Gay repeatedly equivocated, refusing to characterize calls for the genocide of Jews as a breach of Harvard’s code of conduct, instead saying the offense “depends on the context.”
President Gay’s refusal to draw a line around threatening antisemitic speech as a violation of Harvard’s policies is profoundly shocking given explicit provisions within the conduct code prohibiting this kind of bullying and harassment.
We are appalled by the need to state the obvious: A call for genocide against Jews is always a hateful incitement of violence. President Gay’s failure to properly condemn this speech calls into question her ability to protect Jewish students on Harvard’s campus. Chants to “globalize the intifada,” an endorsement of violent terrorist attacks against Jewish and Israeli civilians, and “from the river to the sea,” an eliminationist slogan intended to deprive Jews of their right to self-determination in Israel, have become tragically routine at Harvard. President Gay’s testimony fails to reassure us that the University is seriously concerned about the antisemitic rhetoric pervasive on campus. We call on President Gay to take action against those using threatening speech that violates our community standards.
We do agree with President Gay’s testimony that education on antisemitism is urgently needed at Harvard. Harvard Hillel is ready to work with the administration to bring robust education and training on the history of the Jewish people and the evolution of antisemitism to every audience at Harvard — administration, faculty, staff and students.
We will continue to hold the University administration accountable to make Harvard a place that Jewish students can learn, live, and thrive without fear and intimidation.
Posted by Howard Wasserman on December 6, 2023 at 10:16 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)
Wednesday, November 22, 2023
PJ as a chilling tool
I wrote earlier this month about the Tennessee lawsuit against Kathy Griffin and how the many who believed personal jurisdiction was lacking allowed their substantive views to affect their jurisdictional views. It was possible, of course, that forcing a speaker to defend nonsense defamation claims in a distant forum adds to the chilling effect and the goal of silencing speakers.
Thank goodness Elon Musk and Twitter (never X) can illustrate the point with this tortious interference lawsuit in the Northern District of Texas against Media Matters and reporter Eric Hananoki, over an investigation into Twitter allowing ads to run next to antisemitic content, after which several major advertisers withdrew (for the moment) from Twitter.
Twitter is a Nevada corporation with its principal place of business in California. Media Matters is a D.C. not-for-profit with its PPB in D.C. Hananoki is a Maryland citizen. The speech was directed to the world via the MM website and other online and traditional media outlets. The complaint identifies several advertisers who withdrew, none incorporated or having PPB in Texas. The best it can do is that many Twitter users are in Texas and many of the advertisers do business in Texas. Unless they have something else, that will not cut it--there was no "Texasness" to the Media Matters report or to any criticism of Twitter. This is what speech-chilling personal jurisdiction in a speech-chilling BS lawsuit looks like.
Putting a cherry on this as a Civ Pro exam: The Fifth Circuit has held that state anti-SLAPP statutes do not apply in federal court, whereas the Ninth Circuit holds that California's statute does apply in Federal Court.
Posted by Howard Wasserman on November 22, 2023 at 01:17 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Friday, October 06, 2023
Judicial Process and Vigilante Federalism
Judicial Process and Vigilante Federalism, Rocky's and my latest on private enforcement, has been published in Cornell Law Review Online. The essay responds to Jon Michaels & David Noll's Vigilante Federalism.
Posted by Howard Wasserman on October 6, 2023 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)