Friday, September 17, 2021

Jurisdiction, merits, and the First Amendment

From the Sixth Circuit, reaching the correct result for confused and convoluted reasons.

Anti-Israel protesters have picketed outside Beth Israel Synagogue in Ann Arbor every Shabbatt since 2003. Two congregants sued the protesters for intentional infliction and various civil rights claims and the city and various municipal officials for not stopping the protests. The district court dismissed the claims for lack of standing, finding that emotional distress is not a sufficient Article III injury. The Sixth Circuit majority held that the plaintiffs had standing, but that the claims fail on the merits because the protests are First Amendment protected activity. Judge Clay concurred, arguing that the plaintiffs lack standing and the district court lacks jurisdiction because the claims are so frivolous.

This is another example of standing and jurisdiction complicating and distracting straight-forward cases. Plaintiffs brought a long-established common law claim and the only question should have been whether the protesters expressive conduct was constitutionally protected and thus not a basis for liability. It makes no sense to erect, understand, and use threshold jurisdictional doctrines to complicate that issue. Would anyone have discussed standing or jurisdiction had this case been brought in state court? Then it should not be different in federal court.

Also, note, again, the defensive context in which the First Amendment was raised and judicially resolved. Paintiffs sued for damages, the protesters raised their First Amendment rights as a defense, and in agreeing with the protesters on the First Amendment question, the court dismissed the lawsuit. How is that not an "ordinary mechanism" or the "established process" of judicial review?

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

Wednesday, September 15, 2021

US seeks emergency TRO against SB8 (Updated)

Motion here. The piece I find interesting begins around p. 24, in which DOJ argues, in essence, that § 1983 and Ex parte Young preempt a law such as this. Section 1983 reflects a congressional choice to make federal civil rights litigation, including for injunctions, the preferred mechanism for litigating constitutional rights, thereby making offensive litigation the preferred posture for constitutional litigation.

I am not sure that is true. As I have been arguing here, many contexts force rights-holders into a defensive posture, outside of federal court. Sometimes those contexts come from Congress, such as the Anti-Injunction Act, or the courts, such as Younger. Sometimes that comes from states, such as in the creation of tort and contract law. The brief relies on Patsy v. Board of Regents, which held that a state cannot impose an admnistrative-exhaustion requirement on a public employee as a precondition to bringing a § 1983 action. But four years later the Court held that Younger applied to state administrative enforcement proceedings--that is, a rights0holder must defend the state administrative proceeding and appeal through the state system to SCOTUS, not run to district court. So federal court is not always paramount.

The brief repeats the refrain that SB8 thwarts "ordinary mechanisms of judicial review" or the "established process of judicial review." When did state courts, with SCOTUS review, cease to be an ordinary mechanism of judicial review? And is DOJ willing to follow that idea where it leads, so that an offensive option must be available in all cases, except perhaps where Congress creates the limits on § 1983? Must there be some mechanism for pre-enforcement challenges to constitutionally defective tort claims?

Finally, seems impossible to square this rhetoric with the limited scope of constitutional litigation. Imagine that SB8 followed California's prior consumer-protection law at issue in Nike v. Kasky, which allowed enforcement by "any person" regardless of injury as well as by governments and officials. A pre-enforcement EPY action would have been possible. But the injunction from that EPY action would have bound the executive, not the potential "any person." He would have been able to sue and perhaps win a state-court action, at least prior to the establishment of binding SCOTUS precedent. Same thing here. Some state-court actions would be possible and some providers would still have to defend in state court. They would have some precedent. But state courts are not bound by non-SCOTUS federal precedent unless they choose to be.

This is more complicated than the DOJ rhetoric acknowledges.

Update: The district court set a hearing for October 1. This fast-tracks the case. While framed as a motion for a TRO, the resulting order will be deemed a grant or denial preliminary injunction and immediately appealable.

Posted by Howard Wasserman on September 15, 2021 at 03:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Tuesday, September 14, 2021

SB8 op-ed

Rocky and I have an op-ed in California's Daily Journal on SB8, a mini version of our paper and my many posts here and at the VC.

Posted by Howard Wasserman on September 14, 2021 at 01:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, September 13, 2021

Retroactive enforcement of zombie laws

Michael Dorf explores whether, if Roe and Casey are overruled, people can be sanctioned (criminally or civilly a la SB8) under reanimated zombie laws for abortions performed in violation of state law but while Roe and Casey rendered those laws unenforceable. Dorf discusses cases considering whether a person can be sanctioned for conduct performed while protected by a preliminary injunction and while litigation is ongoing.

I did not discuss this issue in my article, which focuses more on what a zombie is and how they work in the moment. I wish i had, because it is an important future consideration. I agree with Mike that it would be fundamentally unfair to punish someone for conduct that violated the statute but was taken under the cloak of judicial precedent authorizing the conduct. But the case law considering conduct taken during litigation and under the protection of a preliminary injunction does not provide the relevant guidance.

The problem is that injunctions do not create most zombie laws. Many zombie laws have never been the target of litigation; they are laws from Jurisdiction B rendered judicially unenforceable by a decision involving a similar or identical law from Jurisdiction A. (This is the case with the law in which Fifth Circuit Judge Gregg Costa coined the term). Or they are distinct laws, different from the ones declared invalid in prior litigation, but raising the same constitutional objections. Many constitutional opinions create zombies but do not issue an injunction--they arise from defensive litigation and the judgment dismisses the enforcement action. (For example, no court enjoined Texas from enforcing its flag-desecration law; SCOTUS dismissed a prosecution against Gregory Lee Johnson. The same with Connecticut's contraception ban and the prosecution of Estelle Griswold). If the zombie was established in a case enjoining enforcement, the injunction is (or should be) limited to stopping enforcement against the plaintiffs to that action. Non-enforcement beyond the parties is a product of precedent, not the injunction.

Jonathan Mitchell in Writ-of-Erasure Fallacy has a different take. Judicial precedent involves a policy of judicial non-enforcement, no different from an executive policy of non-enforcement. (I would expound to say that judicial departmentalism makes the latter into the former--the executive choice not to enforce out of knowledge that it will lose in court reflects a policy choice). An executive non-enforcement policy would not provide a reliance defense to a subsequent enforcement (as Griswold demonstrates). It follows, Mitchell argues, that neither should a judicial non-enforcement policy.

The answer to this question requires a theory of judicial precedent and its effects on the public. Under judicial departmentalism, it binds courts but does not bind executives. How does that affect the public, its choices, and its subsequent exposure for those choices? And how does that further fundamental fairness and due process?

Posted by Howard Wasserman on September 13, 2021 at 10:11 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, September 11, 2021

Universal injunctions are back, baby

I predicted that, with the change of presidential administrations, Republicans and conservative activists would discover that universal injunctions are permissible and essential to the rule of law. I did not know what would trigger the new arguments. Now we do.

Litigation is on the horizon challenging the coming OSHA vaccine mandate. I can hear it now.: "It is not enough to stop the government from requiring the plaintiff to get vaccinated. The mandate applies to all employees across the country. If it is unconstitutional to make A get vaccinated, how can it be constitutional to make B get vaccinated. That violates the rule of law. Federal law must be uniform."

Posted by Howard Wasserman on September 11, 2021 at 11:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, September 10, 2021

5th Circuit allows appeal in SB8 case

The 5th Circuit denied motions to dismiss the appeals and stayed the district court proceedings in the WWH SB8 case. The court of appeals had jurisdiction under the collateral order doctrine over the state officials'  claims because all were denied 11th Amendment immunity when the district court found that Ex Parte Young claims could proceed against them despite their not being proper defendants. The court had pendent appeallate jurisdiction over the appeal by Mark Lee Dickson, because the claims against him are inextricably intertwined with the claims against the judges and clerks. A stay was proper because the defendants were likely to succeed on their appeal, because they are not proper defendants under SB8.

On the likelihood of success, there is some language in the order that will help with the paper. The court labeled the claims against judges as "specious," citing Ex Parte Young and cases from the Fifth Circuit and other courts to make the argument we have been making--judges acting in an adjudicatory capacity are not proper defendants in lawsuits challenging the constitutional validity of a law, as the judges (and the clerks who accept pleadings) are "disinterested neutrals" engaging in adjudication rather than enforcement. The court cast doubt on the "indirect enforcement" claims against executive officials. Rocky and I argue that this could work, although the remedy would be limited to providers and licensing proceedings, doing nothing to stop private lawsuits. But the court read SB8's no-enforcement provision to bar any enforcement based on any SB8 violations.

I think the court was wrong about the Dickson. Pendent appellate jurisdiction is supposed to be limited to situations in which resolution of the COD issue resolves the PAJ issue. For example, the first prong of qualified immunity (violation of a right) is inextricably intertwined with the violation prong of municipal liability. But that is not true of the claims against the judges/clerks and Dickson. The issue as to the judges is whether they are proper Ex Parte Young defendants; the issue as to Dickson is whether he intends to bring suit. I guess if the judges are proper defendants and can be enjoined then Dickson cannot pursue his claims. But the propriety of the injunction is not on this appeal, only whether they can be defendants. Pendent appellate jurisdiction is problematic in extending COD beyond a "narrow class of cases." This proves the point.

I know this is bad for abortion rights and for women needing reproductive-health services in Texas. And I accept Andy Koppelman's argument that it would be bad for constitutional rights if this type of law proliferates. But, for better or worse, procedurally the court is correct.

Posted by Howard Wasserman on September 10, 2021 at 09:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Guest stint at Volokh Conspiracy

Rocky and I will be guest-blogging about our SB8 article (now forthcoming in American University Law Review but very much a work in progress) at the Volokh Conspiracy over the next week. Our first post is here.

Posted by Howard Wasserman on September 10, 2021 at 01:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, September 09, 2021

US v. Texas

Filed in the Western District of Texas. I have no idea whether this overcomes the problems that, in my mind, plague individual suits--no state official or person working for the state enforces this law. Therefore there is neither traceability nor redressability in standing terms and no constitutional violation in merits terms (since the law, apart from enforcement, does not violate rights). Paragraph 8 defines Texas as including "all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8," contemplating every person who might sue, even if not imminent. Will that work?

There has been so much scrambling at the expense of the simple (if not ideal) solution--violate the law, get sued, defend in state court, appeal to SCOTUS. The prevailing theme is that this is insufficient. Paragraph 4 of the complaint insists that the law has thwarted "traditional mechanisms of federal judicial review," while ¶ 15 describes Texas attempting "to strip its own citizens of the ability to invoke the power of the federal courts to vindicate their rights," But how is defending in state court and appealing to SCOTUS not a traditional mechanism of federal judicial review According to a study by Arthur Hellman, prior to the mid-'70s most judicial review occurred this way; the shift to more offensive litigation happened towards the end of that decade. And if having to litigate federal issues in state court strips citizens of the ability to invoke federal courts, then the Well Pleaded Complaint Rule and Younger are constitutionally invalid. I don't think the government meant to say that.  My guess is that if this gambit fails, someone will violate the law and get sued, realizing that is the only way.

On the issue of whether the U.S. can, on behalf of its citizens, bring a broader lawsuit and obtain broader relief: I might be comfortable with that fact. The idea between having a combination of private and public enforcement of federal rights (especially civil rights) is that the federal government can pursue a broader suit (including by naming a sovereign) and get broader relief. But the inherent limits on government enforcement--resources, political will, competing demands--mean that the federal government will not and cannot puruse every case. They only go after the big ones--"more bang for the buck." And this is that singular huge issue that prompts government action.

Update: Will Baude offers a version of what my co-author calls a special standing solicitude for the United States. Unlike individuals, the U.S. can sue all of Texas and everyone who does anything with respect to a law--enacting, enforcing, adjudicating. So the U.S. can do more in that rare, big case it decides to pursue. I still believe this is a simple case in which simple defensive litigation is an option. But maybe this is the huge outlier case in which unusual government action is appropriate.

Another Update: I forgot to mention the strategic forum choice: This could have been filed in SCOTUS on original jurisdiction as a controversy between the United States and a state. At least Justices Thomas and Alito would have accepted the bill of complaint, as both are on record that SCOTUS' original jurisdiction is not discretionary. And like a suit challenging the validity of voting-age rules under the VRA, this would seem to be the type of uniquely huge national controversy involving state-law perogatives demanding speedy and original review by SCOTUS.

Posted by Howard Wasserman on September 9, 2021 at 04:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, September 07, 2021

(Update) Suing Texas State Senate Bill 8 Plaintiffs under Federal Law for Violations of Constitutional Rights

 Anthony Colangelo (SMU) will be publishing this post in SMU Law review, so we have pulled it off here. The post is available at SSRN.

 

Posted by Howard Wasserman on September 7, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Judicial Process, Law and Politics | Permalink | Comments (3)

Monday, September 06, 2021

Searching for Estelle Griswold and more SB8 developments

Two items on SB8 and the developing conversation.

A

Estelle Griswold has entered the public discussion around SB8. Griswold was the executive director of the Planned Parenthood League of Connecticut who (along with Dr. C. Lee Buxton, a ynecologist)  violated Connecticut's ban on contraception, was prosecuted and convicted of aiding-and-abetting contraception, and appealed to SCOTUS for the opinion that established the constitutional right to reproductive privacy. Josh Blackman and David Garrow (Garrow's op-ed is behind a Houston Chronicle paywall, but the linked Faculty Lounge post quotes the key paragraphs) both tell Griswold's story and suggest that some abortion provider or advocate must follow suit in performing or aiding a post-heartbeat abortion.

But Garrow gets the process wrong, arguing that upon the lawsuit, Griswold's heir can file a federal suit against the judge assigned the case. I continue to reject this possibility because state judges are not the appropriate targets for offensive litigation designed to stop enforcement of a law. If they were, every media outlet or other defendant sued in state court for defamation would do what Garrow suggests (a defamation suit against protected speech violates the First Amendment as much as an SB8 suit violates the Fourteenth Amendment). That this never happens suggests something about the shape and structure of constitutional litigation. It is telling that Garrow tells Griswold's story, then describes a process different than the one she followed. She did not sue the state judge; she raised constitutional defenses in the criminal case, was convicted, and appealed the conviction to SCOTUS (which at the time had mandatory jurisdiction), which declared the law invalid and overturned the conviction. In other words, Griswold litigated the constitutional issue in a defensive posture in state court--exactly as we argue providers and advocates must do with SB8.

We cannot understand the procedural posture of Griswold without understanding Poe v. Ullman, four years earlier. Poe arose from several (state) declaratory judgment actions against the state AG challenging the validity of Connecticut's contraception ban. The Court held that the appeal was not ripe, because the plaintiffs could not show that the AG intended to immediately enforce the contraception laws, which had been the basis for one prosecution in more than 80 years. Justice Brennan concurred in the judgment to provide the fifth vote, arguing that the individual couples who brought these actions could not fear prosecution because they were not the real targets of the law. He argued that the "true controversy in this case is over the opening of birth-control clinics on a large scale; it is that which the State has prevented in the past, not the use of contraceptives by isolated and individual married couples." With offensive litigation off the table, defensive litigation became necessary, with the large-scale clinic violating the law and defending against the prosecution by arguing the law is invalid.

As in Connecticut in 1961, offensive litigation is off the table because there was no threat of public enforcement. The reason varies--no intent or history to enforce as opposed to no power to enforce; but we end in the same place. So the solution is defensive litigation--violate the law and assert the Constitution as a defense to liability.

B

On Thursday, President Biden called for a "whole-of-government effort" to find ways to protect reproductive rights as against SB8. On Monday, Merrick Garland announced that DOJ is exploring "all options to challenge Texas SB8 in order to protect the constitutional rights of women and other persons, including access to an abortion." What might those efforts include? Garland points to the Free Access to Clinics Etrances (FACE) Act, which prohibits obstruction of access to clinics. This works to the extent SB8 bounty-hunters are interfering with clinics or threatening clinic workers and clients (and reports suggest that happening on the ground); it does not do much to stop anyone from filing an SB8 lawsuit.

Lawrence Tribe argues in the Washington Post that the U.S. should prosecute SB8 plaintiffs under § 242 (the criminal counterpart to § 1983). He is not alone in this idea. "Under color" means the same thing for both statutes and both can reach private actors. Most prosecutions, particularly those from the Civil Rights Era, involved private individuals conspiring with government officials, although I have found lower-court prosecutions of private actors under a traditional-public-function analysis. This option stands or falls with our argument for § 1983 suits against bounty-hunter plaintiffs--it works for both or it does not work for both.

The larger problem for a § 242 prosecution is that the defendant must "willfully subject[]" a person to a deprivation of rights. This imposes a specific-intent requirement--the defendant must have acted with the intent to deprive a person of their constitutionally protected rights. In the most common use of § 242 against police officers for excessive force, the government must show that the officer intended not to assault the victim, but to assault him so as to impose an unreasonable seizure; this forms part of the reason that § 242 cases are hard to prove and why DOJ prosecutes so few of them. The problem as to willfulness in these cases is that the SB8 plaintiff is acting pursuant to state law. His intent in filing suit is to recover remedies authorized by (presumptively valid) state law and perhaps to produce a change in the judicial interpretation of the Fourteenth Amendment, as opposed to depriving any person of their constitutional rights. Tribe's rhetoric aside, people bringing lawsuits in state court to enforce a state statute seems a distance from the Klan lynching people for trying to vote. The government would have to show that the criminal defendant/SB8 plaintiff knew the law could never be declared valid.*

[*] Section 242's willfulness requirement overlaps with the good-faith defense that an SB8 plaintiff would have to any § 1983 action.

The necessary move for the government would be an action for injunctive relief against the State of Texas to stop the entire government from enforcing the law. The problem is finding a law that authorizes such a suit. Tribe argues the source is the All Writs Act--an injunction is a writ and an injunction prohibiting Texas from enforcing its law on the grounds that it violates the Fourteenth Amendment would be a writ "necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Moreover, as someone argued on a listserv, a suit between the U.S. and a state is within SCOTUS' original jurisdiction, which might allow the U.S. to fast-track its challenge.

 

Posted by Howard Wasserman on September 6, 2021 at 02:43 PM in Civil Procedure, Constitutional thoughts, Judicial Process | Permalink | Comments (0)

Sunday, September 05, 2021

The judicial departmentalism of SB8

On an emergency episode of the Divided Arguments podcast, Will Baude and Dan Epps discuss SB8 and SCOTUS's refusal to stop enforcement pending litigation. Dan attempted to distinguish a longstanding law whose constitutional validity was newly called into doubt by a change in Court personnel and constitutional doctrine from a new law enacted in the face of contrary precedent and designed to change precedent against long-protected rights-holders. The former includes the handgun restriction declared invalid in McDonald or the abortion law declared invalid in Roe; the latter includes SB8 and other new abortion restriction. Rights-holders should be protected and free to exercise their rights during litigation. But that problem arises in the latter class but not former class. In the former, rights-holders have not been exercising their rights (which had not existed), so they lose nothing having to wait for resolution of litigation. In the latter, rights-holders have been exercising recognized constitutional rights for years, so they bear a risk of losing long-recognized rights in the interim.

It is an interesting distinction, especially for how we understand zombie laws.

The problem is that--regardless of the source, timing, or nature of the law--constitutional decisionmaking must follow regular judicial processes. That need not and cannot always entail offensive pre-enforcement litigation in which a federal court preliminarily enjoins enforcement pending the completion of litigation. And such offensive litigation remains limited to the parties to the action--any further compliance is voluntary.

It may be, as Dan argues, that the Court would have responded differently to a law prohibiting gun ownership and allowing "any person" to sue a gun owner. But the Court's inconsistency (hypocrisy?) should not obscure the procedural rules. The answer is that the Court should act appropriately as to the guns law, not that we should urge the Court to act inappropriately as to the abortion law.

Posted by Howard Wasserman on September 5, 2021 at 02:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, September 04, 2021

Stay (the SB8 judgment) just a little bit longer

My recurring argument around SB8 is that the statute does not eliminate judicial review of SB8's substantive provisions, it channels it into a defensive posture in state court (with SCOTUS review at the end). Providers and advocates reject that because it requires them to violate the law, get sued, and risk liability. But this reflects two distinct concerns: Incurring ultimate liability because SCOTUS rules against them at the end of the day and having to satisfy and comply with a judgment before they have an opportunity to fully litigate the issues.

But state procedures in the defensive action address that by allowing courts to stay judgments or orders pending appeal. That is, imagine the state court rules in favor of Billy Bob and against Whole Women's Health and awards statutory damages, attorney's fees, and enjoins WWH from future prohibited abortions. The state court can stay that judgment pending review, preventing the plaintiffs from collecting damages or enforcing the injunction until appellate review is complete. A stay seems appropriate here, given the constitutional uncertainty, the unique procedural posture of these cases, and the irreparable harm to the defendant if they must comply with this judgment immediately. One member of the ConLawProf listserv suggested that the SCOTUS majority could have alleviated some of the shouting over its refusal to stay or enjoin by including a sentence saying they expect state courts would issue such stays in any enforcement proceeding.

There is precedent for this. After the Alabama trial court issued a $ 500,000 judgment against The Times and four civil-rights leader defendants, all defendants moved for a new trial and The Times asked for and received a continuance (essentially, a stay of the judgment), so Sullivan never began collecting against them. The individuals never asked for that stay, so Sullivan went after Ralph Abernathy's assets. The point is that providers can avoid paying on any loss until litigation is complete. If the loss is affirmed because SCOTUS declares SB8 valid, the concern now is about the substantive right, not the process.

There is a third problem for providers--having to defend dozes or hundreds of such suits. But there is a possible solution to that. Given that every SB8 action involves the same conduct and raises the same issues (state standing and substantive invalidity), there is a good argument that the courts in cases 2-200 should, in their discretion, stay those cases awaiting the outcome of the one "test" case.

This is not perfect by any means. But it undermines the complaint that judicial review is impossible or that it requires providers or advocates to place themselves in irreparable jeopardy.

Posted by Howard Wasserman on September 4, 2021 at 10:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, September 03, 2021

Some responses to Somin on SB8

Ilya Somin offers some thoughts on SB8 and the Court's decision to allow enforcement pending litigation.

Somin argues rejecting current standing and injunction rules in favor of a "general injunction" precluding enforcement of that law by anyone who might otherwise be in a position to undertake that task. In an email, Somin clarifies that the target defendant in the lawsuit would be the government entity that created the law (a further rejection of current sovereign immunity rules). This is an intriguing idea. I favor simplifying constitutional litigation by making the government the target defendant. And I do not like standing rules as they exist as jurisdictional limitations. I am not quite ready to dissaggregate judicial review and remedy from actual or threatened enforcement of the law by someone, even if the government is ultimately "responsible." We still do not have that.

Somin rejects the criticism that SB8 unleashes "vigilantes," because many laws use private enforcement. "The troubling aspect of SB 8 is not the use of private enforcement, as such, but the resort to it as a mechanism for evading judicial review." But SB8 does not evade judicial review, as much as it channels judicial review into a defensive posture. That is unusual for most statutory regimes (e.g., environment and civil rights law), which combine public and private enforcement, leaving a government official to sue for injunctive relief. But it is not unusual for tort regimes (e.g., defamation), in which constitutional challenges to liability must be made on defense. Yes, that has a chilling effect in the interim. But the only way around that chilling effect is to say that pre-enforcement offensive litigation is constitutionally required--and I see no reason for that to be the case.

Somin's third issue is ingenious. He argues that leading pro-choice organizations should commit to providing legal representation and to cover any damages or fees awarded, thereby incentivizing providers  to continue providing services. The prospect of providers being able to defend themselves may deter Billy Bob from filing suit. And I would add that the legal representation could include suing Billy Bob in federal court, further deterring him from filing suit. This is a fascinating idea that we will try to work into the paper.

Posted by Howard Wasserman on September 3, 2021 at 12:22 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, September 02, 2021

SCOTUS denies interim relief in SB8 litigation (Updated)

SCOTUS denied interim relief in the SB8 litigation, emphasizing the uncertainty of whether there is a proper defendant in the case. The Chief, Breyer, Sotomayor, and Kagan dissented. I will have some thoughts once I get out of class.

Update: OK, done with class. I actually discussed this in Fed Courts, something I ordinarily don't do--we have not gotten to standing or EPY yet, although we were in the middle of SCOTUS review of state courts and I was about to talk a bit about the shadow docket. It was a pretty good discussion. I think I will use this law and this case as a case-study when we come back to later topics.

Thoughts on the order:

• Justice Sotomayor offers some judicial supremacy, calling the law "a breathtaking act of defiance--of the Constitution, of this Court's precedents, and of the rights of women seeking abortions throughout Texas." She is 1/3 right--it defies the Court's precedents. But I presume the Texas legislature believed the law was valid under its reading of the Constitution, under which women do not have a right to seek abortions. Agree or disagree with that position, but it is an interpretation of the Constitution that the Texas legislature is entitled to make, if it wants to live with the consequences of being wrong about what the Court will do.

• I think the procedural discussion reduces to this question: Is Ex Parte Young/pre-enforcement offensive litigation required by the Constitution. Breyer cites Marbury for the proposition that when a right in invaded, the law provides "'a legal remedy by suit or action at law." This is true when the right is invaded outside of court--defaming me, hitting me with a car, or not giving me my commission. But here the right is invaded inside court, when someone attempts to enforce a law against me. In that case, I have a legal remedy in the form of a defense. If that is not sufficient, then Younger, limitations on habeas, and other doctrines that channel certain federal issues into defensive state-court litigation are invalid. Maybe that is true, but I do not know that Breyer is going that far.

• The related problem is whether the existence of a law equals a constitutional violation. Again, I think Breyer assumes it does. Which explains his demand for offensive litigation--the "injury" is the existence of the law, so there must be an offensive remedy. But if the existence is not a violation until enforcement, it does not work.

• Breyer says a case could proceed against "those particularly likely to exercise the delegated powers." This is correct. The problem is no such person has been identified. When has has been, I think a § 1983 action can proceed, including enjoining any pending state proceeding. At the same time, that does not really help--even if WWH identified likely enforcers and got interim relief against them, that interim relief cannot stop anyone else from enforcing in the interim. Not sure Breyer recognized that.

Michael Dorf has a good post and discussion on some issues.

Posted by Howard Wasserman on September 2, 2021 at 06:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (15)

Wednesday, September 01, 2021

SB8 and New York Times v. Sullivan

Mary Ziegler (Florida State) describes SB8 as the culmination of a decades-long strategy, centered in Texas, to use civil litigation to end abortion.

Ziegler reinforces our argument that current events around abortion in Texas recall events around pro-civil-rights speech in Alabama in the early 1960s. Alabama officials developed a coordinated plan to use civil defamation litigation under wildly pro-plaintiff state law to silence pro-civil-rights speech by civil rights activists and the Northern press. By the early 1960s, the New York Times faced $ 300 million in defamation judgments, prompting it to pursue the case to SCOTUS and ultimately change the First Amendment.

The difference, of course, is that SCOTUS in 1964 would interpret the First Amendment to end that strategy. Reproductive-rights activists and providers fear, probably rightly, that SCOTUS will not interpret the Fourteenth Amendment to end that strategy. But that shows that the concerns and complaints about SB8 are substantive rather than procedural--the current Court believes that states can ban abortions after six weeks of pregnancy and so will allow enforcement of that law.

Posted by Howard Wasserman on September 1, 2021 at 09:14 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Nomenclature

SB8 took effect at midnight. Neither SCOTUS nor the Fifth Circuit has moved on various motions to enjoin enforcement pending litigation, therefore the law is enforceable by everyone against everyone (except for the limited state TRO protecting three individuals from enforcement by an entity and two individuals). But the courts' failure to act is not why the law took effect. Had either court acted, the law would have "taken effect." But it would not be enforceable by some persons against some persons (although it may be enforceable by other persons against other persons) as a result of a court order.

Posted by Howard Wasserman on September 1, 2021 at 06:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, August 31, 2021

Still more on SB8

Here are two stories on the state-court TRO. It protects three named plaintiffs--Dallas attorney Michelle Simpson Tuegel, Allison Van Stean, and abortion fund The Bridge Collective--from having SB8 actions filed against them by Texas Right to Life, its legislative director, and other individuals affiliated with RTF. The judge emphasized the irreparable harm without the TRO. But I have no idea what cause of action the plaintiffs used to get into court. Both stories emphasized how narrow the order is and that it does not stop SB8 from going into effect. But, an attorney for Planned Parenthood complained, "it does not provide the full relief needed to ensure all Texans can access their constitutional right to an abortion."

The media coverage and the comments of lawyers and courts shows just how badly we talk about the process underlying constitutional litigation. So once more with feeling:

1) No court at any level can stop SB8 from taking effect tomorrow--not a state court, not the Fifth Circuit, and not SCOTUS. 2) The only thing any court can ever do in an order in any case is stop some individuals or entities from enforcing the law (here, by filing a lawsuit) against other individuals or entities. 3) No court order provides"full relief" to "all Texans" unless the suit was brought as a class action of all Texans (who are not subject to suit anyway). 4) Rather than decrying the limited scope of the victory, the plaintiffs should celebrate it as a step that gives them the relief they need as part of a larger process of litigation over the law's enforcement and constitutional validity.

The exception to this is if the Fifth Circuit or SCOTUS, however erroneously, enjoins the judges and clerks. But that works by virtue of procedure and the nature of judicial relief as to specific parties, not because federal courts have greater remedial power. Their order would not bind the individual would-be SB8 plaintiffs or prohibit them from filing suits. But no clerks could accept the complaints and no judge could adjudicate them. You end in the same place, but the process matters.

Finally, I have not heard anyone explain how SB8 differs from possibly invalid tort law or my hypothetical cause of action against racist speech. I expect we would not have this hand-wringing, even though the enforcement mechanisms are the same and the difference is only the substantive rights at issue.

Posted by Howard Wasserman on August 31, 2021 at 04:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

First Amendment concerns on the other side of SB8

It appears that a Texas state court has issued a TRO prohibiting a named individual (not Mark Dickson) and Texas Right to Life from bringing SB8 actions. I do not know what their cause of action was, nor do I know the breadth of what the judge ruled. Obviously the order cannot stop anyone other than the named defendants from bringing suit. And I do not know that Texas Right to Life was contemplating a lawsuit as much as gathering and providing information to individuals who might bring suits. A court enjoining those informational activities, distinct from filing the lawsuit itself, raises serious First Amendment problems--the same First Amendment problems created by possible SB8 lawsuits against rights advocates who provide information about where and how to procure services.

This is getting messy, in part because the reproductive-rights community is scrambling and no one wants to grasp the procedural issues hanging over this.

Posted by Howard Wasserman on August 31, 2021 at 12:31 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Buying time in constitutional litigation

The media coverage around the efforts by abortion-rights activists and providers to enjoin enforcement of SB8 pending litigation has reached panic mode, with stories about this case representing a test of whether the Fifth Circuit or SCOTUS continue to regard Roe and Casey as law and setting up the "Roe has been overruled" narrative if neither court stops enforcement.

That misconstrues what is going on here. This is a lousy suit for trying to stop enforcement. One group of defendants (the judges) are not proper targets of constitutional litigation, as federal courts typically do not stop judges from the opportunity to adjudicate cases before they have been filed. One defendant (Mark Dickson) is not a proper defendant now but could become one. And one group of defendants (agency and executive officials) are proper defendants for the limited purpose of preventing them from stripping occupational and medical licenses, not for the broader purpose of stopping primary enforcement of the substantive law. Meanwhile, the lawsuit and any temporary order cannot reach, and therefore enjoin, the many "any person[s]" authorized to file suit because they are not parties to the case--although if judges and clerks are enjoined from accepting or adjudicating those suits, remaining outside the injunction does not help these would-be state plaintiffs.

Texas lawmakers intended to create this situation. But it is important to highlight these procedural issues in describing the denial of any stay or injunction. It may have nothing to do with the substantive merits of SB8 and the continued vitality of Roe.  And these procedures--forcing providers to defend their rights in state court or to wait before filing in federal court--while burdensome, are  common in other contexts. The Constitution does not compel any particular framework for adjudicating constitutional rights.  Any stay or temporary injunction will be short-lived because this case is doomed to fail--not on the merits of SB8 but because this is the wrong litigation vehicle.

So why bother? At some level, the plaintiffs are buying time, putting off the procedurally inevitable and hoping to prepare and strategize for the next steps. And maybe there is nothing wrong with that, as I said in defending President Biden in issuing the new eviction moratorium despite likely judicial defeat. Litigation takes awhile, so there is merit to maintaining what you want (no risk of enforcement, no evictions) in the meantime.

At the same time, as I argued yesterday, providers and advocates have a viable prospect for offensive litigation that is not this case--sue "any person" once a state-court action is filed and get a TRO and PI stopping that person from pursuing the state litigation. And add a new "any person" to the case, and to the PI, whenever a new action is filed. It is neither easy nor efficient (and, again, that was the legislative goal). But it can work procedurally and providers/advocates would be well-served to be ready to implement that strategy. Maybe that is what they are buying time to do.

Posted by Howard Wasserman on August 31, 2021 at 09:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, August 30, 2021

SB8 Update

SB8, Texas' ban on abortions following detection of a fetal heartbeat, goes into effect on Wednesday. Following the district court's (partially erroneous) denial of motions to dismiss and the defendants' immediate appeal of that seemingly non-appealable order, the Fifth Circuit issued an administrative stay of proceedings in the district court, which canceled a preliminary-injunction hearing. Absent SCOTUS intervention, the law will be enforceable and "any person" can begin filing lawsuits. Briefing on an injunction pending appeal is due later this week. The plaintiffs in the WWH case have asked SCOTUS to enjoin enforcement pending appeal.*

[*] Please do not say, as so many media outlets continue to say, that this is about stopping the law from "taking effect." The law takes effect--becomes an enforceable part of Texas law--on September 1 because that is the effective date of the legislation, per Texas lawmakers. No court can stop that. A court can stop enforcement of the law.

Three things are true. SB8's substantive provision is constitutionally invalid and judicially unenforceable under current SCOTUS precedent. The threat of enforcement will cause serious harm to abortion-rights advocates, abortion providers, and the women of Texas. But  there is no basis for a federal court to enjoin the statutorily authorized lawsuits at this stage, given how the law is to be enforced. The substantive awfulness and bad effects of the law do not change that third point and the focus on the first two does not change the third.

The next big move for providers and advocates is two-pronged, triggered on "any person" bringing (or actually threatening to bring) an SB8 action. First, defend that suit in state court (including by challenging the constitutional validity of the heartbeat ban and the constitutional validity of the SB8 provisions purporting to limit those defenses.  Second, sue "any person" on a § 1983 action in federal court to enjoin him from pursuing the state-court action. The argument that the SB8 plaintiff acts under color, given the structure of SB8, is strong; the standing problem resolves once an actual plaintiff reveals himself and acts; and the scholars with whom we have discussed our paper agree that Younger does not apply here.

That is the litigation move now, rather than wrestling with the Fifth Circuit and SCOTUS over administrative stays over offensive litigation that cannot work.

Update: A reader points out that the district court declined to dismiss the claims against the judges on sovereign immunity grounds as well as standing grounds (another example of the identity of standing and sovereign immunity where the plaintiff sues the wrong defendant). Denial of 11th Amendment dismissal is subject to COD review, although that would not pull Mark Dickson or the executive officials with them. The executive officials may have asserted sovereign immunity, as well, although it is not clear if the court reached it.

Posted by Howard Wasserman on August 30, 2021 at 01:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

A Court with No Names: Anonymity and Celebrity on the "Kardashian Court"

My essay, A Court with No Names: Anonymity and Celebrity on the "Kardashian Court", has been published in Iowa Law Review Online. This is a response to Suzanna Sherry's Our Kardashian Court (And How to Fix It), which argues that the solution to judicial celebrity is to require the Court to issue one per curiam opinion with no separate opinions or vote counts. I consider some things lost or gained under Sherry's plan, why it may be too late for it, and how to expand the plan or combine it with other court-reform proposals.

Posted by Howard Wasserman on August 30, 2021 at 09:31 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, August 26, 2021

District court finds standing in SB8 litigation

Opinion here finding standing as to all defendants, contrary to much (but not all) of what Rocky and I argue. There is a joke in here somewhere about either judges or law professors not knowing the law, although obviously I think we are right and the court is wrong. The defendants filed a Notice of Appeal, which I presume they will argue, and the court will treat, as a petition for writ of mandamus since there is no basis for appeal (no finality, no collateral order, no certification of interlocutory review and no possibility of certification). This is a good case for mandamus because parts of this decision are clearly erroneous.

I will post some analysis of the opinion this weekend, as we begin editing the article to discuss and critique the opinion.

Posted by Howard Wasserman on August 26, 2021 at 04:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Saturday, August 21, 2021

Bray on universal injunctions

Sam Bray comments on the universal injunction against repeal of the remain-in-Mexico policy. Bray calls out the "baffling" nonsense of the judge enjoining paragraphs of an agency memorandum, because "[p]eople get enjoined. Injunctions protect people from people. Or require people to do things." He offers the following:

  1. injunctions should be used for protection: they should protect plaintiffs (or plaintiff classes) from the enforcement actions of government officers;
  2. when the problem is not with end-of-the-line enforcement, but rather is upstream, such as a failure in the process of creating a rule or policy, the proper remedy is not an injunction but mandamus, which has a different logic and is focused not on the protection of the plaintiff but on the officer's performance of a legal duty;
  3. the fact that mandamus has its own limiting principles, such as the need to show a clear violation of a legal duty, means that some close to the line violations will not be remedied;
  4. point three is a feature of this proposal.

Well said.

Posted by Howard Wasserman on August 21, 2021 at 08:16 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 18, 2021

Solving the Procedural Puzzles of Texas' Fetal-Heartbeat Law

Posted to SSRN (corrected version) and appearing in a law review submissions box near you. Charles (Rocky) Rhodes (South Texas Houston) joined me with his expertise on Texas law and procedure. The paper expands on my posts on the subject to game out what providers and advocates can (and cannot) do offensively in federal court and defensively in state court. Here is the abstract:

The Texas Fetal-Heartbeat Law enacted in 2021 as Senate Bill 8 prohibits abortions after detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person.” Texas employed this enforcement mechanism to impose potentially crippling financial liability on abortion providers and advocates and to stymie their ability to challenge the law’s constitutional validity through offensive litigation in federal court to enjoin enforcement of the law. Texas lawmakers sought to confine abortion providers and advocates to a defensive litigation posture in state court.

This article works through the procedural and jurisdictional obstacles that SB8 creates for abortion providers and abortion-rights advocates seeking to challenge the constitutional validity of the fetal-heartbeat ban. While Texas has created a jurisdictional and procedural morass, the law does not achieve the ultimate objectives. Providers and advocates can litigate in federal court, although it requires creativity as to timing and proper litigation targets. They also should find greater success defending in state court than legislators expected or hoped. Other avenues remain to vindicate the rights of abortion providers and advocates—and the pregnant patients they serve--that accord with the traditional operation of and limitations upon the federal and state judiciaries in adjudicating constitutional rights.

Posted by Howard Wasserman on August 18, 2021 at 04:15 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, August 14, 2021

The distraction of standing

One problem with standing is that it is constitutionalized merits. A second problem, that derives from the first, is that it provides courts and defendants an easy way to dismiss cases at the threshold, to the exclusion of other issues.

Case in point is this Eighth Circuit challenge to Arkansas' ag-gag law, which creates a private right of action for unauthorized access to commercial property. Plaintiffs are animal-rights organizations that planned to send undercover testers onto two agriculture businesses and claimed they were chilled by the threat of suit. They sought a declaratory judgment that the ag-gag law violates the First Amendment and that the farms cannot sue them. The district court dismissed for lack of standing, then declined to address other issues. A divided Eighth Circuit reversed, concluding that the plaintiffs were chilled in their desire to send investigators by the threat of being sued. The dissent argued that any injury was speculative and dependent on a chain of uncertain events.

The standing analysis seems right to me. But there is much more wrong here. I cannot identify the plaintiffs' cause of action. Defendants raised this in the court of appeals, but the court said this is a merits issue for remand. It cannot be § 1983, because the defendants do not act under color in bringing or threatening to bring authorized private civil actions. It might be § 2201 itself, although this is supposed to be a remedy for an independent cause of action than a distinct cause of action. But  if § 2201 provides a cause of action, there is no subject matter jurisdiction. This is a Skelly Oil case--jurisdiction over the federal DJ action is determined by jurisdiction over the hypothetical enforcement action the DJ plaintiff wants to stop and whether it could have been brought in federal court. If the enforcement action would not arise under federal law, then the pre-enforcement DJ action does not arise under federal law; the hypothetical federal defense cannot be converted into a federal claim in the DJ action. Here, the enforcement action would be a claim by the business for violating the state statute, with the animal-rights organizations defending on First Amendment grounds. That enforcement action would not arise under, thus neither does the DJ action. There might be diversity jurisdiction, which would give federal jurisdiction, although the absence of a cause of action remains a problem); neither the district court nor court of appeals discussed any party's citizenship.

Allowing the case to make an up-and-down trip to the court of appeals focused on nothing but standing, when obvious defects in the case remain, seems like a waste of time.

This case is comparable to the potential cases under Texas' fetal-heartbeat law. State law gave private individuals a cause of action that might be constitutionally invalid, but rights-holders are unable to get into federal court in an offensive pre-enforcement posture. Instead, they must assert those rights in a defensive posture once the businesses have filed suit. They may not like it, but there is not a way around it.

Posted by Howard Wasserman on August 14, 2021 at 08:17 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, August 13, 2021

It's not the law, it's the enforcement

From the Eleventh Circuit in Support Working Animals v. Governor. Florida voters amended the Constitution to outlaw gambling on greyhound racing. At the time of the lawsuit by a racing business against the Attorney General, that was all there was. The court held that there was no standing, because the AG's lack of enforcement authority means the plaintiff's injury is not traceable to the AG and an injunction against the AG would not remedy the injury. (By resolving on standing, the court does not reach the "wrong-defendant" argument that Ex Parte Young does not overcome sovereign immunity). The court summarizes well the problem:

[T]heir  “immediate gripe” isn’t with the Florida Attorney General, who neither has the authority to enforce § 32 nor has done anything else to cause the plaintiffs’ harm. The plaintiffs’ real problem, as we understand their complaint, is with § 32 itself—its existence—and the economic consequences that its passage has visited or will  visit on their businesses. None of that, though, appears to be due to any past, present, or likely future conduct of the Attorney General.

Subsequent to the filing of the lawsuit, the Florida legislature created a gaming commission charged with regulating gambling beginning in 2022; gave the Department of Business and Professional Regulation civil-enforcement authority over the ban; and made it a crime to partake in gambling on greyhound racing effective in October. The court noted that the claims were dismissed without prejudice, so the plaintiff could refile "against the proper parties at the appropriate time." That last piece suggests the court will not allow a case to go forward pre-effective date because effectiveness is inevitable--the plaintiff must wait until October, when criminal penalties take effect, to proceed against the AG and until next year to proceed against the regulatory department.

That seems excessive, making the plaintiff wait longer than necessary when the shape of the controversy is now clear. But it well illustrates the point that the existence of a law, no matter its chilling effect, is not sufficient for pre-enforcement litigation. Enforcement of the law must be legally possible. Smart plaintiffs and attorneys must avoid wasting time.

Posted by Howard Wasserman on August 13, 2021 at 07:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Thursday, August 05, 2021

Jack Phillips goes on defense and no one complains

I stumbled across this while doing research for my SB8 paper. I think it illustrates my point that the partisan valence of the rights and rights-holders at issue influence the complaints and hand-wringingabout SB8's procedural and jurisdictional rules.

In June 2017, the day SCOTUS granted cert in Masterpiece Cakeshop, a trans woman ordered a cake from Phillips to celebrate her birthday and her male-to-female transition--it would be pink on the inside and blue on the outside; Phillips refused and the woman filed a complaint with the Colorado Civil Rights Commission, which found probable cause. In August 2018, a few months after SCOTUS' decision in Masterpiece, Phillips filed a federal action challenging the P/C finding and enforcement of state law as violating the First Amendment. In January 2019, the district court declined to abstain under Younger, applying the bad-faith exception. The Commission dismissed the administrative enforcement action, mooting the federal action. So the woman sued Phillips in state court for violating the state public-accommodations law. In June, following a bench trial, the state trial court rejected Phillips' First Amendment defense and found that he had violated the ordinance, imposing damages of $ 500. Phillips plans to appeal to the state court of appeals (and to the Colorado Supreme Court and then to SCOTUS).

The case illustrates that it is not unheard-of for rights-holders to be forced to assert federal constitutional rights in a defensive posture and in state court. Phillips is similarly situated to abortion providers and advocates who are the likely targets of SB8 suits, forced to defend private statutory actions for damages rather than government-initiated enforcement proceedings. Colorado courts likely are as hostile to the First Amendment rights Phillips asserts in defense as Texas courts are to the reproductive-freedom that providers and advocates will assert in defense in SB8 actions. The difference is that Phillips faces one action by one denied customer, whereas abortion providers face a tidal wave of lawsuits by random Texans across the state. But imagine that dozens or hundreds of LGBTQIA people order cakes, knowing they will be refused, then sue for damages; the similarity sharpens (although the amounts of money are very different). And both cases show why the well-pleaded complaint rule is such a bad idea--Phillips and Whole Women's Health should be able to gain that federal forum for their federal defenses.

Once again, many people complaining about abortion providers having to defend in state court would be happy to see Phillips sued into oblivion. But the procedural and jurisdictional propriety cannot turn on the rights involved.

Posted by Howard Wasserman on August 5, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, August 04, 2021

Embrace the judicial departmentalism (Updated)

I do not know enough to say whether the CDC's new eviction moratorium is constitutionally valid, although if Steve believes it is at least an open question, I am inclined to think it must be.

I would have loved for Biden to own the judicial departmentalism underlying the new policy: "Most constitutional law professors believe the policy is constitutionally invalid, but we have found some who disagree. Lawyers within the executive branch disagree. The courts may rule against us, as is their power. But for the moment we believe the policy is valid and will pursue it. And if it turns out we are wrong, we have bought ourselves some time. And in this case, we are willing to risk the attorney's fees and political fallout." I have no problem with the executive taking that position, regardless of my sympathy for the policy at issue.

Update: Mark Tushnet makes a similar argument, framing it in terms of norms v. law v. constitutionalism. But he gets at the same point: Biden and the CDC are not not enjoined from stopping evictions and can continue to pursue what they view as the best course until such injunction comes. And they can balance the benefits of even temporary relief against the cost of being liked to Orval Faubus.

Another Update: This Washington Post op-ed shows how far into judicial supremacy much of the commentariat fallen. The unexplained votes of four Justices to vacate a stay of an injunction pending appeal plus the view of one Justice--announced without full briefing or argument--that the policy is unlawful means any effort by the administration disregards the courts, the rule of law, and the Constitution. The possibility that the one Justice whose views we know might change his mind is "unlikely," therefore the CDC is acting in a constitutionally violative manner in trying. This eliminates Holmes' bad person (which Tushnet references), who is no longer entitled to try to predict what the courts might do.

The piece ends on this note:

If the Trump administration had ignored a direct warning from the Supreme Court, Democrats would rightfully line up to condemn the president. Mr. Biden does not get a pass on the rule of law because his heart is in the right place.

Nothing like some uninformed both-siderism to complete the puzzle. But note how this moves the line. The problem here is not that the executive ignored an injuncti0on, which the cannot do. The problem here is not that the executive ignored binding precedent created by a Court majority, which he can do. The problem here is that the executive ignored a "direct warning" (is there any other kind?), which the Post regards as an equivalent affront to the courts and the Constitution.

Posted by Howard Wasserman on August 4, 2021 at 08:45 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Defamation procedure II

Devins Nunes is not the only new defamation action raising interesting procedural issues. Alan Dershowitz sued Netflix and others for defamation over the documentary Jeffrey Epstein: Filthy Rich. Defendants answered yesterday; here is Netflix's Answer.

Netflix has good lawyers (the firm of Davis Wright Tremaine). But the Answer does many of the things that are inconsistent with the FRCP, that I try to teach students not to follow, but that are common in practice because no one--not plaintiffs, not defendants, and not judges (since Milton Shadur died)--cares about the content of the Answer. This would make a good final exam next spring.

Here are some problems:

    • Netflix responds to numerous allegations as it "lacks information sufficient to form a belief as to the truth or falsity of the
allegations and "on that basis, denies each and every allegation in" the paragraph. This is wrong. FRCP 8(b)(5) allows a party to "state" that it "lacks knowledge or information sufficient to form a belief about the truth of an allegation," which has the "effect of a denial." That is, a defendant can respond to an allegation by saying "I don't know" and the court will treat that as a denial. But Netflix said "I don't know and therefore I deny." That is not logically possible and not what FRCP 8(b)(5) authorizes. This might reflect a disconnect between FRCP 8(b)(5) and FRCP 11(b)(4), which requires a defendant to certify that denials "specifically so identified, are reasonably based on belief or a lack of information." But if 11(b)(4) allows a denial based on lack of knowledge, 8(b)(5) is superfluous.

    • This is one I had not seen before: After responding to 138 numbered paragraphs, the Answer has a subject-heading "General Denial" and states:

Each numbered paragraph in this Answer responds to the identically numbered paragraph in the Amended Complaint. Netflix denies all allegations, declarations, claims, or assertions in the Amended Complaint that are not specifically admitted in this Answer. To the extent the headings contained in the Amended Complaint constitute allegations, such allegations are denied.

        This is unnecessary. FRCP 8(b)(3) allows general denials of the entire complaint or a general denial of everything not admitted. But the Answer admitted and denied facts paragraph-by-paragraph. This blanket statement is unnecessary.

    • The Answer asserts 24 affirmative defenses. But most of these are not affirmative defenses--where the defendant admits the allegations in the complaint but raises new facts and law that cause those facts not to have their ordinary effect. These are expressly stated failure-of-proof defenses--defendant arguing that the plaintiff cannot prove the truth of the allegations in the complaint. For example, the sixth defense is that Dershowitz is a public figure and cannot prove actual malice by clear-and-convincing evidence. That is a failure-of-proof defense--Dershowitz will fail to prove his claim because he cannot carry his burden of persuasion on an element. The defendant is not required to plead the absence of malice. The twenty-third defense is that Dershowitz's reliance in his fraud claim was not reasonable. Again, this argues that Dershowitz cannot prevail on an element on which he bears the burden of proof--the reasonableness of any reliance. The defendant does not have to prove unreasonableness.

            Again, this is common. If the complaint alleges the plaintiff spoke with actual malice, denying the allegation is equivalent to saying  "we did not act with actual malice," which puts the plaintiff to the task of proving the disputed fact of the defendant's state of mind. If the complaint alleges the plaintiff reasonably relied on false statements, denying the allegation is equivalent to saying "his reliance was not reasonable," which puts the plaintiff to the task of proving the disputed fact of the reasonableness of his reliance. But defendants are afraid that will be lost to whomever reads the pleading. So they affirmatively state the failure of the element, even though that is not what the rules imagine.

    • The Answer includes a counterclaim under New York's new Anti-SLAPP law. I have written before about how the procedural defenses of anti-SLAPP laws should not apply in federal court. But New York's law creates a counterclaim that the claim is a SLAPP (as defined), allowing for recovery of attorney's fees and compensatory and punitive damages. It functions something like the tort of abuse of process, often raised as an affirmative defense to a questionable tort claim. This is a nice example of how one legal rule can be an affirmative defense and a counterclaim and the different roles each plays. The SLAPP issues will not defeat Dershowitz's claims (that will happen under New York Times), but they provide basis for Netflix to recover money apart from the resolution of the original claim. By establishing a new claim, New York found a way to allow federal defendants to pursue anti-SLAPP arguments and recover anti-SLAPP remedies, in a slightly different posture.

    • Netflix alleged supplemental jurisdiction over the counterclaim because Dershowitz's claims arise from the same set of facts. This is a legal and strategic mistake, although another common one.

        Why not allege diversity jurisdiction? That is the basis for jurisdiction over Dershowitz's original claims (defamation, fraud, and other torts) over the defendants. If there is diversity over the claims Dershowitz and all defendants, there must be diversity over counterclaims between the same parties. The fees and damages sought almost certainly will exceed $ 75,000. So § 1332(a)(1) is satisfied. Supplemental jurisdiction is supposed to be limited to cases in which there is no "independent" basis for jurisdiction. My guess is this practice derives from habit established in the paradigm case--plaintiff brings federal claims against non-diverse defendants and the defendants assert state counterclaims; supplemental jurisdiction is necessary in those cases. But it is not necessary when the basis for original jurisdiction is diversity and the same parties are involved in claims and counterclaims.

        There is a second problem--there may not be supplemental jurisdiction here. The best conclusion is that the SLAPP counterclaim is permissive rather than compulsory, because it does not arise out of the same transaction or occurrence as the claim. This case reflects a common posture--defendant does something to injure plaintiff, plaintiff seeks a remedy for the injury, defendant alleges that plaintiff's remedial efforts violate defendant's rights, defendant brings counterclaim based on those injuries. For example, courts generally hold that an abuse-of-process counterclaim is not compulsory to an original tort claim--the tort claim is based on the real-world events that caused the injury to the plaintiff, while the counterclaim is based on the action of filing the lawsuit. Or take Jones v. Ford Motor Credit. Plaintiffs believed the terms of their auto loans were racially discriminatory and brought ECOA claims while also stopping payment on the loans, prompting counterclaims to recover the money owed on the loans; the court said the counterclaims were permissive because the claims were based on the mark-ups in the loan agreement while the counterclaims were based on subsequent non-payment. Dershowitz's claims arise out of the documentary, while the counterclaim arises out of Dershowitz's subsequent lawsuit itself seeking a remedy for that injury; these are distinct real-world facts and events. There is a but-for connection--but-for the false statements in the doc, Dershowitz would not have sued, which would not have caused the alleged injury to Netflix. But such a but-for connection is generally insufficient.

        That matters because most courts treat "same transaction or occurrence" in FRCP 13(a)(1)(A) as meaning the same thing as "same case or controversy" (which courts interpret to mean "common nucleus of operative fact") in § 1367. That is, a counterclaim that is not sufficiently related to satisfy 13(a)(1)(A) is not sufficiently related to satisfy § 1367. That is why it makes sense for defendants to plead diversity jurisdiction when they can--it provides a basis for jurisdiction over the counterclaim independent of the original claim, jurisdiction that the district cannot decline to exercise. Some courts, including the Second Circuit in Jones, treat "same case or controversy" as broader than "same transaction or occurrence," allowing jurisdiction over a non-compulsory counterclaim where there is a "loose factual connection" among claims, including the sort of but-for connection we see here. At least to this point, however, the Eleventh Circuit has not treated them differently.

None of this matters, of course. Dershowitz is not going to push back on improper responses or bad affirmative defenses and I doubt he will both moving to dismiss the counterclaim for lack of SMJ (since Netflix can replead to establish diversity). Any errors  are harmless because the court and the parties treat them as such. The FRCP often is observed in the breach in the name of moving forward, for better or for worse.

Posted by Howard Wasserman on August 4, 2021 at 02:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Defamation procedure I

Yesterday saw developments in two stupid defamation lawsuits brought by two stupid people, but with some procedural fun thrown in.

First, Devin Nunes filed another defamation suit (how many is this?), this one against NBC Universal in the Eastern District of Texas over packages Nunes received from a Russian agent. This has the usual problems for a Nunes defamation suit--some of the challenged statements are opinion and rhetoric and there are no allegations showing actual malice. But as always, I am here for the procedure:

    • What the hell is the case doing in Texas? Nunes is from California and works in D.C; NBC Universal is a Delaware LLC with its PPB in New York. There is no connection between these statements and Texas, other than that they were heard in Texas along with every other place in the United States where MSNBC telecasts and Maddow tweets can be heard. The statements are not "about" Texas, Texas people, or Texas activities. Weird forum choice has been a common feature of Nunes' lawsuits; the first suit (against Twitter, Liz Mair, and Devin Nunes' Cow) went into state court in a remote spot of Virginia. But Virginia made some sense, since Mair lives there and it is close to D.C. Texas just seems random. Keeton v. Hustler is still out there (and the complaint, which for reasons of bad lawyering shifts into making legal arguments, cites it). But the recent jurisdictional trend in defamation cases is that there must be more of a connection between the statements and the forum, even for nationally distributed publications.

    • ¶ 10 states "MSNBC is at home in Texas and is subject to general personal jurisdiction in Texas," a statement which does not reflect the law as it has been for at least seven years and should be sanctionable. If that is the hook Nunes' lawyer plans to use, this should be over quickly.

    • Even if jurisdiction (and therefore venue) is proper, this case again seems ripe for transfer. No one and nothing central to this case occurred or is located in Texas. NBC has a good argument that its witnesses and evidence are located in New York, where it engaged in its reporting and broadcasting activities.

Posted by Howard Wasserman on August 4, 2021 at 01:46 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Tuesday, August 03, 2021

FIFA as state actor and other bad arguments

Another entry in the "Bad § 1983 Takes" File: Siasia v. FIFA in the Southern District of New York. Samson Siasia is a U.S. citizen and international soccer coach who got caught up with a match-fixer while trying to land a coaching job in Australia; FIFA imposed a lifetime ban from coaching, which the Court for Arbitration of Sport in June reduced to five years, backdated to 2019. The Complaint alleges a due process violation in the FIFA proceedings and that FIFA acted under color by performing the traditional and exclusive government function of investigating and adjudicating bribery and imposing a sanction (the complain says "punishment" over and over).

This fails on so many levels.

First, FIFA is a Swiss association with its PPB in Switzerland, so it does not seem possible for it to act under color of the law of any state of the United States; it does not act in or as a replacement for any one state. The U.S. Soccer Federation is one of the 200+ national federations that comprise FIFA, providing a U.S. hook. But USSF is not a defendant (and was not involved in the Siasia case). Getting at FIFA through USSF runs afoul of Tarkanian v. NCAA, where SCOTUS said the NCAA did not act under color of law of any state when it was comprised of schools from multiple states.

Second, private entities can make internal decisions concerning the enforcement administration of internal rules, including by investigating alleged violations and rendering decisions through adjudicative processes. Sometimes the conduct violating those internal rules also violates a society's criminal laws. A private entity does not become a state actor when enforcing its internal rules and imposing internal sanctions, where it imposes no societal consequences (conviction and imprisonment). If it did, no private organization could maintain and enforce internal rules for conduct that also could be criminal. Under this theory, MLB is a state actor with respect to the investigation and suspension of Dodgers pitcher Trevor Bauer for sexual assault, because sexual assault is a crime.

The Complaint argues that FIFA should have followed the NCAA as to former basketball coach Lamont Evans. Having received information that Evans was accepting bribes to route players towards certain financial advisers, the NCAA turned the information to the federal government, which prosecuted Evans. The NCAA punished Evans with a 10-year ban after Evans had been convicted and sentenced in the federal criminal proceeding. But the distinction is incoherent, at least as it affects becoming a state actor. The NCAA cooperated with the government to allow it to prosecute and jail the person, something FIFA chose not to do. But the NCAA and FIFA otherwise engaged in identical conduct--imposing internal sanctions on someone for conduct that also violated a criminal law. The decision to also assist the government in having the person convicted and jailed should not affect the nature of the organization's internal proceedings and thus of the organization.

Alternatively, the argument means that a private entity cannot enforce internal rules and impose internal sanctions if the government declines to press criminal charges or if the person is acquitted. This has never been how the law requires private organizations to operate.

Third, I am not sure FIFA is subject to the 14th Amendment (or the 5th Amendment, as the complaint also cites for no reason) or to U.S. due process requirements for proceedings in Switzerland, even as they apply to a U.S. citizen. A U.S. citizen subject to foreign proceedings must abide by the rules of the foreign proceeding. At best, he might limit the domestic effects of those proceedings.

State action aside, there are some fun jurisdiction and venue issues here. Siasia is a Georgia citizen, while FIFA is a Swiss citizen. The Complaint alleges that venue is proper in the Southern District because FIFA is "an alien corporation and has significant contact in this District and is currently organizing the 2026 FIFA World Cup in this District." The Complaint does not cite the correct provision, but I believe it is basing venue on § 1391(b)(1) (where any defendant resides) as developed in (c)(2) (association resides where it is subject to personal jurisdiction) and (d) (in states with multiple districts, determine jurisdiction in the district as if it were a state).

Is FIFA subject to personal jurisdiction in the Southern District as if it were a state? The "significant contacts" language sounds in the pre-Daimler/pre-Good Year general jurisdiction, which no longer exists; FIFA is neither created in nor has its PPB in the Southern District, so is not subject to general jurisdiction there. Organizing the 2026 World Cup in the Southern District* and other contacts with the district have nothing to do with Siasia or his suspension, at least as indicated in the complaint; the complaint does not allege that anything related to Siasia occurred in New York or the Southern District. The Court of Arbitration for Sport has a location in New York City, so that might have been where Siasia appealed the FIFA decision; the complaint does not say. I doubt that is enough, since the alleged violation is the FIFA proceeding, not Siasia's partially successful appeal.

[*] A separate question is whether the 2026 World Cup will be in the Southern District as to be a contact. One of the eleven U.S. cities under consideration is "New York/New Jersey." Games would be played at Met Life Stadium in New Jersey (in a different district), although FIFA will pitch people to stay in and visit New York while in town for the games. What is the relevant place for jurisdiction based on FIFA's "organizing" activities--where the game is played or all the places that fans and teams will use?

Based on the complaint, there is specific jurisdiction in Georgia under Walden and Calder. The emails that formed the basis for the alleged bribery were sent to Siasia while he lived in Georgia. The emails notifying Siasia of the charges against him (which he alleges he never received, part of the due process violation) and of his sanctions were sent to his emails in Georgia. FIFA investigated a Georgia citizen about actions taken in Georgia, thereby directing its actions at Georgia. Because Siasia is an Atlanta citizen, venue is proper in the Northern District of Georgia.

Even if SDNY is proper, there is a good argument that NDGa is better and a § 1404(a) transfer is in order. Siasia does not reside in SDNY, so he cannot claim venue privilege. The relevant acts as to Siasia, to the extent they occurred in the United States, took place in NDGa, which is where the one relevant witness--Siasia--is located. Other than Siasia's lawyer being from Connecticut and barred in SDNY, I am not sure why the suit was filed there.

Alternatively, FIFA could try to get the case out of the U.S. and to Switzerland on forum non conveniens grounds. FIFA's actions in initiating and holding the proceedings and suspending Siasia's license occurred in Switzerland, so that would be the situs of the actions and location of witnesses and evidence concerning the propriety of the proceedings.

Fun stuff.

Posted by Howard Wasserman on August 3, 2021 at 12:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Sports | Permalink | Comments (0)

Monday, August 02, 2021

SB8, racist speech, and partisan presumptions

Concerns about the process of SB8--privatizing enforcement, preempting offensive pre-enforcement litigation, and pushing rights-holders into a defensive posture--come from the left. So do fears that this could catch on. In urging the invalidity of this enforcement framework, the Whole Women's Health Complaint argues:

18.The answer to that question must be no. Otherwise, states and localities across the country would have free rein to target federal rights they disfavor. Today it is abortion providers and those who assist them; tomorrow it might be gun buyers who face liability for every purchase. Churches could be hauled into far-flung courts to defend their religious practices because someone somewhere disagrees with them. Same-sex couples could be sued by neighbors for obtaining a marriage license. And Black families could face lawsuits for enrolling their children in public schools. It is not hard to imagine how states and municipalities bent on defying federal law and the federal judiciary could override constitutional rights if S.B. 8 is permitted to take effect.

But is this limited to conservative attacks on liberal rights-holders, as the complaint offers (other than the gun-rights example)? Could liberals use private enforcement and would the political alignments and arguments flip?

Imagine a state wants to eliminate racist speech. It prohibits the oral, written, non-verbal, or symbolic expression degrading or dehumanizing a person based on race and creates a private tort action for damages and attorney's fees for "any person" offended or bothered by such expression. This law violates the freedom of speech as currently judicially interpreted to the same degree that SB8 violates the right to reproductive freedom. But a would-be racist speaker (e.g., someone who wants to burn a cross on his own lawn or  display a "White Lives Matter" sign or stand on the corner and shout that only white people should be allowed to vote) could not bring an offensive action to declare the law invalid or stop its enforcement. As with SB8 actions, there is no one causing the racist speaker an injury, no one to sue, and no one for the court to enjoin. Such a racist speaker must continue to engage in his racist speech, get sued by that random "any person," and raise the First Amendment as a defense. Or he will refrain from speaking from fear of suit and liability. Either way, the point of the law is to chill or sue racist speakers into silence.

Would those on the left objecting to SB8 object to this strategy of silencing racists and racist speech? If not, is the reason that liberals favor the right to reproductive freedom affected by SB8 while opposing or wanting to limit the right to engage in racist speech? And can that be an acceptable distinction?

Posted by Howard Wasserman on August 2, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, July 24, 2021

Framing constitutional violations

The New York Times op-ed board discusses the "Fuck Biden" signs in Roselle Park, NJ as an example of "a growing sense among many Americans that the United States cannot afford to maintain the full measure of its foundational commitment to free speech." It concludes that "The right to hang banners is a small thing, but the value of free speech inheres in acts of individual expression just as much as in grand statements of collective purpose." The authors are correct and show why the township is going to regret doing this.

I take issue with the introductory paragraph, less for how it affects this than for what it says about the SB8 lawsuit and my current project on the process of constitutional litigation. Here is the opening:

There is little question that Gary Bundy, a municipal court judge in New Jersey, violated the constitutional rights of Andrea Dick this month by ordering her to remove three banners emblazoned with crude messages about President Biden.

In constitutional litigation, we would not say Judge Bundy violated Dick's rights through his order. We would say Roselle Park (or some responsible municipal officer, whoever it might be) violated Dick's rights by issuing the citation and prosecuting the code violation over protected speech. Judge Bundy could have halted the violation by upholding Dick's First Amendment defense. But in failing to do so, Bundy did not violate her rights. Rather, his (IMO) incorrect decision allowed the municipality's violation to continue. But his decision is subject to appellate review and reversal--stopping the municipality's constitutional violation--including by SCOTUS if this ridiculous thing makes it that far.

Posted by Howard Wasserman on July 24, 2021 at 04:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday, July 17, 2021

Random free speech items in the news (Update)

Random free-speech items for a weekend morning.

A

A municipal court judge in New Jersey ordered a woman to remove "Fuck Biden" lawn signs or face fines of $ 250 per day (unable to post photo, but can be found in the article).* This is an absurd ruling, in which no one-- the judge, the town's attorney, or the reporter covering the story--understands the First Amendment. The town proceeded under its obscenity ordinance, even though: 1) the written word is almost never obscene in modern doctrine; 2) nothing about "fuck Biden" describes sexual conduct because the point of the message is not that this woman wants anyone to have sex with Joe Biden; 3) nothing about this appeals to the prurient interest, as opposed to angry and hostile politics; 3) Cohen establishes that the word "fuck" is protected as a verbal intensifier; and 4) even without Cohen, using the word as part of an anti-Biden message gives it serious political value, removing it from the definition of obscenity.

* The story includes the photo with the signs on full display, then uses "f-word" throughout. We have weird standards.

Everything about this is wrong on the law. The news report paraphrases the ordinance as defining obscenity as "material that depicts or describes sexual conduct or lacks any serious literary, artistic, political or scientific value." But either this ordinance is facially invalid or the reporter should not be covering courts. Merely describing sexual conduct is not enough; it must do so in a "patently offensive" way that also appeals to the prurient interest. And Miller is conjunctive--it must describe sexual conduct and lack SLAP merit. Again, however, obscenity should not be part of this discussion--Cohen makes clear that profanity as part of a political message is protected.

The woman's lawyer did not help through his comments to the media, showing that he may not understand what this case is about. He tries to argue the signs are not obscene because obscenity has changed, pointing to how people treated women's knees in the 1920s. He then railed about burning books and burning people (?!) in Nazi Germany. No mention of Cohen, fuck the draft, or recent cases holding that flipping someone off is protected, all of which is more doctrinally relevant than Nazi book burning. Maybe he is doing a better job in court than outside of it. But it would be nice if the ACLU or someone with the expertise to show the court and the public why this is nonsense were in the mix.

Update: Forgive me for not emphasizing enough the wrongness of the court's decision and her lawyer's seeming approach to the case. SCOTUS less than one month ago issued an opinion, binding precedent, saying the following: "And while B. L. used vulgarity, her speech was not obscene as this Court has understood that term. See Cohen v. California, 403 U. S. 15, 19–20 (1971). To the contrary, B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection." Anyone believing an obscenity ordinance could apply to these signs, in the wake of that opinion, should be disbarred and/or kicked off the bench.

Two final points. First, this shows why (as one of my colleagues argues) First Amendment should be required or overwhelmingly encouraged. Lawyers qua lawyers should know the First Amendment. And it is important enough that a municipal court judge or suburban township attorney should know the area, however rare it might be that it comes up in their work. Second, this illustrate the point made in this article by Norman Spaulding (Stanford), reviewed on JOTWELL by Suzette Malveaux: The Civ Pro taught as the ideal in law school is a far cry from the real procedure applied in local courts, such as this one.

B

President Biden and Press Secretary Jen Psaki are taking heat for criticizing Facebook and others for allowing bullshit vaccine information (my words) on their sites. Biden went so far as to say the sites are killing people, while Psaki acknowledged conversations urging the sites to do a better job of policing misinformation and providing. Several critics noted that this plays into the narrative of the Trump lawsuits that Democrats in government have coerced or compelled the sites to ban certain speakers and speech, making the sites into state actors.

Government officials, especially the President, speak to private actors; push preferred policies, issues, and ideas; and encourage those actors to act or not act in a certain way.  Government "speaks" and attempts to persuade; successful persuasion does not create a public-private conspiracy. In fact, we expect the President to "lead" in this way from the bully pulpit, by rallying the public to agree with them and criticizing those who do not. It is part of governing and part of public dialogue. And saying that allowing the speech is "killing people" is the sort of rhetorical hyperbole protected in that dialogue, no less so when uttered by a government official.

As David Frum argues, "'Please stop spreading anti-vaccine misinformation on your platforms' is a request very much in line with long traditions of presidential leadership challenging corporations to accept basic norms of social responsibility." On the other hand, Kevin Drum questions Biden's failure to include Fox News as among those killing people, as more influential (and I would add more direct) purveyor of vaccine falsehoods.

C

In twelfth grade, we read Swift's A Modest Proposal, then were assigned to write an essay in that style. I proposed that sober people should not be allowed to drive, leaving the roads to drunk people who, in time, would kill themselves or others. It feels as if that is where we are headed with unvaccinated people using public spaces.

Posted by Howard Wasserman on July 17, 2021 at 12:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, July 14, 2021

Constitutional rhetoric meets constitutional litigation

In an email exchange, someone highlights ¶¶ 17-19 of the SB8 Complaint:

17. At bottom, the question in this case is whether Texas may adopt a law that sets about to “do precisely that which the [Constitution] forbids.” Terry v. Adams, 345 U.S. 461, 469–70 (1953) (striking down a Texas law attempting to insulate white-only political primaries from federal court review). 

18.The answer to that question must be no. Otherwise, states and localities across the country would have free rein to target federal rights they disfavor. Today it is abortion providers and those who assist them; tomorrow it might be gun buyers who face liability for every purchase. Churches could be hauled into far-flung courts to defend their religious practices because someone somewhere disagrees with them. Same-sex couples could be sued by neighbors for obtaining a marriage license. And Black families could face lawsuits for enrolling their children in public schools. It is not hard to imagine how states and municipalities bent on defying federal law and the federal judiciary could override constitutional rights if S.B. 8 is permitted to take effect. 

19.Plaintiffs urgently need this Court to put a stop to Texas’s brazen defiance of the rule of law and the federal constitutional rights to which Texans are entitled.

That sounds nice in the abstract. But it does not describe how constitutional litigation works. Federal courts do not stand ready to strike down invalid laws (because they do not, in fact, "strike down" anything) whenever a plaintiff asks. Nor are federal courts the only forum in which constitutional litigation occurs. There is a process, beginning with someone enforcing the law. Where that enforcer is a state actor and enforcement is imminent, rights-holders can go to federal court in what is (in this case) essentially an anti-suit injunction. When enforcement is not imminent or when the enforcer is not a state actor, it must follow a different process of defensive litigation in state court. The plaintiffs' argument is that the former process is constitutionally required as a matter of due process; that has never been the case.

Here is the analogy I have been using: A state enacts a defamation statute that is inconsistent with New York Times v. Sullivan (e.g., allows liability for any plaintiff on simple negligence). That law is invalid under prevailing First Amendment doctrine. But pre-enforcement litigation would be impossible, because there is no one under color charged with enforcing that law. The First Amendment would be available as a defense if and when a speaker is sued for his protected speech. And that is true of the parade of horribles in ¶ 18. The Constitution does not require anything more.

Posted by Howard Wasserman on July 14, 2021 at 03:13 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

SB8 lawsuit

I am in the early days of a co-authored piece on Texas' fetal-heartbeat law, including why pre-enforcement federal litigation may be impossible. Complicating that argument, reproductive-health providers in Texas on Tuesday filed suit in federal court. Much of this will become part of the article. But some analysis after the jump.

A

The law's main feature is the prohibition on public enforcement of the law in favor of reliance on private enforcement through actions (by any person) for statutory damages, injunctive relief, and attorney's fees. That made pre-enforcement litigation impossible, because there was no responsible executive officer to sue to enjoin enforcement. This left them in state court and having to raise constitutional issues as a defense. These plaintiffs tried different targets.

    • State court judges (through a defendant class action), who would rule on the cases. I do not think this works because the judges have not done anything or threatened to do anything. They wait for someone to file suit, then rule on it, bound by oath and the Supremacy Clause to adhere to federal law. That is, the "enforce" the law, but only in the sense that someone else takes the executive action of initiating litigation. Plus, I think parity--the assumption that state judges follow federal law and are equal to federal courts in protecting federal rights--weighs against a federal court enjoining state judges before state judges have had an opportunity to do anything.

    • Clerks of court (through a defendant class action), who would accept the filings. This does not work because the clerks perform a ministerial function--accepting the filing--that does not alone cause any injury or constitutional violation. The mere filing of a lawsuit does not violate anyone's rights. Otherwise, a plaintiff could sue the clerk as a joint tortfeasor in an abuse-of-process claim.

    • Mark Dickson, the head of East Texas Right to Life. They allege he acts under color because he has been "deputized" to bring lawsuits enforcing SB8. This is the traditional-public-function theory I argued could work--by surrendering all public enforcement in favor of private litigation, private plaintiffs perform the traditional public function of enforcing the law. This does not place all private attorneys general under color; but the complete surrender of enforcement authority goes one step further. The problem is that it is not clear that Dickson (or anyone else) will bring or plans to bring a lawsuit; he (and everyone else) is empowered to do so, but we do not know anything beyond that. So there may be an imminence problem. The complaint also alleges that Dickson pushed for this law; basing a state action finding on that conduct raises serious First Amendment problems.

    • The heads of the state medical board and board of nursing. This one is cute. The argument is that the boards are responsible for enforcing laws governing medical and nursing practice through administrative and licensing proceedings. Those proceedings can be instituted against a doctor or nurse who violates any state laws related to medical care--including the provisions of SB8. In other words, licensed professionals must adhere to all laws and regulations governing the practice of medicine, including SB8, and the boards can institute disciplinary proceedings for failing to follow any laws or regulations, including SB8.

        This offers a partial solution for some plaintiffs, but only goes so far. Some plaintiffs are not providers, but non-profits who provide information, guidance, and funding to women seeking abortions and are worried about being sued under the broad aiding-and-abetting provisions (which would likely violate their First Amendment rights). But they are not subject to regulation by these Boards and so they cannot bring claims against the board.

        Also, note the scope of any injunction that issued. The Boards would be enjoined from bringing licensure or other actions against providers for violating the fetal-heartbeat law. But that injunction would not protect other plaintiffs from private suit, nor would it stop other actors (such as the many deputized individuals) from bringing lawsuits nor would it stop future use of anything else in the statute.

B

SB8 includes a provision allowing for recovery of attorney's fees to any defendant who prevails in a challenge to the validity of any abortion restriction or regulation. This is intended to deter plaintiffs from filing suit. It cannot apply in federal court, where § 1988 (an Act of Congress) controls and allows defendants to recover fees only if the claim is frivolous, unreasonable, or without foundation. But SB8 creates a state law cause of action to recover fees. Plaintiffs argue that § 1988 preempts state law, because it conflicts and would frustrate congressional policy (which was to incentivize § 1983 suits without the chill from a true loser-pays system). I think the preemption argument is a good one, but I am not sure it is proper in this case because we do not know who would be responsible for bringing that action and thus who could be enjoined. Preemption could be a defense if someone attempts to bring a state-law claim for attorney's fees in the future, but I do not think it is up for pre-enforcement review because we again do not know the enforcer.

C

The complaint generally complains about the unfavorable procedures built into SB8--anyone can sue anyone involved or advocating for abortions, statewide venue, attorney's fees and high statutory damages, providers cannot raise the constitutional rights of pregnant women as a defense; the complaint describes the enforcement proceedings as "rigged."

The complaint attempts to constitutionalize certain legislative judgments about the structure and organization of the judiciary, such as venue and fee-shifting, that are ordinarily not subject to constitutional limitations. As a due process argument, it fails. But they frame it as an equal-protection argument--these unique procedures applied to one category of favored claim against disfavored defendants for a disfavored activity; that could work. The question is what level of scrutiny would apply, which doubles back to whether the right to choose is a fundamental right. If it is fundamental, then strict scrutiny would apply; otherwise, it would be rational basis.

The providers do have a due process argument against the provision preventing providers from raising the constitutional rights of women as a defense. Several scholars have described a "valid-rule due process" defense--a law must be valid to be enforced against anyone and anyone subject to enforcement of a law has the right to raise any constitutional defect in that law, even if involves someone else's rights. While abortion providers are described as asserting third-party standing to enforce their patients' rights, it looks more like first-party standing when the providers are the targets of the law.

But these arguments remain defenses that can be raised in the state-court enforcement action and nothing indicates that state judges will not follow federal law in adjudicating them. There is still no basis for a pre-enforcement challenge.

 

SB8, and the attempts to frame litigation to challenge it, illustrates the procedural framework within which judicial review operates. Federal courts do not issue free-standing pronouncements that a law violates the federal Constitution and the mere existence of even a blatantly unconstitutional (according to judicial precedent) law is not enough to get into federal court or to ask a federal court to rule. Sometimes constitutional litigation remains in state court, no matter how strong the federal arguments, and goes from there. It may not be how we like it. But that is how it functions.

Posted by Howard Wasserman on July 14, 2021 at 12:31 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, July 12, 2021

A textual defense of the diversity theory of the 11th Amendment

Eric Segall discusses everything wrong with the Court's 11th Amendment/sovereign immunity jurisprudence, discussing its evolution and incoherence. I agree with just about everything, particularly the point that states should not have sovereign immunity from federal-question actions because states are not sovereign as to federal law.

I depart on one point: Eric argues that the only truly "textualist" interpretation is that the 11th Amendment prohibits all suits against a state by a citizen of another state, regardless of the nature of the case, but is silent as to suits against a state by its own citizens, regardless of the nature of the case. He argues that the diversity theory--a state cannot be sued by a citizen of another state on diversity, but could be sued on some other basis, such as federal question--is not textualist. This makes Gorsuch, who adopted that view in PennEast, is a "fake textualist."

I disagree with Eric at my peril. But I want to try to make a textualist defense of the diversity theory.

There are two key issues here. One is whether textualism requires us to read all relevant provisions or one provision in isolation, especially when dealing with amendments--do we read the 11th Amendment alone or must we also look at the text of Article III § 2, which was the target of the amendment. The other is how we understand a constitutional amendment--how much of the prior provision does it amend and do we look to a specific clause within a provision or to the provision as a whole in figuring that out.

Article III § 2 enumerates the jurisdiction that federal courts can exercise if authorized by Congress. Each basis for jurisdiction stands alone as a distinct and independent ground for a federal court to hear a case; a case need only satisfy one ground, although it could satisfy more than one. The list includes controversies "between a State and Citizens of another State" and between "a State . . . and foreign States, Citizens or Subjects." These provisions grant diversity or alienage jurisdiction--jurisdiction over the controversy because of the identity of the parties. These  grants are distinct from the grants earlier in § 2 to hear "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States" or to hear "Cases of Admiralty."

Thus imagine a suit by a citizen of South Carolina against Georgia for violating a federal statute. Prior to 1795, a federal court would have had two constitutional bases for exercising jurisdiction over that case--it arises under the Laws of the United States and it is between a State and a Citizen of another State.

The Eleventh Amendment strips courts of jurisdiction over "any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The amendment's text copies the text of the diversity and alienage clauses of § 2, carving out one half of those grants. Given the linguistic overlap, we can read the 11th Amendment as amending the diversity clause, but not all of Article III. For example, the diversity clause and the 11tm Amendment together say the judicial power extends to "controversies between a State and Citizens of another State, but not to a suit commenced or prosecuted against one of the United States by Citizens of another State." (This is a long way of saying the grant of judicial power in diversity cases is limited to controversies commenced by a State against Citizens of another State). But the diversity clause is one part of § 2, independent of the other, unamended jurisdictional grants, such as the grant of federal-question jurisdiction or the grant of admiralty jurisdiction.

So return to the suit by a citizen of South Carolina against Georgia for violating a federal statute. After the 11th Amendment, there is no diversity jurisdiction, because this case falls within the 11th Amendment's exception to the diversity clause (stated differently, the case no longer falls within the amended clause granting diversity jurisdiction). But the case still satisfies a distinct-and-independent jurisdictional grant, in that it arises under the Laws of the United States. The 11th Amendment did not amend that clause of Article III, which provides a  stand-alone basis for the court to hear this case. By its plain terms, the amendment jurisdiction because the suit is one "commenced or prosecuted against one of the United States by a citizens of another State," but is silent as to another basis for jurisdiction (such as arising under).

It seems to me this reading is not atextual or fake-textual. It relies on the text the 11th Amendment, read in conjunction with the text of the clause it amended, without pulling in extra-textual historical, purpose, or policy considerations.

Posted by Howard Wasserman on July 12, 2021 at 10:21 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Friday, July 09, 2021

Texas continues race to bottom with Florida

Texas and Florida are locked in a bizarre race to the bottom in enacting the most stupid and constitutionally problematic laws. Florida jumped into the censor-social-media-in-the-name-of-stopping-censorship and was smacked down in federal court.

Texas decided to follow suit, proposing its own absurd law (nice summary here). It includes some new features, including record-keeping, notification, public-disclosure, and process requirements surrounding how sites moderate content that I expect the state will justify in the name of consumer protection but which might be vulnerable to challenge. It tries to learn from Florida's mistakes--no Disney exception and targeted sites are not defined by size. And Texas does not prohibit sites from appending statements, comments, criticisms, or warnings to posts; it does not attempt to stop sites from engaging in counter-speech in response to user content.

But the same problems remain The definitions exclude news sites and others that "preselect" content and for which user content (such as comments) is incidental to presentation of that preselected material; the news-organization exception was one of the content-based defects Judge Hinkle noted in Florida. It defines censorship as to "block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression," which limits the order and manner in which sites can have material presented--any listing of sites puts one thing over another, which treats some material better than other; chronological or alphabetical would be the only options. And it prohibits that "censorship" on the basis of viewpoint, which means sites cannot  prohibit any expression--Nazis, racists, anyone--because of disagreement with an otherwise constitutionally protected message.

Expect a carbon-copy opinion from a court in Texas soon.

 

Posted by Howard Wasserman on July 9, 2021 at 05:28 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, July 01, 2021

Some thoughts on Cosby

I do not do criminal procedure, so I cannot pass on the Pennsylvania Supreme Court decision in Cosby. I want to raise some issues that touch on what I do study.

• Could Pennsylvania seek review in SCOTUS? That is, did the majority rely on federal or Pennsylvania principles of due process and estoppel? It cites state and federal cases and discusses both sources of law, moving between them. In an unclear case, Michigan v. Long requires the conclusion that the state court relied on federal law rather than independent-and-adequate state grounds, giving SCOTUS jurisdiction (although I doubt SCOTUS will touch this case). I think the better reading is that this is a decision on federal due process, but it requires parsing.

• Accepting that a constitutional violation occurred, I agree with the two-justice concurring-and-dissenting opinion that the proper remedy is a retrial without his deposition statements rather than dismissal of the case and a bar on a new trial. The former DA promised not to prosecute and the breach of the promise was the violation, but Cosby was injured only because he answered deposition questions rather than asserting his Fifth Amendment privilege (which the court accepts as the purpose behind the promise) and those statements were used against him. Imagine the former DA had made the promise and the current DA ignored the promise, but Cosby had never testified in the civil action or the new prosecution had not used his statements--in other words, had Cosby not relied. Would the court have found a violation? Reading the opinion, it does not appear so, specially since the former DA likely lacked authority to make this binding promise in this form. If a prosecution would have been allowed ab initio, then the remedy for the violation should be to allow a re-prosecution as if Cosby had not testified (i.e., without his statements).

• The majority is unclear as to who violated Cosby's rights--the former DA who made the promise or the current DA who brought the prosecution? The court is inconsistent about that, although at the end of the day seems to define it as the promise that induced Cosby to waive his Fifth Amendment privilege in the civil action (which would seem to suggest that Castor committed the violation).

If that is the violation, how does that affect the underlying civil case against Cosby? It settled for more than $ 3 million and was dismissed, after Cosby sat for multiple depositions and made inculpatory statements. It does not appear that any judgment was entered. Could Cosby attempt to open the settlement, arguing that it was a product of the DA's constitutional violation--he settled because negative information came out in his depositions, but he would not have made those inculpatory statements (and thus would not have settled) had he not been stripped of his Fifth Amendment rights by Castor's promise? That might be an equitable "other reason" to reopen a judgment; not sure it does the same for a settlement.

• Might Cosby sue the current and/or former prosecutors, claiming a due process violation and seeking to recover some or all of the $ 3 million settlement that resulted from the violation? We will not find out because it seems pretty clear that decisions to prosecutor or not are protected by prosecutorial immunity.

Posted by Howard Wasserman on July 1, 2021 at 03:49 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Florida social-media law (unsurprisingly) violates the First Amendment

Judge Hinkle of the Northern District of Florida declared that the law violates the First Amendment and preliminarily enjoined its enforcement. This result was over-determined from the start. The court adopts the views  that speech-protective commentators had been arguing from the beginning, which seemed clear from the argument on Monday.

    • Social-media sites are not state actors and cannot violate the First Amendment. So the law cannot be justified as a way to vindicate users' First Amendment rights.

    • Social-media platforms look more like the newspaper in Tornillo and the parade in Hurley and the state has no interest in "balancing the debate." They look less like the shopping mail in Pruneyard or the interviewing classrooms at Harvard Law School; allowing speakers onto your property is different from controlling the owner's speech or dictating how the owner must provide that access.

    • The law is "as content-based as it gets" and subject to strict scrutiny (which Florida conceded at argument it could not survive). This seemed obvious. It treats political candidates and speech by or about candidates different from other speakers and speech. It regulates large platforms but not smaller ones. It is viewpoint discriminatory, motivated by a desire to protect conservative speech and speakers. And that is before the court reached the Disney carve-out.

All-in-all, a slam dunk. And it is hard to envision a different outcome in the 11th Circuit. It would be cheaper for Florida to go back to cut bait and start over. But it will not, because Ron DeSantis has judges to run against in 2024.

Posted by Howard Wasserman on July 1, 2021 at 03:03 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, June 30, 2021

Zuckerberg and Facebook do not act under color

Nor surprising, but quite definitive.

Facebook cannot be sued because entities, as opposed to individuals, are not proper targets of Bivens actions. The stupidity of this case aside, this is problematic, because it creates another way in which Bivens is not parallel to § 1983--the company could be sued if a state or local government coerced or conspired with it to do something, but not if the federal government does that.

The claims against Zuckerberg failed in part because the complaint did not plead facts showing direct involvement by Zuckerberg with respect to the plaintiff organization's page, as opposed to running Facebook generally. The court refused to infer direct involvement from allegations of Zuckerberg being a "hands-on CEO" making it "highly likely" that he was. Any coercion or encouragement government officials gave Facebook to limit vaccine misinformation did not connect to any specific actions against the plaintiff. And § 230 immunity did not encourage or coerce this conduct, because that immunity does require Facebook or Zuckerberg to do anything and immunity does not hinge on Facebook doing anything.

The court dismissed without prejudice and denied leave to amend. The plaintiffs moved to "supplement" the controlling complaint with new information about the Biden Administration's efforts to stop online vaccine misinformation. The court treated this as a preview of what new allegations plaintiffs would put in a new pleading and concluded they would be insufficient for the same reason the current allegations are insufficient. So the case is over and the next stop is the Ninth Circuit.

Posted by Howard Wasserman on June 30, 2021 at 12:05 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, June 29, 2021

Executive v. Legislative and Twitter blocking

Judge Domenico of the District of Colorado held that Rep. Broebert did not act under color and thus did not violate the First Amendment in blocking a viewer from her @laurenboebert account on January 6 (but not from her official @RepBoebert House account). According to the court, Broebert started this account before she was elected to Congress and uses this account to discuss political issues, her legislative agenda, and bills she has introduced. This case is analogous to a Tenth Circuit decision from January finding no state action in blocking people from an account started during an initial campaign and containing more campaign-related material than office-related.

The court did a few things I believe are incorrect and problematic along the way and may confound these cases going forward, even if the result is probably correct.

First, Domenico went on a brief discursive about why there might not be a cause of action, citing Ziglar v. Abbasi and noting the recent retrenchment of Bivens, although he does not resolve that issue because Boebert did not raise the issue. This is wrong. In shrinking Bivens actions for damages, the Court has never suggested that it also wished to shrink Ex Parte Young actions against federal officials. In fact, Ziglar recognized the availability of injunctive relief, despite the absence of an express cause of action authorizing injunctive relief, as a special factor counseling against recognizing the Bivens claim. He rejects the plaintiff's assumption that the court's equitable powers provide the cause of action because "equity follows the law." But that ignores SCOTUS' statement in Armstrong: "The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England." Not sure what Domenico is aiming at, but that is a pretty clear statement that equitable actions are not the same as Bivens actions and do not require an express right of action.

Second, Domenico adopts a very cribbed understanding of the official actions of legislators. As he puts it, "legislators legislate. Their state-created powers are to propose legislation and to voteand little else." Later he says that "Individual legislators do not have the constitutional power to either make law or abridge speech, and thus their individual actions are not within the First Amendment’s coverage." But legislators do a lot more as part of their jobs. One thing they do is communicate with their constituents. If an individual legislator held a press conference, gave a speech, or convened a constituent town hall and excluded certain people from the event because of their viewpoints, that legislator acts under color and could be subject to a First Amendment suit. I have never heard anyone question this. This is the social-media version of that. It may be, as the court later says, that it is impossible to distinguish a legislator's statement as legislator from her statements as candidate for reelection. But that is different from saying a legislator's public statements are never under color of law.

It seems to me Domenico conflates legislative functions (proposing and voting on legislation) and official functions performed by a legislator, such as public communications. The latter are covered by legislative, or Speech-or-Debate, immunity, while the former are not. But the under-color question is supposed to be whether the defendant's conduct was made possible by his public position and authority. Legislators can do a lot more than purely legislative functions as a result of their office, some of which could violate the First Amendment. Domenico tries to reframe the question as authority to act on behalf of the state, but that has never been the standard. Domenico relies on West v. Atkins, which was about when private individuals are under color, a different inquiry.

Third, Domenico argues that the First Amendment says "Congress" shall make no law, which means "Congress, not its individual members, commands the federal government, and it is that body that the First Amendment sought to constrain." But the First Amendment has not been limited to formal legislative enactments. This would mean that the First Amendment does not "constrain" an executive officer (e.g., an FBI agent) from arresting someone because he did not like the person's speech or because of his religious views. I presume Domenico did not mean to say that.

Fourth, Domenico's approach draws a sharp line between legislative and executive officials. Because the executive's actions have practical legal effects that an individual legislator's actions do not, the former act under color in running their Twitter feeds in ways the latter do not. The factors that governed in Trump and Davison (content, appearance to the public, ways of operating the feed) are irrelevant to legislators. Again, that works if the standard is whether an official's actions "bind" the government as policy; it does not work if the question is (as it should be) whether the actions are "made possible" by the official position, because legislators do a lot of things made possible by their positions.

Again, I am not sure Domenico did not reach the correct result, because the Davison/Trump factors make this look like a private rather than official feed. But his analysis misses the mark in many ways that would have bad and far-reaching effects on the First Amendment and constitutional litigation.

Posted by Howard Wasserman on June 29, 2021 at 06:58 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, June 27, 2021

SCOTUS, standing, and HB8

SCOTUS decided two significant standing cases this Term, both with implications for challenges to Texas's HB8 fetal-heartbeat law.

California v. Texas (ACA) reaffirms that it will be impossible to bring a pre-enforcement suit against state officials. California held that individuals had no standing to challenge the zeroed-out mandate, because the government had nothing to enforce, there is "no one, and nothing, to enjoin." "[N]o unlawful Government action 'fairly traceable' to §5000A(a) caused the plaintiffs’ pocketbook harm. Here, there is no action—actual or threatened—whatsoever. There is only the statute’s textually unenforceable language." Similarly, "no unlawful government action is fairly traceable" to HB8 that injures the plaintiffs. The reason differs. In California, the provision of ACA was unenforceable. HB8 is enforceable--it provides for damages and injunctive relief against those who provide or facilitate abortions--but not by the government. The end point--no government enforcement and no government official to enjoin--is the same.

TransUnion v. Ramirez sparked some conversations about HB8, which accords a private statutory right to people who can point to no historically recognized "real" and "concrete" injury. Likely HB8 plaintiffs have suffered less of an actual or threatened injury than the class members in TransUnion. But TransUnion controls standing in federal court under Article III; it says nothing about standing in Texas courts under the Texas Constitution. So it has no direct effect on the validity of the procedures in HB8. The question is whether it could have indirect or persuasive effect. As I wrote (citing an expert on the Texas Constitution), Texas courts follow Article III but accord greater deference to legislative authorizations of suit. The defendant in the first HB8 suit will raise lack of standing and argue that Texas courts should (but are not required to) follow TransUnion and impose the same limits on the legislative power to create new rights. Stay tuned.

Posted by Howard Wasserman on June 27, 2021 at 03:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 25, 2021

Standing up to standing

SCOTUS held Friday in TransUnion LLC v. Ramirez  that most of a class lacked standing to sue over inaccurate information under the Fair Credit Report Act. Justice Kavanaugh wrote for five; Justice Thomas dissented for Breyer, Sotomayor, and Kagan; and Kagan wrote a shorter dissent for Breyer and Sotomayor. This marks another case (the third, I believe) in which Barrett replacing Ginsburg presumably changed the outcome of the case.

The result is not surprising, given the direction of standing cases, but it is the most explicit the Court has been. The majority makes explicit that "under Article III, an injury in law is not an injury in fact," a violation of a statutory right is not sufficient for standing, and Congress cannot create new private statutory rights that provide a basis to sue unless they are the same or analogous to historically recognized legal rights (physical injury, monetary loss, or recognized intangible harms) as determined by the Court. Purely procedural rights, even for an individual, are not sufficient.

Thus, the 1800+ class members whose false information was disseminated (including the named plaintiff) and included information about being on a list of "specially designated nationals" who might be drug dealers or terrorists had standing to sue. The 6000+ remaining class members, whose reports contained false information but were not disseminated, did not have standing; although the false information in the report violated the statute, it was speculative whether or when the information would be disseminated. The entire class lacked standing to challenge the failure to provide them with accurate information and information on how to correct inaccurate information, because the information was provided but in the wrong manner (split into two incomplete mailings); while violative of the statute, it caused no concrete harm.

According to Thomas' dissent, the problem with today's decision is it fails to distinguish public and private rights. Standing limitations make sense when Congress creates a public right and allows for private enforcement; it makes sense to require the plaintiff to show a direct injury from the public statutory violation. This explains Lujan and Laidlaw, for example. It makes no sense when Congress creates a private right for an individual and allows that individual to sue, as in Spokeo and here; and that should include informational and procedural injuries.

Kagan's separate dissent emphasizes an analytical point I make in class: We must "rewrite" the story that standing is being about the "single idea" of separation of powers and limiting the judicial power when the Court can and does override congressional creation of a legal right and remedy. That is, if Congress decides that some conduct should be unlawful and the target of that unlawful conduct should be able to sue and recover for her injury, it is inconsistent with separation of powers and a limited judicial power for the Court to override that decision and require plaintiffs to show, in addition to the statutory violation, something extra that the Court demands. This decision impairs Congress' Article I power to regulate and stop conduct it deems harmful and aggrandizes the Court's power. This goes to the other aspect of the Fletcher argument--not only is standing a merits concern, but the Court should defer to Congress' choice as to statutory merits.

The case also exposes the fault lines around the role of common sense in standing analysis. According to the majority, the risk of disclosure for the 6000+ was speculative because there was no evidence of disclosure or attempted disclosure, and there was no harm from the inaccurate reports because people may not have opened the envelopes and may not have bothered to correct them. But "tap[ping] into common sense," it should not be speculative that a company in the business of selling credit reports will sell those credit reports or that someone who requests their credit report will open it and seek to correct erroneous information.

Interestingly, the Kagan trio departed from Thomas over whether a congressional cause of action is always sufficient. Thomas says it is, at least for private rights. Kagan says Congress is limiting to recognized rights that are "real" and "concrete" but that the Court should override a statutory right to sue " when but only when Congress could not reasonably have thought that a suit will contribute to compensating or preventing the harm at issue," which practically means never.

One final point: It seems to me that the Thomas and Kagan opinions should have been designated as "concurring in the judgment in part and dissenting in part." They agreed with the majority as to the result (standing existed) for the 1800+ class members whose information was disclosed.

Posted by Howard Wasserman on June 25, 2021 at 11:21 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, June 24, 2021

Another bad universal injunction decision

A new exhibit in the MUIGA (Make Universal Injunctions Great Again) campaign: Judge Howard (a GWB appointee) of the Middle District of Florida universally enjoined (even though she says nationwide, because judges cannot get this right) the socially disadvantaged farmers and ranchers provision of the American Rescue Plan Act. That provision sets money aside for loan forgiveness and other aide for farmers and ranchers from historically disadvantaged groups. The lawsuit was brought by one white farmer in Florida.

The scope portion followed the usual pattern: Hand-wringing about the "great caution" required before issuing a universal injunction, plus citations to Thomas and Gorsuch questioning the authority to do so. Then this is the complete analysis:

Plaintiff has shown a likelihood of success on the merits of his claim that Section 1005 is unconstitutional and, if implemented, would deprive him of his right to equal protection under the law. The implementation of Section 1005 will be swift and irreversible, meaning the only way to avoid Plaintiff’s irreparable harm is to enjoin the program.

Once again, the justifications offered for universality cover every case--what program, that appears to violate someone's equal protection rights, is not implemented in a "swift and irreversible" manner? This would mean that any program that would deprive a plaintiff of his rights must be universally enjoined, unless the program someone will not be swiftly implemented. Is there something uniquely swift and irreversible here, where other programs will be implemented slowly and reversibly? The court never explains.

The bigger problem is that there is an obvious non-universal remedy that would accord complete relief: Give the plaintiff--and only the plaintiff--access to the program. That remedies the constitutional violation of treating him differently because of his race and the injury of his exclusion from the program. Nothing more need be done to protect or vindicate the plaintiff's rights.

There might be an argument that universality is necessary because the pool of money is limited and affected by the number of applicants; there is $ X to be distributed, divided by the number of applicants, so universality is necessary until we can determine the number of constitutionally eligible applicants. If money continues to be distributed, that will reduce the amount plaintiff can recover. This was the theory behind universality in the sanctuary-cities cases: Requiring that San Francisco receive funds but allowing Chicago to continue to be denied funds does not allow a proper determination of amount and would mean that, upon final resolution, there might be no funds left for Chicago. But that does not appear to be the case here--the pool is not limited and funds are means-tested, so the amount recovered is determined by each applicant's circumstances, not the number of applicants. In any event, the court never discusses this or offers this as the explanation.

Compounding what appears to be the judge's misunderstanding of universality, she adds a footnote saying she "reaches this conclusion without regard to any incidental benefit to other similarly situated White farmers." This is nonsense. By making the injunction universal, she accords more than incidental benefit to other white farmers--she has made them direct beneficiaries of the injunction, on par with the plaintiff.

There is another way of looking at this case: The plaintiff does not seek the debt relief available under this section, but seeks to stop the government from giving that relief to anyone else. On that understanding, complete relief comes not from making the plaintiff eligible for the funds, but from stopping the award of funds to anyone.

But the plaintiff should not have standing to seek that remedy--he is not injured by some people receiving a benefit that he is not interested in receiving. The court cites Gratz  to identify the equal-protection injury as "the inability to compete on an equal footing." But if the plaintiff's injury here is the inability to compete for the funds on an equal footing, it can be remedied by allowing him to compete for funds; an injunction stopping everyone else from receiving funds is not commensurate with the violation. This case looks like a lawsuit by someone who has no interest in attending the University of Michigan seeking to enjoin the University of Michigan from considering race of people who are interested in attending the University of Michigan. Equal protection standing should not extend that far.

Posted by Howard Wasserman on June 24, 2021 at 09:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, June 22, 2021

More on Lafayette Square Lawsuits

The district court dismissed some, but not all, of the claims arising from the clearing of Lafayette Square in June 2020. Despite news reports, the case is not over.

The plaintiffs have standing to proceed against federal defendants for injunctive relief over continued restrictions on access to Lafayette Square. And their claims against local law enforcement officials for First Amendment violations were well-pleaded and not barred by qualified immunity. The latter point is surprising and perhaps not long for this world. The court defined the rights at issue (restriction on speech, retaliation for disfavored message) at a high level of generality, without demanding prior case law or a prior similar context. This contrasted with a demand for an identical prior case in according qualified immunity on Fourth Amendment claims.

The piece getting the most attention is the rejection of the Bivens claims against Donald Trump, Bill Barr, Mark Esper, and other high-level federal officials, in addition to the federal officers on the ground. But the outcome of those claims was obvious before the lawsuit was filed. Courts have read SCOTUS's recent cases to all-but preclude Bivens actions, especially for new rights (SCOTUS has never allowed a Bivens action in a First Amendment case) in a situation remotely touching on national security and presidential security, which has become a buzzword for rejecting Bivens. I look at this case less as a bad decision than as a decision faithfully applying impossible SCOTUS rules.

We are nearing the point that plaintiffs will be unable to seek damages for constitutional violations unless Congress acts. Unfortunately, Congress either cannot or will not act.

Posted by Howard Wasserman on June 22, 2021 at 09:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

Tuesday, June 08, 2021

Speech and blame-shifting

There is a high burden to holding speakers liable for misconduct by others--absent some agreement or conspiracy, there must be intent that listeners engage in unlawful conduct and temporal imminence between the speech and the unlawful conduct. In part this is about freeing speakers to use rhetorical hyperbole and to be "vehement, caustic, and sometimes unpleasantly sharp." It also frees speakers to speak without fearing liability because of the actions of the lowest-common-denominator listener. And it places the blame on those who engage in misconduct--where it belongs--and removes (or at least limits) the option of excusing action by blaming the speech one heard.

We saw this in efforts in the '80s and '90s to regulate pornography on the ground that it conveyed messagess about sex and women, signaled to viewers that it was ok to sexually assault women, and even planted ideas in viewers about whether and how to engage in sexual assault. The arguments against those efforts raised this LCD issue--we do not set legal rules for the LCD (even in those areas without the shadow of the First Amendment) and we should not give those who engage in unlawful actions an excuse for those actions. More recently, we saw this in litigation against activist DeRay Mckesson attempting to hold him liable for negligence arising from violent actions by an unknown person during an anti-police-violence demonstration that Mckesson organized.

I am reminded of this in stories about Capitol Insurrection defendants (here is the latest) attempting to excuse themselves from pre-trial confinement and (presumably) ultimate conviction by insisting they were duped or manipulated by the speech of Q-Anon, Donald Trump, NewsMax, and a host of other speakers and platforms spreading lies about the election and the opportunity to rise above "his ordinary life to an exalted status with an honorable goal." They were helpless against the onslaught of lies, but their eyes are now open, thus they no longer are a threat to the public and not bad people who did bad acts deserving of punishment.

"The devil made me do it" is too pat. Even if one accepts (as I do not) that Brandenburg's requirements are too high and that it should be easier to impose liability on speakers, I think we can agree that the person whose actions cause an injury is more culpable than the speaker and should not be able to use bad speech and bad speakers to excuse or reduce the consequences of his misdeeds.

Posted by Howard Wasserman on June 8, 2021 at 10:57 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, June 07, 2021

On suing the wrong defendant

What happens if a constitutional plaintiff sues the wrong defendant and why does that happen? The answer is neither clear nor consistent, as two cases reveal.

Last week, the Northern District of Texas dismissed a challenge to a Lubbock ordinance prohibiting abortions in the city but providing no mechanism for municipal enforcement. Planned Parenthood sued the city, but the court recognized that the city is not responsible for enforcement of the law and does not control the private individuals who do enforce the law. The court therefore held that plaintiffs lacked standing. This decision presages the likely result when Planned Parenthood or another provider sues to challenge HR8.

Also last week, the Fifth Circuit ordered dismissal of a challenge to the rejection of online voter-registration applications using a photograph of a signed application form, under the "wet signature" requirement that applications have an actual ink signature. Acceptance or rejection of registration applications rests with country registrars. The Secretary of State had issued a press release reminding voters that online registration is not available, a press release that prompted several county registrars to change course and reject online applications. The Texas Democratic Party and others sued the Secretary. The court held that the Secretary had sovereign immunity, because she was not the responsible executive officer for a proper Ex Parte Young action.

The defect in both actions is the same--the plaintiff sued the wrong defendant, a person/entity not responsible for enforcing the challenge law and thus causing the challenged harm. It makes no sense to use distinct doctrines to get at the same idea. And a court could recast one as the other. The Fifth Circuit could have held that Planned Parenthood lacked standing to sue the Secretary, because the Secretary's press release did not cause the injury and an injunction against the Secretary would not remedy their harm. The Lubbock case could not be recast as sovereign immunity because a municipality is not a sovereign. But imagine when Planned Parenthood sues theTexas Commissioner of State Health Services. The court could say no standing, on the same grounds as in Lubbock. Or the court could follow Texas Democratic Party and say the Commissioner has sovereign immunity because he is not responsible for enforcing the heartbeat law and does not control those who do. Again, it is incoherent to fold the same idea into two doctrines.

Worse, to the extent the court wants to tie this to Ex Parte Young and sovereign immunity, it should be about the merits of the claim. The issue under § 1983 is not that states (and state officials sued in their official capacities) have sovereign immunity. The issue is that states (and state officials sued in their official capacities) are not "persons" for purposes of § 1983. So a state/state official should not claim sovereign immunity; it/he should claim that an element of § 1983--a person as defendant--is not satisfied. But that is a merits question that the court cannot resolved as a jurisdictional issue at the outset.

And all of this asks the § 1983 question--did the named defendant "subject or cause[] to be subjected" the plaintiff to a violation of her rights. If the defendant is not responsible for enforcing the challenged law, the answer is no. Which again reflects failure of an element of a § 1983 action, not competing jurisdictional ideas.

Posted by Howard Wasserman on June 7, 2021 at 12:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, June 04, 2021

Mike Lindell sues Dominion

MyPillow CEO Mike Lindell's new lawsuit against Dominion is a rerun and expansion of the suit the company filed last month, throwing in a civil RICO claim along with more of the same absurd factual allegations about election fraud and nonsense constitutional arguments.

Lindell's state action arguments fail for the same reasons as MyPillow's state action arguments--Dominion does not "administer" elections beyond providing infrastructure (any more than the handcuff manufacturer uses excessive force) and, if it did, it does not become a state actor for all purposes beyond running those elections.

This is garbage on the merits. But there are procedural issues attached to both actions that are worth considering.

Both sets of claims could have been brought as counterclaims in Dominion's defamation action in the District of D.C. At bottom, both actions allege that Dominion's lawsuit is part of a campaign to silence Lindell/MyPillow about election fraud; both suits allege that the Dominion suit is an abuse of process and a First Amendment violation.

One question is whether they would be compulsory; the answer is probably not, because the MyPillow/Lindell claims do not arise out of the same transaction or occurrence as Dominion's claims. This illustrates a common sequence: X does something to injure A, A files suit to remedy that injury, and X files a counterclaim alleging that those remedial efforts violate X's rights. Most courts say this is not STO because the real-world events giving rise to A's claims are based on whatever X did, while the event giving rise to X's counterclaims is A filing that lawsuit. There is a but-for relationship: But for X's actions, A would not have sought remedy; but for A seeking a remedy, X would not have a basis to sue. But that is not the necessary logical connection between the real-world events. Here, MyPillow/Lindell made false statements about Dominion, Dominion sought a remedy by suing, and MyPillow/Lindell argue that suit is tortious/violates the First Amemdment/violates RICO; that is the but-for relationship courts deem insufficient.

Nevertheless, they could have been brought as permissive counterclaims--there is diversity jurisdiction and/or some of the claims arise under federal law.

A second question is whether personal jurisdiction and venue is proper in Minnesota. The action that MyPillow and Lindell challenge is the filing of the lawsuit, which took place in D.C. The question is the same as one I considered about the Texas heartbeat law: Is suing a Minnesota citizen (and serving process on that Minnesota citizen in Minnesota) outside of Minnesota sufficient to establish personal jurisdiction? Again, this arises in the legal-malpractice and patent context and courts seem split on it.

A third question is whether the court should transfer venue to D.D.C. A court in Minnesota would be reluctant to adjudicate a lawsuit challenging the validity of a lawsuit in another court while that lawsuit is ongoing, as both turn on the same underlying facts (the truth of Lindell's original allegations against Dominion). The convenience of witnesses and evidence would seem to favor transfer--the validity of MyPillow/Lindell's claims depends on the validity of Dominion's defamation claim, which is occurring in D.C. The "situs" of the events in the counterclaim is the situs of the allegedly abusive defamation action, which is D.C. I would think both cases are better litigated in the same place, if not the same action, as the underlying lawsuit alleged to be violative.

Update: Commentators elsewhere point out a choice-of-law problem. Lindell points to Minnesota law on the abuse-of-process claim. But the prevailing view is that such claims are governed by the law of the place in which the allegedly abusive proceeding was filed. In other words, D.C. law. Which makes sense. A plaintiff who chooses to file a claim that is not abusive in one jurisdiction should not bear the risk that it might be abusive in a different jurisdiction. The choice-of-law issue also affects the transfer analysis, discussed above. What law applies is one of the public-interest factors that gets balanced--if D.C. law applies, that will favor the Minnesota court sending the case to D.C.

Further Update: The attorney from the firm Barns & Thornburg, who signed the complaint as local counsel, has been defenestrated. The firm says it did not know about the lawsuit.

Posted by Howard Wasserman on June 4, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, June 03, 2021

No standing when abortion law privately enforced

I mentioned the dry run for the standing/federal forum problems in challenging HB8 was a lawsuit over a Lubbock ordinance banning abortions within city limits and utilizing private enforcement.

The district court on Wednesday dismissed Planned Parenthood's challenge to the ordinance, finding PP lacked standing to sue the city. Because the city was not charged with enforcing the law and the city had no control over the private individuals who could bring private actions, there was neither causation nor redressability. The court (rightly) rejected the idea of a declaratory judgment or injunction against the non-responsible party as a way to persuade everyone else to comply. And the Fifth Circuit has precedent denying standing to plaintiffs in pre-enforcement challenges to laws that rely on private enforcement; apparently, Texas has attempted this in the past.

An alternative holding was Pullman abstention, as it is unclear whether a municipality has the power under state law to create private rights of action. The interesting piece there was over the source of the state-law ambiguity. The substantive provision challenged as violating the 14th Amendment--the ban on abortions--was not ambiguous; it was clear what the provision did. The ambiguity was over validity of the private enforcement mechanism. Both parties proceeded from the belief that any ambiguity must be "intertwined with" or directly related to the federal constitutional claim--that is, the ambiguity is in the substantive provision challenged on constitutional grounds. And in the mine run of cases it is--did the Railroad Commission have the power to enact the regulations or is the challenged law capable of a limiting construction. But the court did not find Pullman so limited. A state-law defect in any piece of the ordinance renders the entire statute invalid (or at least unenforceable), mooting the federal issue.

The case is on to the Fifth Circuit, which I expect to affirm. Meanwhile, we have a good sense of what will happen to pre-enforcement challenges to HB8.

Posted by Howard Wasserman on June 3, 2021 at 08:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)