Friday, May 27, 2022

Taking away rights?

Since the Dobbs draft leaked, I have been trying to figure out what makes the apparent decision to overrule Roe illegitimate and some egregious act of judicial lawlessness.

It cannot be the result simpliciter--that my constitutional understanding differs from that of the apparent five-Justice majority does not make their views wrong in any objective sense, much less illegitimate. It cannot be that it overrules precedent, because the Court has overruled precedent. This is also why it cannot be that recent appointees pledged fealty to stare decisis--case are always subject to reconsideration and stare decisis has standards for overruling cases. It cannot be that the stare decisis analysis is wrong, for the same reason that disagreement with substantive constitutional analysis is not sufficient.

Orly captures where I had tentatively landed--overruling precedent to eliminate or limit individual rights (Orly describes them as "fundamental human rights") and to increase government power is different and something the Court has never done.

But I am not sure the distinction works. First, cases abrogating and overruling Lochner limited or eliminated the due process right to contract, which had been regarded as fundamental. Any potential distinction turns on substantive agreement or disagreement with the right recognized in Lochner compared with the right recognized in Roe. Second, crim pro scholars can correct me, but it seems that the Court has overruled precedent to narrow rights for criminal defendants. Third, at least as to abortion, the Dobbs majority might describe itself as vindicating a right to potential life that had been acknowledged but given undue weight in Roe. Thus the framing--eliminating a fundamental right--does not capture what the Court did (or believes it did). Again, I do not share this view. But the argument that Dobbs is an illegitimate action by an illegitimate Court must hinge on more than "I have a different view of the law."

To be clear, I am not calling out Orly; I had landed on a similar explanation. But I am less confident it works.

Posted by Howard Wasserman on May 27, 2022 at 12:16 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, May 26, 2022

Judicial takings and alternatives to offemsive litigation

This Seventh Circuit case (Diane Wood for Manion and Scudder) is weird and I am trying to figure it out. I think it illustrates broader points about the problem of offensive-or-defensive litigation on constitutional issues.

A group of property owners brought a state-court quiet title action against Indiana, arguing that they owned Lake Michigan beach-front property to the low-tide mark, as reflected in their deeds; the Indiana Supreme Court (Gunderson) held that Indiana holds and retains submerged property up to the high-tide mark. The legislature then codifed the decision, declaring its ownership and declaring laekfront property owner's non-ownership below that mark. A different group of property owners (non-parties to Gunderson) brought this action against the governor, AG, against the governor, AG, and heads of the agencies on natural resources and state lands, alleging a judicial taking and seeking a DJ and injunction that they owned the property to the low-water mark.. The  panel dismissed the claim on standing grounds, finding no traceability or redressability to the state officials sued, since they do nothing to enforce Gunderson or the statute defining the property lines and can do nothing to grant the plaintiffs title to the challenged portion of the lakefront. The court also identified federalism-and-comity based caution (reflecting the ideals, if not applications, of Rooker-Feldman) in hearing a case raising a novel legal theory that requires a lower federal court to review the merits of a state supreme court decision. The court dismissed with leave to amend, although I am not sure what they can do to salvage this action.

The outcome is correct, but the case highlights some weird doctrinal interstices. It also shows how constitutional litigation occurs outside the ordinary pre-enforcement offensive action against a state executive. Assuming judicial takings can be a thing, what are plaintiffs such as these to do?

1) The appropriate course for a judicial-takings claim is to appeal the state-court decision effecting the taking to SCOTUS. That is not available to the federal plaintiffs, who were not party to the state decision. That also explains why the court did not dismiss on RF grounds--the federal plaintiffs were not state court losers.

2) One possibility is that non-parties cannot suffer a judicial taking, since the state-court judgment had no effect on their property rights. Thus Gunderson may have taken the property of the owners who sued in state court, but not of the different owners who sued in federal court. This has intuitive appeal. Judgments in non-class-actions do not bind non-parties. It makes no sense to give a judgment a broader effect as a taking than as a judgment. Any "taking" of the federal plaintiffs' property arises from Gunderson's precedential effect in future litigation, but any taking should not happen before then. This point should apply had the federal plaintiffs brought a claim for compensation for the taking rather than an injunction (the court suggests they would have had standing to do that, because these officials could provide compensation). These owners are not (yet) entitled to compensation because Gunderson did nothing to their property rights, beyond precedential

The district court rejected any judicial-takings claim here because Gunderson did not strip these owners of established ownership rights, as required by the Scalia plurality in Stop the Beach. At worst it resolved an ambiguity as to ownership; at best it declared, as a matter of state law, that they never owned this land at all and it has always been state property. My argument provides another basis for rejecting that claim--as non-parties to Gunderson, their property was not lost because that decision did nothing as to their property.

3) The plaintiffs made a strange concession: that their challenge to the statute turns on their judicial-takings claim. "If Gunderson stands, it follows that the Owners never held title to the land below the ordinary high-water mark, and the legislation therefore had no effect on their property rights." I do not understand this point. The legislature owns state property, subject to judicial review and interpretation. The state supreme court having declared the state owns to the high-water mark, I do not understand why the legislature could not enact legislation declaring state ownership, whether consistent with Gunderson or consistent with the owners' deeds. To the extent state declarations of ownership below the high-water mark constitute a taking, why does the statute alone not effect that taking? This does not resolve the standing problem as the court sees it, since the defendant officials continue to lack power to grant ownership. But it makes the possible taking argument clearer.

4) Traceability and redressability fail because the court cannot order any of the defendants to grant the plaintiffs title to the contested land. How, then, can they assert whatever rights they might have? The court imagines how this comes up for the owners:

Gunderson recognized that members of the public have a right to walk on the beach in front of the Pavlocks’ house as long as they stay lakeward of the high-water mark; an injunction requiring the State to refrain from any action would not grant the Pavlocks the right to exclude. If Cahnman wants to sell his beachfront property, he may convey land only from the high-water mark. The requested injunction would not give him title to submerged lands that Indiana law (confirmed by both the state’s highest court and its legislature) says belongs to the state. To the extent the Owners’ deeds conflict with Gunderson and HEA 1385, the latter two sources govern. And if, for example, the Pavlocks tried to sue people who walked on the section of beach between the high- and low-water marks for trespass, or Cahnman tried to hoodwink a buyer by representing that he held title down to the low-water mark, an injunction against state officials would not prevent Indiana’s Recorder’s Offices from correcting that error, or Indiana courts from applying Gunderson.

This hints at how this sort of takings claim, if it can exist, should come to court. The Pavlocks sue people walking on  the beach for trespass; the trespassers cite Gunderson and/or the statute as the source of their right to walk there; the Pavlocks argue that the decision in their case applying Gunderson and the statute effect a taking; and that argument provides a basis for § 1257 review of the state court. Cahnman hoodwinks a seller; the seller sues him for hoodwinking him, citing Gunderson and the statute; Cahnman defends on the ground that Gunderson and the statute effect a taking; and that defense provides a basis for § 1257 review of the state court.

The hypothetical suit against the trespassers should sound somewhat familiar to Fed Courts geeks--it is basically Mottley. This suggests that the Mottleys could not have sued the executive when Congress enacted the law prohibiting free passes--like the plaintiffs here, they would have lacked standing. They would have been forced to proceed, in state court, as they did--Mottleyssue the Railroad for breach; RR argues impossibility based on the statute; Mottleys argue statute violates the 5th Amendment; argument provides a basis for § 1257 review.

Again, consider this another example of asserting constitutional rights outside the typical offensive EPY action. Some of these claims are somewhat offensive in that the Pavlocks initiate the lawsuit, although the federal constitutional issue is not the main piece of the claim and arises downstream in the litigation. Nevertheless, we accept this as appropriate procedure, not some conspiracy to eliminate judicial review.

Posted by Howard Wasserman on May 26, 2022 at 12:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Property | Permalink | Comments (0)

Tuesday, May 24, 2022

Judge Newsom in the news

Three weeks of grading and a round of edits have limited my writing here. Let me jump back in with a short ode to the recent work of Eleventh Circuit Judge Kevin Newsom.

Everyone is talking about Newsom's opinion for a unanimous panel declaring every significant provision of Florida' social-media law constitutionally invalid. Although a few disclosure provisions survive, the opinion is an overwhelming win for the web sites--content moderation is First Amendment-protected editorial decisionmaking; social-media sites are not common carriers (and slapping that label on them is meaningless, anyway); and the state has no legitimate, much less substantial or compelling, interest in telling the sites what speakers or speech it must keep on the site. The decision creates an interesting procedural bind. A district court declared Texas' similar law constitutionally invalid and enjoined enforcement, but the Fifth Circuit stayed the injunction without explanation following oral argument. The plaintiffs in that case have asked SCOTUS to lift the stay and reinstate the injunction; that is pending. We are left with this weird sort-of splitt--all reasoned opinions (one Eleventh Circuit and two district courts) declaring the laws invalid against tea leaves (the unexplained stay and the tenor of argument) hinting at the Fifth Circuit coming out the other way. Is that enough for the Court to take the case?

Equally interesting is two Newsom concurrences. U.S. v. Jimenez-Shimon, written by Newsom for a unanimous panel, declared valid a federal law criminalizing firearms possession by undocumented immigrants and affirmed a conviction. He then concurred in his opinion to question the use of tiers of scrutiny for the Second Amendment (which should be based on text and history) and generally, with a nice thumbnail sketch of the many pieces of First Amendment doctrine that he calls "exhausting," "judge-empowering," and "freedom-diluting." Resnick v. KrunchKash reversed a jurisdictional dismissal, finding that a § 1983 action against a creditor for using state garnishment proceeding was not wholly insubstantial and frivolous. Newsom concurred for the panel to reject Bell v. Hood and the idea that a case is so frivolous as to deprive the court of jurisdiction; calling it an issue that had bothered him since law school, Newsom argued that a claim that pleads a federal issue on its face gives the court jurisdiction, even if the claim is an obvious loser. These are of a piece with his concurrence from last year adopting the Fletcher view that standing is merits, wrongly mischaracterized, and arguing that any limits on Congress' power to create new private rights comes from Article II rather than Article III.

I unsurprisingly agree with Newsom on standing and Bell and have written as much. It is interesting to wonder about Newsom's broader agenda. He is young (49) and conservative. Is this a way to position himself as potential SCOTUS pick? He does it not through outward insanity in destroying the administrative state and Commerce Clause, as with the Fifth Circuit folks. Instead, he is thoughtful and scholarly, pondering important-but-not-hot-button issues that have "bothered" him since he sat in Fed Courts as a law student and that he is trying to work out 25 years later.

Posted by Howard Wasserman on May 24, 2022 at 10:41 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, May 12, 2022

More overlapping jurisdictional doctrines

Another example of overlapping "jurisdictional" doctrines, in which courts take the same fact--whether an executive official has a present or future intent to enforce an invalid law--going to ripeness, standing, and EPY. The Eighth Circuit held that sovereign immunity bars a challenge to a Minnesota law prohibiting certain false statements in campaign materials, because the four defendant prosecutors, while responsible for enforcement, had no present intent to enforce the law. The court discusses precedent in which the court found standing and ripeness but held the executive had sovereign immunity because, while the responsible executive, he had no intent to enforce.

I continue to have several problems with this. First, it makes no sense for three doctrines to turn on one fact. Second, it makes less sense for a fact to point different ways for different doctrines--if there is sufficient threat of enforcement to establish standing, there should be sufficient threat of enforcement to establish an ongoing violation for EPY. Third, this is all merits and it would be nice if we treated it as such.

Finally, note that the court cited the SB8 case for the basics of EPY and the absence of an enforcing executive.

Posted by Howard Wasserman on May 12, 2022 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, May 11, 2022

Random reactions to some items in the news

My response to some random news items.

Leah Litman and Steve Vladeck argue discuss the constitutional rights that could be on the chopping block if the Dobbs draft becomes the Court's opinion, with the provocative headline "The Biggest Lie Conservative Defenders of Alito's Leaked Opinion Are Telling." Conservative commentators and others have taken umbrage, especially to the headline and to the implication, pointing to Alito's efforts to distinguish abortion from other unenumerated rights and the supposed "popularity" of these other rights. As Leah and Steve argue, there are distinct pieces to this: 1) What GOP legislatures and executives might try to do and 2) How SCOTUS will respond to litigation over such efforts.

The lens of judicial departmentalism sharpens what is happening here. Legislative and executive officials have never been bound by SCOTUS precedent; they have been free to enact and enforce/threaten to enforce laws that run afoul of Roe/Casey, Griswold, Obergefell, etc. Those efforts fail in the lower courts, which are bound by SCOTUS precedent, and likely fail in SCOTUS in the absence of willingness to overrule precedent. If the Alito draft becomes the Opinion of the Court, it does not authorize previously unauthorized conduct in the political branches. It emboldens them to pursue these laws, believing that these efforts will be less pointless (because having a better chance of success) and less costly (because defeat in court means attorney's fees). One commentator (not sure who) argued that Roe is unique because it never gained broad acceptance, unlike Brown. Describing Brown as widely accepted is so ahistorical that whoever said it should no longer be taken seriously. But Brown illustrates how judicial departmentalism operates. The Southern Manifesto and pieces of "Massive Resistance" exemplified how political branches can continue to follow their own course.

The issue always comes returns to SCOTUS and how ready it is to overrule precedent. Massive Resistance failed when courts smacked them down (as happened in Cooper and elsewhere), except courts did not do that often enough. Similarly, if a majority of SCOTUS does not follow Alito where his opinion leads, fears from the left are unfounded. But it is disingenuous, as Litman/Vladeck critics do, to say that GOP politicians cannot and will not attempt to push the envelope--they always have been able to do so and always have done so. Just as it is disingenuous to argue that the Dobbs draft does not lay the rhetorical and precedential groundwork to overrule other cases because the Justices may choose not to do so.

Vice tells the story of Romana Didulo, a Candian Q-Anon person who convinced followers (who believe she is Queen and running Canada behind the scene) to stop paying their utility bills because water and electricity are free. The consequences to her followers, many of whom are financially vulnerable, should be obvious. This is a consequence (ironic? unfortunate? inevitable) of our approach to free speech. Because it is almost always impossible to stop or punish the bad speaker, consequences fall on those who listen to the bad speaker and engage in criminal (1/6 insurrectionists) or unwise (the people who stop paying their utility bills) activities. We hope the negative consequences prompt listeners to turn away from the speaker, who, deprived of an audience, stops speaking. But that is a long process and one that often harms those who cannot afford it, while the powerful remain insulated.

Posted by Howard Wasserman on May 11, 2022 at 04:49 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, May 10, 2022

More confusion on legislative immunity

I wrote a few weeks ago about a Ninth Circuit case allowing a state legislator to pursue a First Amendment retaliation claim against legislative leaders who restricted his access to the capitol, wondering how this was not governed by legislative immunity. Further confusing matters, the Sixth Circuit holds that legislative immunity bars a First Amendment retaliation claim against the heads of a party caucus for expelling a member from the caucus (and denying her party resources). Unless there is a meaningful distinction in the legislative nature of "you no longer get to hang out with us in the legislative process" and "you must notify us before enter the chamber," both decisions cannot be correct.

Posted by Howard Wasserman on May 10, 2022 at 08:44 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, May 02, 2022

Private enforcement and the state court option

Oklahoma enacted (although it awaits the governor's certain signature) an SB8 copycat. Reproductive-rights advocates have brought an original-jurisdiction action in the Supreme Court of Oklahoma. This is the other option for rights-holders, to the extent state procedures are more forgiving than federal.

On the other hand, the hell with Oklahoma AG John O'Connor, who said this:

Once again, the people of Oklahoma have spoken through their representatives in defense of the rights of unborn human beings, and once again abortion clinics have run immediately to the courts to attempt to trample on the people’s voice and the most innocent humans among us.

Indeed, with SB 1503 they have literally attempted to sue before the bill has even gone to the governor’s desk, even though the U.S. Supreme Court dismissed preliminary challenges to a similar law not six months ago.

As to the first, hasn't Oklahoma joined with the rest of the Republican states to ?\"run immediately to the courts to attempt to trample on the people's voice" as reflected in laws and regulations enacted and enforced by the Biden Administration? As to the second, what does SCOTUS have to do with a challenge under Oklahoma law; I thought the people in Washington should butt-out of Oklahoma's business.

And kind of the hell with Bloomberg for reporting such a dishonest statement and politically hypocritical statement. But that is par for the course.

Posted by Howard Wasserman on May 2, 2022 at 09:23 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, April 30, 2022

Everything wrong with qualified immunity

in this Sixth Circuit decision granting qualified immunity to two police officers who arrested and commenced prosecution of a man for creating a Facebook account parodying the local police department. To wit:

• The court skips the merits, ignoring the obvious First Amendment concerns and doing nothing to establish or further the meaning of the First Amendment.But the panel does not want to be seen endorsing obvious overreach implicating the First Amendment, so they suggest "doubts"that what the government did was worth the time and effort And they urge police, quoting Bari Weiss (!) to "say 'No.'" This seems like the worst of all worlds. The court recognizes and calls out the wrongfulness of government conduct, but not in a way that has any effect on the next cop to pull this stun (and there will be a next one). Instead, the court does something that I would have expected Fed Soc judges to abjure--issuing lectures to other branches of government having no force or effect.

• This was not a fast-moving, emergency requiring snap judgments in a life-threatening situation that courts should not second-guess. These officers had time and space to think and consider what they did with respect to an obvious parody and knew why they did it. Whatever the need for qualified immunity in the former case, it should not apply in the latter. And, again, because the court skipped the merits, there remains no Sixth Circuit precedent on these facts to move the right towards being clearly established.

• The court also rejected municipal liability, again on a narrow conception of who is a policymaker and what qualifies as failed training. Municipal liability is unfortunately and unnecessarily narrow, so I am not sure the decision is wrong based on prevailing doctrine.

This case again illustrates the problem of defining what it means to vindicate one's rights. Is it enough to avoid liability for enforcement of a law in a constitutionally invalid way (as the plaintiff did here)? Or should there be some retroactive, substitutionary remedy such as damages for making an individual deal with that process? Section 1983 exists, in part, to ensure the latter. Limits such qualified immunity and narrow municipal liability render that a less-effective weapon for that purpose.

Posted by Howard Wasserman on April 30, 2022 at 01:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, April 24, 2022

HB7 lawsuit

Filed Friday. Plaintiffs are a history prof at Central Florida, two public-school teachers, a rising kindergartner, and the owner of a DEI consulting firm. The choice to file everything in one action has its drawbacks. Consider:

• The First Amendment analysis and likely conclusion varies among the four educational plaintiffs. The prof has the strongest free speech claim, given the scope of academic freedom and its incorporation into the First Amendment. The student has the weakest claim, because I do not believe students have a First Amendment right to learn or not learn anything or to receive (or not) any information as part of the public-school curriculum.* The public-school teachers are somewhere in the middle, claiming some mantle of academic freedom but generally treated like most public employees. Query whether it would have made strategic sense to bring separate suits, allowing the court to focus on the unique First Amendment analysis for each and to earn a strong victory on the one obvious winner.

[*] if they do, consider the unintended consequences--a conservative student would have a viable First Amendment claim against a school board that prohibits, for example, teaching that Jim Crow was anything other than an unalloyed evil.

• The consultant brings a claim as an employer, alleging that the law infringes her right to present certain views in employee and organizational trainings by defining certain trainings (those that present certain viewpoints) as employment discrimination. But I am not sure this claim is appropriate for an offensive pre-enforcement claim. Any employment discrimination would be challenged by the employer filing an administrative or civil action. No defendant--the governor, the AG, members of the Board of Education, and members of the Board of Governors--is responsible for enforcing those provisions in that context. To the extent the consultant is concerned about what her employees might do, she may have to wait and defend on First Amendment grounds.

Posted by Howard Wasserman on April 24, 2022 at 01:26 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, April 21, 2022

Another SB8 funder suit

This one in federal court in Texas (HT: Josh Blackman). Plaintiffs are an abortion fund and individuals who work for and contribute to it; defendants are individuals who have initiated state proceedings or sent cease-and-desist letters; both should be enough to establish standing to stop future actions (and thus get a determination of SB8's validity). Two weird pieces. First, the complaint contains no allegations that the defendants act under color, despite being brought under § 1983; the lawyers dropped those allegations in favor of a lengthy description of SB8's legal scheme that should not be part of a complain. Second, it seeks a declaration that Texas' criminal abortion ban is invalid and unenforceable (as the law at issue in Roe), but did not sue anyone whose job is to enforce that ban; courts can be free-wheeling with DJs (which come close to advisory opinions anyway), but they at least demand a proper adverse party.

It's always something. This again shows that offensive, pre-enforcement litigation in federal court is possible and workable. It required more work and is more of a pain-in-the-neck. But it is available and consistent with ordinary rules of civ pro and civil rights litigation.

Posted by Howard Wasserman on April 21, 2022 at 08:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, April 20, 2022

More universal injunctions

Sam Bray exposes the flaws in the district court's reasoning on issuing a universal injunction on enforcing the transportation mask mandate. I will add a couple points. First, the district judge committed every analytical error Judge Sutton identified as a problem with universality. Second, Sam's makes a point I have made and that is worth emphasizing: To the extent it may be difficult to identify who is protected by a particularized injunction, that is for the executive in its future enforcement decisions and the district court in enforcing its judgment; it should not be the predicate towards beginning with overbroad relief.

Finally, I co-sign Sam's conclusion:

[T]his is a deeply broken system.  * * * But it is a deeply broken system when the action and inaction of the various federal actors--House, Senate, President, agency reporting to the President--can be immediately swept aside by a single district court judge who chooses a remedy that is not only for the plaintiffs but for everyone.

* * * It doesn't have to be this way.

But it will stay this way if conservatives object to "nationwide" remedies only against Republican presidents, and liberals object to them only against Democratic presidents. Selective outrage and what-about-ism on the other side's inconsistency are a recipe for continued stalemate. If you object to these remedies on principle, stick to your principle, no matter who is President and no matter what you think of the merits.

Critics of universal injunctions are like free-speech absolutists--cursed with intellectual consistency.

Posted by Howard Wasserman on April 20, 2022 at 09:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, April 19, 2022

Abstention is down on its luck these days

(Thanks to Gerard for the title):

Another district court has declined to abstain from an action to enjoin a state proceeding to remove a 1/6 insurrectionist from the ballot under § 3 of the Fourteenth Amendment. This time it is the Northern District of Georgia in a suit by Marjorie Taylor Greene. The court does a better job than the Eastern District of North Carolina in Cawthorn. In fact, I think the court got it right. The state  ballot-challenge proceeding is a private dispute--between a challenging voter and the candidate--in a state-run proceeding, rather than a state-initiated and state-enforced proceeding. That resembles the PUC proceeding at issue in Sprint and does not fit the second category of a quasi-criminal civil enforcement action. And it does not fit the third category of a uniquely important judicial order (akin to contempt or pre-trial sequestration or post-trial appellate bonds), lest all private proceedings and all orders within those proceedings fall within Younger. (The Georgia court reached the correct result on the merits and refused to enjoin the state proceeding).

A distinct question is whether some other abstention doctrine should be in play, to keep state defendants from running to federal district court just because, as the EDNC court held, really important federal interests are in play. One possibility is Colorado River, which allows abstention to avoid parallel litigation. A better candidate Burford, which requires abstention in deference to state proceedings that are part of an integrated state regulatory scheme. Do elections qualify? Are they the equivalent of Texas regulating oil drilling?

Posted by Howard Wasserman on April 19, 2022 at 11:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, April 17, 2022

Judge Sutton on universal injunctions

Judge Sutton wrote a concurrence (begins at p.18) critiquing the power to issue universal injunctions, both from an Article III and remedial prospective. Along with Judge Manion's concurrence, this is the best judicial explanation for why universal injunctions are improper and why arguments for them collapse under their own logic. Sam Bray reprints the whole thing.

Posted by Howard Wasserman on April 17, 2022 at 12:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, April 14, 2022

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

Our second SB8 article has been published in SMU Law Review. This focuses on the commonality of defensive litigation against constitutionally invalid law and how defensive litigation might play out.The third piece, on New York Times as historical analogue, will be published in Houston Law Review next fall.

Posted by Howard Wasserman on April 14, 2022 at 06:01 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, April 04, 2022

"Favorable termination" requires non-conviction and nothing more

Here is my SCOTUSBlog recap on Thompson v. Clark, decided Monday. Kavanaugh writes for six, holding that favorable termination for a Fourth Amendment malicious prosecution claim need only show that the proceedings ended without a conviction. Alito dissents for himself, Thomas, and Gorsuch, rejecting the idea of malicious prosecution as a seizure under the Fourth Amendment. The result is not surprising given oral argument, down to Alito likening such a claim to mythological creatures--today it is the chimera, at argument it was a centaur).

Posted by Howard Wasserman on April 4, 2022 at 09:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Friday, April 01, 2022

"Don't say gay suit" filed

Complaint here (my wife is friends with two of the plaintiffs). I am trying to figure out whether this runs into some standing/11th Amendment/EPY problems from not having the correct defendants.

The law prohibits schools and teachers from discussing certain topics in and out of class and requires schools to report LGBT+ students to their families; it subjects teaches, administrators, and school boards to suit by random objecting parents. Plaintiffs are a collection of advocacy organizations, students, parents, and one teacher; defendants are DeSantis, State Board of Ed, BoE members, Commissioner of Education, and several school boards.

Despite the similarity of the private-enforcement scheme Florida adopted, most plaintiffs do not have the SB8 problem. Their rights are violated because teachers, administrators, schools, and school boards--fearing private suit and liability under the law--follow this invalid law in allowing or not allowing certain speech and in doing or not doing certain things. In essence, the state legislature compels local governments to violate students' rights by siccing parents on those local governments for failing to violate students' rights. Although limiting speech and discriminating out of fear of suit rather than (necessarily) a desire to stifle expression or to discriminate, teachers and school boards in following this law in the classroom act under color of state law and violate students' and parents' rights. So I think a violation is sufficiently imminent if a student can allege "I have two mothers and it is clear that teachers will not allow any discussion of my parents in class because this law exists and they are worried about being sued."

The one plaintiff who might have a problem is the teacher, who is subject to enforcement only by a private suit by an as-yet unidentified parent, but no government sanction; that teacher is similarly situated to an abortion provider under SB8, in that he protected speech is chilled by the threat of suit by an unknown rando. The teacher's claim might depend on how the BoE or a local school board implements the law and whether they impose governmental sanction on a teacher apart from any private lawsuit. For example, does the school threaten to fire or sanction teachers who violate the law and gets sued? Or does the school threaten not to indemnify-and-defend a teacher who gets sued for violating this law? That would constitute further government action disadvantaging that teacher because of her constitutionally protected conduct and in furtherance of an invalid law.

That said, jurisdictional/procedural questions remain. Although DeSantis is the villain in the complaint's narrative (and really any narrative in this verkakte state), I doubt he is a proper defendant, because he plays no role in enforcement. I also wonder if a court might find some claims, although against a proper defendant, premature. Perhaps the necessary imminent harm to the plaintiffs depends on further action by someone  to put the statutory limits into action--a school or board imposing regulations with some penalties or a teacher actually silencing that student with two mothers who wants to draw a picture of her family.

I have focused on the procedure and jurisdiction rather than the substantive constitutional violations at this point. Some seem iffy. There is a First Amendment claim based on a right to receive information. But a student or parent does not have a First Amendment right to dictate the curriculum, so cannot base a violation from the school refusing to teach certain matters in the classroom. The question is whether equal protection adds something when that curricular decision is motivated by discriminatory animus (there are 14th Amendment and Title IX claim in the mix for that purpose). Or whether vagueness adds something because no one can figure out what the curriculum is.

The complaint makes noise (although does not base a claim) on the use of "diffuse" private enforcement as nefarious and invalid. I obviously reject the argument here for the same reasons I reject it as to SB8.

Update: And just like that: A parent in St. John's County complained about a teacher wearing a "Protect Trans Kids" t-shirt at school, and the school administration asked the teacher to change shirts (which she did). This is not directly about the new law; district policy prohibits teachers from wearing clothing or apparel with written messages. But I wonder if the regulation was honored more in the breach and that this (and other) teachers wore message-bearing clothing without incident. And if the new law empowered the parent to complain, where most parents let it go. The story illustrates a couple of things. First, it shows how we get state action from civil enforcement, unlike in SB8--legally empowered parent complains, school takes action, school's actions violate rights. Second, it shows what the legal arguments might look like. If teachers regularly wear message-bearing clothing but only the teacher with the pro-LGBTQ+ message is asked to change out of fear of suit under the new law, it helps plaintiffs establish standing by showing that having to change shirts was not caused by the neutral policy (which is ignored anyway) but by the school's actions in response to the new law.

Posted by Howard Wasserman on April 1, 2022 at 03:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, March 26, 2022

Double it

The Utah legislature overrode Governor Spencer Cox's veto and enacted a law banning trangender girls from participating in girls sports. Cox garnered national attention last week in vetoing the bill while pointing out statistics on mental health and suicidality in transgender youth compared with the one transgender girl seeking to play sports in the state. The legislature also passed a bill allocating $ 500,000 for schools to cover the costs of defending the ban.

But that amount misses by a half. If the bans are declared constitutionally invalid, the boards are going to be on the hook for the plaintiffs' reasonable attorney's fees in successfully challenging the law, beyond whatever they spent to defend it.

Posted by Howard Wasserman on March 26, 2022 at 11:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Wednesday, March 23, 2022

More offensive SB8 actions

Abortion-funding organizations have filed lawsuits against the Thomas More Society (ND Ill) and the America First Legal Foundation (DDC), seeking to enjoin them from bringing actions to declare SB8 constitutionally invalid and to enjoin them from enforcing the aiding-and-abetting provisions of SB8. Both defendants have initiated pre-suit discovery proceedings in Texas court, seeking to gather information about the organizations' funding efforts; they use that as the basis for standing, arguing that it shows an intent to enforce.

There should not be a Younger problem. The target of a pre-suit discovery proceeding cannot challenge the constitutional validity of the underlying law that might be the basis for the suit; the organizations therefore lack the adequate opportunity to raise their federal constitutional rights in that proceeding.

The complaints have several potential problems as pleaded. First, they lack allegations that the defendants act under color, which is necessary to state a constitutional claim. Second, I wonder if they may be subject to a § 1404 motion to transfer venue. Plaintiffs went to the defendants' "homes" to get out of Texas. But if the purpose of a suit is to challenge the validity of Texas law and to stop the initiation of suits in Texas courts under Texas law, it seems as if a district court within Texas would be a more proper forum. I had not considered this issue until now and I have to give it more thought. Third, the fourth claim alleges SB violates due process by expanding who can bring state-court suits beyond Article III; that is nonsense.

As an abortion-rights supporter, I am glad to see the community moving past the simple approach of WWH (which was bound to fail) and identifying real, if more complicated, ways to challenge the validity of the law.

Posted by Howard Wasserman on March 23, 2022 at 01:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, March 21, 2022

Exclusivity and personal rights in bounty litigation

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

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

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

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

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

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

Wednesday, March 16, 2022

The Younger analysis was not much better

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

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

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

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

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

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

Friday, March 11, 2022

No offensive challenges to SB8 against licensing bodies

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

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

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

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

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

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

Monday, March 07, 2022

Disaggregating government and its employees

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

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

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

Thursday, March 03, 2022

If only they could sue the state

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

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

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

Egbert v. Boule argument

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

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

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

Tuesday, March 01, 2022

The future of Bivens

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

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

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

Monday, February 28, 2022

Quick thoughts on the Jackson nomination (Update)

1) The new attack appears to be "high reversal rate." Steve Vladeck shows some (noisy) numbers which suggest her reversal rate is lower than average. But why does this matter? Reversal means two or three randomly assigned court of appeals judges disagreed with her. It does not mean she was "wrong" or "incorrect" or "bad" in some platonic sense, so as to make her unqualified. This argument should run aground on the statement by (appropriately) Justice (Robert) Jackson--"we are not final because we are infallible, we are infallible because we are final." The court of appeals reversal is "right" because we have a hierarchical judiciary. It should not suggest anything about the wisdom or qualifications of either the trial judge reversed or the appellate judges reversing. I suppose someone could try to make a point about reversals suggesting someone outside the mainstream, whatever that means. But R. Jackson's comment works for mainstream as much as for correctness--the court of appeals defines the mainstream because it is final.

2) Jackson's trial-court experience will be a plus because the widest range of experiences among members of a multi-member body is a good thing. I am not sure of its broad doctrinal effects. I have been trying to think of recent major procedural decisions that made life difficult or easy for district courts and how having a former trial judge might have changed the Court's decision. Twiqbal was decided by a Court without trial experience (Sotomayor joined the Court a few months later), but but the Court has not done much with it in recent years. The 2015 discovery amendments empowered trial judges to manage cases, but those came about through the REA rather than through case resolution. Sotomayor was the lone dissenter on the narrowing of general jurisdiction, but I cannot tell how her judicial experience affected her position.

Jackson's trial experience may be less about forward-looking doctrine than about resolution of individual cases, especially those on the shadow docket. The increased activity in emergency relief and cert grants before judgment reflect a certain distrust of trial-court judges. SCOTUS gets to decide, not one district judge somewhere. Cares therefore should not remain in the trial court for long, the rhetoric of appellate deference disguises close review, and the trial court's decision (granting or denying relief) should not have real effect; the trial judge is a quick step for parties to clear before the real work begins on appeal, not owed real deference. Perhaps Jackson will push back on this trend and push her colleagues to show actual deference to trial courts.

3) The meaningful point is her experience as a public defender and defending Guantanamo detainees, about which Andy Koppelman writes.

4) Jackson will be confirmed, probably with 2-3 Republican votes (I read the over-under is 56; take the under). Everything around it will be noise, although with some "soft on crime" demagoguery to spice things up.

Posted by Howard Wasserman on February 28, 2022 at 04:29 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, February 16, 2022

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

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

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

Thursday, January 27, 2022

Israel, Jewish teaching, and a strange law (Updated)

A teacher at a Jewish school in Westchester County, N.Y. has sued the Temple and Temple leaders, alleging that she was fired for writing statements critical of Israel on her personal blog (the post at issue was written after she was hired, before she started, and on my birthday, which may not be a material fact). The suit is brought under a provision of New York law that prohibits adverse employment action based on a person's "legal recreational activities," which the plaintiff alleges includes blogging (no comment). The story has garnered s attention, in the Jewish press because it exposes possible fault lines within the Jewish community over Israel and how anti-Zionism fits into Jewish teaching. A number of Jewish academics and leaders issued an open letter to the Temple supporting the woman.

The claim seems to me doomed under the ministerial exemption. Our Lady of Guadalupe says teachers are ministers (for FMLA and ADA purposes, but the First Amendment idea should carry), at least if their duties touch minimally on the religious. Paragraph 11 of the complaint says:

The job was secular rather than religious, and no religious ordination or training was required. The teaching responsibilities were essentially limited to the teaching and tutoring of the Hebrew language to WRT’s learners and students. The other job responsibilities involved assisting and supporting the development of social, cultural and community service programs for the teenagers in the WRT community. 

I doubt that is sufficient to get around the First Amendment. She is teaching Hebrew at least in part because it is necessary for students to learn prayers and "social, cultural, and community service programs" are part of the core of what a Temple does.

But I am wondering if we even reach the First Amendment. Does this law preclude an employer from taking action against someone who expresses or reveals objectionable views, views the employer believes inconsistent with its mission, if done as part of a lawful recreational activity? Can a kosher deli fire a waiter who attended the Unite the Right Rally? What if the Temple fired a custodian or security guard who attends a rally in support of Holocaust denial? If the law prohibits these actions, does that raise First Amendment problems as to the employer, who must employ someone with objectionable political views? If the employer could fire those employees, how does it get around this law? Can the employer fire a person not for their recreational activities (blogging, attending a rally) but for their expressed views, using the lawful recreational activities as evidence of those views?

Employment lawyers, please help.

Update: My colleague Kerri Stone offers this primer from a law firm discussing the law in the shadow of the 2020 protests. It seems to suggest that the law gives employees broad rights against adverse employment action for non-work expressive activity. It mentions a 2017 lawsuit by a NY Post sportswriter fired for comparing the inauguration of Donald Trump with Pearl Harbor and 9/11; the suit was dropped, but it might have had legs.

Update II: A reader emails to argue that the lawsuit is frivolous because the ministerial-exemption issue is so obvious and that this suggests an ulterior motive by the plaintiff, her lawyers, and those supporting her. There is a genuine moral question of whether and how synagogues should be open to competing views on Israel and whether support for Palestinian justice is consistent with Jewish commitments to social justice. But that is for the Jewish community and each synagogue to resolve. It does not belong in court. The ministerial exemption exists because courts should not be telling religious organizations what its. And that is why the reader suggests the plaintiff, her lawyers, and those supporting her may have an ulterior motive.

Posted by Howard Wasserman on January 27, 2022 at 10:09 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, January 22, 2022

District court preliminarily enjoins UF conflicts policy

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

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

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

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

Ann Arbor opts for more speech, not enforced silence

A group of anti-Israel protesters has demonstrated outside Ann Arbor's Beth Israel Synagogue every Shabbat since 2003. A tort lawsuit by some congregants against the protesters rightly failed. The Ann Arbor City Council last week passed a resolution "'condemn[ing] all forms of antisemitism, and in particular the weekly antisemitic rally on Washtenaw Avenue." and declaring "'its support for the Beth Israel Congregation, their guests, and all members of the Jewish Community in Ann Arbor, each of whom has the right to worship, gather, and celebrate free from intimidation, harassment, and fear of violence.'"

The Council passed the resolution on Tuesday evening, three days after Colleyville (which it does not mention), although it was in the works for several months. The synagogue had been calling on the city to do something for several years. The Council issued a resolution in 2004, a year after this began, but nothing more recent. The mayor has publicly condemned the protests and apologized to the congregation.

The resolution also "'calls upon the persons who rally to express antisemitism on Washtenaw Avenue to renounce extremism, disband, and cease their weekly show of aggressive bigotry.'” Which, that ought to do it, thanks very much, Ray. The group leader and the lead defendant is Henry Herskovitz, who I assumed was Jewish-but-vehemently anti-Israel; it seems he "identifies himself as a former Jew and has spread Holocaust denial and praised neo-Nazis in blog posts."

The Forward quotes Rabbi Nadav Caine that the synagogue declined involvement in the lawsuit out of hope and faith that the city would take a stand. That point is too bad. I had hoped the synagogue stayed out of the lawsuit because they knew the lawsuit could not and should not succeed. While they could not stop the congregants, they knew enough not to get involved.

David Super has a post about performative politics, which I may want to discuss further. Performative politics can take many forms. This resolution is one example of the form--dictum with no legal force and no likely practical force. But Brandeis might have had such performative steps in mind. Like the synagogue, the city can do nothing to stop these speakers or their speech. But they can take a public stance against those speakers and their speech as part of the public dialogue.

Posted by Howard Wasserman on January 22, 2022 at 11:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, January 21, 2022

Republicans and conservarives love univeral injunctions now

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

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

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

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

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

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

Thursday, January 20, 2022

SCOTUS denies mandamus in SB8, Sotomayor remains pissed

The Court without comment refused to grant mandamus ordering the Fifth Circuit to remand to the district court, which means the case now goes on certification to the Texas Supreme Court. Breyer, Sotomayor, and Kagan dissented--Breyer in a short opinion, Sotomayor in a longer one.

Sotomayor recognizes this as a nonsense delay tactic and calls the majority out for not standing behind its words in WWH. She also acknowledges the limited relief that an injunction of the medical board would provide, saying she had hoped the district court could enter some "mitigating relief," although without describing what that would or could have been. She did up her rhetorical game, calling this a "disaster for the rule of law."

Posted by Howard Wasserman on January 20, 2022 at 06:40 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Tuesday, January 18, 2022

The Great State of Texida (or Floxas)

Can we combine Texas and Florida into one state? In terms of enacting stupid performative zombie legislation that serves no purpose and addresses no societal problem, they are engaged in a race to the bottom to out-dumb one another. Merging them into one means we can write about the stupidity one time and be done with it.

In July, Texas followed Florida in prohibiting social media companies from regulating speakers and speech on their sites; its law met a similar judicial fate. Now comes Florida SB 1298, which requires all professional sports teams that contract with state and local governments to play the national anthem before games, something Texas passed last year. Like the Texas law, this bill is especially insidious because I do not know who will or wants to challenge its validity or how. (I have not seen any litigation challenging the Texas law). At the committee hearing introducing the bill, a committee member laughed and asked if anyone does not play the anthem; the moron sponsor said it is a "proactive" measure.

Let me offer one interesting twist on this: Could a fan kicked out of the stadium for refusing to stand make out a close-nexus argument against the team, since state law requires the anthem and thus compels the team's actions? I do not think it works because state law requires teams to play the anthem but is silent at what the team should or should not do with fans. But it offers a new way, beyond public funding, to get at teams that attempt to regulate fan expression.

Posted by Howard Wasserman on January 18, 2022 at 01:49 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, January 17, 2022

Fifth Circuit certifies to Texas Supreme Court

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

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

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

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

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

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

Friday, January 14, 2022

When laws send a message

From the Eastern District of Pennsylvania, rejecting a challenge by a group of Italian-Americans to Philadelphia changing the city's official holiday from Columbus Day to Indigenous People's Day. The court, rightly, the plaintiffs lacked standing based on the city's policy insulting Italian-Americans by declining to celebrate Columbus. I continue to believe what this really means is that the plaintiffs did not suffer a violation of their substantive constitutional rights, but the point is the same.

Reading the arguments, I  was reminded of the travel-ban cases in which plaintiffs argued for standing and a universal injunction based on the message of exclusion sent by the regulation, independent of any enforcement or action under it. I argued at the time that this is not a sufficient injury (substantive violation) and does not create the predicate for beyond-the-plaintiffs relief, because it is the enforcement of law or policy that violates rights, not the law or policy itself. This case presents the same issue. But I wonder how many people who argued for message-of-exclusive standing in 2017 disagree with this decision.

Posted by Howard Wasserman on January 14, 2022 at 05:04 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, January 13, 2022

Zombie Laws

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


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

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

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

 

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

Friday, January 07, 2022

The return of three-judge district courts?

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

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

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

Thursday, January 06, 2022

The spreading demand for offensive litigation

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

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

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

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

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

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

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

Wednesday, January 05, 2022

UF profs have standing to challenge outside-activities policies

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

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

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

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

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

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

Monday, January 03, 2022

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

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

But then there is this:

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

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

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

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

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

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

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

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

Tuesday, December 28, 2021

An inexplicable lawsuit

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

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

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

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

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

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

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

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

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

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

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

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

Monday, December 27, 2021

A different Court contingency

Orin Kerr offers a Twitter thread on the contingency of how we got to the current Supreme Court from Obama's nomination of Garland in early 2016--how we went from Garland as Scalia's replacement to the expectation of Hillary Clinton replacing Scalia, Ginsburg, and maybe Kennedy and Breyer to create a Court on which Kagan is the median Justice to what we now have. Orin writes: "Not only was there good reason in 2016 to think the future Court was going to be left of center, there was good reason to think it would be really solidly so. . . . Can you imagine being on the left and having that expectation of the future in 2016 -- and then seeing the center of the Court instead shift hard to the right instead, from AMK to Roberts, and then Robert to -- who -- Gorsuch? Barrett? Kavanaugh? That's a shock."

I have thought much the same--it is the main reason I was so broken up on November 9, 2016. While I did not foresee RBG dying, it was obvious what would happen with the Court over the next four years. As a citizen and political liberal, I watched the prospect of a left-leaning Court--for the first time in my conscious lifetime, Fortas having resigned when I was less than a year old--evaporate.

But consider another contingency that is as interesting. Imagine Clinton wins but the Senate remains in Republican hands, which I saw as a likely outcome as of early October 2016. McConnell and Grassley--having tasted success and incurred no costs (in fact, having been rewarded) for blocking Garland--would not have allowed Clinton to appoint anyone to the Court.* So we would have had two, and probably four, more years of an evenly divided Court--a genuine and sufficiently long experiment in the workability of Eric Segall's proposed permanent evenly divided Court.

[*] Grassley is making noise about the same steps should the Republicans gain control of the Senate next years, based on the "principle" that a Senate of one party does not confirm Justices for a President of the other party.

Posted by Howard Wasserman on December 27, 2021 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Monday, December 20, 2021

Trump tries to fight Younger again

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

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

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

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

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

Friday, December 17, 2021

Dorf on limiting bounty hunters

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

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

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

I will respond with three points.

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

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

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

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

Fed Soc Courthouse Steps on SB8

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

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

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

Thursday, December 16, 2021

Not everything is SB8, or abandoning the private attorney general

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

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

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

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

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

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

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

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

Sunday, December 12, 2021

California threatens to follow Texas

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

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

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

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

Saturday, December 11, 2021

Putting the "judicial" in judicial departmentalism

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

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

He writes:

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

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

Josh concludes this way:

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

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

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

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

Suing sheriffs

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

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

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

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

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

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

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

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

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

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

Friday, December 10, 2021

SCOTUS gets SB8 right

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

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

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

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

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

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

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