Sunday, August 07, 2022

Abortion and state-created danger

Imagine a pregnant person in a state (Missouri and Ohio seem the current leading examples) in which doctors and hospitals have interpreted  state law to require an emergency to escalate before an abortion can be performed under a life or extreme-disability exception. The doctor believes that an abortion is necessary but the situation is not emergent and as she understands the law, abortion is permitted to handle imminent death or disability, not likely; the doctor waits until the woman suffers further complications, then performs the procedure. Could the woman make a claim against state officials for any harm in waiting for her condition to worsen?

State-created danger establishes substantive due process liability for third-party harms where government takes affirmative action that subjects an individual to new or greater danger at the hands of third persons or circumstances, in a way that shocks the conscience (either because done with intent to injury or deliberately indifferent to an injured person's rights). Here we have government action in the enactment and potential enforcement of state laws against doctors who perform abortions. That state action increases the danger to patients at the hands of circumstances (their medical condition) by affecting treatment--doctors do not act on their medical judgment out of fear of prosecution, causing  the patient's condition to worsen. Causing doctors to allow patients' condition to worsen before treatment shocks the conscience. Threatening enforcement shows deliberate indifference knowing that enforcement affects doctors' actions in a way that endangers patients. Going one step further, could a doctor (using third-party standing) sue for injunctive relief, showing that these laws affect their medical judgment, causing harm to many women, and therefore the state law is constitutionally invalid?

My (imperfect) analogy is lawsuits challenging municipal ordinances that impose consequences on landlords (fines, loss of license) whose tenants have too many disturbing-the-peace 911 calls (including calls from domestic-violence victims). Plaintiffs have argued that the laws make them more vulnerable to abuse by domestic partners because less willing to call 911 out of fear that their landlord will evict them to avoid the consequences for multiple calls. The suits that have been brought have settled, so no court has passed on the theory.

I admit this would be a tough sell, especially in a pre-enforcement action. It might be tough to limit to abortion/health care. Would it open the door to a claim against the state for raising the speed limit to 70, on the theory of "you knew people would drive faster and less safely, making me more vulnerable to a reckless driver." State officials could argue that they are not deliberately indifferent to the pregnant women but trying to protect fetal life.

Still, as abortion-rights activists look for legal theories to avoid the worst effects of Dobbs, it might be a theory worth pursuing.

Posted by Howard Wasserman on August 7, 2022 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Tuesday, August 02, 2022

Standing sucks up more stuff

The district court dismissed the lawsuit by three Republican House members challenging security screening (and the fines imposed for ignoring the screening) in the House building following January 6. The court held, properly, that establishing the screening mechanisms and sanctioning members for violating those mechanisms were protected from judicial review by the Speech or Debate Clause--they involve internal rules governing how the legislative body operates and conducts its business.

But the court based the dismissal on lack of standing--plaintiffs lacked standing because the challenged conduct (and the actors who engage in that conduct) cannot be questioned in any other place. But that is not how the Clause is understood. That the challenged conduct is legislative means it cannot form the basis for constitutional challenge in court; it does not mean the plaintiffs did not suffer an injury fairly traceable to some conduct.

It remains stunning how every constitutional and procedural issue gets sucked into the standing/jurisdictional framing.

Posted by Howard Wasserman on August 2, 2022 at 03:33 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, July 28, 2022

Facial invalidity and universality

The concept of facial invalidity confounds the universal-remedy debate. The argument goes that if a court declares a law facially invalid--invalid as to all persons, beyond the plaintiff--then it must be able to enjoin enforcement as to all persons, beyond the plaintiff. The response rests on the judgment/opinion distinction. The judgment remains limited to the parties, because that is all a court can do. The opinion, explaining why the law cannot be constitutionally enforced against anyone else, has precedential effect--telling government and the courts what must (if binding precedent) happen in the next case if the government attempts to enforce. The executive may, in its departmentalist discretion, take that chance, although precedent tells him the state will lose in court. But a court cannot "invalidate" a law, therefore it certainly cannot "facially invalidate" a law.

The Second Circuit displays this confusion in Picard v. Magliano, a challenge to a state law prohibiting certain protests within 200 feet of a courthouse. The district court declared the law facially invalid and issued a (what I label) a universal injunction, prohibiting all enforcement of the law. The Second Circuit declared the law invalid as to the plaintiff (who wanted to hand out flyers about jury nullification), which the state conceded, and affirmed the injunction prohibiting enforcement of the law against him. But it declared that the law was not facially invalid because it was capable of constitutional application, thereby vacating the injunction prohibiting enforcement beyond the plaintiff.

That last move makes no sense because the initial injunction makes no sense. The district court never should have enjoined enforcement beyond the plaintiff and the Second Circuit should have narrowed the injunction for that reason. The facial validity of the law is about the scope of precedent and future enforcement.

Posted by Howard Wasserman on July 28, 2022 at 11:17 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, July 23, 2022

California goes full SB8 on firearms, sort of

SB 1327, signed by Gov. Newsom on Friday, prohibits distribution and sale of assault weapons, .50 BMG rifles, or unserialized firearms, as well as selling to people under 21. The bill prohibits public enforcement of these provisions and creates a private right of action that copies the elements of SB8--$10,000 statutory damages per firearm, injunctive relief, and attorneys fees; no fees for defendants; limited affirmative defenses.

California got the procedure right (much to my surprise), in making private enforcement exclusive and prohibiting public enforcement. The conversation around SB8 and copycats has focused on private enforcement as this powerful weapon ("bounty hunters" makes a great headline and political talking point, as someone pointed out on a listserv), as if private enforcement alone creates the bind for rights-holder that SB8 did. Private enforcement must be exclusive, otherwise rights-holders can pursue offensive pre-enforcement litigation against the responsible executive.

I am not sure how much effect this will have, beyond symbolism ("the left can play the same games as the right"). The law may not be constitutionally invalid--do the recent cases mean that states cannot prohibit any firearms, regardless of nature? The law certainly is not blatantly unconstitutional (if there is such a concept); no binding SCOTUS precedent establishes that the sale and manufacture of assault weapons or unserialized handguns is protected by the Second Amendment. The law does not target possession of assault weapons or subject owners to private suits for possessing absent an intent to give the weapon to someone else. The prohibited weapons are less pervasive and less at the core of "Second Amendment activity" than post-six-week abortions; the latter represented 90 % of Texas abortions, whereeas assault weapons are already prohibited by California law. Suits under this law are less likely to substantially disrupt ongoing seller or buyer activity.

To the extent sellers believe the First Amendment protects unregulated purchases (and thus sales) of assault weapons, this law may not hamstring them in challenging it. A seller could challenge the criminal prohibition in a pre-enforcement action against the government, obtain (it hopes) favorable precedent, then use that precedent to defend civil suits under the new law (an invalid ban would be as violative of the Second Amendment regardless of enforcement system). Ultimately, this looks less like SB8 and more like California's consumer-protection scheme pre-2004, in which laws prohibiting misleading statements could be enforced by the government or by "any person" civil litigation, leaving possible pre-enforcement offensive litigation in place.

I think the real "lefty" answer to SB8 is the one Rocky and I hypothesized--a prohibition on racist speech, exclusively privately enforced. That would reach a wide swath of likely protected activity in the way SB8 did, without allowing for pre-enforcement judicial review.

Immediate Update: Ilya Somin has thoughts. He argues the scope of potential defendants is quite broad and thus the law could have more effect than I suggest.  And he continues to urge that offensive litigation should be available against the sheriff who would enforce any judgment (we argued this fails for the same reason as the clerks-and-judges theory). Although to the extent one of the conservative justices would abandon procedural principle when the threatened substantive right is one they like, Ilya provides them the path.*

[*] To be clear, I am not accusing Ilya of inconsistency--he made the same argument about SB8 as about SB 1327. I am suggesting one of the WWH majority could use this to put a fig leaf over inconsistency

Posted by Howard Wasserman on July 23, 2022 at 03:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, July 18, 2022

Disinformation & Defamation: A Loss for Veritas, A Strike for Truth?

A variety of defamation lawsuits connected to the discredited allegations of massive election fraud in the 2020 presidential election (sometimes called the "Big Lie") are proceeding to discovery. These suits not only seek to vindicate the reputations of the plaintiffs accused of participating in election fraud; they also seek to strike back against the campaign of disinformation underpinning the Big Lie.  For example, Dominion Voting Systems’ suits against Rudy Giuliani, Sidney Powell and My Pillow CEO Mike Lindell; former Overtock CEO Patrick Byrne; Newsmax; and Fox Corporation have all gotten the green light to proceed. Smartmatic, another voting systems company, is also proceeding with a number of separate defamation suits. 

Now another defamation case involving accusations of election fraud joins them, this time involving an Erie, Pennsylvania postmaster. A Pennsylvania trial court has held in Weisenbach v. Project Veritas that discovery can proceed against Project Veritas, its founder James O'Keefe, III, and postal employee Richard Hopkins. The postal employee, Hopkins, accused Erie Postmaster Robert Weisenbach of backdating mail-in ballots during the 2020 presidential election. Hopkins based his accusations, which were published by Project Veritas and O'Keefe, on a conversation he supposedly overheard between Weisenbach and another postal supervisor. After the initial publication of these accusations, Hopkins was interviewed by the Postal Service's Office of Inspector General. Hopkins recanted his accusations during the interview, but later told Project Veritas he was coerced into doing so. Despite the questionable reliability of Hopkins' accusations, Project Veritas kept publishing them, and they were picked up and repeated by a number of Trump partisans and Trump himself. Meanwhile, the accused Postmaster Weisenbach, who was actually a registered Republican and Trump voter, had to flee his home. Hopkins lost his job with the postal service, but he was able to solicit, through online crowdfunding, hundreds of thousands of dollars from Project Veritas readers. A report of the Office of Inspector General found no evidence supporting Hopkins' allegations, but Project Veritas did not retract them. Postmaster Weisenbach sued Hopkins, O'Keefe, and Project Veritas for defamation and concerted tortious activity.

Defendants filed "Preliminary Objections" in the nature of a demurrer to the Postmaster Weisenbach's complaint. The judge overruled the objections, meaning the case against defendants proceeds to discovery. 

Defendant Hopkins' first objection was jurisdictional. He contended that the Federal Tort Claims Act gives exclusive jurisdiction to federal courts for claims made against federal employees acting in the scope of their employment. In other words, Hopkins argued that he made his allegations to Veritas and O'Keefe about the Postmaster Weisenbach while acting within the scope of his federal employment. The trial judge, however, found that Plaintiff's Complaint sufficiently pleaded that Hopkins made his statements to Project Veritas outside the scope of his employment and that he "was driven by financial gain and a desire to cast doubt upon the legitimacy of the election and the integrity of his employer." The court found the complaint sufficiently alleged that Hopkins was not acting in the scope of his employment because he was not making the allegations to achieve his employers' "ultimate objective of delivering the mail, but more in the nature of a personal errand." 

Defendants' second objection went to the sufficiency of the Plaintiff's pleading of defamation and concerted tortious activity. The judge found the allegations that Plaintiff had engaged in election fraud "because he was a Trump hater" capable of a defamatory meaning. The judge's phrasing is interesting, because it is not normally defamatory to misattribute someone's political party. The court indicated that Plaintiff alleged he can prove that he is not a "Trump hater," but it is unclear whether what is defamatory in the Plaintiff's allegation is the misattribution of political party or the allegation of illicit motive for backdating mail-in ballots. Regardless, the accusation of committing election fraud was clearly capable of a defamatory meaning! The court also rejected the argument that Project Veritas' allegations were mere hyperbole uttered online in the heat of an election contest, stating that consideration of context might by appropriate at trial but is inappropriate at the pleading stage, when all reasonable inferences must be drawn in the Plaintiff's favor. 

The judges also found the Postmaster's allegations that Hopkins, Veritas, and O'Keefe "conspired" to defame him sufficient to support his substantial assistance or "aiding and abetting" claim. The court wrote: "Count III indicates a laundry list of ways in which Project Veritas and O'Keefe substantially assisted Hopkins, including through encouragement to come forward, the drafting of the affidavit, instructions on how to profit from the crowdfunding account, keeping lawyers on retainer to defend Hopkins, and consulting with Hopkins on a daily basis, all with the common goal of defaming Weisenbach." The judge refers to the this as "concerted 'character assassination,'" rather than journalistic reliance on an inside source. 

Finally, the court held that regardless of whether a Postmaster is a public official, the Plaintiff's complaint adequately pled actual malice as to all defendants. The Complaint alleged that Project Veritas drafted Hopkins' affidavit, encouraged and aided him to solicit donations through online crowdsourcing, flew him to New York to be interviewed, and got him legal counsel.  The Complaint also alleged that Project Veritas initially claimed they had "multiple sources" for their false accusations. Moreover, Project Veritas "doubled down" after Hopkins recanted his story. Even after the Postal Service Inspector General issued a report stating there was no evidence the Postmaster had engaged in backdating, Project Veritas would not retract their accusations. Thus, the judge concluded: "Taken together, these facts, if ultimately proven, could be credited as circumstantial evidence that Project Veritas and O 'Keefe fabricated evidence to bolster their story, or at least harbored serious doubts as to the truth of Hopkins' claims." The judge also stated that a jury might find actual malice if it found, consistently with Plaintiff's averments, that Project Veritas had developed a pre-conceived story line and solicited information to fit based on a desire to "erode confidence in the security of mail-in voting."  The court therefore concluded that the Postmaster's "mosaic of averments" related to Project Veritas' fabrication of evidence, deliberate avoidance of truth, and "ulterior motive for publishing" constituted sufficient facts "such that a jury could eventually conclude by clear and convincing evidence that the alleged defamatory statements were published with actual malice." The judge acknowledged that Project Veritas' arguments that "their reporting 'had to be done quickly'" in the election context would be relevant to the ultimate determination of actual malice but was not relevant at the pleading stage. 

The judge also found sufficient the Complaint's allegations as to Hopkins' actual malice. This issue was straightforward, given the allegations that Hopkins overheard and deliberately misconstrued an ambiguous conversation, recanted his initial allegations, and then benefitted financially from his tale. 

The judge concluded by acknowledging the that the Supreme Court's First Amendment decisions strike a balance between "the need for a vigorous and uninhibited press and the legitimate interest
in redressing wrongful injury." He nonetheless noted: "The constitutional deck is not all stacked to one side."  Despite being "mindful of the chill that lawsuits such as this may have on our press freedoms," the judge allowed Weisenbach's claims to withstand Defendants' demurrers, stating "For now, 'the balance between the needs of the press and the individual's claim to compensation for wrongful injury' weighs in favor of the Plaintiff."

This suit is being brought on Weisenbach's behalf by Protect Democracy, which has a press release about the case here

 

 

Posted by Lyrissa Lidsky on July 18, 2022 at 12:28 PM in Civil Procedure, Constitutional thoughts, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (4)

Monday, July 11, 2022

Florida Anti-Woke lawsuit proceeds, standing is weird

The district court denied (mostly) a motion to dismiss for lack of standing, finding most plaintiffs had pleaded (just barely) enough facts. In particular, the court allowed the claims by a University of Central Florida professor to proceed, rejecting the argument that profs speak as the government when teaching and so lack First Amendment for their classroom speech. (For the moment--the court acknowledged that its conclusion rested on 11th Circuit precedent that may not be long for this world). This decision comes on the heels of the district court denying preliminary injunctions as to most plaintiffs because they lack standing.

This just proves the insanity of treating standing as a jurisdictional doctrine independent of merits. If it is truly a jurisdictional issue, it must be proven by evidence, not based on the pleadings. Moreover, in denying the PI, the court decided that plaintiffs had not shown (through evidence beyond the pleadings) standing. It should not matter that plaintiffs have (barely) pleaded it if the court said they cannot prove it. For example, the court denied dismissal of the rising kindergartner's claim, even though it previously said the kindergartner had not shown an injury because the kindergarten curriculum did not include  any statutorily proscribed material.

Posted by Howard Wasserman on July 11, 2022 at 01:00 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, June 29, 2022

Limiting state-created danger and a different due process violation (Updated)

An interesting Fifth Circuit decision arising from a (notorious-at-the-time) 2015 incident in which a high-school football coach ordered two players to hit the referee. (One guess which Fifth Circuit state produced this case). The district court dismissed the claim against Coach Breed; it read the claim as invoking the state-created-danger theory (Breed increased the danger to the ref by ordering the players to hit him), which the Fifth Circuit does not recognize. The Fifth Circuit reversed, saying this is not an SCD case and therefore the plaintiff may have a viable due process claim on a different theory. Unfortunately, the path and conclusion are incoherent.

The court said SCD applies when the state actor "creates" a dangerous situation resulting in harm (to conditions or to third parties), but this does not include when the state actor orders or compels the third parties to engage in some conduct. This is a fine distinction that I am not sure works. What if Breed had told the players "unless you get completely out of control, Coach and I will not punish you?" if you hit the ref. Or what if the players discussed their plan to hit the ref while Breed was present and Breed said nothing, nodded in approval, or gave verbal assent ("OK")? Each of those facts can establish SCD, because the state actor creates or enhances the danger to the plaintiff by emboldening third parties by "approving" or "condoning" third-party misconduct or  by sending a message that a third-party can act with impunity. I do not see a meaningful difference between those cases and a direct command, order, or compulsion; if the former must be addressed as SCD (and rejected in the Fifth Circuit), so must the latter.

The court offered the difference that SCD requires deliberate indifference, while the claim here involves intentional harm. But DI is the legal standard and can be satisfied by the higher mens rea of intent to cause harm. And conduct short of a command can be done with the intention to inflict harm; the cops in Dwares wanted, if not intended, the skinheads to attack the protesters, even if they did not order them to attack.

If this is not an SCD case, what is the theory of liability? What did Breed* do that violates due process besides creating a dangerous condition? Is the act of ordering or commanding third persons to engage in misconduct an independent due process violation? If so, we are back to why orders/commands are different than approval and condonations; if the former are some unique violation independent, why not the latter, in which case what is left of SCD? Is it limited to orders to assault someone? But many SCD cases involve third-party assaults. Why is a command to third parties to assault different than approving a third-party assault (again, see Dwares). We return to that unexplained and unworkable distinction between ordering third-party misconduct and approving or condoning it.

[*] The court attempts to defend the distinction by arguing that Breed acted under color when he ordered the players to act, relying on close-nexus cases. But no one doubts that and it is beside the point. Those cases are about when private actors are deemed under color; they have nothing to do with whether the government actors who ordered the conduct are under color. In fact, it is beyond dispute that Breed acted under color--a government employee acting within his official position "on the clock" while performing his formal government duties. (Maybe if he had done this during the few minutes between the post-game handshake and getting on the bus he would have more luck).

The Fifth Circuit is the only court of appeals not to recognize SCD. I am all for ways around that problem. But some coherence would be nice.

Update: Following a series of email exchanges with a reader, I might see a workable basis for a distinction. It combines the under-color and liability elements and goes something like this: If the connection between the government actor and the private actor is sufficiently close that it places the private actor under color and subjects him to § 1983 suit**, the claim against the government actor rests on a direct violation; the government actor is, in essence, acting through his agent. If the connection is not sufficiently close as to to place the private actor under color, the government actor's liability must be based on SCD--the third party acted on his own as a private person, but the government actor did something to create or worsen the risk to the plaintiff at the third party's hands.

[**] If the plaintiff were to choose to sue him. Again, the ref did not sue the players here.

Thus, the coach is directly liable for ordering the players to hit the ref. He would be liable on an SCD theory if he  stood by and did nothing while the players discussed and planned to hit the ref. And we can have a debate about the case in which the coach said "we will not punish you if you hit the ref."

Not sure I buy it, but it makes some logical sense.

Posted by Howard Wasserman on June 29, 2022 at 11:06 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, June 28, 2022

No standing and no Injunction in Florida CRT suit

From the lawsuit filed in April challenging Florida's HB 7, the anti-CRT law: The district court denied a preliminary injunction, finding that plaintiffs failed to show standing for different reasons:

• Public-school teachers cannot show traceability or redressability as to the Board of Education because it has not done anything to enforce the law. Any restrictions on what they can teach come from the local school board and the school, acting out of the threat of loss of funds. The court refused to find standing to enjoin the Board (from enacting regulations and stripping funds) based on the layers of inferences of from the threat of funds to what school boards and schools might do. I see the point--the Board does not create the constitutionally violative rules. but it allows standing to ignore common sense and economics and force plaintiffs to wait longer to litigate their rights.

• The rising kindergartner has not show injury-in-fact because he cannot show what material he will not be taught in kindergarten because of this law, as opposed to in an AP History class he may take 8-10 years from now. And although the court does not address it, this claim should fail on traceability and redressability for the same reason the teachers' claims fail--the removal of any material was by the school or a teacher, not the Board, and the court already said school action based on Board threats is insufficient for a suit against the Board.

• The private DEI consultant has not shown an injury at the first step of third-party standing on behalf of his customers.

• The court reserved ruling as to the final plaintiff, a prof at Central Florida.

• The court concluded the opinion--in which he never touched the First Amendment merits--with a long block-quote from Barnette, preceded by this: "For those who applaud state suppression of ideas that the government finds displeasing--such as the 1619 Project--this Court offers the following observation." I am as forgiving of judicial tangents as anyone, but this is inappropriate and absurd. If we call out judges such as Justin Walker and James Ho for including gratuitous culture-war rants in their opinions, we should call out Mark Walker for including rants with which I might agree.

Posted by Howard Wasserman on June 28, 2022 at 08:58 AM in Constitutional thoughts | Permalink | Comments (0)

Sunday, June 26, 2022

More zombie laws and litigation strategy

Dobbs has created a new puzzle with respect to zombie laws that I had not considered. It is usually obvious when a law has been de-zombified--the judicial constitutional precedent under which that law is invalid changed. Dobbs thus de-zombifies all abortion laws (subject perhaps to rational-basis scrutiny for extreme laws). But sometimes it is less obvious, because the Court suggests de-zombification through its reasoning and analysis, although the precise issue was not before the Court. So does the logic and reasoning of Dobbs, along with Thomas' concurrence, de-zombify other laws violating other substantive-due-process rights that it cast into (at least) some doubt?

Relatedly, how does that affect the posture in which the constitutional question will be litigated and resolved? Does the logic of Dobbs render a threat of renewed enforcement sufficiently likely or imminent to allow offensive pre-enforcement litigation to determine the state of judicial precedent and the constitutional validity and enforceability of the law. (Courts would call this whether the rights holder can show a sufficiently imminent injury for standing; I argue we should call this whether a constitutional violation has occurred or is likely to occur). Strict adherence to imminence (which courts follow for everything other than the First Amendment) limits offensive litigation, requiring rights holders to await actual renewed enforcementand challenge the law defensively.* At a minimum, they must wait longer to see if the state expresses some intent to renew enforcement based on its reading of Dobbs.

[*] Ex parte Young says rights holders need not wait, that it is unfair to force rights holders to violate the law at their peril and risk liability as a condition of litigating their constitutional rights. How to square that with Whole Women's Health, which I argue was correct? The problem in WWH was the lack of a target defendant and a governmental enforcer to enjoin.

Take Texas's sodomy law, which remains on the books. It is at least an open issue requiring new litigation whether constitutional precedent must change because Lawrence is incompatible with Dobbs. The question is whether that is sufficient to allow offensive pre-enforcement litigation or whether rights holders need some greater indication that the state intends to resume enforcing that law. Stated differently, can rights-holders, having read Dobbs and identified an open constitutional issue, initiate offensive litigation to declare the state of precedent and determine whether the sodomy law remains constitutionally invalid and unenforceable? Can Texas defeat such offensive litigation by insisting that it takes the Dobbs majority at its word, that it sees Lawrence as good law, and that it knows it cannot successfully enforce the law and has no intent to do so?

Does the answer change when the zombie post-dates the apparent change in precedent? Could that rights holder show imminence of enforcement more readily if the legislature enacts a new zombie? Returning to Texas' sodomy law--suppose the Texas legislature re-enacts a sodomy law post-Dobbs; does that allow a rights holder to argue that the state reads Dobbs as calling Lawrence into doubt and thus intends to enforce the new law (otherwise, why would it have bothered enacting it).

A separate strategic question: Should rights holders push the issue of what Dobbs did to Lawrence now or should they wait to see what states do? On one hand, there may be a benefit to striking now. People are paying attention and discussing Dobbs' effect on other rights; the charge of hypocrisy would land with the public (not that the Justices care) if the Court follows Dobbs to overrule Lawrence two years after insisting it would not. On the other, this is a frisky majority and rights holders may be wise not to test what it is willing to do.

Posted by Howard Wasserman on June 26, 2022 at 04:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, June 25, 2022

Pedantry

Is it overruled Roe or overturned Roe? I say "overrule," which is the term the Court used. Shepard's (ah, the days) used that term--courts "overrule" precedent and "reverse" lower-court judgments." I do not believe courts "overturn" anything in the formal (as opposed to colloquial) sense.

Now that we have the opinion and not only the draft, do we have any better sense of whether Roberts or Thomas assigned the opinion? And why would either give it to Alito? Roberts must have known Alito would produce a toxic opinion. And it seems Thomas would want to keep the opinion (this and the gun case would have made the Fed Soc two-fer). Did Thomas know he wanted to call all SDP into question so he needed to write separately rather than lose a majority on a small piece?

How should we describe the vote count? I went with 5-1-3 (majority, concurrence for result but not reasoning, dissent). I have seen others offer two related framings as a pair--6-3 for judgment (MS law valid, MS wins), 5-4 for overruling Roe.

Posted by Howard Wasserman on June 25, 2022 at 10:45 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, June 24, 2022

Zombie Laws

We have a real-time illustration of zombie laws and judicial departmentalism. A zombie law remains, precedent changes, and new precedent reanimates the zombie, at least prospectively.* Texas announced it will begin enforcing its pre-Roe zombie, prompting clinics in the state to cease all abortions. This chart shows three other states with an intent to enforce zombies, although Wisconsin seems less unlikely to enforce.

[*] Jonathan Mitchell argues that retroactive application would be permissible. I doubt states will try that.

Meanwhile, other states are enjoined from enforcing abortion restrictions. Those states move to dissolve the injunction, citing Dobbs as the changed legal circumstance, and the district court will grant the injunction, making those laws enforceable.

Posted by Howard Wasserman on June 24, 2022 at 07:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thoughts on fearing for the darkness

Some random thoughts on a legal earthquake.

• The opinion appears substantively unchanged from the leaked draft, other than responding to the other opinions and obvious proofreading. Clearly Kavanaugh was the Chief's target. We can read his concurrence as trying to carve a gentle and less-provocative middle ground between the majority's muscular overruling and the Chief's decide-nothing-more.

• This day has been coming like a slow-moving train since Election Night 2016, if not Election Night 2014 (when the Republicans regained the Senate and Justice Ginsburg had not resigned). I recommend Orin Kerr's Twitter thread that captures how Democrats/abortion-rights supporters went from "Garland-as-fifth-vote-to-secure-Roe" to Dobbs in less than a decade. Anyone (*cough* Susan Collins) who did not recognize this day as inevitable since Election Night 2016--or at least since Kennedy's resignation--is naive or ignorant (or, as someone suggested, lying about believing those assurances).

• Did the leak work? If the goal was to hold a shaky majority, yes; if the goal was to pressure someone to leave the majority, no. If the goal was to soften the opinion's effects by creating a distracting process story or softening the sting of the opinion, no; people seem pretty worked up and ready to protest and act, even if they saw this coming. It depends on if we find out who the leaker is and why they leaked.

• There is no easy answer to what happens next, but some things to watch:

    1) How much did this decision embolden anti-choice states? Do they ban abortion without exception or do they allow exceptions (life, health, rape, incest, a month of leeway)? Do they resume enforcing restrictive pre-Roe zombies? Do they go after pregnant people or only providers? Do they go after those who provide information and funding? How aggressively will prosecutors investigate and prosecute miscarriages and other "bad" behavior by pregnant people?

        Consider Arkansas' (now-valid) trigger law banning abortion with only a life-of-the-mother exception. Governor Asa Hutchinson suggested the state might add a rape-and-incest exception if Roe is overruled. This is a version of the dog-catching-the-car. States have performatively enacted extreme laws that would hurt millions, knowing they were unenforceable but allowed for political points. Now that those extreme laws are enforceable, Hutchinson realizes the immorality or unpopularity of the extreme and might walk it walk it back. Do other states follow suit and show restraint when their choices have real effects on real people or do they continue the race to the bottom because they can?

    2) Relatedly, does Dobbs embolden those states to go after the other rights that conservatives hate as much as abortion--same-sex marriage, contraception, sex? The assurances from Alito and Kavanaugh (and many who criticized Steve Vladeck and Leah Litman) focus on the wrong actors at the wrong time, at least for the moment. The action occurs in two other forums first: 1) Will states push the envelope in other areas--will they enact and enforce new laws banning purchase and use of contraception or whether states will begin enforcing existing zombie laws prohibiting sodomy (the Texas law at issue in Lawrence remains on the books) or same-sex marriage (same in many states); 2) What will restless lower-court judges do with the signal from Dobbs and from Thomas' concurrence if states get frisky--it is not hard to imagine a panel of the Fifth Circuit declaring valid a Louisiana ban on certain contraception. These steps are necessary before we see what the Justices will do. And that process could take several years, during which the make-up of the Court changes or people stop paying attention to Dobbs' "abortion-is-different" promises.

    3) It is nonsense to believe the courts are out of this area. The dissent shows why, as does this paper by David Cohen, Greer Donley, and Rachel Rebouche. These controversies extend beyond substantive due process to free speech, the right to travel, and other non-disfavored rights implicated in an abortion context. Scalia warned about the "abortion ad hoc nullifcation machine," in which the connection to abortion limits other, supposedly stronger rights (he complained about restrictions on clinic protesters). Will we see that in reverse--will the connection of other rights to the no-longer-favored abortion context limit those other rights? For example, will the Court allow states to sanction political expression concerning illegal-in-a-state abortions, remaining "scrupulously neutral" about abortion and allowing states to limit certain speech in the name of limiting (unprotected) abortion? Alito and Thomas have supported restrictions on speech with which they disagree; will others follow suit?

    4) How much teeth does rational-basis review have here, if a state goes to the extreme? Is it unreasonable to make a pregnant woman endanger her life or health in favor of a fetus? Is there any other context in which the law requires an ordinary person to risk her life for another?

• Biden's statement attempted to create a campaign issue. He called on Congress to codify Roe (whatever that means). He add that if Congress lacks the votes to do that (which it does), people must elect representatives who will, making. The question is how politically salient this is for the (apparent majorities) who support reproductive freedom--can the issue galvanize supporters to turn out in large numbers in the way it galvanizes opponents? Supporters have had Roe as the guardrail for 50 years. Does its actual loss awaken everyone to the ballot in a way its threatened loss (which was obvious in 2016) did not?

Posted by Howard Wasserman on June 24, 2022 at 04:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 23, 2022

§ 1983 giveth, § 1983 taketh away

Everyone will be talking about the gun case and the prospect that, given this Court's direction, it will soon to be easier to wave a gun in public than to engage in some speech in public. So let me focus on two cases about the scope of § 1983.

Nance v. Ward (Kagan for the Chief, Breyer, Sotomayor, and Kavanaugh) that a prisoner can use § 1983 to challenge manner of execution where the plaintiff's proposed execution method is unavailable under state law and would require the state to change its law. The need to change state law or regulations does not necessarily prevent the state from executing the plaintiff (the touchstone for Heck cases) but delays the execution until the state brings its law into compliance with the Constitution. Many § 1983 claims declare state law invalid and send it "back to the drawing board" to amend the law to comport with the Constitution (as judicially interpreted). Challenges to conditions of confinement can brought through § 1983 and those claims operate like challenges to method of execution--both challenge the implementation of a sentence (death or incarceration) and both may compel changes to state law (e.g., challenges to laws limiting the number of prison doctors or the regulations for prison population) to remedy that violation.

Vega v. Tekoh (Alito for the Chief, Thomas, Gorsuch, Kavanaugh, and Barrett) held that Miranda violations cannot form the basis for § 1983 claims for damages. The point of deparure, unsurprisingly, is whether Miranda is a constitutional rule and thus a "right . . . secured by the Constitution and laws." The majority describes it as a constitutional prophylactic rule but not the Constitution itself, while the dissent (Kagan for Breyer and Sotomayor) argues that the rule is constitutionally grounded (per Dickerson) even if it secures a deeper constitutional commitment against compulsion. Miranda thus is enforceable only defensively, as a basis to suppress evidence in the criminal proceeding.

I confess to not finding this case a huge deal for a couple of reasons, even as an another instance (See Egbert) of the Court eliminating ex post remedies for constitutional violations. Maybe I am missing things. First, Miranda is an odd fit for a § 1983 damages claim against the police officer who took the unwarned statement because the violation is complete only if the statement is offered by the immune non-party prosecutor and accepted by the immune non-party judge. Thus the officer's constitutional liability turns on the actions of two other people. Assuming the officer did not use coercion or force, he did nothing "wrong" unless someone else does something.

Second, I do not understand why this plaintiff does not lose on issue-preclusion grounds. He twice moved to suppress his statements on Miranda grounds and the state trial court twice rejected his arguments. Unless there is something I do not know about California preclusion law, the state court's resolution of the Miranda issue should be preclusive in the § 1983 action. This point also undermines the majority's argument as to why a prophylactic rule is not a "law" for § 1983 purposes. The Court identified numerous problems--judicial economy, conflicting decisions, and federal review of the prior state decision admitting the evidence--weighing against allowing damages suits over even a prophylactic Miranda. But the whole point of  Allen is that the federal court in the subsequent § 1983 action does not review the state court; it is bound by the state court determination and then applies it to the new claim for damages. There is no concern for conflicting judgments or lack of deference; the federal court is bound by the state court ruling. At least where, as here, the state court finds against the state defendant/federal plaintiff. The conflict arises if the state courts find Miranda was violated and the rights holder sues for damages; preclusion does not apply (because the officer was not a party to the prior suit), so the federal court would have a new bite at finding no violation (Alito's preferred conclusion). What am I missing on this point?

Posted by Howard Wasserman on June 23, 2022 at 12:12 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, June 21, 2022

COD is for government

A 5-4 Court held in Shoop v. Twyford that a district court erred in ordering transportation of a prisoner to the hospital under the All Writs Act where the evidence to be obtained at the hospital would not be admissible under AEDPA. A jurisdictional problem popped up at SCOTUS--the transportation order was not final. The majority stated in a "terse" footnote that it was appealable under the collateral order doctrine because it burdens state sovereignty and creates public-safety risks; Justice Breyer dissented for Sotomayor and Kagan to argue this does not meet COD requirements; and Justice Gorsuch argued cert was improvidently granted because the Court did not take the case to extend the doctrine. At the very least, it required more than a footnote.

And this is an expansion, as the court of appeals held that state sovereignty that is implicated by any federal-court order compelling a state to do something. Breyer, likening the order to a discovery order, argues that having the state as appealing party should not convert an otherwise interlocutory order (such as a discovery order) into one subject to COD review.

Of course, the modern collateral-order doctrine is skewed towards appeals by the government as opposed to by private individuals. While not framed as "appeal is proper because this is the government," the unprotectable public interests justifying the COD arise most commonly where the government loses on a uniquely governmental issue--e.g,, individual-officer immunity, sovereign immunity, foreign sovereign immunity, discovery orders affecting foreign sovereign immunity. I do not expect, as Breyer  worries, a regime in which government can appeal a common order that a similarly situated private party cannot appeal; but it is not surprising to see COD review of a unique discovery order that applies only to government parties but never to private parties. For example, an order compelling transportation of a prisoner for discovery purposes applies only to government parties and is appealable; a common order compelling discovery, equally applicable to all parties, is not.

Posted by Howard Wasserman on June 21, 2022 at 12:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, June 15, 2022

Charter schools act under color

So says a sharply divided (especially rhetorically) en banc Fourth Circuit in a challenge to a North Carolina charter school policy requiring female students to wear skirts in furtherance of "chivalric" ideals incorporated into its educational philosophy. A majority holds that the school owner (but not private manager) acts under color and the skirts policy violates Equal Protection and that the owner and manager are liable under Title IX. There are two concurring opinions-0ne joined by the author of the majority and one authored by the author of the majority opinion. There are two dissents, including one by Judge Wilkinson heralding chivalry and alternative education in the face of the institutional forces of educational rigidity. Much pissiness all around.

I expect SCOTUS to take this next term. The decision creates a circuit split with three circuits (1st, 3d, and 9th) that held that charter schools do not act under color, including in making school and student policies. There also is a question of consistency with the one SCOTUS decision holding that education (at least for a segment of problem students) is not a traditional public function.

Posted by Howard Wasserman on June 15, 2022 at 03:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, June 08, 2022

Maybe there isn't a big difference between mostly dead and all dead

Like Westley in The Princess Bride, Bivens is mostly dead following today's decision in Egbert v. Boule. Unlike with Westley, I deny any big difference between being mostly dead and all dead. Here is my SCOTUSBlog recap[Update: And a short interview on All Things Considered] I did not expect this from the argument. While not friendly to the plaintiff's claim, the quesioning did not reflect  a desire from six justices to winnow Bivens to nothing--especially after declining to grant cert on whether to overrule Bivens.

But it may as well have. If the new single question in the Bivens analysis is whether there is any reason to believe that Congress is able to decide whether to recognize a cause of action outside of identical facts to Bivens, no new Bivens action is possible, because the answer is always yes. Credit to Gorsuch for being honest about where the analysis and conclusion leads. Meanwhile, without saying so, the Court has essentially granted virtually all federal officers at all levels in virtually all agencies more-or-less absolute immunity from suits for damages for constitutional violations. Maybe something identical to Bivens survives going forward--Fourth Amendment violation, pure law enforcement, no connection to immigration and national security. But not for long. And perhaps not if the agency has (as all agencies do) some internal disciplinary system.

So it is up to Congress to enact something like § 1983 for action under color of federal law, that also keeps in place the many statutory schemes (e.g., CSRA) that operate adjacent to Bivens. Could the changing nature and increased ideological diversity of constitutional claims--e.g., an increasing number of religious-liberty claims--create sufficient bipartisan support for enacting something? Probably not. But that will be the new focus.

I am working on the third edition to my civil rights treatise. The second edition was written in 2017 and published in 2018. I am stunned (and a bit frozen) by how much has changed in that short a period and how much the Bivens and immunity chapters must be rewritten.

Posted by Howard Wasserman on June 8, 2022 at 10:15 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, June 07, 2022

Bivensing the 13th Amendment

From Logsdon-Smith v. Kentucky. Plaintiffs were sexually abused by a probation/parole officer. They sued the governor and the state for a 13th Amendment violation under § 1983; in response to a motion to dismiss arguing the § 1983 claim was time-barred, they refiled as a direct action under the 13th Amendment. The Sixth Circuit affirmed dismissal.

The 13th Amendment is not directly enforceable because § 1983 exists as the exclusive mechanism for enforcing that provision against state actors; Congress has enacted laws (including § 1983) to enforce the 13th Amendment; and the 13th Amendment provides for congressional enforcement and precludes an implied right of action, unlike those rights enforceable under Bivens . This makes sense, especially because the plaintiffs downshifted away from § 1983 because they blew the statute of limitations--it makes no sense to have § 1983 as the cause of action unless you have deprived yourself of the opportunity to file a § 1983 action, in which case you can rely on the Constitution. Plus, it seems like a futile move from the outset--Bivens actions are subject to the personal-injury period for the state in which the action is brought (one year in Kentucky), as are § 1983 actions. If a 13th-Amendment-Bivens claim were possible, it would be as time-barred as the § 1983 action.

The alternative basis for dismissal makes less sense--that the state has 11th Amendment immunity because there is no clear congressional statement abrogating immunity. But that begs the question. The unequivocal congressional statement appears in the statutory cause of action. Congress should have the same power to abrogate under § 2 of the 13th Amendment as under § 5 of the 14th--both were enacted subsequent to Article III and the 11th Amendment and both limited state power and enhanced federal power.But congressional power or congressional statement is irrelevant in this case, because the absence of a congressionally created cause of action precludes any congressional statement. The question should be whether the amendment itself abrogates, which has nothing to do with a clear congressional statement. The answer cannot depend on the text; no constitutional provision--including those through which Congress can abrogate--expressly abrogates sovereign immunity because sovereign immunity appears nowhere in the Constitution. The absence of abrogation here derives from the absence of a congressional cause of action, which was the first reason for rejecting the plaintiffs' claims; it is not an independent basis for dismissal.

The court pointed out the "broader policy questions" about whether a one-year limitations period is too short for constitutional claims under § 1983. Courts apply the state limitations period so far as it is "not inconsistent with the Constitution and laws of the United States." A six-month period is too short and inconsistent with the purposes of § 1983 and the Constitution. Perhaps one year is too short, as well.

Posted by Howard Wasserman on June 7, 2022 at 01:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, June 04, 2022

Two interesting § 1983 ideas (corrected)

1) Steve Vladeck has an essay at MSNBC on the Court's shrinking docket and slow pace. He makes a point I had not considered: The Court's shrinking docket means fewer opportunities for rights to be clearly established and therefore less ability for plaintiffs to overcome qualified immunity. This takes on a larger scope if the Court follows through on hints that lower-court precedent cannot clearly establish.

2) Angeli Gomez is the Ulvane Uvalde parent who urged police to enter the school, was handcuffed, released, and ran into the school to rescue her children. CBS reports that Ulvane Uvalde police told Gomez not to speak publicly about the events on threat of prosecution for obstruction of justice and violation of her parole. Popehat wants to represent her in what he thinks could be a viable § 1983 action. The two questions are whether a nonsense arrest threat, without follow-through, constitutes a sufficient deprivation of the First Amendment and whether there either is case law establishing that (nothing from SCOTUS, doubt there is a "robust consensus" from lower courts) or whether this is an obvious violation.

Edits: My apologies for getting the town's name wrong.

Posted by Howard Wasserman on June 4, 2022 at 12:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, May 31, 2022

SCOTUS vacates stay of Texas social-media law (Updated)

SCOTUS vacated the Fifth Circuit unexplained stay of the district court injunction of HB20, Texas' social-media law; in other words, the law cannot be enforced pending appeal. This leaves the Texas law in the same place as Florida's, following  last week's 11th Circuit decision affirming the preliminary injunction prohibiting enforcement of that law. Justice Kagan would have denied the stay application, without explanation. Alito dissents for Thomas and Gorsuch.

Alito's dissent hits all the conservative Twitter talking points about social media that misapply or misunderstand First Amendment doctrine. Plus he adds a gratuitous footnote about § 230 requiring neutrality or creating a platform/publisher distinction. Special mention for accepting this verbal sleight-of-hand: "Texas contends that § 7 does not require social media platforms to host any particular message but only to to refrain from discrimination against a user's speech on the basis of viewpoint"--as if prohibiting a site from rejecting speech on the basis of viewpoint does not compel the site to carry that speech by eliminating one basis for the site to remove that speech.

Presuming the Fifth Circuit declares the law valid when it reaches the merits to create a circuit split and presuming Justice Kagan's position is based on posture and not First Amendment substance (she did not join Alito's opinion), the vote should be 6-3 that a state law violates the First Amendment in attempting to compel private entities to carry speech and speakers they would prefer not to carry.

Besides pushing troubling First Amendment arguments, Alito pushes a troubling procedural argument. He suggests that a pre-enforcement federal action is inappropriate because HB20 is enforceable for prospective relief (injunction, plus ancillary attorney's fees and costs) but not the sort of harsh retroactive relief (imprisonment or severe fines and penalties) as with the law in Ex Parte Young; a social-media site therefore can raise the First Amendment as a defense to a state suit for injunctive relief, also allowing the state court to interpret the law's vague provisions. But the Court has never held that EPY actions are limited to laws that impose retroactive sanctions for past conduct, especially where attorney's fees may impose greater financial consequences on rights-holders than retroactive damages or fines.

Although he did not cite it, I think Alito drew the wrong conclusion from WWH and SB8. The WWH Court was correct that re-enforcement offensive EPY actions are not constitutionally required and defensive litigation can be constitutionally sufficient. That does not mean an EPY action is improper whenever defensive litigation is available (which is always). The question is whether EPY's other requirements--an identifiable responsible executive officer whose enforcement can be enjoined--are met. SB8 could not be challenged offensively because the absence of public enforcement meant no responsible officer and no one to enjoin. HB20 is publicly enforced (while also allowing private enforcement), satisfying this element of EPY.

Update: On this last point about Alito's hostility to EPY actions, he includes this line: "While I can understand the Court's apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty and Texas should not be required to seek preclearance from the federal courts before its laws go into effect." Putting aside the misuse of laws "go[ing] into effect," Steve Vladeck shows that since November 2020, Alito has voted publicly ten times on emergency-relief requests in offensive pre-enforcement actions that would stop enforcement of state laws pending resolution of federal pre-enforcement litigation. Of those cases, one challenged a Maine law; the others challenged New York or California laws. He never suggested those state courts should have a crack at interpreting the law. I do not believe he is trying anymore.

Posted by Howard Wasserman on May 31, 2022 at 07:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Sunday, May 29, 2022

Misplaced anger over precedent: The example of DeShaney

Campaign-finance regulation advocates and much of the public regard Citizens United as one of the Court's worst decisions, responsible for the electoral mess that has followed. I find this unique attention on CU strange, as the Court built on a 30+-year-old framework that treated expenditures as protected speech, recognized corporations as equal speakers with individuals, and generally rejected equalizing and preventing drown-out as compelling government interests. CU did not break much new ground, yet it has become the alpha-and-omega of bad campaign-finance doctrine.

We are seeing this play out again amid reports that Uvalde police stood around and did nothing for almost an hour while the shooting continued. Everyone points to Castle Rock v. Gonzalez as establishing the (awful) principle that police have no constitutional duty to protect from third-party harms. But as with CU, Castle Rock broke no new ground. It built on the real culprit, DeShaney v. Winnebago County, which everyone is ignoring in the Twitter debate.

Castle Rock arose from a father who kidnapped his three daughters in violation of a restraining order. Despite pleas from the mother, officers did nothing to enforce the restraining order by looking for the father or the kids. About 10 hours later, the father appeared at the police station with the girls' bodies in his truck and committed suicide-by-cop. The mother sued the department on a theory that the failure to take steps to enforce the TRO deprived her of procedural due process; a 7-2 Court rejected the claim. Scalia (for 7) said the mother lacked a protected property  interest in enforcement of the TRO because the police had inherent discretion in when and how to enforce the order and enforcement had no inherent monetary value; Souter concurred (with Breyer) to argue that enforcement of the TRO is a process and there is no due process right to an underlying process.

The real constitutional injury should have been that the girls ls were kidnapped and murdered because the police did nothing--a substantive claim for deprivation of their life and liberty, not about the failure to provide process. That is, the injury was in the result (the girls were murdered), not by the failure to provide process. But DeShaney foreclosed that claim when it held that government action, never government inaction, violates substantive due process; government failure to protect people from third-party harms cannot be the basis for an SDP claim. The plaintiff in Castle Rock tried to use PDP to get around that limitation. DeShaney did not involve cops. But it, not Castle Rock, is the source of the problem and the reason there can be no constitutional liability for the Uvalde officers' failure to act.

DeShaney established or hinted at two exceptions. It acknowledged that the government has a duty to protect those with whom it has a "special relationship," typically where government has assumed involuntary custody over a person and thus an obligation to provide for his well-being. But every circuit holds that school does not constitute such a special relationship--school officials have no affirmative duty to protect students, which necessarily means police officers have no such duty when they are called to the scene.

DeShaney also stated that the government had not created the danger to the plaintiff or done anything to make him more vulnerable to it. From this language, lower courts developed the "state-created danger" theory, imposing SDP liability where the government takes some action that creates or worsens a plaintiff's vulnerability to third-party harms. Unfortunately for the families, the 5th Circuit is the lone court of appeals to reject this theory; short of the court changing its mind or using the case to get to SCOTUS, this is a non-starter in Texas.

If it were available, I am trying to figure out whether a claim is possible. An affirmative act is required--not mere inaction of doing nothing but some affirmative steps. So standing in the hallway waiting for a key cannot state a claim, nor can the failure to transmit or act on 911 calls showing kids alive in the classroom. Reports suggest the Uvalde police affirmatively stopped parents from entering the school (including cuffing one person) and affirmatively stopped federal agents from entering the school; that could do it, although plaintiffs must show causation (that their children might have been saved had local police not stopped others from helping) and that preventing help was conscience-shocking. Some courts have found liability on an inaction-as-message theory--the failure to act sent a message to the wrongdoer that he could act with impunity; I doubt that works here, because the shooter was not aware of or reacting to the inaction.

The facts of this case keep changing, so expect to learn more. But the police-critical narrative taking hold is "police get impunity for their actions, but have no obligation to act to protect the public" makes no sense as a democratic bargain. But the second piece of that narrative derives not from Castle Rock, but from DeShaney.

Posted by Howard Wasserman on May 29, 2022 at 09:58 AM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

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)