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)

Wednesday, June 02, 2021

More stupid lawsuits, ep. 81

Something called the "Job Creators Network" has sued MLB, MLB Commissioner Rob Manfred, the MLBPA, MLBPA Executive Director Tony Clar, and a bunch of John Does, claiming constitutional (equal protection and Dormant Commerce clause) and contract claims over MLB moving the All-Star Game from Atlanta to protest Georgia's voter-suppression laws. Nothing new here; more bad lawyering by bad lawyers using the courts to make political noise. Some thoughts on where this goes wrong.

MLB Under Color:

The § 1983 claim depends on MLB acting under color. The complaint tries to get there two ways, neither of which works.

The first, passing argument, is that MLB is not covered by the antitrust laws, a substantial benefit. Receipt of governmental benefits, disconnected from the challenged conduct, is not sufficient to place a private actor under color. This is not a case in which government gave a private actor a benefit on condition of the private actor doing something constitutionally violative. Quite the opposite. MLB's decision to move the game pissed off some congressional demagogues, who threatened to strip MLB of its antitrust exemption.

Moreover, if the antitrust exemption were sufficient, the alleged benefit comes from the federal government, not the state or local government. MLB therefore would be color of federal law and this would be a Bivens claim (in a new context, so not going anywhere), not a § 1983 claim.

The primary argument is that MLB teams act under color by virtue of playing in publicly owned or publicly financed stadiums; thus MLB, as an association of those teams, acts under color. Two problems. First, while I agree that playing in public stadiums places teams under color for some purposes--namely running those ballparks during games--it does not make them under color for all purposes. The Yankees are perhaps bound by the First Amendment in regulating fans' cheering speech during games at the publicly owned stadium; they are not bound by equal protection in firing a ticket-office employee. So if the teams are not under color for all purposes, MLB is not under cover for all purposes. Second, and more conclusive, a private association of state actors located in multiple states does not act under color because it is not tied to the law of any state. The NCAA does not act under color despite having actual state entities--public universities--from multiple states as members. It follows that MLB, which stands in the same position to teams as the NCAA does to schools, does not act under color.

Diversity Jurisdiction:

This is minor and not outcome-determinative, but the Civ Pro geek in me remains amazed at how often lawyers get diversity wrong.

According to the complaint, the following is true: The JCN is a not-for-profit corporation, incorporated in DC with its PPB in Texas.  MLB is an unincorporated association whose members are the 30 teams; it is a New York entity with its PPB in New York. The MLBPA is the players' union, a New York entity with its PPB in New York. Manfred is a New York citizen and Clark a New Jersey citizen. The complaint does not say so, but I believe the plaintiffs see this as  JCN(TX/DC) v. MLB (NY), MLBPA (NY), Manfred (NY), and Clark (NJ).

But an unincorporated association's state of creation or PPB is irrelevant; what matters is the citizenship of its members. The complaint acknowledges that MLB's members are the 30 teams, all of which are corporations or unincorporated association; if the latter, we need further level(s) of inquiry as to the members/partners of each team and perhaps the members/partners of each member. MLB therefore is not a New York citizen (or not solely a New York citizen); it is a citizen of any state in which a member/partner in any team ownership group is a citizen. We do not know every state, I imagine at least one team has at least one member who is a citizen of Texas or DC. Similarly, a union's state of creation or PPB is irrelevant; it is a citizen of every state in which a union member is a citizen. Again, I imagine at least one current MLB player is a citizen of DC or Texas.

This does not matter to the outcome of the case, because the complaint alleges (and there is) supplemental jurisdiction over the state claims. But I become skeptical of any complaint when the attorney gets the basics so wrong.

Standing

JCN purports to be an association of small businesses injured by MLB moving the game. It asserts associational standing on behalf of its members and organizational standing for the time and money it has spent fighting MLB's actions.

The problem is that the claim seeks primarily damages as a remedy, whereas associational standing works in injunctive actions. One element of the Hunt test for associational standing is that "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Damage are, by definition, individualized to each plaintiff and thus require the participation of each member. The complaint attempts to get around that by asking the court to order that the defendants pay damages into a common fund, from which moneys are distributed to each plaintiff. But that is not how damages are calculated or awarded. I cannot think of a major constitutional case in which an association has been able to pursue damages on behalf of its members.

Remedies

The complaint asks for compensatory damages of at least $ 10 million and punitive damages of at least $ 1 billion, as well as an injunction ordering MLB to move the game back to Atlanta. That injunction is not happening. The punitive damages request is interesting because a punitive-damages ration exceeding 10:1 presumptively violates due process.

The least-stupid contract claim might be promissory estoppel, although that still fails. But even if it worked, the damages on a P/E claim are limited to what was spent in reliance on the promises, not what they would have made had the defendants followed through on their promise. Did businesses spend $ 10 million+ on the expectation of the game coming to Atlanta?

Whither the First Amendment

At its core, the claim here is that by engaging in the First Amendment activity of protesting Georgia election policy through its business decisions, MLB, et al. interfered with the power of Georgia to enact policy and the equal protection rights of those who support those policies. The Complaint spends some time defending Georgia's new laws, as if the propriety (in the plaintiff's views) of the laws lessens the First Amendment rights of those who protest. I do not believe the level of First Amendment protection for expressive activities turns on the "correctness" of the position asserted. That would have some broad implications.

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

Sunday, May 30, 2021

Standing for (a challenge to) the national anthem or Standing up to zombie laws

There is a potential problem surrounding challenges to Texas' new law requiring the national anthem be played before all professional sporting events that receive state or local funds: While the law is a zombie, there may he problems challenging its validity in court.

No Texas-based professional sports team (there are 13) has indicated that it does not want to play the anthem. This kerfuffle began in February because the Mavericks did not play the anthem before pandemic games in empty arenas, but the team resumed playing it mid-season once everyone freaked out and once fans returned to the venue. That means no one will want to litigate the issue because no one will object to the legal requirement that they do something they intended to do.

Alternatively, if a team that did not intend to not play the anthem brought a lawsuit, it would be dismissed for lack of standing. The team could not show an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute. The team does not suffer an injury-in-fact if it does not wish to engage in the conduct (not playing the anthem) regulated by the law.

Moreover, no team appears to have a choice, because every league requires its teams to play the anthem. That again means no injury because the team is not able to engage in the constitutionally protected conduct. It also means no traceability and no redressability. The obligation to play the anthem, even against the team's wishes, comes from the league, not the Texas law; the team would be obligated to play the anthem if the law did not exist and an injunction prohibiting enforcement of the law would not allow the team to play the anthem.

The opening may be that the law is not written as a regulation ("all teams must play the anthem"). It imposes a contractual obligation--all contracts under which teams would receive public funds must include a provision in which the team promises to play the anthem and a provision stating that failure to play the anthem constitutes a default, subjects the team to a penalty, and may bar the team from future public contracting. A team thus could establish standing based on the injury of having to make the promise to play the anthem as a condition of receiving public funds, even if it intends to (or must, per league rules) play the anthem. Having to make the contractual promise violates the First Amendment and injures the team, even if it intends to comply.

I hope the latter is the case. Otherwise, the state could enact performative zombie legislation aimed at a non-existent problem and immunize that legislation from challenge because there is no actual problem. Meanwhile, state officials would point to teams playing the anthem and say "see, our law worked and we are protecting your interests and the interests of America."

Posted by Howard Wasserman on May 30, 2021 at 12:02 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, May 29, 2021

State action and free speech at Yankee Stadium

Bbf29345cc669fc1d263a670ebc12445-1Two fans at Thursday's game at Yankee Stadium were ejected from Yankee Stadium after hanging this banner from the mezzanine, to a chorus of verbal and nonverbal counterspeech. The men were removed for the stadium, but not arrested and allowed to keep the sign.

Newsmax finds this an affront to the First Amendment. First Amendment Twitter (literally, an account run by the First Amendment itself) says "I protect you from the government, not from the Yankees." Much as I hate to agree with anything appearing on Newsmax, it is not as simple as the First Amendment and its responders make it sound.

At old Yankee Stadium (1923-2008, as renovated in 1976), this would be an obvious First Amendment case. The old Stadium was owned by New York City and leased to the Yankees for exclusive use on highly favorable terms. Plus, security was provided by off-duty New York police officers pursuant to a departmental program.

The NYCLU brought a lawsuit in 2009 on behalf of two fans who were ejected for refusing to stand in place when God Bless America was played during the Seventh-Inning Stretch. There were strong arguments that the Yankees--by virtue of their exclusive and beneficial use of publicly owned property and the involvement of off-duty officers in enforcing team policy--acted under color because of a "symbiotic relationship" with the city. A district court accepted it as to MLB in 1978 in holding that MLB violated the First Amendment by excluding female reporters from the locker room during the 1976 World Series  at the newly reopened Stadium. There also was an argument that the Yankees and the NYPD "jointly participated" in the alleged constitutional violation, because the Yankees used detailed officers to enforce their policies. The 2009 suit settled, with the Yankees taking a judgment for $ 10,001 and attorney's fees of $ 12,000.

The current stadium is owned by the New York City Economic Development Corporation (NYCEDC), a not-for-profit entity that is not a city agency. Its governing board has 27 members--7 appointed by the mayor at his discretion, 10 appointed by the mayor from nominees from the Borough Presidents and Speaker of the City Council, 10 appointed by the chair from a list approved by the mayor. The park cost about $ 2.3 billion, $ 1.1 in public money, and about $ 670 million from the team. I do not know the terms of the lease between the NYCEDC or the Yankees and whether they are as favorable as the terms of the lease with NYC on the old Stadium--although I cannot imagine the team gets less from this stadium than from the previous. I also do not know if security is provided through the NYPD program--pictures in the linked stories show people in uniform speaking with the banner holders.

There is a good argument that NYCEDC, given the manner in which its members are appointed, acts under color under Brentwood's entwinement test. But the Yankees, not NYCEDC, make and enforce these policies. The question is whether a private entity can have a symbiotic relationship with a public-private entity--do the Yankees act under color because they have a symbiotic relationship with an entity that itself acts under color because of its entwinement with the government? Alternatively, the plaintiffs might try to show symbiotic relationship from its exclusive use of a facility that was paid for largely with public funds, regardless of who holds title to the facility. A third option is carrying the joint-participation argument from the old Stadium, depending on whether the team has the same security arrangement with the NYPD.

If the bannermen can establish state action, do they have a First Amendment claim? Team policy requires that banners be "baseball-related, in good taste," not affixed to the stadium in any manner, and not obstruct anyone's view. The question is whether they were ejected for  displaying a banner in an improper manner or because of the content of the banner. I also would argue that the "baseball-related" limitation is invalid, given the broad scope of  the "cheering speech" fans engage in and (much as sports like to deny it) the historic link between social/political issues and sports. Fans can orally chant non-baseball-related stuff during the game, including that "Trump one." It should follow that a non-obstructive and non-affixed non-baseball related banner should be permissible.

Two last points. First, this should not be seen as the camel's nose for arguments that YouTube/Twitter/Facebook act under color; the connection to government is not bad. Second, I believe we can agree that Newsmax would be covering this story differently had the banner read "1/6 Commission Now" or "Trump Should Be Prosecuted."

Posted by Howard Wasserman on May 29, 2021 at 04:48 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Thursday, May 27, 2021

Further Updates on the procedure of the Texas fetal heartbeat law

A few points in update to my post on the Texas fetal heartbeat law and the procedural insanity it spawned, following some developments and some discussions on the Civ Pro Prof Listserv.

• My proposal (made not entirely seriously) that providers change domicile to create diversity and remove the enforcement action would not work. A listserv member pointed out that the district court upon removal would not dismiss for lack of standing, it would remand, putting the case back in state court. In addition, it would be too easy to avoid; Billy Bob could join a Texas-based doctor as defendant and eliminate complete diversity. I did not think that one all the way through.

• Another pre-enforcement option floated: Sue the state-court judge assigned to hear the private action. This raises the same Younger problems as suing Billy-Bob-as-state-actor, but not the state action problems. I do not believe this works for two reasons. First, a judge cannot be enjoined in the first instance in a § 1983 action; the plaintiffs must get a declaratory judgment first, then go back for a second round of litigation if the DJ is ineffective. Second, and more importantly, the judge is not the target of anti-suit litigation; the target is the litigant in that underlying litigation (such as the executive official charged with enforcing the law).  It would be highly unusual to enjoin a judge from allowing a case to go forward, although perhaps this is an extraordinary case.

• Some people seem a lot higher on the Lugar-based argument that Billy Bob acts under color. I hope not. I disagree with the Lugar line of cases and would not want it extended. And it would be deeply troubling if filing a lawsuit, without more, subjected someone to a § 1983 suit. Consider that MyPillow's lawsuit against Dominion, legal nonsense in current form, would look much different if this were the rule. I am more willing to go with the public-function argument, which is narrower and limited to a unique context in which a state delegates all enforcement to the private sector precisely to avoid pre-enforcement litigation. But I do not trust courts to find the nuance there.

• We have a test run for these arguments in a challenge to a Lubbock ordinance banning abortions within city limits and using private enforcement (although the complaint alleges some public-enforcement mechanisms, so it may be less clear than HB8). Planned Parenthood sued the city and the city moved to dismiss for lack of standing. Stay tuned.

• There is a separate question, which I am not competent to address, of whether Billy Bob will have standing to bring the private enforcement action under HB8. According to Charles "Rocky" Rhodes (South Texas), the expert on the Texas Constitution, Texas courts generally follow Article III standing doctrine, but are more accepting of standing when the legislature authorizes the suit.

• A wild proposal from a different emailer: What if a blue state created a cause of action against Billy Bob--allowing any person to sue for damages anyone who brings a claim under HB8? All sorts of extra-territoriality and personal-jurisdiction puzzles there.

• A different version: What if a blue state enacts a clawback statute, allowing anyone (or at least anyone within the blue state) held liable in a Texas HB8 suit to bring a claim in the blue state's courts to recover the amount paid in the Texas litigation. This raises a specific PJ question--is suing a New York corporation (knowing it is a NY corporation) in  a lawsuit that is tortious under New York law purposefully aiming actions at the forum for Walden/Calder purposes? (I believe there are legal malpractice actions that get at the same idea).

This also could raise issues about relationships among state judiciaries and whether the courts of one state can halt litigation in another. Countries enact clawback statutes designed to recover any judgment paid under the laws of another country (e.g., Japan allows a clawback action against U.S. antitrust plaintiffs). Federal courts are split on whether and why they can enjoin those proceedings to "protect or effectuate" their judgment in the underlying case. Could a Texas court, having issued a judgment for Billy Bob against Planned Parenthood, enjoin the NY clawback action?

Posted by Howard Wasserman on May 27, 2021 at 10:45 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, May 25, 2021

Against the Well Pleaded Complaint Rule

A point I neglected to make in my post on the Texas fetal-heartbeat law: This illustrates the strongest criticism and biggest problem with the Well Pleaded Complaint Rule.

The argument against the rule is that the benefits of a federal forum--uniformity, respect for federal rights, and expertise in federal law--apply regardless of where and how a federal issue arises. A federal forum is as necessary for a federal defense or a counterclaim as for a claim. Just as The New York Times would have liked a federal forum against Alabama officials using state-law defamation as the functional equivalent of seditious libel against truthful reporting of government misconduct, so does Planned Parenthood need a federal forum against random Texans attempting to bankrupt them into practically depriving women of their opportunity to engage in constitutionally protected activity.

Preenforcement challenges to state laws are important not only because it allows a rights-holder to assert her rights without having to face legal jeopardy, but because they give the rights-holder access to a federal forum. Combining purely private enforcement with the WPC deprives Planned Parenthood of any federal forum (save the unlikely SCOTUS review) in these cases.

Posted by Howard Wasserman on May 25, 2021 at 01:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law Review Review | Permalink | Comments (0)

Thursday, May 20, 2021

Procedural morass of the Texas Fetal Heartbeat Law (Updated)

Texas Governor Greg Abbott yesterday signed SB 8, a "fetal heartbeat" law that bans abortions as early as six weeks. What makes this different than the spate of similar laws from red states is that the law is not publicly enforceable. Instead, it creates a cause of action for "any person" to bring a civil action against any person who performs or induces an abortion or who aides or abets the performance or inducement of an abortion, the latter covering paying, insuring, and reimbursing the costs of an abortion, as well as (I presume) publicizing the availability or option of abortion. Remedies include injunctions, statutory damages of not less than $ 10,000 per abortion, and attorney's fees.

This is a mess, although picking it apart will take work.

A

Josh Blackman is correct about two things.

First, the ordinary route to challenging abortion restrictions--Planned Parenthood or other doctors and providers of reproductive-health services brings a pre-enforcement § 1983/Ex Parte Young action against the governor, AG, Secretary of Health and Human Services, or other public official for a declaratory judgment and injunction prohibiting enforcement--is not available. Because no government officials are responsible for enforcing he law, there is no "responsible executive officer" to sue or to enjoin from enforcing the law. Courts may frame this a number of ways--lack of standing (because the officer does not enforce the law, the injury is not fairly traceable to the officer or redressable by an injunction), sovereign immunity (the elements of the EPY exception are not satisfied), or (my preferred way) that official is not violating the plaintiff's substantive rights. The legislature is immune from suit for enacting the law. And, in any event, the existence of the law (the thing for which the legislature is responsible) does not violate anyone's rights.

Second, the enforcement actions will stay in state court, because any federal defense that the law is invalid is not a basis for removal. One workaround on this would be for providers to reincorporate and/or change their principal places of business out of Texas. That would create diversity jurisdiction and allow for removal on that basis. And once the case is in federal court, the defendant should be able to have it dismissed for lack of standing. There could be fun games with the amount-in-controversy requirement. Attorney's fees are generally not included in calculating the amount in controversy, so that remedy is excluded from the calculation. Would a plaintiff limit the claim to recovering the statutory minimum and only for seven abortions to keep it under the amount? What is the "cost" of a prevented abortion procedure? Alternatively, would we see plaintiffs coming from outside Texas to bring these actions? "Oh, Planned Parenthood is incorporated in New York, let's find a New Yorker to bring this suit."

Alternatively, this is where § 1443 would come in handy, as it appears this law will deny defendants the ability to assert certain rights (see below). But that provision is limited to state laws that deny federal equal rights, not to laws denying non-equality constitutional rights such as due process.

B.

The law attempts to limit or deny defendants the right to assert the constitutional rights of women to challenge the validity of the underlying abortion fetal-heartbeat ban as an affirmative defense. This is framed as a limit on third-party standing and as a statutory provision codifying the requirements of the constitutional test. It also removes the affirmative defense if Roe or Casey is overruled, even after the challenged conduct.

This demonstrates the problem with using the language of third-party standing to describe constitutional challenges to laws regulating and criminalizing the conduct of the providers bringing these actions. It is not third-party standing but first-party standing, because the challenged law regulates the party to the action. These cases do not involve a law prohibiting conduct by 18-year-old men and a lawsuit brought by the bar owner injured by the loss of business. These cases involve laws prohibiting conduct by and imposing punishments on reproductive-health-services providers. Planned Parenthood is asserting first-person standing to raise its own rights not to be held liable or sanctioned under a constitutionally invalid law. True, the law is invalid because it violates someone else's constitutional rights. But the law still targets the party to the action, not the non-party rights-holder. This looks more like United States v. Bond, in which the Court held that a defendant can raise federalism and separation-of-powers defects in the law under which she is prosecuted, without viewing it as vicarious assertion of state interests.

I came up with the following analogy: A state wants to silence a critical newspaper. It enacts a statute prohibiting "mean and critical speech" and creates a cause of action to sue for damages and attorney's fees the companies that provide ink and paper to the newspaper that publishes mean-and-critical speech. I believe a court would allow the defendants to argue that the law is invalid because it prohibits protected speech, even if the speech regulated (thus the constitutional right violated) belongs to the newspaper and not the ink or paper companies. The companies' conduct is regulated by the law and thus they must be able to defend themselves.

Is the civil action under SB8 materially different from that case? In both, someone is being made liable under an invalid law. Maybe the difference is (or should be) between pre-enforcement and enforcement actions. We might limit who can bring pre-enforcement challenges and what rights can be asserted in pre-enforcement challenges. But those limitations should not apply when the invalid law is enforced to impose liability on someone; that defending party must be able to raise the full range of defects in the law to avoid liability and damages.

To the extent the statute purports to limit defendants' ability to challenge the invalidity of the underlying ban, does that violate procedural due process?

Again, this gets litigated in Texas state court. Will state courts faithfully apply SCOTUS precedent to this zombie law and dismiss the enforcement actions? The assumption is that they will not, contra the assumption of parity that guides the study of fed courts. And SCOTUS could review the underlying defenses that the law is invalid. Would SCOTUS touch this? Would a majority object to the temerity of either the state legislature for enacting this or for the state courts in disregarding current precedent?

C.

An Erie problem, because this disaster has everything. Section 4 provides that an attorney or organization who unsuccessfully challenges the validity of any state law regulating or restricting abortion or funding of abortion or represents a plaintiff in an unsuccessful challenge, in state or federal court, is liable for the defendant's attorney's fees.

It is pretty obvious this cannot apply in federal court. An Act of Congress controls the question of attorney's fees in constitutional actions in federal court--§ 1988, which has been interpreted to make fees virtually automatic for prevailing plaintiffs but recoverable by prevailing defendants only if the case was frivolous and even then relatively rarely. So there is no room for the state law, which directly conflicts with § 1988, to operate.

Section 4 circumvents problem by providing a distinct cause of action to recover attorney's fees within three years of the end of the prior litigation. So a plaintiff who prevails in federal court could bring a new lawsuit in state court seeking fees. Does that create a converse-Erie problem?

D

This is a good, if unfortunate, lesson that most people in law and politics do not take procedural arguments seriously, but use them as cover for substantive preferences. The conservative legal project for 30+ years has been limiting standing and causes of action in environmental- and consumer-protection cases, including using Article III to defeat legislative efforts to enable private enforcement. I guess those limitations do not apply in the areas some people care about.

E (Update)

This is becoming a Fed Courts exam.

A reader proposes that the private state-court litigation under invalid state law equals state action under Shelley v. Kramer and New York Times v. Sullivan. So perhaps Planned Parenthood can bring a § 1983 action against the Texas plaintiff once the lawsuit is filed (but perhaps before service), seeking to enjoin the private action because the underlying law is invalid. I do not think it works, but it is worth exploring.

I describe this situation as state action without a state actor (or a person acting under color of law). There is state action in the creation of state law (statutory or common law) and its enforcement in state courts, thus the Constitution plays a role as a defense in the private litigation. The Shelleys could argue that equal protection means they must prevail in the state-court action to divest them of title to the property, The Times could argue that the First Amendment means it must prevail in the state-court defamation action, and Planned Parenthood could argue that due process protects it from liability for performing or facilitating abortions.

But it requires another step to say that Kramer (the neighboring property owner), Sullivan, or Texas anti-choice advocate Billy Bob Smith is a state actor (or acts under color of state law) and thus is subject to a § 1983 suit for filing those civil actions.  That generally does not happen in these state tort cases with constitutional undertones. And rightly so. A private person who avails himself of state law and state processes, even if constitutionally invalid, does not become a state actor and should not become a state actor. Think of the major constitutional decisions involving state tort or other causes of action; all arose as defenses in the civil action rather than by suing the would-be state plaintiff in federal court. Lugar v. Edmondson Oil represents the exception, where the Court found state action because the use of state law (ex parte pre-judgment attachment) required coordination with the clerk of court and the sheriff, so it was more than availing oneself of state law. (Lugar does the state-action work in the series of post-Janus actions to claw back previously paid agency fees). I happen to believe Lugar is wrong. If we are stuck with it, however, it should not extend to the situation of filing a lawsuit under presumptively valid state law.

On the other hand, let me try a different state-action argument that might work. Texas enacted a new law banning some conduct, then delegated to private individuals lacking any connection to the conduct at issue the exclusive power to enforce that law while declaiming all governmental enforcement. And it declaimed government enforcement specifically to prevent pre-enforcement challenges. Perhaps enforcing state law is a "traditional-and-exclusive government function," delegation of which creates a state actor. This is not to say that every private attorney general acts under color. But perhaps it is different if the government turns all enforcement to the private AG. That argument is at least non-frivolous.

If Planned Parenthood could get past that state-action problem, another hurdle awaits--Younger. In the ordinary case, Planned Parenthood would bring a pre-enforcement action in federal court against the responsible executive official to enjoin enforcement. But it has a time window in which to act--if the state initiated an action to enforce the abortion ban, Younger prohibits Planned Parenthood from running to federal court to enjoin that pending enforcement action. Under HB8, however, Planned Parenthood cannot sue the private plaintiff because it has no idea who the private plaintiff will be--it could be anyone. So it must await for Billy Bob to identify himself by filing the lawsuit, at which point Younger arguably kicks in.

But Younger is uncertain in three respects. First, under Sprint, Younger bars federal actions in deference to three classes of state litigation--criminal cases, civil enforcement actions brought by the state, and ordinary civil litigation involving court orders that are uniquely central to the state court's authority (e.g., contempt and pre-judgment attachment). Billy Bob's lawsuit does not fall within any of those three, unless the court extends the second category to include civil enforcement by a private attorney general. Second, if Younger applies to this type of case, it would test Younger's "flagrantly and patently violative" exception, because it is hard to imagine a law more flagrantly and patently violative under Roe/Casey than a ban on abortions at six weeks, before many women know they are pregnant. Finally and alternatively, this might fit the bad-faith exception, because the plaintiff could not win a valid (under current judicial precedent) judgment. A district court held earlier this year that the exception applied to a new action to sanction Masterpiece Cakeshop for refusing to back a cake for a trans woman following the SCOTUS decision. It is even more obvious that a fetal-heartbeat law is invalid under Roe/Casey and that any judgment would be invalid.

Posted by Howard Wasserman on May 20, 2021 at 11:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, May 10, 2021

Twiqbal and accrual

The Eighth Circuit held last week that a claim for retaliation accrues at the time of the retaliatory actions and comments suggesting retaliatory motive. (H/T: Volokh Conspiracy's Short Circuit). The case arises from the 1989 kidnapping and murder of an 11-year-old in central Minnesota, a national-obsession case I had never heard of; I plowed through the In the Dark podcast on the case over two bike rides this weekend.

Daniel Rassier and his mother, Rita, owned the farm at the end of the driveway near which the abduction occurred; the killer turned around and parked in that driveway for a time on the night of the attack. Beginning around 2004, Daniel publicly criticized the new county sheriff, who had begun focusing on Daniel as a possible suspect. In 2009, the sheriff sent the victim's mother into a conversation with Daniel wearing a wire, hoping to catch him saying something incriminating; Daniel instead criticized the sheriff and the investigation. Upon hearing those critical comments on the wire, the sheriff obtained a search warrant for the Rassier home and publicly named Daniel a "person of interest" (a meaningless term that should be retired). During the search, the sheriff allegedly twice told Daniel, "this is what happens when you talk." The sheriff repeated these statements to the podcast reporter, suggesting there are ways a person should not speak about an investigation. Daniel obviously became a social pariah after these accusations, including losing his business giving private music lessons.

The killer, Danny Heinrich, was identified in 2016 and confessed, pleading guilty to one count of possession of child pornography (the podcast discusses the reasons for that). The sheriff never apologized or acknowledged the mistake in suspecting Daniel. This plays into the podcast's theme that the police screwed the case up (they identified the perpetrator within a few days, then failed to put together the necessary information) and that this county sheriff's office has a notorious track record for failing to solve major violent crimes.

Daniel and Rita sued in 2017, less than a year after Heinrich's confession but seven years after the search (the limitations period is six years). Daniel argued that the claim did not accrue until 2016, when two things happened: 1) Heinrich confessed, thus establishing Daniel's innocence of the crime; and 2) Daniel read an unsealed copy of the sheriff's warrant affidavit, which he said was the first time he had written proof of retaliatory motive. (The podcast reports on a the transcript of the warrant hearing, which shows law enforcement making stuff up). The court rejected the argument, holding that 1) there is no requirement of certain innocence before the claim can accrue and 2) the sheriff's oral statements gave Daniel notice and a basis to believe there was a retaliatory motive, starting the clock on the claim.

Had Daniel sued prior to 2016, he would have alleged the sheriff's statements, along with facts describing the search, his criticism of the investigation, the various investigative failures, and his innocence of the crime. The court states that those facts gave Daniel notice of a viable claim. The court implies that this would have been sufficient to state a claim and that he could have found the affidavit in discovery and used it to prove his case.

But would those facts, without the allegations based on the affidavit or the sheriff's later stattements, have survived a 12(b)(6) under Twiqbal? The court might have held that the sheriff's isolated statements are ambiguous or capable of alternative understandings, rendering retaliation a possible-but-not-plausible conclusion from the facts. Other allegations of retaliatory motive, without the evidence of the affidavit or other specific facts showing intent, might have been rejected as conclusory. So might the allegations that Daniel was innocent of the kidnapping/murder. Thinking of what Daniel could have known between 2010 and 2016, it is unlikely he had enough to survive dismissal.

This case places the problem in some relief. A claim is said to accrue when the injured person "can file suit and obtain relief." For a retaliation claim, that is the time of the retaliatory act combined with some basis to believe there was a retaliatory motive. But Twiqbal disconnects filing suit and obtaining relief. The information sufficient for the claim to accrue and to compel suit might not, when reduced to writing, be sufficient to survive a motion to dismiss. That seems problematic.

Posted by Howard Wasserman on May 10, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, May 06, 2021

Judge Newsom goes Full Fletcher

The Eleventh Circuit held Thursday that a hearing-impaired individual has standing to bring ADA and Rehabilitation Act claims for damages against a municipality for failing to make videos on its web site accessible to the hearing impaired. (H/T: Longtime reader Asher Steinberg).

The notable part is the 50+-page concurrence from Judge Newsom, who goes Full William Fletcher to argue that there is no distinct Article III standing inquiry distinct from the merits, using examples from Fletcher's foundational article. What gets called standing is about the existence of a cause of action and the violation of a legal right and remedy, going to the merits of the claim and not to the court's jurisdiction. Congress' power to create causes of action is not unlimited. But the limitation comes not from Article III, but Article II and the power of the President to execute the laws. The requirement of a particularized injury is a way to distinguish public from private rights or actions to vindicate the rights of the individual--which Congress can enable--from actions, such as criminal prosecutions, to vindicate the rights of the general public--which reside with the executive and cannot be delegated to private individuals. Newsom acknowledges that his approach does not eliminate difficult line-drawing and hard questions to divide public from private rights. But there is value in focusing on Article II rather than Article and thus "seeking answers in the right place." And, I would add, value to analyzing it as a matter of merits rather than jurisdiction.

I could not have said this better myself. And I have tried in this space, a lot.

Posted by Howard Wasserman on May 6, 2021 at 07:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, April 19, 2021

Bad state action arguments (Updated)

MyPillow, facing a billion-dollar defamation lawsuit by Dominion Voting Systems over Mike Lindell's post-election nuttery, has sued Dominion (note: It is a new action, not a counterclaim--not sure why). It asserts claims for violations of the First Amendment and due process.

How? Here is ¶ 89: "Defendants, at all times relevant hereto, were performing and fulfilling a traditional and exclusive state and governmental function of administering public elections, pursuant to state statutes, ordinances, regulations, customs, rules and policies established thereunder, and as such, were acting under color of state law."

Administering elections qualifies as a traditional-and-exclusive public function, when the government delegates or turns control over the election machinery to a private entity, such as the Democratic Party in Jim Crow Texas. It does not apply to government contractors who support the government in performing those traditional-and-exclusive government functions. So this argument is silly and doomed to fail. Although I suppose it at least has a better doctrinal base compared with those arguing that Twitter, YouTube, et al. act under color because managing a "speech forum" is a public function or because § 230 immunity makes them the government or because saying they are committed to free expression makes it the government.

Update: Fleshing this out a bit following an email exchange with a reader.

    First, none of this matters to the present action. Even if Dominion acted under color in performing election-related functions, it does not act under color for all purposes. The allegation in this action is that Dominion violated the First Amendment by publicly criticizing and suing MyPillow for defamation. Dominion is not under color in doing that, because it is not wielding any authority derived from government. The claim is not saved by the argument that Dominion was responding to MyPillow criticisms of Dominion's allegedly under-color election conduct. The chain of causation does not extend so far. Devin Nunes--an actual government official--does not act under color when he sues cows for criticizing how he performs his (under color of law) government functions.

    Second, Dominion's supposed malfeasance was all over the place in the post-election litigation and various Kraken and Kraken-adjacent complaints were loaded with allegations of how Dominion voting machines helped throw the election to Biden. No one thought to include Dominion in any of those suits on this theory?

    My presumption in these arguments is that Dominion's role is limited to selling/renting the machines to the government, installing them, training government officials on them, and providing technical support where necessary; Dominion is not more actively involved in running the collection and counting of votes. This makes Dominion like the company that provides tasers or handcuffs for police--even if those devices somehow contribute to the constitutional injury, providing them does not alone create state action. A greater level of joint cooperation with government officials might change the conclusion, creating joint participation and a nexus because government enables the private misconduct. (The example from a reader is police hiring private security to provide additional crowd control at a public event). The complaint does not provide any facts showing a greater level of engagement by Dominion.

Posted by Howard Wasserman on April 19, 2021 at 04:18 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, April 11, 2021

Universality in Tandon v. Newsom

Christopher Sprigman started a Twitter thread contemplating what happens if California disregards or circumvents the order in Tandon v. Newsom. A different thread derides the suggestion as "stupid." I do not believe California will attempt this, so the issue is academic. But we can illustrate how litigation operates by parsing this specific case.

We need to break down what state officials might attempt to do and against whom.

Tandon was a lawsuit by ten plaintiffs, individually. Newsom and other California officials are enjoined from enforcing COVID restrictions against these ten individuals and the religious groups they head. Any attempt to enforce against them would constitute disregard for a court order. It could be punishable by contempt, sanctionable by fines and, in the extreme, jail. And yes, Biden would be obligated to send in US Marshals, if not the 101st Airborne, to enforce the court's order against state officials as to these ten plaintiffs.

No court order prohibits Newsom and other California officials from attempting to enforce the regulations against anyone other than those ten individuals. State officials therefore would not be in contempt of any court order in attempting to do so. Nor would they be "disobeying" the Supreme Court, because the Supreme Court did not order them to refrain from doing anything as to anyone other than those ten plaintiffs. And Biden and the US Marshals would play no role, because there is no court order to enforce.

What would happen if Newsom or other state officials attempted or threatened to attempt this?

    • The new targets would sue in federal court, asking for an injunction to protect them.* They should get it, although a lot depends on how much precedential force these per curiam shadow-docket "decisions" or "orders," even with five justices behind them, carry. They may carry force less as precedent than as a looking threat--lower courts are on notice that failure to enjoin will be summarily reversed by SCOTUS, which now sees it as its job to superintend litigation without awaiting finality or full briefing. Either way, it seems likely that the district court would issue that injunction prohibiting enforcement against these new targets. The new targets also could obtain attorney's fees as prevailing parties, which might be the strongest drag on pursuing this strategy. This new judgment and injunction protects these individuals against enforcement by these state officials. Were officials to continue enforcement efforts as to these plaintiffs, they would be disobeying a court order; subject to contempt, fines, or other sanctions; and subject to action by US Marshals.

[*] Alternatively, they might join as plaintiffs in the current action and ask the court to expand the injunction. There are some close Rule 20 joinder issues there.

    • The new targets also might ask for damages from the attempt or threat to enforce, even if only nominal. The question then is whether the defendants would lose qualified immunity for their actions. Is it now clearly established that COVID regulations treating religious practice less favorably than any other activity (comparable or not) violates the First Amendment? Again, it depends on how courts treat these orders as precedent that clearly establishe a right.

Would Justices Thomas and Gorsuch, both on record as rejecting application of injunctions beyond the names plaintiffs to that case, disagree with any of this?

This is the first time we have seen this idea from the left; previous talk of "resistance" efforts came from the right, in response to Brown and Obergefell. And it does no good to distinguish this case as involving a "rule that religious people get to ignore the law." Any framing--here, in Brown, or in Obergefell--reduces to disagreement with the substance of a decision and an attempt to convert disagreement into a suggestion of illegitimacy.

Posted by Howard Wasserman on April 11, 2021 at 05:12 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thoughts on Caron Nazario lawsuit

Here is the complaint. A few thoughts.

• The complaint is uniquely specific and precise about the facts because the plaintiff obtained the officers' body-camera footage and footage from his cellphone. He could review (and cite to) evidence in the pleading. No need to rely on boilerplate, to plead on "information and belief," or to plead in general terms. No Twiqbal problems here.

• The First Amendment claim is interesting. He alleges that the officers threatened to retaliate against him by pursuing charges if he exercised his First Amendment petition rights and complained, then filed false reports in furtherance of that effort. First Amendment retaliation is tough--the plaintiff must prove the officers did not have probable cause to arrest for anything, which typically  is tough to show. But the camera footage helped in framing that claim.

• The complaint does not try to do too much. Nazario sues only the officers for the immediate violations. He does not try to weave a failure-to-blank theory to establish municipal liability based on patterns of past misconduct by these or other officers. The complaint also does not spend pages weaving this action into the broader national problem of police abuse. It does not employ outraged rhetoric to appeal to the reader's emotion. Such information would not be legally important to this case (except in furtherance of the failure-to-train theory that the plaintiff does not pursue). But it would be politically important in placing this case in a bigger picture and drawing public interest and attention to the case. Beth Thornburg coined the term "pleading as press release" to describe using the complaint to speak to, and litigate one's position in, the public . Whatever the merits of doing that, it is interesting that this plaintiff and his lawyer did not try it. Maybe the video, which is all over the internet, performs the work that the language of the complaint ordinarily would perform--news stories can describe the video rather than quoting outraged rhetoric in the pleading.

Posted by Howard Wasserman on April 11, 2021 at 01:05 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, March 30, 2021

Tenth Circuit adds to the pantheon of awful qualified-immunity decisions

From the Tenth Circuit, in a case arising from Denver police seizure of a tablet computer from a bystander who filmed police using force against another person. This involves less egregious facts than six hours in a feces-laden cell or stealing coins while executing a warrant.  But it demonstrates how far afield the analysis has gone.

Denver police department told officers in their training that the First Amendment protected the right to record. The officers disregarded express departmental guidelines--that is, they knew their conduct violated the First Amendment as they had been instructed on it. The court said that was irrelevant because: 1) the officers' subjective knowledge of their wrongdoing is irrelevant under Harlow's objective standard and 2) only judicial opinions can clearly establish rights because the Constitution means what the courts say, regardless of any training by the executive department.

This seems wrong for several reasons.

First, the standard that SCOTUS has floated in recent cases is that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." What does that second point mean if it does not allow immunity to be lost when the officer knows the law and still violates it. Second, SCOTUS has looked at departmental guidance in the qualified immunity analysis. In Wilson v. Layne, the Court pointed to US Marshal regulations allowing media ride-alongs and said they could establish the lawfulness of conduct, so long as they were not obviously unconstitutional; it should follow that guidance can establish what is not lawful. In Hope v. Pelzer, the fact use of the hitching post was prohibited by Alabama Bureau of Prisons guidelines helped clearly establish the right, along with not-quite-on-point precedent. And the Third Circuit in Fields v. City of Philadelphia considered the role of departmental policy in clearly establishing a right, although the court there said the regs did not clearly establish the constitutional right because it was not clear that the regs were grounded in the First Amendment as opposed to good policy. Nevertheless, the parties and the court worked on the understanding that departmental policy is part of the analysis. At the same time, of course, the existence of department policy instructing officers allows the city to avoid municipal liability because they had trained their officers on a highly protective version of the First Amendment.

Second, the sort of naked judicial supremacy is unwarranted and unjustified. Yes, executive interpretation will yield to judicial understanding once matters hit court. But the court leaves no room for departmentalist interpretation and training.

Third, the court pulled an interesting sleight-of-hand in looking at law from other circuits circa 2014 (when these events occurred). Four circuits had recognized some First Amendment protection for recording of police pre-2014. A "robust consensus" of non-SCOTUS authority can clearly establish. But the court said none of those courts had found the right clearly established; the court was more persuaded by the non-finding of the right as clearly established (although some cases were not for damages and thus immunity was not in issue) than by the conclusion that the First Amendment was violated. And one of the cases had a dissent (Judge Posner dissented in the Seventh Circuit case), suggesting a disagreement among judges that precludes a right being clearly established.

Fourth, the court bypassed the merits. Why? Because everyone in the case agrees that the First Amendment right to record exists and was violated here. And the constitutional question is best resolved in an adversarial posture featuring powerful arguments on both sides. So not only are these officers are off the hook, this case does not put the next officer on the hook for the same misconduct. And the court may have offered officials a wonderful new strategy in § 1983 cases: Concede the merits, prompting the court to skip ruling on the merits and allowing the officers to prevail because the right is not clearly established for lack of necessary judicial precedent. Of course, the court will never provide that precedent. And if formal government policy cannot clearly establish a right, litigation concessions certainly cannot do so.

A depressing piece of work. I am curious to see if it survives en banc review. Or if this will be the case that prompts reconsideration of this mess.

Posted by Howard Wasserman on March 30, 2021 at 02:38 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Trying and failing to keep standing and merits distinct

The Eighth Circuit offers the latest example, in a First Amendment challenge by vegan food producers and advocates to a Missouri law prohibiting misrepresentations of products as "meat" when not derived from animals.

The majority held the plaintiff had standing but had not shown a likelihood of success on the merits entitling it to a preliminary injunction, while the dissent argued that the action should have been dismissed for lack of standing. But everything turned on the same issue--whether the plaintiffs' proposed conduct violated the law and whether they were likely to have the law enforced against them, given that they did not "misrepresent" their plant-based products as being "meat." The majority said that standing is analyzed under Susan B. Anthony List, which requires a showing that the statute "arguably" reaches the plaintiff's conduct and there exists a "credible" threat of enforcement. But SBA "does no work" beyond standing; the merits of the claim (and the first prong of your injunction analysis) asks whether the plaintiffs' conduct was "likely to be seen" as violating the statute. On the other hand, the dissent took those same facts as not establishing standing.

The majority cited circuit precedent acknowledging that standing "tracks" merits and is "closely bound up" with whether the plaintiff is entitled to relief. But the court insists they are not "coextensive" and must not be "conflate[d]." But if the concepts turn on the same fact, they are doing more than tracking one another. If two judges look at the same fact and one uses it to find the absence of a cause of action and one uses it to find a lack of standing, they begin to sound coextensive. Which raises the question of why courts bother--why spend so much time on standing only to use the same fact to find a failure on the merits.

Posted by Howard Wasserman on March 30, 2021 at 11:34 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Sunday, March 21, 2021

Qualified immunity, inconsistency, and level of generality

A practical problem with qualified immunity is its inconsistency. This is especially true with respect to the level of generality at which a right is defined, which often determines whether a right is clearly established--the broader the level of generality, the more likely that precedent, created on different facts, can clearly establish. Case in point: The District of New Mexico holding that it was clearly established in 2019 or 2020 that a local elected official violates the First Amendment by blocking people from their private Facebook page.

At first glance, this seems impossible. SCOTUS has never addressed this, nor has the Tenth Circuit (which includes New Mexico). The two appellate decisions holding that the First Amendment prevents government officials from blocking people on social media--the Second Circuit in Knight Foundation and the Fourth Circuit  in Davison--came in 2019. That is not a "robust consensus" of lower-court of precedent. But the court did not look for such factual specificity. Rather, the rights at issue were to be free from viewpoint discrimination in online spaces used as "metaphysical" public fora and from viewpoint-based retaliation in those public forums.

This stands in sharp contrast to the typical approach. Even outside the absurd cases ("precedent saying it is unlawful to steal drugs during a search does not clearly establish that it is unlawful to steal coins during a search"), courts look for at least some factual similarity beyond general free-speech principles. An official blocking a user from her private page, while leaving that person otherwise free to say whatever he wants wherever he wants, is a far cry from a state banning individuals from all social media.

Perhaps this is how things should be. If qualified immunity must remain, perhaps courts should think about rights more broadly and in a less fact-bound way. But it is out of step with current immunity doctrine, including from the Tenth Circuit, that "viewpoint discrimination" is not a sufficiently specific right.

Posted by Howard Wasserman on March 21, 2021 at 03:11 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, March 11, 2021

Twiqbal and voting

I  doubt I am in the first person to draw this connection, but here goes:

The political group(s) pushing to restrict voting rights are the same group(s) who seek to restrict access to courts and to civil justice. The real reasons for restricting access are the same--the people they want to win will not win if there is broad access (Republican candidates v. governments/businesses/persons who engage in certain types of wrongdoing). But they cannot acknowledge those real reasons. So they create evidence-free arguments equating expanded access with abuse of the system (massive voter fraud  producing an incorrect, inaccurate winner v. frivolous litigation with burdensome and disproportionate discovery hurting innocent companies and producing coerced or inaccurate judgments).

Posted by Howard Wasserman on March 11, 2021 at 08:58 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, March 08, 2021

Nominal damages, past injury, and a morass to come

SCOTUS decided Uzuegbunam v. Preczewski Monday, holding 8-1 (Thomas for the Court, Roberts dissenting) that nominal damages are a retrospective remedy and plaintiffs can pursue them as the sole remedy for a past constitutional violation. The decision allows plaintiffs to vindicate rights (e.g., the right to protest in a time, place, and manner to which the plaintiff was entitled) that are easily violated but rarely, if ever, worth a lot of money. It also strips government of the power to moot cases after they have begun by repealing the challenged policies, at least where the plaintiff can show an injury from when the policy was in effect.

But the decision leaves many issues open and to be resolved by lower courts going forward.

One is how prevalent this practice will become. Will every plaintiff challenging the validity of a policy include a nominal-damages claim to guard against the government mooting the case? And how will this affect the willingness of courts to say the prospective claim is moot if there is a retroactive claim keeping the case alive? Courts are all over the map on when the repeal of an executive or department policy moots a case and when it is the sort of voluntary cessation that does not moot the case. On one hand, a court may hold the prospective claim not moot, since the nominal-damages claim will keep the case in court. On the other, it may be happy to dump the prospective claim and focus on a small-money claim for a likely de minimis past injury.

Second is how this affects attorney's fees, which was the hidden import of this case. A plaintiff who recovers nominal damages is a prevailing plaintiff entitled to fees under § 1988. Had this case come out the other way, it would have upped the incentive for government to repeal challenged policies, mooting the case and immunizing itself from fees.

But even if fees are available, the amount of recovery may be limited where the plaintiff only receives nominal damages after seeking more--when a plaintiff recovers nominal damages but nothing else, the reasonable fee may be "nothing." Courts might narrow the degree to which the plaintiff prevails, and the amount of fees she recovers, where the government repeals the challenged policy; the plaintiff prevails "only" on the past violation and can recover only for that legal work. An increase in nominal-damages actions may produce a drawback in the amount of fees courts are willing to award.

Third, Jim Pfander proposes that Congress should amend § 1983 to allow plaintiffs to bring claims seeking nominal damages--foregoing compensatory, punitive, and other substantial damages in exchange for the defendant being unable to assert qualified immunity. On one hand, this case treats nominal damages as a remedy consistent with Article III and thus within Congress' power to enact by statute. But the logic of Pfander's proposal is that nominal damages function like an injunction or declaratory judgment, neither of which is subject to qualified immunity. But today's decision paints nominal damages as s a retrospective remedy. Of course, the policy concern for an officer paying out of his own pocket disappears if he only will pay $ 1. But the validity of the proposal turns on that policy, not on the analogy between injunctions and nominal damages.

Fourth, the case illustrates the Court ongoing use of Article III to constitutionalize all sorts of merits questions. The majority talks about the need to show standing and a cognizable cause of action, assuming they are obviously distinct and never recognizing their unavoidable overlap. The Justices continue to make Article III and justiciability as a vehicle to discuss what injuries plaintiffs can recover for and what remedies they can get for those injuries, which should be core merits issues.

Roberts' dissent is worse. He argues (adopting the position of the United States and echoing his dissent in Campbell-Ewald) that a defendant can moot a nominal-damages case by depositing $ 1, avoiding a resolution on the merits. But an action for past injury (as the majority characterizes a claim for nominal damages) never becomes moot. Unlike an ongoing injury that ends when the policy causing injury is repealed, the past injury occurred and does not disappear with payment of money. The payment remedies the injury, putting the plaintiff where she would have been had the past violation of her rights not occurred. But the injury does not disappear and it does not become moot. Unfortunately, Kavanaugh wrote a one-paragraph concurrence to agree with that point in Roberts' dissent, meaning two members of the Court for that absurd position.

Finally, whether characterized as merits or mootness, the question remains whether government can do what the U.S. and Roberts/Kavanaugh would allow: Render the claims recognized in this case meaningless by depositing that $ 1 and demanding the government enter judgment, even if the plaintiff would rather not accept the settlement.

Posted by Howard Wasserman on March 8, 2021 at 01:53 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, March 04, 2021

Twiqbal meets the Kraken and Gondor

The Kraken and other pro-Trump/pro-Republican lawsuits about massive election fraud are fictitious nonsense brought by terrible lawyers. The litigation efforts, and the lawyers who brought them, have been justly ridiculed, But I am curious about one point of criticism--that the plaintiffs failed to offer proof of this massive fraud and the pleadings have been absurd because they included allegations of wrongdoing without proof. The same critics distinguished the leaky press conferences and Holiday Inn legislative "hearings" from courts, where the latter have rules governing proof.

Under notice pleading, however, the plaintiff is not required to plead its evidence or to offer proof of its allegations; the idea is to plead skeletal facts showing wrongdoing and leave it to discovery to find evidence behind allegations. Twiqbal requires more than that, of course. But even Twiqbal does not require a plaintiff to identify the evidence supporting its allegations, only that those allegations be more detailed. In any event, many people criticizing the Kraken pleadings decry Twiqbal for ratcheting up what plaintiffs must do to get into court and proceed to discovery.

Part of the issue is that the plaintiffs not only filed complaints, they sought immediate preliminary injunctive relief, which does require evidence beyond the allegations. something the plaintiffs were unable to provide. That made the motion, which must be supported by proof, more salient than the complaint which does not. Still, responding to a ridiculous complaint by demanding proof seems to ignore how federal litigation begins and the idea that the demand for proof comes later--discovery, summary judgment, and trial. And demanding that Gondor and the Kraken have proof at the outset, when we criticize the courts for demanding the same from a typical civil rights plaintiff, seems disingenuous.

Again, I am not saying these cases should have succeeded. Plaintiffs did need evidence for preliminary relief and did not provide it. But the framing outside the courts seems wrong.

Posted by Howard Wasserman on March 4, 2021 at 08:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Saturday, February 27, 2021

Universality and the CDC eviction moratorium (Updated)

Judge Barker issued a declaratory judgment in Terkel v. CDC, declaring the extension of the CDC's eviction moratorium constitutionally invalid. This creates a split with district courts in Georgia and Louisiana, as Ilya Somin describes. But the Terkel court did not issue an injunction, accepting the government's representations that they would "respect" the DJ; it added that the plaintiffs could "seek an injunction should defendants threaten to depart from the declaratory judgment."

As with all of this, the question becomes scope and what the government can do now. The plaintiffs are one individual and five property-management companies, in an action not certified as a class action. Saying the CDC would “respect” and not "depart" from the DJ should mean respect it as to the parties and that it "departs" it only by attempting to enforce against the plaintiffs, which it is unlikely to do. It should not stop the CDC from enforcing the policy against anyone else, certainly outside of Texas, who lacks the protection of a judgment.

The risk for the CDC in enforcing is that Judge Barker will get mad, issue an injunction, and make it universal. This would be wrong on several levels, beyond the usual normative incorrectness of universality. It would be incoherent for the judge to issue a universal injunction in furtherance of a party-particularized DJ.

Even if universal injunctions are appropriate in some cases, this would not seem to be such a case. This is not the DAPA/DACA cases, in which Texas was worried that non-enforcement outside of Texas causing undocumented persons to migrate into the state looking for driver’s licenses. It is not the sanctuary-city cases, in which allowing enforcement as to non-party jurisdictions injured them by shrinking the pool of available funds. It is not an immigration case, in which there is a perceived command that immigration law be uniform. The only conceivable argument for universality requires every injunction to be universal--the CDC policy is categorical and applies to all landlords who may want to evict people. Unfortunately, that is the argument I would expect Judge Barker to accept.

This case exemplifies when universality is inappropriate. Injunctions must provide the plaintiffs complete relief. These plaintiffs get that if they are protected against enforcement. The enforcement or non-enforcement of the CDC policy against anyone other than these managers does not affect the enforcement or non-enforcement of the policy against these plaintiffs.

Update: DOJ filed a response to a notice of supplemental authority on Terkel in the District of the District of Columbia, arguing, in part, that the Terkel judgment does not extend beyond those plaintiffs and does not prohibit enforcement of the policy against others, including the plaintiffs in the D.C. case (which includes the Alabama Association of Realtors). (H/T: Josh Blackman).

Second Update: DOJ announced an appeal in Terkel with a press release stating: "The decision, however, does not extend beyond the particular plaintiffs in that case, and it does not prohibit the application of the CDC’s eviction moratorium to other parties. For other landlords who rent to covered persons, the CDC’s eviction moratorium remains in effect."

The Court avoided universality in cases challenging Trump Administration policies, because the majority declared the ban valid in the cases in which universality was most central, notably the travel ban. Justices Thomas and Gorsuch have been unequivocal that the judgment in a case cannot extend beyond the parties. It will be interesting to see what they do with a Biden Administration policy that offends their pre-New Deal constitutional sensibilities.

Posted by Howard Wasserman on February 27, 2021 at 05:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Wednesday, February 24, 2021

COVID defeats free speech and the national anthemm (Update)

Members of the East Tennessee State University men's basketball team knelt during the national anthem last week, with the support of the coach. This prompted Republican legislators to sign a letter calling on the heads of the state's universities to adopt policies prohibiting such protests because of a bad song written during a battle we lost in a long-ago war.

The judicial First Amendment questions here are genuinely open. Barnette imposes a clear command against compelled participation in patriotic rituals by the government. But it runs into different rules for job-related employee speech, which may include the power to compel employees to say things as part of their job. And that runs into how to treat unpaid college athletes--people whom universities have spent more than half a century denying are employees--when they "represent" the school and act on the school's behalf

One story on the controversy expressed particular concern for ETSU's upcoming game against VMI, a military institution uniquely offended because, of course, the flag is about the troops and the veterans and not about, you know, the right to peaceful protest. It turns out that will not be a problem, as ETSU's game with VMI has been cancelled--because of positive COVID tests in VMI's program.

Update: FIRE, PEN America, and the National Coalition Against Censorship sent letters to the schools, urging them to resist the calls to stop the athletes from protesting. The letters address, and reject, the legislators' argument that athletes are "ambassadors" for the university and thus speaking on its behalf. It seems to me this is key--if the athletes are in the same position as ordinary students, this is an easy case.

Posted by Howard Wasserman on February 24, 2021 at 11:21 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Thursday, February 11, 2021

You can't pay me to play the Star Spangled Banner

I acknowledge that one drawback to the model of judicial departmentalism I have been pushing is that it allows craven officials to do absurd things for show--enacting and enforcing laws that they know will be declared invalid in court, but happy for the opportunity to score cheap political points. The hope is that loss of qualified immunity, damages, and attorney's fees would be a drag on the worst efforts. But those can only do so much, especially where the money does not come out of the official's pocket and a functionally one-party state (in either direction) means no political consequences.

Case in point: Texas Lt. Governor Dan Patrick announced the "Star Spangled Banner Protection Act," which would require the playing of the national anthem at all events receiving public funding. The proposal responds to the Dallas Mavericks not playing the anthem in empty arenas this season. Something can be a zombie law upon enactment--it merely has to be obviously DOA in a judicial proceeding that must abide by judicial understandings of the First Amendment.

This law, if enacted, qualifies. SCOTUS held that the government cannot condition funds on the recipient engaging in speech that is not part of activities the government is attempting to fund. Whatever public funds Texas gives the Mavericks or their arena are not tied to a government program of, for example, promoting patriotism. That makes this bill a blatant attempt to "leverage funding to regulate speech" to achieve what the First Amendment prohibits through direct regulation. The courts (if not all government officials) understand that the First Amendment prohibits government from compelling private actors to sponsor or participate in patriotic rituals. It should follow that they cannot leverage funding to compel such patriotic rituals. This is not even close.

The law also would be overbroad. Most businesses get state subsidies and other benefits. And what are "subsidies"-- police protection for an event?

Finally, I wonder if Patrick would be ok with the following: "The Racism Prevention Act," requiring all businesses receiving state funding to conduct anti-racism awareness workshops relying exclusively on the work of Ibram X. Kendi and Robin D'Angelo. And if not, draw a content-neutral distinction between this law and his zombie.

Posted by Howard Wasserman on February 11, 2021 at 03:04 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Monday, February 08, 2021

Campus speech (Updated)

This story--a pharmacy grad student suing University of Tennessee after it voted to expel her over sexually suggestive and vulgar, but unquestionably protected, social-media posts (the expulsion was rescinded by the dean)--captures everything that is problematic and misunderstood about attempts to regulate speech on campus.

• The university went after an African-American woman who graduated from University of Chicago and, in her words, "dominated her class," asked a lot of questions, and was a target of colleague complaints on social media. Just as Wisconsin prosecuted an assault by African-Americans against a white victim under its hate-crimes law. Just saying.

• An expert on higher-education law says, "'If someone is shouting in a classroom, you have the right to control the time, place and manner,' he said. 'When they are shouting on Twitter, is it their space or yours?'" This is stupid. First, the comparison is not between Twitter and the classroom; no one believes the classroom is a speech zone or anything other than the professor's space, and a student is punished regardless of what they shout. The comparison is between Twitter and the public spaces on campus opened up for speech; they are the students' spaces, shouting is permitted, and a public university cannot punish some shouting but not other shouting.

Plus, the woman was not shouting. She was posing for non-naked pictures and reciting lyrics. That becomes "shouting" only if you object to the content.

• The story kind of goes off the rails with a detour into Tinker and the Mahanoy case ("Fuck cheer") that SCOTUS will hear later this term. The rules for speech in secondary schools do not apply to college students on college campuses--adults, living in a self-contained "city" that is more than classrooms. There is a reason universities lose most of these speech-code cases, while high schools tend to win them. Discussing both in the same article confuses that issue.

• I am curious about the student's lawsuit. She was not expelled, so she cannot get an injunction for reinstatement or damages from her expulsion. Essentially, she is challenging the investigation that caused her emotional discomfort and distraction and that forced her to hire an attorney. Can a student recover when a public university takes steps to punish on constitutionally violative grounds, even if it does not complete the punishment? Does the university have any power to look into the issues to see if they are protected? Or must the university get one look, say obviously protected, and stop in its tracks? How far can an inquiry go before it becomes a violation? Interesting theory at work.

By the way, UT has been embroiled in a multi-year dispute over whether students can hold an annual "safe sex week." So we are not exactly enrolled in a bastion of free expression and academic freedom.

Update: Here is the Complaint; it makes a bit more sense. The school sought to sanction the woman for violating "professionalism standards" built into the school's academic policies, although stated nowhere in writing. That is a cute attempt at a work-around: "You are not violating public-school policies, but standards of the profession into which you are about to enter." She seeks an injunction prohibiting future enforcement of these unknown, vague, and overbroad "professionalism policies," claiming that she is self-censoring and has reason to fear future enforcement while she remains in school; that makes sense. I remain unsold on the damages theory. She was subject to an intermediate sanction for prior speech--she was made to write a letter about why her speech was bad and then self-censored in the lead-up to the more recent enforcement effort--that may warrant damage. But she seems to be claiming damages for the investigation and proposed expulsion (overruled by the dean) under an invalid standard. As stated above, I am trying to find a theory or limiting principle for how long an investigation can go before it becomes a First Amendment violation. At the very least, it seems to run headlong into qualified immunity and it not being clearly established that the policy is vague.

Posted by Howard Wasserman on February 8, 2021 at 10:32 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, January 29, 2021

Circuit split on public officials' Twitter accounts

A divided Eighth Circuit held that a state legislator did not act under color in blocking people from her Twitter account. She started the account as a candidate and used it primarily for tweets supporting her reelection and explaining why she is the right person for the office, including tweets criticizing her opponent for not placing her hand over her heart during the Pledge of Allegiance. That some tweets promoted her legislative achievements did not overcome the candidate focus, even if speaking with constituents can qualify as action under color. Judge Kelly dissented.

The question of how to treat "public communication" may prove a pivotal issue on these questions of social media and state action. All elected officials communicate with the public and promote their official work with an eye towards reelection and showing why their official work makes them the "right person for the job." But they also communicate with the public and promote their official work because they represent the public and are expected to notify the public of what is being done on their behalf. And so they want the public to keep them in office because they are doing so well on their behalf. I do not see how to draw a sharp line between candidate and official, especially for legislators, especially as the system involves into a perpetual campaign.

I also wonder why the case is not moot, as is Knight v. Trump. The legislator deleted her Twitter account in 2019. So a claim for an injunction seeking to be allowed onto the legislator's Twitter site is not alive if that Twitter site no longer exists. The opinion does not say if the plaintiff sought damages. Or perhaps there is some kind of capable-of-repetition argument--that the official may at some point return to social media. [Update: Or not perhaps not moot because of voluntary cessation--she could reopen her Twitter account at any time].

Posted by Howard Wasserman on January 29, 2021 at 09:03 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (4)

Tuesday, January 26, 2021

Universal injunctions return to the Fifth Circuit

That did not take long, this time over the new "pause" on deportations. Plus, Judge Tipton did not cite me as among the scholars who have criticized these injunctions or urged different nomenclature. It remains to be seen whether SCOTUS continues to use the shadow docket to show its distaste for universal injunctions as it did during the Trump Administration.

Posted by Howard Wasserman on January 26, 2021 at 03:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, January 20, 2021

Maybe the executive is not so unitary (Updated)

Twelve years ago almost to the minute, I wondered about the four-minute gap between noon and Barack Obama taking the oath of office and whether he was President in the intervening four minutes. That they screwed up the oath and redid it lent further oxygen to the question of when a new presidential term begins--at noon on January 20th or upon taking the oath of office.

Today we had the opposite: Biden took the oath at 11:53 (ed: 11:48), twelve minutes before the Constitution says Trump's term ended and the term of his successor began, after which the Chief said, "Congratulations, Mr. President." The prevailing view in 2009 was that he took office at noon and the oath was something between a formality and a precondition to executing the powers of the office held. And I suppose there is nothing inherently wrong with taking an oath prior to taking office. So Biden took the oath and for seven minutes Trump remained President. But then was the Chief wrong to congratulate "Mr. President?"

On the other hand, if the oath makes someone President, then in 2009 we had no President for four minutes (or Biden, who had been sworn as VP at 11:58, was acting president for four minutes). And today we had two Presidents for about seven ten minutes. Too bad Trump did not administer the pardon to Jeanine Pirro's ex at 11:58.

Does anyone know why they altered the timing of the ceremony, to administer the oath ahead of noon?

Updated: The Washington Post offers a brief story with commentary from Jonathan Turley (GW) and Bobby Chesney (Texas). Bobby offers a good reconciliation: The oath class requires the oath "before" a person can take office, but does not explain how long before. Whether intentional, Bobby argues that doing it this way is preferable to the 2009 situation in which you create a gap in which no one is President (or no one is able to exercise the powers of the presidency).

Further Update: Someone on the Conlawprofs listserv argues that if the oath can be administered before the office is vacant, it might be validate for the President to nominate and the Senate to confirm a SCOTUS nominee before the seat becomes vacant, then hold the unsigned commission until the vacancy occurs. Same principle at work.

Posted by Howard Wasserman on January 20, 2021 at 01:24 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Tuesday, January 12, 2021

Mootness and nominal damages

The Court on Tuesday heard argument in Uzuegbunam v. Preczewski, on whether a case becomes moot if the government repeals the challenged policy but a claim for nominal damages remain. A few thoughts.

• Chief Justice Roberts hammers everyone on justiciability and merits melding into one another. But he wants to find ways to draw magical lines, rather than recognizing that they collapse into one another because they are the same thing.

• Justice Kavanaugh recognizes that the real issue here is attorney's fees. A plaintiff cannot recover attorney's fees if the government moots the case by repealing the challenged policy; the real point of the nominal damages claim is to keep the case alive through a claim for retroactive relief on which the plaintiff can prevail.

• There was no discussion of qualified immunity, which also enters this picture. If the nominal damages claim keeps the case alive, it also is subject to an immunity defense. This helps the government avoid paying $ 1, which avoids attorney's fees.

• The case is a weird vehicle for this issue, because the challenged policy was never enforced against one of the plaintiffs prior to its repeal. The "injury" the plaintiff claims is for the past chilling effect of wanting to speak but not feeling able to for fear of enforcement. Chilling effect can be a basis for standing for prospective relief; it is strange to see it as a past injury.

• There was some confusion among a number of concepts--prospective v. retroactive relief, compensatory v. non-compensatory remedies, claims v. remedies. It seems to me the answer to this case is that a plaintiff can bring a claim for a past injury caused by the policy while the policy was in effect--a retroactive injury seeking a retroactive remedy. Having proved past injury, the question is one of remedy--actual damages (however small) or nominal damages in their stead. Counsel for the government seemed to acknowledge the last pairing, insisting that nominal damages is not a claim but a remedy once that claim has been proven. But that should cut against the government's position.

• The case highlights the problems with Buckhannon, in which the Court rejected the "catalyst theory" of attorney's fees, under which a plaintiff prevails if the lawsuit is the catalyst for the government repealing the challenged policy. A plaintiff does not prevail when the policy change is not reduced to a judgment. At the same time, Buckhannon left this case open--whether a claim for retroactive relief can keep the case, and thus fees, alive.

But counsel for Georgia made this point in his closing:

[T]he way that this case was resolved is a good thing. Litigation prompted college officials to review their policies, and just ten weeks later to revise them in a way that maximizes and respected First Amendment rights on campus, not just for Petitioners but for all students. And it even led to an enduring state-wide policy change for every public college in Georgia. That kind of early out-of-court resolution should be encouraged.

Except such a resolution requires that plaintiffs are able to obtain counsel to bring litigation. This is why Congress provides for fees in civil rights cases--to incentivize counsel to bring these cases. But there will be no such change if individuals are unable to bring litigation because they are unable to get counsel because counsel knows that the "good" solution for the government will be to repeal its policy, preempting fees, and thus will not agree to bring the case.

My best guess is that the Court reverses, at least where the plaintiff has suffered past harm from enforcement. But I am always wrong.

Posted by Howard Wasserman on January 12, 2021 at 08:55 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Monday, January 11, 2021

Universal universality (Updated)

The Fourth Circuit affirmed a universal injunction (mistakenly styled nationwide) prohibiting enforcement of the federal policy requiring state and local affirmative consent to accept refugees. The injunction protected six non-party resettlement agencies, in addition to the three plaintiffs.

In affirming as to scope, the court relied on Trump v. IRAP (the pre-Hawaii order that stayed various parts of the travel-ban injunctions) for the proposition that "a nationwide injunction may be appropriate when the government relies on a 'categorical policy,' and when the facts would not require different relief for others similarly situated to the plaintiff." This policy "by its nature" affects all immigrants assigned to all agencies operating throughout the country and a particularized injunction would produce "inequitable treatment of refugees and undermine the very national consistency that the Refugee Act is designed to protect."

One problem with the "universality only in certain cases where appropriate" is that any standards for determining when universality is appropriate collapse to allowing it in every case. This captures that. All policies are categorical and all policies by their nature affect all persons subject to those policies. All policies apply the same to similarly situated non-parties--that is what makes them similarly situated and also what would allow them to form a 23(b)(2) class, which the plaintiffs chose not to do here. Moreover, "inequitable treatment" follows in all cases in which a party obtains a non-class injunction--those who obtained the injunction enjoy a legal protection that those who did not obtain the injunction do not enjoy. That is the point and effect of obtaining an injunction.

If that is the standard, every injunction must be universal.

Update: Sam Bray reaches the same conclusion.

Posted by Howard Wasserman on January 11, 2021 at 11:19 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (1)

Saturday, January 09, 2021

Trump, Twitter, mootness, and attorney's fees

Josh Blackman raises a question about the government's cert petition in Trump v. Knight Foundation, holding that the President violated the First Amendment by blocking people on Twitter: Does the ban moot the case and will the Court issue a Munsingwear order vacating and remanding with instructions to vacate the judgment. But Josh's question is, so to speak, moot. The case always was going to become moot at noon on January 20 when Trump left office and any federal action disappeared. It is conceivable the Court waited on the case for that reason--had Trump won reelection, the case would have remained alive for another four years; when he lost, it was a matter of waiting out the extra few months.

A secondary question is whether the plaintiffs will be able to get attorney's fees under the EAJA if and when the judgment is vacated. Courts and cases are all over the map on whether a plaintiff is a prevailing party if it obtains interim relief that is dissolved on mootness grounds on appeal. Courts look to a number of factors, including whether the interim relief changed the defendant's conduct and gave the plaintiff what it asked for while it lasted and the length of time the interim relief was in place. Under that, Knight should be a prevailing party. The district court issued its judgment in May 2018 and the Second Circuit affirmed in 2019, meaning the plaintiffs have gotten what they wanted--being unblocked and able to read the President's tweets--for more than two years. More importantly, the plaintiff's desire and constitutional entitlement to continue doing so was always time-limited, ending whenever Trump's term ended (January 20 2025, at the latest). That sounds like a meaningful change in the relationship between the parties for the precise period the plaintiffs wanted.

Also relevant is that the district court granted declaratory, but not injunctive, relief against Trump (the aide who run his Twitter account was enjoined). Courts are again mixed as to whether a declaratory judgment alone is sufficient to make a plaintiff a prevailing party, especially where other relief is denied. Here, it should be relevant that a DJ is the only remedy the plaintiff could get from Trump, since courts will not, and perhaps cannot, enjoin the President (as opposed to All the President's Men).

Posted by Howard Wasserman on January 9, 2021 at 06:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, January 08, 2021

July ('74): District of Columbia

Reports are that Nancy Pelosi spoke with Joint Chiefs Chair Mark Milley about "precautions" against Trump starting a war. We are in July 1974 territory when military and DOD officials were informally telling one another to ignore potentially crazy orders from President Nixon, who was drinking heavily, sensing that the end was near, and a threat to lash out. Of course, Nixon was an intelligent person with some baseline respect for the constitutional order (yes, he committed crimes--there are obvious degrees).

We are not so fortunate at the moment.

Posted by Howard Wasserman on January 8, 2021 at 12:49 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

No on Brandenburg (Updated)

Updates at bottom.

Here is the full transcript of Soon-to-be-Ex President Trump's remarks to the pre-sedition rally. After reading it (and at this point hearing Trump's voice as I read his words), I will follow-up on this post by being more assertive: There is no way this is punishable incitement under Brandenburg.

The speech is largely a string of oral tweets from the past few weeks and months and no different than what he has said at rallies, most recently on Monday in Georgia: The press as enemy of the people and not telling the truth; fanciful and farcical nonsense stories about election misconduct; "sir" stories about the people who are nice to him; touting of his accomplishments as President;* crowd size; cancel culture and critical theory; and the usual airing of grievances 11 days to late. He also laid out a series of election-reform proposals. And he told lies about what the Constitution allows or requires.

[*] There is an amazing disconnect. Before Wednesday, Trump still had competition from Andrew Johnson and James Buchanan. That race is over. But Trump and his supporters continue to talk about him as one of the top Presidents.

The words spoken matter--they must explicitly or implicitly encourage lawless action, allowing for rhetorical hyperbole, overstatement, and even offensiveness. Second, and related, Eugene Volokh argues that modern doctrine is unlikely to treat as incitement words that do not on their face call for unlawful conduct (e.g., Antony's funeral oration or the often-misquoted "will no one rid me of this troublesome priest"). Third, context matters. The lawless action must be "imminent" and "likely." So the same words spoken in front of a large crowd determined to "stop the steal" two miles from the Capitol while votes are being counted is different than spoken at a rally in northern Georgia on a Monday night. Finally, whatever we may think we "know" about Trump's intent, it is hard to prove beyond a reasonable doubt.

The general content here is not incitement of anything; it is standard Trumpian fare. It does not matter that the speech is designed to get the crowd upset at the injustices visited upon Trump and upon them.  Nor does it matter that it is likely or foreseeable that some would act unlawfully upon hearing these words and becoming outraged. The point of moving to Brandenburg from the old clear-and-present danger test was that we punish conduct not speech and that we do not routinely punish speakers because of what unconnected third parties do. We also want to leave speakers free to engage in words--one man's vulgarity and all of that.

With that in mind, much of this speech does not call on or encourage anyone to do anything, much less something that is lawless and imminent.

Here are the only segments that might come close:

1)

All of us here today do not want to see our election victory stolen by a bold and radical left Democrats which is what they are doing and stolen by the fake news media. That is what they have done and what they are doing. We will never give up. We will never concede. It doesn't happen. You don't concede when there's theft involved.

Our country has had enough. We will not take it anymore, and that is what this is all about.

And to use a favorite term that all of you people really came up with, we will stop the steal.

This is from the beginning of the speech. It is hard to see this as other than hyperbole.

2)

We will not let them silence your voices. We're not going to let it happen.

Not going to let it happen.

[This was followed by a chant of "Fight for Trump," for which Trump thanked the crowd].

He is urging the crowd to not let the silencing of their voices happen, not to engage in unlawful action.

3)

[Speaking of Pence doing the non-thing of sending the votes back to the states] That takes courage, and then we are stuck with a president who lost the election by a lot, and we have to live with that for four more years. We're just not going to let that happen.

This could be read as urging people to not to let happen the four years of the Biden Administration. But, again, allowance must be made for rhetoric and hyperbole.

4)

We're going to walk down. Anyone you want, but I think right here, we're going to walk down to the Capitol--

And we're going to cheer on our brave senators and congressmen and women and we're probably not going to be cheering so much for some of them.

Because you'll never take back our country with weakness. You have to show strength and you have to be strong.

We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. Lawfully slated.

I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today, we will see whether Republicans stand strong for integrity of our elections. But whether or not they stand strong for our country, our country. Our country has been under siege for a long time.

This was the segment that has been making the rounds in the media and that I quoted in my prior post. Note that last paragraph specifically speaks of marching to "peacefully and patriotically make your voices heard" after calling for strength. In rejecting tort claims against Trump arising from a 2016 rally, the Sixth Circuit emphasized that Trump followed his call to get the protester out, the alleged incitement to assault, by saying "don't hurt him" as mitigating the meaning of the words and the intent. Similarly, the call for strength is tempered by the call to do it peacefully. That call for peacefulness is perhaps tempered the other way by the subsequent insistence that the country has been "under siege"--peacefully talking is not the "strong" response when one is under siege.

In any event, again, fiery rhetoric is allowed.  Also, in terms of imminence, the above occurred less than 1/5 of the way into the speech. So does that mitigate the intent or likelihood of encouraging imminent lawlessness if he then keeps talking? Eugene Debs spoke for something like three hours in Canton.

5) This is the final 90 seconds-or-so:

I said something is wrong here, something is really wrong, can't have happened and we fight, we fight like hell, and if you don't fight like hell you're not going to have a country anymore.

Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children, and for our beloved country, and I say this despite all that has happened, the best is yet to come.

So we are going to--we are going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we are going to the Capitol, and we are going to try and give--the Democrats are hopeless, they are never voting for anything, not even one vote but we are going to try--give our Republicans, the weak ones because the strong ones don't need any of our help, we're try--going to try and give them the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue.

Again, not encouraging or hinting at lawlessness. "Fight like hell" lest we no longer have a country is troubling, but in context does not suggest fighting in the physical or unlawful sense as opposed to be speaking out--again, rhetorical hyperbole is fair game. Trump is talking about marching, not storming the Capitol. Urging people to give members of Congress "pride and boldness" could mean peacefully speaking or protesting in support of what the crowd wants and hopes they will do.

This analysis goes to a possible post-January 20 (or even post-January 12) criminal prosecution. It is a separate question whether this constitutionally protected speech could be the basis for impeachment-and-conviction. Josh Blackman and Seth Tillman argue that it cannot.

Without getting too far into the point (this post is already too long), otherwise-protected speech can be the type of abuse of office that impeachment exists to punish. As Volokh argued, the view that Trump's speech was unprotected comes from a gut feeling that POTUS should not engage in such talk, regardless of the Brandenburg line. As he outs it, "Trump's failure was a failure not as a speaker, of the sort that strips speakers of First Amendment protection. It was a failure, a massive and unjustifiable failure, as a public servant." Impeachment exists to remedy those failures. Update: Jonathan Adler and Ilya Somin agree that the First Amendment is not a bar to impeachment, grounded in the broader view that impeachable conduct need not be criminal.

Posted by Howard Wasserman on January 8, 2021 at 11:05 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Monday, January 04, 2021

Court smacks down dumbest election lawsuit and its lawyers

The dumbest election lawsuit was the one in the District of D.C. against Pence, the Electoral College, Congress, and a bunch of state officials, alleging that Article II requires that a state legislature certify the results post-election so any electors appointed without that certification (i.e., all 538) were invalid and could not cast lawful votes. District Judge Boasberg initially gave the plaintiffs busywork of providing proof of service on all defendants, including the Electoral College (which, of course, is not a thing that can be sued). When no such service occurred after twelve days, the court declined to wait any longer and denied the motion for preliminary injunction.

And Boasberg was not messing around. The suit would have been "risible were its target not so grave: the undermining of a democratic electionfor President of the United States." Plaintiffs’ "theory that all of these laws are unconstitutional and that the Court should instead require state legislatures themselves to certify every Presidential election lies somewhere between a willful misreading of the Constitution and fantasy." And this is the closer:

Yet even that may be letting Plaintiffs off the hook too lightly. Their failure to make any effort to serve or formally notify any Defendanteven after reminder by the Court in its Minute Orderrenders it difficult to believe that the suit is meant seriously. Courts are not instruments through which parties engagei n such gamesmanship or symbolic political gestures.As a result, at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.

Many have noted the absence of sanctions in these cases, despite all being patently sanctionable. One reason may be the details of FRCP 11 and the incentives of parties and courts. Rule 11(c) imposes a safe harbor--before seeking sanctions, a party must notify the opposing party of its intent to seek sanctions (by serving, without filing, a copy of the proposed motion for sanctions) and give the party 21 days to cure the sanctionable conduct, as by withdrawing or amending the challenged paper. But the defendants in these cases want these cases to go away, not to drag the cases out by giving the plaintiffs time to cure. And most courts have held that the safe harbor means that sanctions cannot be sought after dismissal, so post-dismissal sanctions are not possible. Meanwhile, judges have the same interest as defendants in making these cases go away and no desire to keep them around with additional rounds of satellite litigation.

This was was unique in several respects, so it makes sense that it might trigger sanctions activity. Because plaintiffs never bothered serving anyone, the case never reached an adversarial posture; the judge was on his own own. And the theory and construction of the case was uniquely loony. That combination raised the suspicion, more than the other Kraken cases, that this was a political show and nothing more.

One more thing, because it is something I expect to see in the coming months. The plaintiffs alleged that they had been "disenfranchised," which Boasberg said was not true since they had voted and their votes counted. But "disenfranchisement" means something different in the minds of these groups of voters and advocates. The "franchise" means not that I was able to vote or that my vote was counted, but that I was able to elect the candidate of my choosing; I am disenfranchised if my candidate loses. This framing is not new. Many of the early Tea Party rallies in 2009 and 2010 were covered as complaints of disenfranchisement--the protesters were disenfranchised because the person they did not vote for had one and he was pursuing policies they did not favor. That is certainly grounds for protest; it is not disenfranchisement and should not be accepted as such.

Posted by Howard Wasserman on January 4, 2021 at 03:20 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

Sunday, January 03, 2021

Political parties and notes on a broken process

A jumble of thoughts on the role of political parties in presidential selection and what happens next.

The Framers considered but rejected legislative selection of the executive, fearing that a president chosen by Congress would not be sufficiently independent of the body to which he owed his office. That is why the states were empowered to decide the methods of choosing electors and why the electors would act on their own. The House contingent election was a necessary fail-safe. At the same time, some believed that fail-safe would become the norm, at least once George Washington left the scene. They doubted one figure could attain sufficient national recognition and support to achieve an EC majority, especially in a race among multiple candidates representing different regions and interests. These figures expected the EC to become a screening mechanism to produce two or three candidates, from whom the House would select the President.

The unforeseen (or unaddressed) development of political parties and settlement into a two-party system allowed the Electoral College (as tweaked by the Twelfth Amendment) to function as a true selection mechanism, making the contingent election an unnecessary vestige. The one post-Washington election that operated as the EC was designed on paper was 1824--and it produced the contingent election that some Framers expected or feared. There were no competing political parties and multiple candidates represented different regions and interests within that party, none of whom had the national stature to gain a majority. Otherwise, the competition between two major national parties ensured sufficient support nationwide support for one candidate, absent a breakdown in state processes (as happened in 1876 but has not happened since, including this year, conspiratorial fantasies aside). The congressional role became ministerial and ceremonial--count the votes and confirm the winner of state-controlled processes.

The 140+ House Republicans and dozen Senate Republicans planning on making futile-but-dangerous mischief on Wednesday have clothed themselves in a vision in which Congress plays a substantive role in checking the limits of the EC and choosing the President. Ted Cruz has pointed to 1876 and the congressional commission; historical ignorance aside, Cruz argues that Congress can and should exercise meaningful power in looking under the hood of state and EC processes--the House as the ultimate arbiter of the election. Never mind that this vision has never controlled in 240 years of elections. On the other hand, the two-party system means that a congressionally selected President would not be dependent on Congress as the Frames feared when they rejected legislative selection. Party identification unifies the branches, so congressional Republicans support rather than attempt to control a Republican executive whom they chose. Another example of the Levinson-Pildes separation-of-parties-not-powers thesis.

The maneuvering will not give Trump another term in office nor stop Biden's inauguration on January 20th.* It further undermines Biden's presidency. And it lends further cover to the inevitable refusal of all Senate Republicans--not only these twelve, but the silent Rubios and McConnells--to cooperate in any way with the Biden Administration.

[*] The insistence by Peter Navarro on Fox News that Congress could move the inauguration is laughable. But it reflects the moving goalposts. Several people insisted that there was no reason litigation had to end by December 14, since that date did not appear in the Constitution; the implicit argument is that statutory deadlines are meaningless. Apparently, so are constitutional deadlines. Although Navarro may be correct that Congress could move the Inauguration as an event. But that will not keep Trump in office past noon on the 20th.

So what happens after the play-acting fails? Former Republican political consultant Steve Schmidt argues that January 6 will mark the beginning of the end of the modern Republican Party, as the 1854 Kansas-Nebraska Act marked the end of the Whig Party. Both brought to the fore fundamental divides that drove the party apart. As he puts it, the GOP's "Pro Democracy faction and Autocratic factions can no more exist together then could the Whig Party hold together [t]he abolitionist with the Slave master."

I want Schmidt to be correct, but I do not believe he is. Abolitionists and supporters of slavery could not exist within the Whig Party because that fundamental philosophical divide made it impossible to agree on policies or candidates and to do the things political parties are designed to do. The anti-slavery Whigs found a home in the new Republican Party.

But the GOP's factions can co-exist when the smoke clears because the divide is not so philosophical. They will unite around knee-capping Biden (again, has any President had zero judges confirmed) and retaking the House/retaining the Senate in 2022 around a platform of Biden's failure to unite the country as he promised to do. Schmidt imagines a '22 primary bloodletting (including an Ivanka Trump-Marco Rubio primary in my home state of Florida, for which I will buy popcorn and a ringside seat). But, again, GOP party identification unites the factions against the common Democratic enemy once those primaries end. GOP voters will vote for whichever candidate carries the Republican label, the  party's structural advantages means there will continue to be more Rs than Ds in both houses, and the unifying goal will be opposition to the Democrats.

And unlike 1854, there is no place for these pro-Democratic Republicans to go. They are not going to become Democrats. And there is no room in the system for a third party.

Moreover, Mitt Romney and a few others aside, I think Schmidt misidentifies the factions within the party, at least within Congress. There is not a pro-Democracy faction and an Autocratic faction. Instead, there is one windmill-tilting autocratic faction and one pragmatic faction that will not waste time on futile efforts but would be "fine with this effort actually succeeding" and likely would not "refrain[] from supporting it if they thought it could succeed." McConnell is not using or threatening to use any of the tools at his disposal to pull these Cruz, Hawley, et.al in line. Perhaps he knows it cannot work. More likely, he knows that he and the rest of the party benefit from these failed efforts. It is enough to shut up and reap the benefits.

I believe Mike Sacks has it right: "They’re playacting an attempt to overthrow democracy because they think fewer voters will get and stay mad at them for the historically irresponsible stunt than there will be voters who are way into it, don’t care, don’t understand, or don’t even know." Sack was talking about Gohmert, Cruz, Hawley, et al. But it is true of every member of the party's congressional caucus.

Posted by Howard Wasserman on January 3, 2021 at 10:35 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (15)

Thursday, December 24, 2020

Third-party universality

A judge in the Northern District of California has universally enjoined the President's Executive Order on diversity training. Plaintiffs are several non-profit LGBT education and advocacy organizations that do trainings and education programs for local businesses, governments, and health-care providers. These programs cover systemic bias, anti-racism, white supremacy, and other issues the EO attempts to stop. The court held that the EO violates the First Amendment.

The court made the injunction universal/nationwide, based on third-party effects. "Permitting Plaintiffs to provide training regarding “divisive concepts,or to promote those concepts,would do Plaintiffs little good if their sources of employment and funding remain subject to the Executive Order." Pointing to evidence of third-party cancellation of programs in which the plaintiffs were scheduled to participate, "[i]njunctive relief is necessary to allow third parties to hire and/or fund Plaintiffs without fear of violating the Executive Order."

Third-party effects can expand the scope of a particularized injunction, in the sense of protecting those with whom the protected plaintiff engages in its protected capacity. For example, the injunction stopping enforcement of the Muslim travel ban as to the University of Hawaii protected actual and potential students; the injunction stopping enforcement as to HIAS protected actual and potential HIAS clients. Similarly, the court is correct that protecting these plaintiffs requires protecting those who do business with them.

But it did not follow that the injunction stopping the travel ban should protect other state universities, other immigration organizations, or other potential immigrants who have nothing to do with those plaintiffs. Similarly, it does not follow that this injunction must protect other training providers who have nothing to do with these plaintiffs or other entities who do not and would never do business with the plaintiffs. Giving relief to other grantees/contractors, who have nothing to do with the plaintiffs, is not necessary to give the plaintiffs complete relief.

Posted by Howard Wasserman on December 24, 2020 at 01:04 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Friday, December 18, 2020

Godwin's Law of Standing

An intentionally provocative framing of Friday's standing decision: A mayor (to keep the numbers small) issues a memorandum ordering department heads to identify, "to the extent practicable or feasible," all Jewish municipal employees so they may be excluded from receiving annual raises. Jewish employees must be identified by December 31, the date on which annual raises are triggered.

Could it really be that a Jewish employee does not have standing to challenge that memorandum prior to being identified and denied a raise? That each employee must wait until he is denied the raise, then sue?

And if not, how is this different than the census case? Is it numbers--there are more undocumented immigrants in the United States than Jews working in my hypothetical municipality, so it is more likely that all Jews can be identified? Is it the certainty of harm--no raise as opposed to maybe a loss of money or seats?

I should add I know there is no logic or consistency in standing analysis. But it is worth thinking about.

Posted by Howard Wasserman on December 18, 2020 at 11:56 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Malevolence + Incompetence = No Standing

That is the gist of the Per curiam decision dismissing the challenge to exclusion of undocumented persons from the census for lack standing/ripeness (at this point they are the same and we should stop treating them as distinct). Government agencies are struggling to identify undocumented persons and exclude them from the count--in other words, struggling to implement the presidential memorandum--by the December 31 deadline. This creates "contingencies" and "speculation" as to the extent of the harm (how many millions of people will be identified and affected) that "impedes judicial review."

Breyer dissented for Sotomayor and Kagan. Money quotation:

To repeat, the President’s stated goal is to reduce the number of Representatives apportioned to the States that are home to a disproportionate number of aliens without lawful status. The Government has confirmed that it can identify millions of these people through administrative records. But if the Census Bureau fails to fulfill its man-date to exclude aliens without lawful status and reduce the number of Representatives to which certain States are en-titled, it will be for reasons not in the record. Where, as here, the Government acknowledges it is working to achieve an allegedly illegal goal, this Court should not de-cline to resolve the case simply because the Government speculates that it might not fully succeed.

Otherwise, we have a new principle: Plaintiffs lack standing if government is too incompetent to get its shit together and commit the violation it intends, as a matter of announced formal policy, to commit.

Oh, and I forgot to add: I presume folks in the Trump Administration now believe standing requirements are great and necessary constitutional bulwarks and not technicalities and dodges wielded by fearful Justices.

Posted by Howard Wasserman on December 18, 2020 at 10:30 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, December 17, 2020

Departmentalism and the First Amendment

Last month I speculated that government officials might enact laws they know will not survive judicial review but that make good political and constitutional statements.

Case in point is the bill that New York Governor Andrew Cuomo signed Wednesday. The bill prohibits the state from selling or displaying "symbols of hate," defined to "include, but not be limited to, symbols of white supremacy, neo-Nazi 10 ideology or the Battle Flag of the Confederacy." And it calls for the enactment of measures to prohibit the sale of symbols of hate on the grounds of the state fair or other fairs receiving public funds. The first clause is fine, although largely symbolic (not sure how many New York office buildings are flying swastikas). The second is almost certain to be declared invalid if challenged in court; the prohibition is a viewpoint-discriminatory restriction on speech that will occur in a limited public forum.

Cuomo acknowledged that constitutional questions surround the bill and promised to work with the legislature on "technical changes" to correct potential constitutional problems, although I am not sure what small change will save the fairgrounds portion. Eugene Volokh points out that the law likely cannot be challenged at this point because it does not ban anything; it orders a state agency to enact regulations. Perhaps this is why Cuomo believes there is an opportunity for changes that avoid constitutional problems.

Cuomo explained his reason for signing despite the constitutional questions:

This country faces a pervasive, growing attitude of intolerance and hate — what I have referred to in the body politic as an American cancer,” Cuomo wrote in his approval message.

“By limiting the display and sale of the confederate flag, Nazi swastika and other symbols of hatred from being displayed or sold on state property, including the state fairgrounds, this will help safeguard New Yorkers from the fear-installing effects of these abhorrent symbols.”

So did Cuomo act in an "unconstitutional manner" or violate his constitutional oath? It depends on whether he believes the law is valid, apart from what courts might conclude. And the concerns Cuomo describes--intolerance and hate is a problem--can be part of the legislative and executive calculus. He seems to be trying to thread a needle here--signing a broad law for show, then attempting to dial it back to address constitutional concerns. But in a broad departmentalist sense, what he did is fine.

Is there a difference between what Cuomo and New York did here and what other states have done with strict abortion bans? None of these laws will survive judicial review under current jurisprudence. One difference is that the abortion bans are designed to create litigation with the hope/expectation that a different SCOTUS majority will change its constitutional interpretation and render the laws valid. I doubt Cuomo expects SCOTUS to change its views on hate speech, viewpoint discrimination, or public forums. Should that matter to how we evaluate a departmentalist executive?

Posted by Howard Wasserman on December 17, 2020 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Sunday, December 13, 2020

Not a technicality, still a distraction (Updated)

Standing is the word of the weekend, as the lame-duck President took to Fox to decry the reliance on "little technicalities, like a thing called standing," before expressing shock and awe that "the President of the United States does not have standing."

I prohibit my students from using the word "technicality" in class or in their work. Another word for technicality, I tell them, is "the law." It is not a technicality when evidence is excluded because police executed an unlawful search, because there are laws prohibiting police from doing that and those laws are no less important than the law prohibiting some action as a crime. And it is not a technicality when a court dismisses (or refuses to hear) case because it lacks the authority to hear it (as standing is understood), because the laws limiting the court's adjudicative authority is as important as the Electors Clause.

Update: Trump later tried his hand at textualism, insisting that SCOTUS' original jurisdiction is enumerated in the Constitution. But so is standing (descriptively derived as it is from the "case or controversy" language), in the prior clause of the same section of the same article.

Trump's complaint also ignores that one court found standing before rejecting all the merits arguments. The court's standing analysis is debatable. I agree that Trump was injured and that an injunction prohibiting certification would remedy that injury (subject to whatever happens next under state law). But any standing here would have been Third Party standing--Trump asserting the rights of the Wisconsin legislature to set election rules. The court either needed to find the other elements of third-party standing (close connection between Trump and the real right-holder and some barrier to the right-holder asserting its rights) or conclude that, as in Bond v. U.S., a party with standing can assert any alleged constitutional defect in a law.

All that said, I continue to believe that standing is jurisdictionalized merits. What courts have made a jurisdictional threshold is a merits determination: "Your constitutional/statutory rights have not been violated in this case because the law does not recognize those rights, so you lose on the merits." That is what standing measures--"perhaps the Constitution or law was violated in some way, but it did not affect you so you cannot be the one to pursue the claim and obtain a judicial remedy." Would we be better off if courts spoke about it in those terms, rather than as a threshold that can be waved away by non-lawyers as a technicality?

Posted by Howard Wasserman on December 13, 2020 at 01:02 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)